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UPSC Law Optional Mains Notes

PARLIAMENTARY PRIVILEGES | UPSC LAW OPTIONAL MAINS NOTES

Legislative powers, privileges and immunities WHY SHOULD WE GIVE PRIVILEGES TO PARLIAMENT ? (UPSC 2004) With a view to enable Parliament : to act and discharge its high functions effectively, without any interference or obstruction from any quarter, without fear or favour.(UPSC 2008) FOR WHOM ? To each House collectively, and to the members thereof individually. TO MEMBERS : Wider personal liberty and freedom of speech than an ordinary citizen. Even to non-members are under the Constitution entitled to speak and take part in the proceedings of a House or any of its committees. These persons are Ministers and the Attorney-General. TO HOUSE : 1.It may vindicate its authority, prestige and power and protect its members from any obstruction in the performance of their parliamentary functions 2.In order to enable the House to fulfil its constitutional functions, to conduct its business and maintenance of its authority. 3.The privileges of a House have two aspects—(i) external, and (ii) internal. EXTERNAL | They refrain anybody from outside the House to interfere with its working. This means that the freedom of speech and action are restricted to some extent. INTERNAL | The privileges also restrain the members of the House from doing something which may amount to an abuse of their position. SOURCE : Article 105 and 194 defines the privileges of the two Houses of Parliament and for State Legislatures respectively. Only a few privileges is defined in constitution, for the rest, it assimilates the position of a House to that of the House of Commons in Britain. COMMITTEE OF PRIVILEGES : 1)Each House of Parliament has a Committee of Privileges to advise it in matters affecting its powers, privileges and immunities as well as those of its members and committees. 2) The Lok Sabha Committee consists of fifteen members nominated by the Speaker; the Rajya Sabha Committee has ten members nominated by the Chairman. 3)The necessary reference may be made to the committee either by the Speaker or the Chairman suo motu, or by the House upon a motion of a member. 4)FUNCTION : It discharge its functions objectively with a judicial approach and in a non-political or non-partisan manner because, in a way, in deciding whether its privilege has been infringed or not, the committee is acting as a judge in its own cause. To examine every question referred to it and to determine with reference to the facts of each case whether a breach of privilege is involved. 5)POWERS: It can call for oral and documentary evidence. The committee may administer oath or affirmation to a witness examined before it,The committee may make such recommendations to the House concerned as it may deem fit. The recommendation of the committee is not binding on the House which may accept, modify or even reject the same.Whenever some one is arraigned before the committee for breach of parliamentary privilege, it is necessary that he be given a full and fair opportunity to defend himself and explain his conduct. I.Privileges Expressly Conferred by the Constitution : a)Freedom of Speech b)Publications under Parliamentary Authority c)Rule-making Power d)Internal Autonomy II.Other Privileges : a)Freedom from Arrest b) Inquiries c)Disciplinary Powers over Members d)Freedom from Jury Service e)Privacy of Debates f)Publication of Proceedings g)Power to punish for contempt Legislative powers, privileges and immunities PRIVILEGES EXPRESSLY CONFERRED BY THE CONSTITUTION a)FREEDOM OF SPEECH : What is the essence of parliamentary democracy ? It is a free, frank and fearless discussion in Parliament. NO PENALIZATION : To express themselves freely in the House, it is essential to immunize them from any fear that they can be penalised for anything said by them within the House. WHY? The rule of freedom of speech and debate in Parliament became established in Britain in the 17th century in the famous case of Sir John Eliot. Eliot was convicted by the Court of King’s Bench for seditious speeches made in the House of Commons. The House of Lords reversed this decision on the ground inter alia that the words spoken in Parliament should only be judged therein. Finally, the Bill of Rights, 1688, laid down that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place outside Parliament. A member may thus say whatever he thinks proper within the House and no action can be brought against him in any court for this. IN INDIA : In India, the freedom of speech in Parliament has been expressly safeguarded by Arts. 105(1) and (2).  Art. 105(1) says: “Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament”. The corresponding con-stitutional provision for the State Legislatures is Art. 194(1). Article 105(1) secures freedomof speech in Parliament to its members. This freedom is “subject to the provisions of this Constitution”. These words have been construed to mean subject to the provisions of the Constitution which regulate the procedure of Parliament., i.e. Arts. 118 and 121. Article 105(2) confers immunity in relation to proceedings in courts. It says that no member of Parliament is liable to any ‘proceedings’ in any court “in respect of” anything said, or any vote given in Parliament, or a committee thereof. The word ‘proceedings’ means any proceeding civil, criminal or even writ proceedings.Nothing said within a House is actionable or justiciable. This freedom is, however, subject to the provisions of the Constitution. 1)SHOULD NOT SPEAK ABOUT CONDUCT OF THE JUDGES : A constitutional restriction imposed by Art. 121 on this freedom is that no discussion can take place in any House with respect to the conduct of a Supreme Court or a High Court Judge in the discharge of his duties except when a motion for his removal is under consideration. WHY ? This provision is very essential to protect the integrity of the judiciary so that it can function without being subjected to political pressures and criticism which it cannot meet or answer publicly. ONLY THE PRESIDING OFFICER CAN DETERMINE THE VIOLATION OF ART.121: However, the question whether a member has contravened Art. 121 while speaking in the House is one for determination by the presiding officer of the House and not for the court. RULES OF PROCEDURE CAN REGULATE THE FREEDOM OF SPEECH: Further, the rules of procedure of a House can curtail the members’ freedom of speech so that the freedom may not degenerate into an unrestrained licence of speech. If a member exceeds the limits imposed on this freedom by the Constitution or the rules of procedure of the House, he can be dealt with by the Speaker, or the House itself, but not by a court. WHY? The Rajya Sabha has decided that a Parliament member cannot be questioned in any court or any place outside Parliament for any disclosure he makes in Parliament. The reason is that if such questioning is permitted, it would amount to interference with his freedom of speech in Parliament. FOR COMPLETE NOTES SUBSCRIBE TO OUR UPSC LAW OPTIONAL MAINS COURSECall / Whats app : 6382125862 Email : lawxpertsmv@gmail.com Website : www.lawxpertsmv.com Telegram group link : https://bit.ly/37rrcC8 App link :https://bit.ly/3kjznEe

