GANGA POLLUTION MATTER Constitution of India – Maintainability Of Writ Petition- Article 12- Public Interest Litigation
1. In Marbury v. Madison 1 Cranch
137 (1803)-In case of conflict between law made by parliament (Congress) and
the provision of Constitution, the duty of the Court is to enforce Constitution
and ignore the law.
2. From Ratlam Municipality v.
Vardhi Chand A.I.R. 1980 S.C. 1622, the Supreme Court has held that the concept
of Public Interest Litigation is to enforce the provisions of Constitution of
India in respect of the mandate issued in Chapter III, which is more the less
the duty caste upon the authorities for protection of Fundamental Right and to
endeavor the D Directive Principle of State Policy. Article 19 – Burden of
Prove – Nature and Extent of Right – Distinguished form statute rights - Dhram
Dutt v. Union of India (2004) Vol. 1 SCC 712 – a restriction on the activities
of the Association is not a restriction on the activity on the individual
citizen forming membership of Association – Indian Council of World Affairs
Act, 2001 under challenged – Right and Restriction to be dealt with Article 19
(2) to (6) Article 300–A and 19 (1) (f) – Tibia Collage case AIR 1962 SC 448
followed. Society is incapable of holding property.
3. Peoples Union of Civil liberties vs.
Union of India (2004) Vol. 2 SCC 476 freedom of Speech includes Right of
Information as a fundamental right.
4. Union of India vs. Naveen
Jindal (2004) 2 SCC 510- flag code
-Emblems and Names (pervasion of Improper use ) Act, 1950 and prevention of
inserts to National Honour act, 1971 – fling of nation is a symbols of free
expression 19 (1)(A) thus a fundamental right – American right to burn nation
US flag is not approve in India. Right to fling nation is a fundamental duty
but they are subject to restriction under chapter VI A – Article 51 A.
5. Article 141 Precedent-
observation form a judgement have to be considered in the light of question
refereed therein Mahatab Dawoed Shaikh vs. State of Maharastra (2004) 2 SCC 362
6. Article 13- Government
Circular- not law within its meaning- State of Kerela vs. Chandra Mohanan
(2004) 3 SCC 429 .
7. Prohibition on sale of eggs
within Rishikesh municipality- Not Unreasonable
Restriction and the same should be viewed from Religious Background –
Major Source of Revenue to the Municipality under section 298 -Om Prakash vs.
State of U. P. (2004) 3 SCC 402.
8. That the framer of constitution has
miserably forgotten the basic and elementary principles of jurisprudence and
legal theory; that "every night implies the forbearance on the part of
others to perform his duty. Every right is correlated and coexistent with duty
"The preamble of our constitution was not having the boosting prospects to
its citizen of our constitution was not having the boosting prospects to its
citizens for resolving India as "Sovereign democratic republic and for
endeavor the unity of nation till 3rd January 1977.
9. That these fundamental duties ten in numbers
touch almost all important aspects of National life of an individual life of an
individual as well as nation. These are true Magna Charta by adopting an
adhering to which in our life. We can achieve the objective of an egalitarian
society, free from corruption, oppression, favoritism, and nepotism. Each of
these duties, when decoded and dilated, will go to encompass, the various facet
of human activity and behavior; a remedy to most evils plaguing our society -an
educational institution; a public undertaking etc. The present day crisis is
the result of the phenomenon where tried to achieve right while forgetting
corresponding duties as reciprocal to fundamental rights. We may get rid of the
despotic and corrupt tendencies of authority in politics and administration
having pressure groups ever hungry and lustful for privilege and power.
10. That by the constitution
(first amendment) Act 1951, there have been further restrictions to practice
any profession, or to carry on any occupation, trade or business for
professional or technical qualification as well as carrying on any occupation,
trade or business by the state and its instrumentality to the exclusion,
complete or partial, of citizens. Thus the question arises as to whether there
may not be a valid test of classification based on qualities or characteristics
necessarily coupled with the object of legislation based on intelligible
differential, which has certain nexus with the realities of the time to dealt
with the law and order situation by providing necessary restriction over the
unchecked liberty granted to the individual detrimental to its integrity and
sovereignty for prohibition to avail the benefit of equality clause by taking
the rescue for forbid classification. . There cannot be any enforceable
fundamental right to an individual for indulging in anti national activities.
