CONSTITUTION OF
FUNDAMENTAL RIGHTS: Relevant provisions under Article 14,15,16,17, & 24.
DIRECTIVE PRINCIPLES – Relevant provisions.
PREAMBLE
"WE THE PEOPLE OF
JUSTICE – Social economic and political:
LIBERITY of thought, expression, belief, faith & worship:
EQUALITY of status and of opportunity:
and to promote among them all.
FRATERNITY assuring the dignity of the individual and the unity and integrity of the nation.
IN OUR CONSTITUTENT ASSEMBLY, this twenty-sixth day of November, 1949.do HERBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTIONS."
The preamble to the constitution declares that
All these words written in capitals have there own significance. A democratic systems stands on the foundations of equality and liberty. Indian constitution guarantees essential boons of Justice,
Fundamental Rights were deemed essential to protect the rights and the liberties of the people against the encroachment of the power delegated to them to the government.
They are limitation upon all powers of the government and they are essential for the preservation of public and private rights.
These fundamental rights are most essential for the attainment by the individual for his full Intellectual, moral and spiritual status. The object behind the inclusion of the chapter of fundamental rights in Indian constitution is to established ”A Government of Law and not of Man". The object is to established rule of law. The object is not merely to provide security and equality of citizenship of the people living in this land & there by helping and process of Nation Building. The ideals of preamble & fundamental rights involve the upliftment of the weaker sections of the community like women & children in particular of the scheduled castes (SC) & Scheduled tribes (ST) and to protect them from social injustice & exploitation.
I. WOMEN AND CHILDREN
II. BACKWARD CLASSES
I. SPECIAL PROVISIONS UNDER THE CONSTITUTION FOR WOMEN AND CHILDREN
The framers of the Indian constitution best owed sufficient thought on the position of women & Children in the social order. This is evident from the provision of the constitution, which have not only ensured equality between men and women but also provided specifically certain safeguards in favour of women & children. Equality of status & of opportunity is a concomitant to the principle of social justice. Women & children require special treatment on account of there nature. The reason is that ‘Women’ Physical structure & performance of material functions requires special care.
ARTICLE 14 :
“The State shall not deny to any Person Equality BEFORE THE LAW OR EQUAL PROTECTION LAWS with in the territory of India."
This provision aims at establishing Equality of status in the preamble and guarantees to all persons, including women and children, The right to equality in law. Article 14 is general provision & has to be read subject to the other provisions with in the part-III on Fundamental rights. Hence, any law making provision for women and children under Article 15 (3) cannot be challenged on the ground of contravention of Article14. The special provisions made under these provisions must be with in reasonable limits.
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 & place of public entertainment; or
b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained
Wholly or partially out of state funds or dedicated to the use of the general public.
3. Nothing in this Article shall prevent the state from making any special provisions for women and children.
SPECIAL PROVISIONS FOR WOMEN :
Article 15(3) has enabled the state to make special provisions under: -
i) Section: 354 Indian Penal Code (IPC) : Assaulting or using force to a woman with intent to outrage her modesty; imprisonment for 2 years or with fine or with both.
ii) Section 497 IPC : Which only punishes man in cases of Adultery & Exempts the women from punishment even though she may be equally guilty as an abettor. This provision is also applicable for children.
iii) Section 497 (1) Criminal Procedure Code: Making special treatment for women and children in matter of granting Bail.
iv) Section 494 IPC : Which makes Bigammy a punishable offence.
v) The Hindu Marriage Act of 1955 has made Bigamy punishable offence & Given greater strength to monogamy
vi) Reservation of seats in local body.
vii) The Hindu Succession Act, 1956 made for reaching changes in the law improved the position of women & treated women on par with men in case of property succession.
viii) Separate educational institutions exclusively for women.
ix) Reservation of a seats or places for women in public conveyances & places of public resort.
x) The Factories Act,1948 provides separate facilities & treatment for women.
xi) Maternity Benefit Act,1961 provides free medical treatment & maternity leave for women.
xii) The State is competent under Article 15(3) 16(1) 16(2) & 16(4) of the constitution to give preference to women in Government Jobs where they are equally mentions but more suited than men. These constitutional provisions, no doubt ensures equality of opportunity to women. The purpose of Article 15(3) is to improve the status of women, to empower them in a manner that would bring about effective equality between men & women.