UPSC Law Optional Mains Notes

STATE SUCCESSION - INTERNATIONAL LAW - UPSC LAW OPTIONAL MAINS NOTES

DEFINITION : Replacement of one state by another in the responsibility for the international relations of territory. TWO TREATIES ON STATE SUCCESSION : The international aspects of succession are governed through the rules of customary international law. Vienna Convention on Succession of States in Respect of Treaties, 1978, which entered into force in 1996, and Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, 1983, which is not yet in force. However, many of the provisions contained in these Conventions reflect existing international law. ROLE OF INTERNATIONAL LAW : To provide a general framework to regulate these changes with the minimum of disruption and instability. ISSUES INVOLVED IN CHANGES IN POLITICAL SOVEREIGNTY OVER A PARTICULAR TERRITORIAL ENTITY : 1. How far the new state will be bound by - treaties, contracts, debts- entered by the previous sovereign state. 2. Inhabitants- nationality issue ? 3. What happens to Public property of the previous sovereign? 4. To what extent the new authority liable for the debts of the old?  Where a new entity emerges, one has to decide whether it is a totally separate creature from its predecessor, or whether it is a continuation of it in a slightly different form. 1 – CONTINUITY PRINCIPLE BY INHERITANCE:  Origin: Roman law  Concept: New state has to saddle the burden + benefits  of its predecessor. Example: India is a continuation of British India whereas Pakistan is new state altogether. 1.Not accepted widely. 2.Cession/ secession of a territory will not affect existing state. Eg: Pakistan remains as a state even after independence of Bangladesh. 3.But when a state is dismembered so that all of its territory falls within the territory of two or more states, these rights and duties will be allocated as between the successor states. In deciding whether continuity or succession has occurred with regard to one of the parties to the process, one has to consider the classical criteria of the creation of statehood, together with assertions as to status made by the parties directly concerned and the attitudes adopted by third states and international organisations. 4.RELEVANCE OF THIS PRINCIPLE : You can easily continue membership in International organs of your predecessor.  Eg: USSR dissolution; Russian federation took its membership. 5.IMPLICATION OF RESTORATION OF TERRITORY : 1.Till 1940 - Baltic state was an independent state ; 2.After 1940 it came under USSR control until 1990. 3.In 1991, after dissolution of USSR , Baltic states declared independence.  4.Question was : whether it will continue with Right and duties of USSR or can be restored with Rights & Duties of Baltic States on as on 1940 . 6. CASE OF DISSOLUTION OF YUGOSLAVIA: Two dismembered state maintained that it's a continuation of its predecessor but International community didn't accept it. Then it changed its position & requested UN for membership & be treated as a new member. 2 - Clean slate principle: Origin: Positivism trends. It basically denied any transmission of rights, obligations and property interests between the predecessor and successor sovereigns, arose in the heyday of positivism in the nineteenth century. With the rise of the decolonisation process in the form of the ‘clean slate’ principle, under which new states acquired sovereignty free from encumbrances created by the predecessor sovereign. Concept:  I am a new born child. I have my own style. "a new state is not bound to maintain in force, or become a party to, any treaty by reason  only of the fact that at the date of the succession of states the treaty was in force  in respect of the territory to which the succession of states relates" Article 16 of the VCS 1978 FOR COMPLETE NOTES SUBSCRIBE TO OUR UPSC LAW OPTIONAL MAINS COURSES Call / Whats app : 6382125862 Email : lawxpertsmv@gmail.com Website : www.lawxpertsmv.com Telegram group link : https://bit.ly/37rrcC8 App link : https://bit.ly/3kjznEe

JUDICIAL SERVICE NOTES

DETAILED NOTES ON SECTION 173 CRPC | POLICE REPORT ON COMPLETION OF INVESTIGATION

 SECTION 173 |  REPORT OF POLICE OFFICER ON COMPLETION OF INVESTIGATION What section 173 says ? Section 173 deals with the report of police officer on completion of investigation. This would be “final” or “last report” or “Completion Report” which should be submitted “as soon as” the police investigation is completed.  SCOPE OF SECTION 173 Application | This section is applicable to both investigation of cognizable case as well as to non-cognizable case. Until filing of report, the investigation is said to be pending.  Action | This section commands investigating authority to complete the investigation expeditiously without unnecessary delay and after completion, police report (in the form prescribed by state government) shall be forwarded to magistrate, who is  empowered to take cognizance of offence.Magistrate cannot compel the police officer to submit the charge-sheet.  Once the investigating agency completes their function of investigating into the offences it is the Court in which the charge-sheet is filed which is to deal with all matters relating to the trial of the accused including matters falling within the scope of section 173(8) of the Code. Major Content | Police report under Section 173 contains facts and conclusions drawn by investigating officer.  Caution | Magistrate is not bound by the conclusions drawn by investigating officer. In case final report is filed the court should scrutinize the final report and take a decision either to accept or reject it. Other Important points :  Once a charge-sheet is filed under section 173(2), Code of Criminal Procedure, 1973 and either charge is framed or the accused are discharged, the Magistrate may, on the basis of a protest petition, take cognizance of the offence complained of or on the application made by the Investigating Authorities permit further investigation under section 173(8).The Magistrate cannot suo motu direct a further investigation under section 173(8), Code of Criminal Procedure, 1973 or direct a re-investigation into a case on account of the bar of section 167(2) of the Code.The Magistrate may decide to take cognizance and issue process even if police has recommended that there is no sufficient ground to proceed. If the Magistrate decides to drop the proceedings on filing of final report then he sends a notice to the informant. A protest petition can be filed by informant.The taking of cognizance by the court on basis of a police report is a judicial discretion, and when the complainant raises objection to the acceptance of police report,  and if the court the overrules such objections, then it has to record the reason for the same. Else it would be aside.Once a Report under section 173(2) of the Code has been filed, it can only be canceled, proceeded further or the case may be closed by the Court of competent jurisdiction and that too in accordance with law. Neither the Police nor a specialized investigating agency has any right to cancel the said Report. Section Explained ! Section 173 (1) provides that every investigation must be completed without unnecessary delay. Inordinate delay in submitting final report may lead to the grievance that investigation is carried on unfairly or with any ulterior motive. Section 173 (1-A) (inserted by Cr. P.C. (Amendment) Act, 2008) provides that investigation in relation to rape of child may be completed within 2 months from the date on which First Information Report was recorded.  Section 173(2) provides that police report is forwarded to the Magistrate who is empowered to take cognizance of the offence, by the officer-in-charge of a police station. FOR JUDICIAL SERVICE COURSES CONTACT US –  STATE SPECIFIC COURSES AVAILABLE  Call/ Whats app : 6382125862  E- mail : lawxpertsmv@gmail.com Website : www.lawxpertsmv.com  DETAILED CONTENTS OF POLICE REPORT  A police report must state the following particulars:  (i)Name of the parties  (ii)Nature of information  (iii)Names of the persons acquainted with the circumstances of the case.  (iv)Whether any offence appears to have been committed and if so, by whom.  (v)Whether the accused has been arrested.  (vi)Whether the accused has been released on his bond & if so whether with or without sureties. (vii)Whether he has been forwarded in custody under Section 170  (viii)In case of offence under Section 376, 376-A-D of Indian Penal Code, whether medical report of the woman has been attached. The officer-in-charge of police station should also communicate the action taken by him to the person by whom the information was first given.  The Magistrate is competent to direct further investigation even after taking cognizance of offence on the basis of police report under section 173(2). Where a superior police officer is appointed under Section 158 the report shall be submitted through that officer (if the State Government so directs) and pending the order of the Magistrate, such superior officer may direct the officer-in-charge of police station to make further investigation.The magistrate should in all cases scrutinize the facts given in the final report carefully and read the police diary etc, and if it appears to him that there is scope for further investigation he may decline to accept the final report and direct the police to make further investigation under section 156(3) but he cannot impinge upon the jurisdiction of the police by compelling them to change their opinion and to submit a charge-sheet so as to accord with his opinion.  Section 173 (5) the police officer is under a duty to forward to Magistrate along with his report: (1) all documents and relevant extracts. (2) the statements recorded under Section 161. If police officer investigating the case finds in convenient to do so he may furnish to the accused copies of all any of the documents.  FURTHER INVESTIGATION  Section 173(8) permits further investigation by the investigation officer. Even without the order of Magistrate investigating officer is free to conduct further investigation. Such investigation can be con ducted even if police report is submitted under Section 173(2).  Neither the prosecution nor the informant can claim as a matter of right a direction for further investigation.  Recent Case law | Satish Kumar Nyalchand Shah v. State of Gujarat, AIR 2020 SC : The Supreme Court has reiterated that, court is not obliged to hear the accused before any direction for further investigation is made under Section 173(8) of the Code. The submission of report under Section 173 (2) does not preclude further investigation under Section 173(8). Can a magistrate order investigation by any different agency like CBI? In Chandra Babu v. State (2015) 8 SCC 774, it was held that superior courts have been empowered to order investigation by any other agency or can transfer investigation from one agency to another, but magistrate has no such powers. Call / Whats app : 6382125862 Email : lawxpertsmv@gmail.com Website : www.lawxpertsmv.com Telegram group link : https://bit.ly/37rrcC8 App link :https://bit.ly/3kjznEe

