Tuesday, October 29, 2013

Our fundamental rights- Explained.

This idea of spreading awareness about our fundamental rights in a fun way has always lingered in my mind ever since I familiarized myself with the Indian Constitution. Finally today, I have found the push to finally sit down and write. So, without further delay, let's begin-

First a quick introduction- Our Constitution is divided into 25 parts, 446 articles and 12 schedules. (Originally, it had 22 parts, 395 articles and 8 schedules). Ok, so parts are like chapters dealing with different subjects eg. the subject of Part I is "The Union & its territory". Part III is our topic i.e. The Fundamental Rights. Over a period of time, parts IVA, IXA, IXB, XIVA were added and VII was deleted.
Articles are like clauses stating the rules and regulations regarding the subject; and within that, we have sub-clauses which include exceptions, special cases, specifications etc.

Got it? Ok, now let's begin.


Ok so, the guys at the helm of Constitution making in the Ambedkar days wrecked their brains, argued till their throats got sore in putting together this part of the Constitution. It was discussed for as many as 38 days as our founding fathers wanted it to be really strong. #respect.
They're like the guarantee you have which is given to you not by the govt but by the Constitution ie. the basic law of this land. All the prevailing negativity aside, you should take immense pride in being a citizen of such a country.
But the question comes- guarantee against whom? Who is going to harm my fundamental rights?

Answer lies in Article 12- It tells you that the guarantee is against the State! Yup! It's the authority that is most likely to infringe on your rights. Now you'd ask- what exactly do we mean by state? Well, our founding fathers left little room for ambiguity. Here are the villains (in case they cause harm to you) that your Rights protect you from-
- The Govt and Parliament of India
-The Govt and Legislature of each of the States
-All local authorities like municipalities, district boards, Panchayats, Improvement trusts etc.
-Other authorities within the terrirory of India.

Now you ask- "Other Authorities Who?!?" Well, these cover the authorities created by the Constitution on whom the powers are conferred by law eg. State electricity boards, LIC, ONGC, DTC, Finance commission. Even private bodies with public service responsibilities entrusted to it can come under this category.

Now to those of you who are bit of smartasses, yes, I know what you're thinking and no, you cannot count High Courts and the Hon'ble Supreme Court in this list. Ok?

The next Article- Article 13 defines "Law" in order to establish that the Constitution must prevail in all cases. It ends all laws that are in conflict with the Rights whether made before or after the making of Constitution. Law here means all temporary, permanent laws, rules, regulations, notifications having the force of law; even customs like marriage etc.
Ok, enough setting stage- let's begin now.

The Rights- They are divided into six broad categories. We begin this series with the first category-


Article 14- Every person has the right not to be denied "equality before the law" or "equal protection of the laws" within the territory of India.
This right is available to everyone in India. Even those who are not citizens of our country.
So basically, if the traffic guys fine a scooter rider for not wearing helmet, they have to fine a Mercedes driver for not wearing seat belt too. 
There is of course provision for intelligent differentia for example- An Ambulance is exempted from penalties of breaking traffic rules on reasonable conditions.

Article 15- Available only to Indian citizens, this right states that the State cannot discriminate against any citizen on grounds only of religion, caste, race, sex, place of birth or any of them. Here "only" is important as it gives state the right to discriminate on the basis of one or more of these articles PLUS also on other ground(s) would not be affected by this article. And the state can discriminate on basis of residence.
So, you can use a public toilet no matter what your religion, caste, race, sex, place of birth or any of them is. 
Clause 2 of the same article says that one cannot 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 use of general public.
So, you can jump into that municipality swimming pool, no matter what your caste is; but you cannot jump into it if it is Vijay Mallya's private pool!! 
Clause 3 empowers the state to make special provisions for women and children. So, no! You cannot use the Ladies' Washroom!
Clause 4 empowers the state to make special provisions for advancement of any socially and educationally backward classes of citizens or for the SCs and STs.
Clause 5 (added  by 93rd amendment on 20 January 2006) empowers Parliament to make special provisions by law for socially and educationally backward classes and for SCs and STs in regard to admission to educational institutions including private aided or unaided institutions other than minority institutions.
Now as you might find them, Clauses 4 and 5 are a bit ambiguous. There have been questions raised on reservation. Hon'ble Supreme Court has held that, "caste and poverty may be both relevant for determining the backwardness. But neither caste alone nor poverty alone could be the determining test".
Ok, moving on...