The supreme court gave wider interpretation to the phrase “Special Provisions” under Article 15(3) to include with in ambits not only positive state acts like concessions, preferences, benefits, etc but also reservation of posts or appointment in public service in favour of women. Based on wider interpretation of the Supreme Court Rule 22-A(2) of Andra Pradesh State & subordinate service rules provided to the extent of 30% of the posts to women. Therefore, Based on the above instances of Article 15(3) has been described as ‘Protective discriminations’ for women. The framers of the constitution took a pragmatic view. In incorporating Article 15(3) because they expected that this provision might compensate the laws of opportunities suffered by women during the last several centuries. Hence clause (3) of Article 15 of the constitution may be described as a compensatory provision for women .
The following are the relevant provisions in respect of women in Directive Principles of State Policy .
Article 39(a) : Equal Right of men and women to adequate means of
livelihood and free legal aid .
Article 39(d) : Equal pay for equal work for both men and women .
Article 42 : Directs the state to make provision for securing just human conditions and for maternity relief .
Article 47: Duty to raise the stand of living and improvement of health.
SPECIAL PROVISIONS FOR CHILDREN :
Article 15(3) empowers the state to make special provision for children. The constitution makers had known that the India of their vision would not be a reality, if the children of the country are not matured and educated. For this and thief exploitation by different profit makers for their personal gain, the constitution makers incorporated.
Under Part III Fundamentals Rights the following provisions. Article 15(3) empowers the state to make special provisions for children under this clause and it is an exceptions for children under this clause and it is an exception to the rule against discrimination provided by clauses (1) & (2) of Article 15. Special provisions may be made either by legislation or by executive order.
Article 21-A : The Constitution (86th amendment ) Act, 2002 added this Article 21-A has made education for all children of the age of 6 to 14 years a fundamental right.
For the success of democratic system of Government, education is one of the basic elements. Education gives a person human dignity & develops himself & contributes to the development of the country. The makers of the constitution realising the importance of education have imposed a duty on the state under Article 45 as one of the directive principle of State policy to provide free & compulsory education to all children between the age of 6 to 14 years. The Supreme Court during 1993 in Unnikrishnan Case declared that right to education for the children of the age 6 to 14 is a fundamental right. Even after this, there was no improvement, but the Government enacted constitution (86th Amendment) Act, 2002 which would make education a Fundamental Right.
The question arises as to how this right would be implemented since the population of the country has considerably increased & the number of Children of age from 6 to 14 years are in crores.
Article 24 :No Child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment.
This Article prohibits employment of children below 14 years of age in factories & hazardous employment. It is in the interest of Public health & safety of life of children. Children are assets of the nation.
In People’s Union for Democratic Rights – Vs- Union of India, 1983 (Asiad Case) it was contended that the Employment of Children Act, 1938 was not applicable in case employment of Children in the Construction work of Asaid Projects in Delhi since construction industry was not a process specified in the schedule of the Children Act. The Supreme Court rejected this contention & held that the construction work is hazardous employment & therefore under Article 24 no child below the age of 14 years can be employed in the construction work even if construction industry is not specified in the schedule to the employment of the said Act.
This Article however, doesnot prohibit their employment in any innocent or harmless job or work.
The constitution under Article 24 provides for prohibition of employment of children, the inadequacies, if any arising through constitutional commitment is substantially met with other legislations. In view of increase in the province of economic activities & social life, the incidents of child labour is still visible in many activities in India. However these inadequacies can be met with special power of the State Under Article 15 (3) & 24 to enact legislations to regulate child labour. The following are Indian legislate Child labour. The following are Indian legislations dealing with prohibition & regulation of child labour.
The General Legislations are :-
1. The Factories Act, 1948.
2. The Plantation workers act, 1951.
3. The Mines Act, 1952.
4. The Merchant & Shipping Act, 1958.
5. The Motor Transport Workers Act, 1961.
6. The Karnataka Shops 7 Commercial Establishments Act, 1961.
7. The Beedi & Cigar Workers Act, 1966.
8. The Dangerous Machinery Act, 1983.
Further, Part IV Directive Principles of State Policy imposes upon the states the obligation under Article 39(e) to protect health & strength of workers & tender age of children & to ensure that they are not forced by economic necessity to enter avocations unsuited to their age or strength.