UPSC Law Optional Mains Notes

Administrative relationship between State and Centre | UPSC Law Optional Mains Notes

A. DISTRIBUTION OF EXECUTIVE POWER: ROLE OF ADMINISTATION : Enforcing the law and promoting social-economic welfare of the people. The modern era has been characterized as the administrative age in which much depends on an effective administration. HOW THE POWER IS DISTRIBUTED ? 1. Constitution allocates most of administration to the states ; only few agencies of national importance directly administered by the Centre. Example : .defence, foreign affairs, railways, collection of taxes, regulation of foreign trade, foreign exchange and currency, centrally controlled industries, etc HOW >   Many functions in the Central List are delegated to the States under Art. 258(1), or under legislation, and in some areas co-operation of State agencies is sought informally. RESPONSIBILITY OF THE STATES :   1. On the other hand, the States have responsibility to administer all the functions falling in List II. 2.  In addition, the administration of functions in the Concurrent List also belongs to them unless Parliament by passing a law confers power of administration in a particular matter on the Centre. 3. Further, the States also administer such functions in List I as are delegated to them. REALITY: 1. EVEN CENTRAL LAW IS ENFORCED BY THE STATES : The law enforcement machinery, like the police, etc., wholly belongs to the States and, therefore, even if a Central law makes an activity penal, the efficacy of the law, by and large, depends almost wholly on the zeal with which the States seek to enforce it. It is not uncommon to see that many Central laws are diluted and remain mere paper legislation because of weak and indifferent administration by the States. 2. WEAK LINK OF CENTRE-STATES IS INDIAN FEDERALISM : Opinions have been expressed from time to time that too much dependence by the Centre on the States for purposes of administration is the weak link of the present-day Indian Federalism. 3. SUPERVISION IS REQUIRED  : It is also necessary to develop a Central mechanism for a close and effective Central supervision and inspection over an effective aided State activities. · The performance of the States ought to be audited and watched closely by federal officers before releasing further grants to the States.   · In the U.S.A., this mechanism is extensively adopted. At the same time, in view of the known inadequacies and deficiencies in the State administration, it is also necessary to strengthen the same so as to make it more efficient. · WHY STATES SHOULD BE RESPONSIBLE  ? The States have to play a meaningful role as administrative entities because they are the nearest to the people, and much of the well-being of the people depends on effective State administration. OTHERWISE TENSION WOULD ARISE : Tensions are bound to arise if there is a lack of balance between the responsibilities of the States and their administrative capacity. · It is, therefore, necessary, even crucial, to devise ways and means to improve the effectiveness of administration at the State level. It is extremely necessary for the future well-being of the Nation that the States be in a position to discharge their role as robust administrative units. COMPARATIVELY DETAILED THAN OTHER CONSTITUTIONS: The Indian Constitution contains more elaborate provisions regarding administrative relations between the Centre and the States than are to be found in any of the three Federations of the U.S.A., Canada and Australia. 1. HOW IS IT? Administrative responsibilities between the Centre and the States: · is flexible and permissive, and not a rigid, scheme of allocation · is so designed as to permit all kinds of co-operative administrative arrangements between the two levels of government. LEGISLATIVE POWER = EXECUTIVE POWER : The general principle followed in this connection is that the executive power is coextensive with legislative power. 2. WHAT IS AN EXECUTIVE POWER ? Art. 73 or 162 does not contain any definition as to what the executive function is, or gives an exhaustive enumeration of the activities which could legitimately come within its scope. · A government in exercise of its executive powers is charged with the duty and the responsibility of framing policies and carrying on the general administration. So long as it does not go against any constitutional provision or any law, the width and amplitude of its executive power cannot be circumscribed. WHAT IF, THERE IS NO LAW/CONSTITUTIONAL PROVISION TO DELINEATE THE SCOPE : If there is no enactment covering a particular aspect, the government can carry on the administration by issuing administrative instructions until the legislature chooses to make a law in that behalf.   EXAMPLE : Thus, a State Government can establish a bureau of investigation for investigation of cases of tax evasion, or create a new district, or prescribe syllabus or text books for schools, in the exercise of its executive power. However, a government cannot in exercise of its executive power infringe the rights of the people. If any governmental action is to operate to the prejudice of any person, it must be supported by law A. EXECUTIVE POWER OF THE CENTRE : The scope and extent of the executive power of the Centre extends— 1) to the exercise of rights, authority and jurisdiction available to the Government of India under a treaty or agreement; and 2) to the matters with respect to which Parliament has power to make laws, subject to this exception, however, that it does not extend in a State with respect to matters regarding which the State Legislature also has power to make laws save when expressly provided in the Constitution or a law made by Parliament [Art. 73]. This means that the executive power with respect to the matters in the Concurrent List ordinarily remains with the States unless the Constitution or Parliament by law expressly provides otherwise. A. EXECUTIVE POWER OF THE STATE : 1) A State’s executive power extends to its territory in respect of matters in List II. 2) In respect of matters in which both the Centre and the States have legislative powers (which means List III and List II in cases falling under Arts. 249, 250, 252, 353 and 356), ordinarily, the executive power rests with the States except when either the Constitution, or a law of Parliament, expressly confers it on the Centre. ALTERNATIVES : If the Centre makes no law, the executive power rests with the States. When the Centre makes a law, it can adopt any of the following alternatives regarding executive power under that law a) it can leave it with the States, or b) it may take over the entire administrative power itself by making an express provision in the law to this effect; or c)  it may create a concurrent area by taking a part of the executive power itself and leaving the rest to the States. 1. CENTRAL LAW – EXECUTION BY STATES:  In the Concurrent field, therefore, ordinarily the authority to execute laws rests with the States even when the law is passed by the Centre. EXAMPLE :  Under the Electricity (Supply) Act, 1956, enacted by Parliament under entry 38, List III, administrative powers have been left wholly with the State Governments. 2. CENTRAL LAW WITH CENTRE ALONE (OR) SHARED WITH STATES : In exceptional cases, however, Parliament may prescribe that the execution of a Central law shall be with the Centre alone, or with both the Centre and the States. EXAMPLE: Under the Forest (Conservation) Act, 1980, the Centre has assumed the entire responsibility for administration of the Act. 3. ALTHOUGH POWER VESTED WITH CENTRE, IMPLEMENTED BY STATES :In this field, even after the Centre assumes executive power under its law, the residuary executive power under the entry may still rest with the States. EXAMPLE : Under the Essential Commodities Act, enacted by Parliament under entry 33, List III, the whole of the power is vested in the Central Government which, however, delegate power to the States to any extent it deems desirable. In actual practice, Centre has delegated a good deal of power under this Act to the States. BUT WHY ? · While there may be centralization in the sphere of legislation, there is lot of decentralisation in the area of administration. This is because the Centre has not established a separate machinery of its own to execute most of its laws. Administration of a number of matters in the Union list and most of the matters relating to them, is secured through the machinery of the States. Call / Whats app : 6382125862 Email : lawxpertsmv@gmail.com