Article 16- Equality of Opportunity in Public Employment. 
Clause 1- All citizens of India are guaranteed equality of opportunity in matters relating to employment or appointment to any office under the State.
So, if you're from Goa, you cannot be denied the job of a peon in a school in Maharashtra.
Clause 2-  No citizen can be discriminated against or be ineligible for any employment or office under the State on grounds only of religion, race, caste, sex, descent, place of birth or residence.
So, these clauses make you eligible for all jobs in the country for which you hold the qualifications. Now, before you get all happy, let me introduce you to the subsequent clauses which are basically exceptions to this right-
Clause 3- Parliament is empowered to regulate the extent to which it would be permissible for a State or Union Territory to depart from or expand or supplement the general principles enunciated in clauses (1) and (2).
So with this power, Parliament passed the Public Employment (Requirement as to residence) Act, 1957 which repealed all the laws in force prescribing any requirement of residence within a State or UT for any public employment but exceptions were made in cases of Himachal Pradesh, Manipur, Tripura and the Telangana area of Andhra Pradesh where residential qualifications were prescribed for a limited period not exceeding five years on grounds of backwardness of the areas. But then in one case, SC declared a part of this Act unconstitutional as Parliament cannot impose a residential qualification in just a part of a State.
Clause 4- It is an enabling provision for the State and empowers the State to make special provision for the reservation of appointments or posts in favour of any "backward class of citizens" which in the opinion of the State are not adequately represented in the services under the State.
Mandal Commission's much debated report recommended 27% reservation in view of the 50% limit imposed by Supreme Court. On 16 Nov 1992, SC decided that 27% reservation for socially and backward classes excluding the creamy layer was in order.
Clause 4A- Added by the 77th Constitution Amendment Act- in matters of promotion in services under the State in any category or categories, the State can make reservations for the SCs and STs.
Clause 4B- 81st Constitution Amendment Act, 2000- unfilled reserved vacancies are to be treated as a separate class and are not to be included under the prescribed ceiling of 50% reservation of vacancies per year.
The 85th Constitution Amendment Act, 2001 further clarified that the employees so promoted shall also be entitled to consequential seniority. The 85th Amendment came into operation w.e.f. 17 June 1995.
As you can see that the emphasis is on social backwardness and not so much on economic backwardness which makes the matter highly political.
Clause 5- provided that a law may prescribe that the incumbent (holder) of an office in connection with the affairs of a religious or denominational institution, or a member of the governing body thereof shall belong to the particular religion or denomination.
So, a Head Priest at a Hindu temple cannot be Christian by religion. Makes sense.

Article 17- Abolition Of Untouchability
Untouchabiliy practice is treated as an offence and is punishable under law. It is also the bounden duty of every citizen to ensure that it is not practised in any form. (Protection of Civil Rights Act, 1976)
So you cannot show your ancient scriptures if someone catches you practising this barbaric practice.

Article 18- Abolition of Titles
Prohibits the State to confer titles on anybody, whether an Indian citizen or a foreign national. Exceptions are Military and academic distinctions.
Clause 2- A citizen of India has also been prohibited from accepting any title from a foreign State.
Clause 3- A foreigner holding any office of profit or trust under the State cannot accept any title from a foreign State without the permission of the President.
Clause 4- No person holding any office of profit or trust under the State shall, without the consent of the President, accept any present, employment, or office of any kind from or under any foreign State.
 So yes, you cannot call yourself Sir Abhyudaya Shrivastava!

Thursday, October 10, 2013

Wednesday, October 9, 2013

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