Article 39(f) : The Children are given opportunities & facilities to develop in a healthy manner & in conditions of freedom & dignity & that childhood & youth are protected against exploitation & against moral & material abandonment.
Fundamental Duty Under Article 51 (K) in Part IV-A:
The Constitution (86 Amendment) Act 2002 has added a new clause (K) to Article 51-A who provides “who is parent or guardian to provide opportunities for education to his child as the case may be, ward between the age of six & fourteen years.
Some of the employments like cinema production, operation, TV serial production, domestic works, commercial advertisements, activities involved in tourism etc in which employment of child not covered by the existing legislations.
II CONSTITUTIONAL PROVISIONS FOR BACKWARD CLASSES :
In the preceding lecture we have analysed the constitutional provisions for women & children. It is now necessary to know the constitutional provisions for Backward classes in Article-14, 15, 16 & 17 & other provisions of the constitution.
DETERMINATION OF BACKWARD CLASSES :
The term ‘Backward classes’ has not been defined in the constitution. The preamble to the constitution declares that it secures to all its citizens Justice, Social, Economic & Political. In the light of Distributive Justice Article 14 guarantees Equality before law or equal protection of laws for all. Article 15 prohibits discrimination on various grounds. Article 16 ensures equality in public employment. The ingredient of ‘Socialism’ finds its place in the system of reservation & safeguards that the state may introduce to uplift the weaker sections or Backward classes of the society. Now the question arises as to who can be considered as “backward” & what criteria should be adopted to determine it.
As I have already mentioned the term “Backward Classes” has not been defined in the constitution, but the same term is used in Article 340 which provides the President may by order appoint a commission to investigate the conditions of “Backward Classes” within the territory of India. The commission so appointed may in its report suggest, among others, steps that should be taken to improve their conditions. But even here the definition of the term is not furnished. Therefore, the State must have a clear idea as to who actually constitute Backward Classes. It is necessary to know the criteria or factors which have to be taken into consideration to determine Backward Classes for the effective utilisation of reservation benefits depends much upon the clear determination of the said classes of citizens for whose benefit & uplift they have been incorporated into the constitution.
The Scheduled Castes & Scheduled Tribes (SC & ST) being mentioned with the ‘Backward Classes’ in matters of reservation refers to classes persons other than the members of the Scheduled Castes & Tribes. Article 341 & 341 of the constitution which provides that the President has been expressly authorised to limit the notification to parts or groups of castes within the castes.
Literally speaking, SC & ST or depressed classes belong to the low castes who are also treated as untouchables by virche of belonging to the Sudra segment of Hindu Society. The Hindu society was based on caste system. (Brahmins, Kshatriyas, Vaishyas & Sudras). The low castes like Sudras cannot claim the privileges of Upper Castes. Dr. Hutton, the Census Commissioner in his Report in 1931, acted on the basis of some assumptions & held the view that a person could be included in the category of SC or ST if he / she
1. Could not serve clean Brahmins.
2. Was a water-carrier, barber, tailor etc & could not serve caste Hindus.
3. Polluted a High Caste Hindu by contract or by proximity.
4. From whose hands a Caste Hindu would not take water.
5. Was debarred from using public conveniences as ferries, roads, wells, schools, etc.
6. Was debarred from entry into Hindu Temple.
7. Even after receiving education, in ordinary special intercourse was not treated as equal by the high caste persons.
8. was merely depressed on account of his own ignorance, illiteracy & poverty & but for that remained subject to social disability.
9. was depressed on account of the occupation followed & but for that occupation could be subject to social disability.
It is clear, therefore, that President’s order shall specify the list of castes included in this category & any other caste may be included in it if sufficient evidence is produced in its favour. But the presidential notification is not open to Judicial scrutiny. A person belonging to Scheduled Caste must be either a Hindu or a Sikh. Thus, the reservation privilege is not available to the Christians, Muslims, Buddhists, Parsis etc.
BACKWARD CLASS COMMISSIONS :
The prescribed of India, acting under Article 340 of the Constitution appointed the following Backward Class commissions.