UPSC Law Optional Mains Notes

Legislative relationship between State and Centre | UPSC Law Optional Mains Notes

AN EXCLUSIVE AREA FOR THE STATE : ART.246(3) Article 246(3) confers an exclusive power on the States to make laws with respect to the matters enumerated in the State List (List II in the Seventh Schedule). These are matters which admit of local variations and, from an administrative point of view, are best handled at the State level and, therefore, the Centre is debarred from legislating with respect to these matters. Art. 246(3) opens with the words: “subject to clauses (1) and (2)”. Thus, if a particular matter falls within the exclusive competence of the States, i.e. List II, that represents the prohibited field for the Centre. TWO-FOLD : DISTRIBUTION OF LEGISLATIVE POWERS : UPSC 2016 In the Indian federation, a division of  legislative functions between Centre and States is two-fold :- (i) Territory =  For a particular place a unit can legislate. (ii) The subject-matter = For a Particular thing (say Income Tax – Only centre can make law)  a unit can legislate. TERRITORIAL JURISDICTION TO LEGISLATE :       PARLIAMENT :  Parliament can make law for a) whole of the India b) Part of it c) on extra-territorial basis.Extra-territorial law is not invalid i.e., valid.[Art. 245(2)]. KANIA, C.J., in A.H. Wadia v. Income-tax Commissioner : Although it may offend rules of International law or may not be recognized by foreign courts or may have practical difficulties = but this is not concern of municipal courts. STATE LEGISLATURE : A state legislature can make laws for the state concerned (for its own territory). [Art. 245(1)]. It cannot make a law having extra-territorial operation. : DOCTRINE OF TERRITORIAL NEXUS : With the help of this doctrine, we can find whether a particular object, for which the law applies, has any connection(nexus) with the state concerned. A State may levy a tax on a person, property, object or transaction not only when it is situated within its territorial limits, but also when it has a sufficient and real territorial connection with it.   Wallace v. Income-tax Commissioner, AIR 1948 P.C. 118 : Although a company is incorporated in U.K., Indian state can levy tax on its whole income as the substantial part of profits is from India.  Therefore there was a sufficient territorial nexus between the company and India for this purpose. State of Bihar v. Charusila Das : Bihar Hindu Religious Trusts Act, 1950 : for the protection and preservation of properties appertaining to the Hindu religious trusts.  This act cannot be extended outside the territory of Bihar as it doesn’t have real connection. State of Bombay v. RMDC Prize competition conducted through newspaper, published outside the State.  HELD: It was held valid because the newspapers although printed and published outside Bombay had a wide circulation there; they had collectors in Bombay to collect the entry fee for the competition. There is a sufficient territorial nexus. DISTRIBUTION OF LEGISLATIVE POWERS :  WHAT IS THE MAIN FEATURE OF FEDERAL CONSTITUTION ?   The most important characteristic of a federal constitution is the distribution of legislative powers between the Centre and the regions.  The foundation for a federal set up was laid in the Government of India Act, 1935 What other subjects should be allotted to the Centre depends on the Centralisation V. De-centralisation debate. Exigencies of the situation existing in the country, The attitudes of the people and The philosophy prevailing, at the time of constitution-making, and The future role which the Centre is envisaged to play. 1.THE THREE LISTS : INDIAN CONSTITUTION :  UPSC 2005The scheme of the Constitution is to secure a constitutionally strong Centre having adequate powers both in extent and nature so that it can maintain and protect the unity and integrity of the country. UNDER ARTICLE 246 : The Indian Constitution seeks to create three functional areas: 1.an exclusive area for the Centre; 2.an exclusive area for the States; and 3.a common or concurrent area in which both the Centre and the States may operate simultaneously, subject to the overall supremacy of the Centre.AN EXCLUSIVE AREA FOR THE CENTRE : ART.246(1) : Article 246(1) confers on Parliament an ‘exclusive power’ to make laws with respect to any of the matters in the Union List (List I in the Seventh Schedule). EFFECT OF ABOVE-MENTIONED PROVISION : This means that if any matter is within the exclusive competence of the Centre i.e. List I, it becomes a prohibited field for the States.WHY EXCLUSIVE : Art. 246(1) opens with the words: “Notwithstanding anything in clauses (2) and (3).”RESULT : Uniform law for the whole country.The Union List has 99 entries in VII SCHEDULE. Entries 1 to 81, 93 to 95 and 97 deal with general legislative powers, and entries 82 to 92, 96 and 97 deal with power to levy taxes and fees. AN EXCLUSIVE AREA FOR THE STATE : ART.246(3) Article 246(3) confers an exclusive power on the States to make laws with respect to the matters enumerated in the State List (List II in the Seventh Schedule). These are matters which admit of local variations and, from an administrative point of view, are best handled at the State level and, therefore, the Centre is debarred from legislating with respect to these matters. Art. 246(3) opens with the words: “subject to clauses (1) and (2)”. Thus, if a particular matter falls within the exclusive competence of the States, i.e. List II, that represents the prohibited field for the Centre.CONCURRENT ARENA FOR CENTRE AND STATES, WITH SUPREMACY OF THE CENTRE WHY CONCURRENT LIST ? There may be certain matters which are neither of exclusively national interest, nor of purely State or local concern. Art. 246(2) confers a concurrent power of legislation on both the Centre and the States with respect to the matters enumerated in the Concurrent List (List III in the Seventh Schedule). USE : The Centre can intervene in the area without any need to amend the Constitution. It permits of diversity along with a unity of approach. The phraseology of the various clauses of Art. 246 is such as to secure the principle of Union supremacy.   Arts. 246(1) [Union List] + 246(2) [Concurrent List]  >  power conferred on the State Legislature under Art. 246(3) [State List]. CONCURRENT LIST : LIST III : The Concurrent List comprises 52 items. The States are competent to legislate with respect to matters in this List, subject to the rule of repugnancy contained in Art. 254. Then, some subject-matters of legislation may be multi-faceted and so they cannot be assigned exclusively either to the Centre or the States. These matters are such that both the Centre and the States may have common interest therein.PRINCIPLES OF INTERPRETATION OF THE LISTS : (UPSC 2012,2003) EACH ENTRY TO BE INTERPRETED BROADLY :  Entries cannot be set out with scientific precision or logical definition. Each general word in an entry should be held to extend to all ancillary or subsidiary matters/‘widest possible’ / ‘most liberal’ construction . Hans Muller v. Superintendent, Presidency Jail, Calcutta.  However,the legislature to make a law relating to a matter which has no rational connection with the subject-matter of the concerned entry. WHY ? Legislative power on the Centre and the States is conferred by Art. 246 and not by the entries in the three legislative lists. B HARMONIOUS INTERPRETATION OF ENTRIES :  Whenever there is overlap or may appear to be in direct conflict with each other. CONDITION 1 : APPLY HARMONIOUS CONSTRUCTION : It is the duty of the court to reconcile the entries and bring about a harmonious construction. CONDITION 2 : NON-OBSTANTE CLAUSE : If the entries come in inevitable or irreconcilable conflict ; no such reconciliation can done, then, centre law will prevail over the state law. C RULE OF PITH AND SUBSTANCE : (UPSC 2015,1993,1996,2001) GENERAL RULE: Parliament or a State Legislature should keep within the domain assigned to it, and not trespass into the domain reserved to the other. A law made by one which trespasses or encroaches upon the field assigned to the other is invalid. TEST : This rule envisages that the legislation as a whole be examined to ascertain its ‘true nature and character’ in order to determine to what entry in which List it relates. WHAT IS NOT THE TEST : The name given by the legislature to the legislation is immaterial. It would be a wrong approach to view the statute as a mere collection of sections, to disintegrate it into parts and then to examine under which entry each part would fall and then to determine which part of it is valid and which invalid. WORKING OF THE RULE :  Lending = state list ; Negotiable Instruments =Central list. Lending cannot be without negotiable instruments. The Act was held valid even though as an ancillary effect it affected the negotiable instruments—a Central subject. D DOCTRINE OF COLOURABLE LEGISLATION The doctrine of colourable legislation is based on the maxim that what cannot be done directly cannot also be done indirectly. CONCERNED ABOUT COMPETENCY : The doctrine thus refers to the question of competency of the legislature to enact a particular law. the legislature is incompetent to enact a particular law, although the label of competency is stuck on it, and then it is colourable legislation # R.S. Joshi v. Ajit Mills NOT CONCERNED WITH MOTIVE : If the legislature has competency, question of bona fides or mala fides on the part of the legislature doesn’t arise.TEST ; disguised,covert or indirect transgression . WORKING OF THE RULE : State of Bihar v. Kameshwar : Clubbing through a state  law =  abolition of the landlord system + payment of compensation on the basis of income accruing to the landlord by way of rent. The provision was held to be a piece of colourable legislation and hence void under entry 42 List III.Call / Whats app : 6382125862 Email : lawxpertsmv@gmail.com Website : www.lawxpertsmv.com Telegram group link : https://bit.ly/37rrcC8 App link : "https://bit.ly/3kjznEe" 

UPSC Law Optional Mains Current Affairs

RIGHT TO PROTEST - UPSC LAW OPTIONAL MAINS CURRENT AFFAIRS 2020 /2021

PAPER 1 UPSC LAW OPTIONAL MAINS SUBJECT : INDIAN CONSITUTION ARTICLE 1 | SUDDEN, ORGANIC PROTESTS SHOULD NOT AUTOMATICALLY INVITE THE STATE’S STRONG ARM What happened ? With reference to Shaheen bagh protest, Supreme Court has ventured to hold that any such indefinite blockade of a public pathway is unacceptable. And that the administration ought to take action to remove “encroachments and obstructions” placed during such protests. Relevant provisions:   The Right to protest peacefully is enshrined in the Indian Constitution—Article 19(1)(a) guarantees the freedom of speech and expression; Article 19(1)(b) assures citizens the right to assemble peaceably and without arms. Article 19(2) imposes reasonable restrictions on the right to assemble peaceably and without arms. These reasonable restrictions are imposed in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. Relevant Case Law | Ramlila Maidan Incident v. Home Secretary, Union Of India & Ors. case (2012), the Supreme Court had stated, “Citizens have a fundamental right to assembly and peaceful protest which cannot be taken away by an arbitrary executive or legislative action.” Conclusion | The ruling should not form the basis for suppression of such protests by the force of the state. Both principles the need for balance between the right to protest and the right to free movement, and the rule that protests should take place at designated spots are salutary from an administrative point of view. But these cannot become unquestionable axioms to the point of rendering any and all protests that cause inconvenience to others the target of the strong arm of the state. Call / Whats app : 6382125862 Email : lawxpertsmv@gmail.com Website : www.lawxpertsmv.com Telegram group link : https://bit.ly/37rrcC8 App link : https://bit.ly/3kjznEe 