1. Kaka Saheb Kalelkar commission 1953.
2. Dr. Naganna Gowda committee 1960 (Mysore).
3. Kumara Pillai Commission 1964 (Kerala).
4. Sattanathan commission 1969 (Tamil Nadu).
5. Damodaran Commission 1967 (Kerala).
6. Mandal commission 1978.
SPECIAL PROVISIONS FOR ADVANCEMENT OF BACKWARD CLASSES.
PROTECTIVE DISCRIMINATION :- Articles 14 to 16 of the Constitution guarantee the right to equality to every citizen of India. Article 14 embodies the general principles of equality expressed in the preamble. Articles 15 & 16 laid down specific application of the General Rules laid down in Article 14.
Article 14: “The State shall not deny to any person equality before the law or equal protection of laws within the territory of India.”
The concept of equality doesn’t mean absolute equality among human beings, which is physically not possible to achieve. It is a concept implying absence of any special privilege by reason of birth, creed or the like in favour of any individual & also the equal subject of all individuals & classes to the ordinary law of the land. The Concept Equality Before The Law derived from English Rule of Law. Equality before the law means like should be treated alike. Among equals the law should be equal & should be equally administered. The protection of Article 14 extends both citizens & non-citizens & to natural persons as well as legal persons.
ARTICLE 14 PERMITS REASONABLE CLASSIFICATION :
The classification, however must not be ‘arbitrary, artificial or evasive but must be based on some real & substantial distinction bearing a just & reasonable relation to the object sought to be achieved by the legislation.
TEST OF REASONABLE CLASSIFICATION :
Classification to be reasonable must fulfill the following two conditions:-
1. The classification must be founded on an intelligible which distinguishes persons or things that are grouped together from others left out of the group.
2. The differentia must have a rational relation to the object sought to be achieved by the Act.
BASIS / GROUND OF CLASSIFICATION :
1. Geographical Basis.
2. Historical Basis.
3. Age.
4. Sex.
5. Nature of persons.
6. Nature of Business.
7. Time.
8. Object of the Law / Taxation Laws.
ARTICLE 15 : The guarantee under Article 15 is available to citizens only & not to every person whether ‘Citizen or non-citizen as under Article 14, Article 15(1) direct the State not to discriminate against a citizen on grounds only of religion, race, caste, sex or place of birth or any of them. Article 15(2) prohibits both state & private individual, on the grounds only of religion, race, caste, sex or place of birth or any of them with regard to (a) access to shops, public restaurants, hotels & places public entertainment, or (b) the use of wells, tanks, baths, roads & places of public resort.
The object of Art 15(2) is to eradicate the social evils of caste system.
ARTICLE 15 (3) : SPECIAL PROVISIONS FOR WOMEN & CHILDREN :
Which we have already discussed in the earlier discussion, which is an exception to Article 15(1) & (2).
GENESIS OF ARTICLE 15 (4):
Clause (4) of Article 15 was not found the original constitution of India. It was introduced into the constitution by the constitution (First Amendment) Act, 1951,to get over the difficulties created bny the decision of the Supreme Court in State of Madras – Vs- Champakam Dorairajan (AIR 1951 SC 226) Prior to the commencement of the constitution of India, Government of Madras issued a communal G.O. regulating admission to professional colleges, Medical & engineering Colleges on the basis of religion, caste, race set forth in the said communal order. It reserved the seats on the basis of Brahmins & Non-Brahmins, backward, Hindus, Muslims etc. Two Brahmin students who could not get admission despite then merit, challenged the communal G.O. as being violative of their fundamental rights guaranteed under Article 15(1) & 29(2) of the constitution. The decision in Champakam Dorairajan case caused a political agitation in the South. The decision also gave a clue as to what should be done to enable the State to help the backward classes of citizens to get admission in educational institutions. So the Constitution (First Amendment) Act, 1951 introduced clause (4) to Article 15 to enable the State to make special provisions for the Backward classes in matters of admission.
Article 46 under Directive Principles of State Policy also supported to enact the first amendment which directs the Sate for the promotion of education & economic interest of SC & ST & Other weaker sections.
The class contemplated under the clause must be both Socially & Educationally backward.