JUDICIAL SERVICE NOTES

Section 53 Cr.P.C | Notes for Judicial Service Examination

NOTES FOR JUDICIAL SERVICE | Section 53of Cr.P.C Concept of section 53 Cr.P.C |  deals with examination of accused by a medical practitioner at the request of the police office.  Conditions required | (1) a request is made by a police officer not below the rank of sub-inspector, (2) upon reasonable grounds which such officer bona fide entertains, (3) that an examination of the arrested person by a medical practitioner will afford evidence as to the commission of the offence. SCOPE OF SECTION 53 Requirements for a medical examination could be done ? When a medical examination be directed? Can medical examination be directed suo- moto by court ? Whether medical examination apply to examination of internal organs ? Use of force in medical examination !!!!! CASE LAW | Selvi & Ors vs State Of Karnataka  AIR 2010 SC 1974   Medical examination of the accused is done, a police officer not below the rank of sub-inspector has made a request This is made on reasonable grounds in a bona fide manner  if from the nature of the alleged offence or from the circumstances under which it was alleged to have been committed, there is reasonable ground for believing that such an examination will afford evidence. A medical examination of an arrested person can be directed during the course of an investigation, either at the instance of the investigating officer or the arrested person. It is also within the powers of a Court to direct such a medical examination on its own. Such an examination can also be directed in respect of a person who has been released from custody on bail as well as a person who has been granted anticipatory bail. The expression “examination of his person” cannot be confined only to external examination of the body. Many times it becomes necessary to make examination of some organs inside the body. Furthermore, section 53 of the Code contemplates the use of “force as is reasonably necessary” for conducting a medical examination. Therefore, whatever discomfort that may be caused when samples of blood and semen are taken from an arrested person, it is justified by the provisions of Sections 53 and 54, CrPC.( Ananth Kumar Naik v. State of Andhra Pradesh, 1977 Cri L J 1797 (A.P.)] Once a Court has directed the medical examination of a particular person, it is within the powers of the investigators and the examiners to resort to a reasonable degree of physical force for conducting the same. DNA profiling technique has been expressly included among the various forms of medical examination in the amended explanation to sections 53, 53A and 54 of the Code of Criminal Procedure, 1973. Why can an arrested person not resist against his medical examination under Section 53 of the Code of Criminal Procedure, 1973? If any person offers resistance to his production before a registered medical practitioner or on his production before such practitioner, offers resistance to the examination of his body or to the collection of his blood, the section also empowers the use of all means reasonably necessary to secure the production of such person or the examination of his body or the collection, of blood necessary for the test. Resistance to production before a registered medical practitioner or to the examination of the body or to the collection of blood is deemed to be an offence under Section 186 of the Indian Penal Code.

UPSC Law Optional Mains Current Affairs

UPSC LAW OPTIONAL MAINS CURRENT AFFAIRS 2020/ 2021 MAINS

UPSC LAW OPTIONAL MAINS CURRENT AFFAIRS 2020/ 2021 MAINS   EXPECTED MODEL QUESTIONS QUESTION 1 : The Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 is an Act of the Parliament of India enacted to prevent atrocities against scheduled castes and scheduled tribes – Discuss with recent issues Question 2 : Note “intentional insult” or “intimidation” with “intent” to humiliate a member of Scheduled Caste and Scheduled Tribe in any place within “public view” – Explain with legal provisions and cases PANCHAYAT SECRETARY, WARD MEMBER ARRESTED IN CUDDALORE It emerged that panchayat president Rajeshwari Saravana Kumar, from a Scheduled Caste, was forced to sit on the floor at panchayat meetings. Case was booked under Section 3 (1) (m) and (r) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act The Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 is an Act of the Parliament of India enacted to prevent atrocities against scheduled castes and scheduled tribes. Section 3: Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe :(m) forces or intimidates or obstructs a member of a Scheduled Caste or a Scheduled Tribe, who is a member or a Chairperson or a holder of any other office of a Panchayat under Part IX of the Constitution or a Municipality under Part IXA of the Constitution, from performing their normal duties and functions;(r) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine. Relevant Case: KESHAV REDDY S/O. RAMLU YELTIWAR v. THE STATE OF MAHARASHTRA:  The basic ingredients of Section 3(1)(r)(s) are that there must be “intentional insult” or “intimidation” with “intent” to humiliate a member of Scheduled Caste and Scheduled Tribe in any place within “public view”. It is to be noted that the mens rea would be the decisive factor in the offence under Act of 1989.