Thus under Article 15 (4) the two contentions issues are to be determined :-
1. Who are socially & educationally Backward classes? This we have already discussed.
2. What is the limit of reservation?
In Balaji – Vs- State of Mysore (AIR 1963 SC 649) the Mysore Government issued an order Under Article 15(4) reserving seats in the Medical & Engineering Colleges in the State as Backward classes & more backward classes & SC/ST, total reservation amounts to 68% & 32% was made available to merited students. The court held that sub-classification made by the order between ‘backward classes’ & more backward classes was not Justified under Article 15(4). The main issues before the Supreme court in this Case
(1) What are the criteria for determining or identifying the Social & Educational backwardness? This we have already discussed.
(2) Whether the ‘Caste’ is the sole citizen for determining social backwardness?
Though caste may be a relevant fact but it cannot be the sole test for ascertaining whether a particular class is a backward class or not. Poverty, occupation place of habilation may all be relevant factors to be taken into consideration. Further SC & ST has been defined in Sub-Clauses (24) & (25) of Article 366 of the Constitution.
But in the historic Judgment Indra Sawhney – Vs- Union of India (The Mandal Case AIR 1993 SC 477) the supreme court held that sub classification of backward classes into backward & more backward classes can be done the purpose of Article 16 (4) reservation in public employment.
RESERVATIONS IN MATTERS OF PUBLIC EMPLOYMENT :
Article 16 :
1. There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
2. No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of nay employment or office under the state.
3. nothing in this Article shall prevent parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office [Under the Government of or any local or other authority within, a state or union territory, any requirement as to residence with in that State or Union Territory] prior to such employment or appointment.
4. Nothing in this Article shall prevent the state from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately re[presented in the services under the State.
(4-A) Nothing in this Article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the SC and the ST which in the opinion of the State, are not adequately represented in the services under the State (added by 77th amendment 1995).
(4-B) nothing in this Article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or (4A) as a separate class of vacancies to be filled up in any succeeding year or years & such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty percent reservation on total number of that year (added by 81st amendment 2000).
5. Noting in this Article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religions or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.
Article 16 is an instance of the application of the general rule of equality before law laid down in Article 14 and of the prohibition of discrimination in Article 15(1) with respect to the opportunity for employment or appointment to any officer under the state.
Article 16(3) is an exception to clause (2) of this Article which forbids discrimination on the ground of Residence. This Article empowers parliament to regulate by the law the extent to which it would be permissible for a state to depart from the above principle. It provides that no one will be disqualified on the ground one is not the resident of a particular state.
Article 16(4) is the second exception to the general rule embodied in Articles 16(1) & (2). It empowers the State to make special provision for the reservation of appointments of posts in favour of any backward class of citizens. Article 16 (4) applies only if two conditions are satisfied.
1. The class of citizens is backward; and
2. the said class is not adequately represented in the services of the State.
The second test cannot be the sole criteria. Article 16(4) must be interpreted in the light of Article 335 which says that the claims of SC & ST shall be taken into consideration consistently with the maintenance of efficiency of administration. The reservations for backward classes should not be unreasonable.
What is the limit of Reservation?
In Balaji –Vs- State of Mysore (AIR 1963 SC 649) the total reservation for backward classes cannot more than 50%.
In Devadason –Vs- Union of India (AIR 1964 SC 179) the Supreme Court held that ‘Carry forward rule’ framed by the Government to regulate appointment of persons of backward classes in Government service & reservation upto 68% held be to unconstitutional.
In State of Kerla –Vs- N.M. Thomas (1976 SC 490) also reservation exceed 50%, the Supreme Court held to be constitutional.
In ABSK Sangh (Railway)-Vs- Union Of India (AIR 1981 SC 298)
by following the carry forward rule the reservation came to about 64.4%. The court held that it was excessive.
In K.C. Vasanth Kumar –Vs- State of Karnataka (AIR 1985 SC 1495) the Supreme court has issued guidelines to be followed in matter of reservation.
In Indra Sawhney-Vs-Union of India (AIR 1993 SC 477) (The Mandal Case)
The Supreme Court held that the ‘carry forward rule’ is valid so long it does not in a particular year exceed 50% vacancies. The total reservation shall not exceed 50%.
Looking into the developments form 1963 Balaji case to Mandal Case the reservation quota has been increased from 50% to 77%. But the Supreme Court in Mandal Case decided that the total reservation should not exceed 50%. Which has been followed in Balaji case.
PROTECTIVE DISCRIMINATION
No comments:
Post a Comment