UPSC Law Optional Mains Notes

Notes on Article 15

Notes on Article 15 ARTICLE 15 OF CONSTITUTION OF INDIA Article 15 has two major components : Component 1 : Right against discrimination in public places Component 2: Positive discrimination for weaker sections of society Do you know what is positive discrimination ? Simple !!! Positive discrimination = the practice or policy of favoring individuals belonging to groups which suffered discrimination -since ancient India till now. COMPONENT 1 The following rights are guaranteed under Article 15 (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to— (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public. COMPONENT 2 The following positive discrimination measures are promised under Art 15 as follows: (3) Nothing in this article shall prevent the State from making any special provision for women and children. 1[(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.] 2[(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30. Clause (6) – discussed below OMG Article 15 is so lengthy : What does article 15 say ? EXPLANATION IN CRUX TO ART 15 Clause (1)- No discrimination rule on specified grounds by state. Clause (2) – No discrimination rule on specified grounds by state and private individuals. Clause (3) – Positive discrimination for women and children – enabling provision Clause (4)- Positive discrimination for socially and educationally backward classes Clause (5)- Admission in Educational Institution for socially and educationally backward classes. Clause (6) – Positive discrimination for Educationally backward classes COMPARISON OF SCOPE OF ART: 14 AND 15: What does Art 15 (1) do ? Article 15(1) prohibits differentiation on certain grounds . What are those grounds ? Religion, race, caste, sex, place of birth or any of them. What is SC view on  purpose of Art : 15 (1) ? Narasappa v. Shaik Hazrat : Art. 15(1) prohibits discrimination on grounds of religion or caste identities so as to foster national identity which does not deny pluralism of Indian culture but rather to preserve it. What is implication of Art: 15 and 14? COMBINED READING OF ARTICLE 15 AND 14: The combined effect of Arts. 14 and 15 that the state cannot pass laws  that create unreasonable inequality ( Art: 14 ) that discriminates on grounds of religion, race, caste, sex, or place of birth and not sanctioned by other clauses of art. 15. What are the ingredients of Art. 15 ? INGREDIENTS OF ART: 15(1):  This right against discrimination under Art: 15(1) is available only against state ( defined in art : 12). This right is guaranteed only to the citizens. Further only on limited grounds discrimination is prohibited viz:  religion, race, caste, sex place of birth or any of them. “DISCRIMINATION” under Art. 15: What do you mean by discrimination ? Literal Meaning : Discrimination = the unjust or prejudicial treatment of different categories of people Whether the term discrimination is defined in constitution ? No Then where can we find its meaning ? Case law ! What does SC say about discrimination ? CASE LAW 1 : Kathi Raining Rawat vs St. of Shaurashtra Held : Crusial word ‘discrimination’ = adverse distinction with regard to ‘ or ‘distinguishing unfavourably from others’ Conclusion : The word ‘discrimination’ in Art. 15(1) involves an element of unfavourable bias. What is the significance of the word ‘only ‘ in Art15 (1) ? ‘ONLY’ UNDER ART:15(I) : The article runs as follows: “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” SIGNIFICANCE : The importance of the word only is that if the discrimination is based on some ground not connected with the grounds set out in the article, but with some rational factor ( not hit by art: 14) then that discrimination would be valid # # Valsamma Paul v. Cochin University. GROUNDS OF DISCRIMINATION EXPLAINED !! DISCRIMINATION BASED ON RELIGION: CASE LAW 1 : Pragati Varghese v. Cyril George Varghese HELD : A rule that did not allow Christian woman to seek divorce on the grounds of cruelty and desertion while women under other systems can do so : declared invalid . REASON : It is to be discrimination on the ground of religion and this is also violative of Arts. 14 and 15 CASE LAW 2 : Lakshmindra Swamiar v. Commissioner, H.R.E HELD : law applicable to Hindu religious endowments only, and not to charitable and religious endowments belonging to other religions, has been upheld. REASON : Classification of religious endowments as Hindu, Muslim or Christian for  the better management of institutions. The distinction has existed for over a century and was not being made for the first time. This serve the object of the Act. DISCRIMINATION BASED ON RACE: CASE LAW : Bombay v Bombay Education Society  HELD : The case related to the policy of restricting admission to English speaking pupils, specifically of Anglo-Indian and European descent, in the English medium schools of Bombay. Declared to be not  violative of art 15 . DISCRIMINATION BASED ON CASTE: CASE LAW : Bhopal Singh v. State of Rajasthan HELD : A law providing for elections to municipalities on the basis of separate electorates for members of different religious communities delimitation of panchayat circles for purposes of election to a panchayat on the basis of castes, would offend Art. 15(1) DISCRIMINATION BASED ON SEX: CASE LAW : Kerala State Electricity Board , Thiruvanandapuram vs Siniya HELD : It was held that the exclusion of women not exclusively based on sex but taking into consideration the peculiar nature of duties to be performed by the electricity workers is not violative of Art:15 . DISCRIMINATION BASED ON PLACE OF BIRTH: CASE LAW : Shaikh Husein Shaik Mahomed HELD : Under the City of Bombay Police Act, while a person born outside Greater Bombay could be externed if he was convicted of any of the offenses mentioned therein, no such action could be taken against a person born within Greater Bombay. CONCLUSION : This was discrimination on the basis of ‘place of birth’ and so was invalid under Art. 15(1). CLASSIFICATION BASED ON RESIDENCE IS NOT DISCRIMINATION BASED ON BIRTH : CASE LAW : D.P. Joshi v. Madhya Bharat HELD : The residents of Madhya Bharat were exempted from payment of a capitation fee for admission to the State medical college, while the non-residents were required to pay the same. REASON : Under Art. 15(1) because the ground of exemption was ‘residence’ and not ‘place of birth’. Residence and place of birth are two distinct concepts with different connotations. Art. 15(1) prohibits discrimination on the basis of place of birth but not residence CLASSIFICATION BASED ON RESIDENCE TO EDUCATIONAL INSTITUTION IS REASONABLE : Education is a State subject. A State spends money on the upkeep of educational institutions. There is, therefore, nothing wrong in the State if it so orders the educational system that some advantage ensures for the benefit of the State. ARTICLE 15 (2) What does Art: 15 (2) says ? The second provision of Article 15 says that no citizen shall be subjected to any disability, liability, restriction or condition on grounds only of religion, race, caste, sex, or place of birth with regard to certain places. What are those places ?  (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, road and places of public resort maintained wholly or partly by State funds or dedicated to the use of general public. What is the speciality of this provision ? This provision prohibits discrimination both by the State and private individuals, while the former provision prohibits discrimination only by the State. CASE LAW : Arumugha v. Narayana UNDERSTANDING ON THE ARTICLE 15 (2) : On the basis of this provision, it has been held that if a section of the public puts forward a claim for an exclusive use of a public well, it must establish that the well was dedicated to the exclusive use of that particular section of the public and not to the use of the general public . What is public place ? NARROW VIEW  : A.M. Deane v. Commr. of Police : The place is a ‘place of public resort’ only if the public have access to it as a matter of legal right BROADER VIEW : A place of public resort as one to which members of the public are allowed access and where they habitually resortto # Liberty Cinema v. Corp. of Calcutta. CONCLUSION : The latter view appears to be more in accord with the tenor and purpose of the constitutional provision as it would bar discrimination on a wider front. Call / Whats app : 6382125862 Email : lawxpertsmv@gmail.com Website : www.lawxpertsmv.com Telegram group link : https://bit.ly/37rrcC8 App Link :https://bit.ly/3kjznEe

UPSC Law Optional Mains Notes

Notes on Article 15

Notes on Article 15ARTICLE 15 OF CONSTITUTION OF INDIA Article 15 has two major components : Component 1 : Right against discrimination in public places Component 2: Positive discrimination for weaker sections of society Do you know what is positive discrimination ? Simple !!! Positive discrimination = the practice or policy of favoring individuals belonging to groups which suffered discrimination -since ancient India till now. COMPONENT 1 The following rights are guaranteed under Article 15 (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to— (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public. COMPONENT 2 The following positive discrimination measures are promised under Art 15 as follows: (3) Nothing in this article shall prevent the State from making any special provision for women and children. 1[(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.] 2[(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30. Clause (6) – discussed below OMG Article 15 is so lengthy : What does article 15 say ? EXPLANATION IN CRUX TO ART 15 Clause (1)- No discrimination rule on specified grounds by state. Clause (2) – No discrimination rule on specified grounds by state and private individuals. Clause (3) – Positive discrimination for women and children – enabling provision Clause (4)- Positive discrimination for socially and educationally backward classes Clause (5)- Admission in Educational Institution for socially and educationally backward classes. Clause (6) – Positive discrimination for Educationally backward classes COMPARISON OF SCOPE OF ART: 14 AND 15:What does Art 15 (1) do ? Article 15(1) prohibits differentiation on certain grounds . What are those grounds ? Religion, race, caste, sex, place of birth or any of them. What is SC view on  purpose of Art : 15 (1) ? Narasappa v. Shaik Hazrat : Art. 15(1) prohibits discrimination on grounds of religion or caste identities so as to foster national identity which does not deny pluralism of Indian culture but rather to preserve it. What is implication of Art: 15 and 14? COMBINED READING OF ARTICLE 15 AND 14: The combined effect of Arts. 14 and 15 that the state cannot pass laws  that create unreasonable inequality ( Art: 14 ) that discriminates on grounds of religion, race, caste, sex, or place of birth and not sanctioned by other clauses of art. 15. What are the ingredients of Art. 15 ? INGREDIENTS OF ART: 15(1):  This right against discrimination under Art: 15(1) is available only against state ( defined in art : 12). This right is guaranteed only to the citizens. Further only on limited grounds discrimination is prohibited viz:  religion, race, caste, sex place of birth or any of them. “DISCRIMINATION” under Art. 15: What do you mean by discrimination ? Literal Meaning : Discrimination = the unjust or prejudicial treatment of different categories of people Whether the term discrimination is defined in constitution ? No Then where can we find its meaning ? Case law ! What does SC say about discrimination ? CASE LAW 1 : Kathi Raining Rawat vs St. of Shaurashtra Held : Crusial word ‘discrimination’ = adverse distinction with regard to ‘ or ‘distinguishing unfavourably from others’ Conclusion : The word ‘discrimination’ in Art. 15(1) involves an element of unfavourable bias. What is the significance of the word ‘only ‘ in Art15 (1) ? ‘ONLY’ UNDER ART:15(I) : The article runs as follows: “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” SIGNIFICANCE : The importance of the word only is that if the discrimination is based on some ground not connected with the grounds set out in the article, but with some rational factor ( not hit by art: 14) then that discrimination would be valid # # Valsamma Paul v. Cochin University. GROUNDS OF DISCRIMINATION EXPLAINED !! DISCRIMINATION BASED ON RELIGION: CASE LAW 1 : Pragati Varghese v. Cyril George Varghese HELD : A rule that did not allow Christian woman to seek divorce on the grounds of cruelty and desertion while women under other systems can do so : declared invalid . REASON : It is to be discrimination on the ground of religion and this is also violative of Arts. 14 and 15 CASE LAW 2 : Lakshmindra Swamiar v. Commissioner, H.R.E HELD : law applicable to Hindu religious endowments only, and not to charitable and religious endowments belonging to other religions, has been upheld. REASON : Classification of religious endowments as Hindu, Muslim or Christian for  the better management of institutions. The distinction has existed for over a century and was not being made for the first time. This serve the object of the Act. DISCRIMINATION BASED ON RACE: CASE LAW : Bombay v Bombay Education Society  HELD : The case related to the policy of restricting admission to English speaking pupils, specifically of Anglo-Indian and European descent, in the English medium schools of Bombay. Declared to be not  violative of art 15 . DISCRIMINATION BASED ON CASTE: CASE LAW : Bhopal Singh v. State of Rajasthan HELD : A law providing for elections to municipalities on the basis of separate electorates for members of different religious communities delimitation of panchayat circles for purposes of election to a panchayat on the basis of castes, would offend Art. 15(1) DISCRIMINATION BASED ON SEX: CASE LAW : Kerala State Electricity Board , Thiruvanandapuram vs Siniya HELD : It was held that the exclusion of women not exclusively based on sex but taking into consideration the peculiar nature of duties to be performed by the electricity workers is not violative of Art:15 . DISCRIMINATION BASED ON PLACE OF BIRTH: CASE LAW : Shaikh Husein Shaik Mahomed HELD : Under the City of Bombay Police Act, while a person born outside Greater Bombay could be externed if he was convicted of any of the offenses mentioned therein, no such action could be taken against a person born within Greater Bombay. CONCLUSION : This was discrimination on the basis of ‘place of birth’ and so was invalid under Art. 15(1). CLASSIFICATION BASED ON RESIDENCE IS NOT DISCRIMINATION BASED ON BIRTH : CASE LAW : D.P. Joshi v. Madhya Bharat HELD : The residents of Madhya Bharat were exempted from payment of a capitation fee for admission to the State medical college, while the non-residents were required to pay the same. REASON : Under Art. 15(1) because the ground of exemption was ‘residence’ and not ‘place of birth’. Residence and place of birth are two distinct concepts with different connotations. Art. 15(1) prohibits discrimination on the basis of place of birth but not residence CLASSIFICATION BASED ON RESIDENCE TO EDUCATIONAL INSTITUTION IS REASONABLE : Education is a State subject. A State spends money on the upkeep of educational institutions. There is, therefore, nothing wrong in the State if it so orders the educational system that some advantage ensures for the benefit of the State. ARTICLE 15 (2) What does Art: 15 (2) says ? The second provision of Article 15 says that no citizen shall be subjected to any disability, liability, restriction or condition on grounds only of religion, race, caste, sex, or place of birth with regard to certain places. What are those places ?  (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, road and places of public resort maintained wholly or partly by State funds or dedicated to the use of general public. What is the speciality of this provision ? This provision prohibits discrimination both by the State and private individuals, while the former provision prohibits discrimination only by the State. CASE LAW : Arumugha v. Narayana UNDERSTANDING ON THE ARTICLE 15 (2) : On the basis of this provision, it has been held that if a section of the public puts forward a claim for an exclusive use of a public well, it must establish that the well was dedicated to the exclusive use of that particular section of the public and not to the use of the general public . What is public place ? NARROW VIEW  : A.M. Deane v. Commr. of Police : The place is a ‘place of public resort’ only if the public have access to it as a matter of legal right BROADER VIEW : A place of public resort as one to which members of the public are allowed access and where they habitually resortto # Liberty Cinema v. Corp. of Calcutta. CONCLUSION : The latter view appears to be more in accord with the tenor and purpose of the constitutional provision as it would bar discrimination on a wider front. Call / Whats app : 6382125862 Email : lawxpertsmv@gmail.com Website : www.lawxpertsmv.com Telegram group link : https://bit.ly/37rrcC8 App Link :https://bit.ly/3kjznEe