Thus the verdict given by the Hon’ble Supreme Court in Minerva Mills Limited Vs
Union of India 1980 (3) SCC 625 is required to be reviewed for effective
enforcement of the duties caste upon the citizen by passing through the test of
"Form and Object" and "Pith and Substance" to mould and
replace by the test of "Direct and Inevitable" effect.
11. That the chapter of
fundamental duties in part (IV A under article 51 A has been introduced by our
constitution (Forty second amendment) Act, 1976(w.e.f 3.1.1977). The insertion
of new Article 31 C i.e. saving of laws giving effect to certain directive
principles, notwithstanding anything contained in the article 13, no law giving
effect the policy of state towards securing the principles laid down in part IV
shall be deemed to be void on the ground that it is in consistent with or takes
away or abridge any of the right conferred under the Article 14 &19 of the
constitution. The Supreme Court of Minerva Mills Ltd. Vs Union of India 1980
(3) S.C.C page 625 has laid down the same as unconstitutional holding
"that it virtually tears away the hearts of basic fundamental freedom
without which a free democracy is impossible. This is a charter of class
legislation.” The Article 31-D pertaining to " saving of the law in
respect of anti-national Activities" has already been omitted by the
constitution (Forty third amendment) Act 1977 w.e.f 13.4.1978. The other
Article 39(f) providing "Protection to children" by giving them
opportunities and facilities in healthy manner and in conditions of freedom
& dignity and that childhood and youth are protected against moral and
material abandonment" has been inserted w.e.f. 3.1.1977. Equal justice and
free legal aid for securing justice to economically weaker classes and other
disable down trodden citizens under Article 39 A is on account of 42nd
constitutional amendment. The participation of workers in the management of
industries and protection and improvement of Environment and safeguarding of
the forest in wild life under Article 43 A and 48 A respectively have also been
inserted by virtue of 42nd constitutional amendment, Act, 1977. We
could not achieve to cherish the goal enshrined under Article 44 providing
uniform civil court for the citizens, Thus till the situation has not become
alarming and the Govt. was not compelled to impose the emergency, the farmer of
the constitution have neither given any heed for the insertion of the chapter
of fundamental duties and directive policies for the uplift of the poor worker,
children and other disabled person. It is certainly a matter of grade
disappointment that till date these fundamental duties and directive principles
of state policy have still not been enforce as that of the fundamental rights
of the citizens, The country may be ruled down by functioning anarchy and
oligarchy, but the prosperity, integrity and solidarity of the nation is impossible
without the enforcement of the duties assigned to its citizens”.
12. That the Constitution
(Forty Fourth amendment) Act, 1978 has provided another directive principle
under Article 38(1) & (2) that the state shall strive to promote the
welfare of the people by securing and protecting a social order and to strive
to minimize inequalities in income and endeavor to eliminate inequalities in
status facilities and opportunities not only amongst individuals, but also
amongst groups engaged in different vocations.
13. Hon’ble Supreme court has taken
into account two spheres of dimensions to the right of personal liberty against
the sovereign power exercising its functioning with the police power and
restrictions imposing procedural safeguard in order to provide the public
safety having invasion of individual privacy as susceptible to abuse. The
custodian violence and torture by the police adopting third degree of
interrogation and other agencies have been deemed to be violative of article 21
and article 22 of the constitution of India. It has been held that the
importance of affirmed rights to deter breaches by the violence, torture and
even death in police lock up strikes a blow of rule of law. The police who is
supposed to provide the protection of citizens is committing such crime under
the shield of uniform and authority in the four walls of a police station of
lock ups in which victim is being totally helpless. Torture of human being by
another human beings is essentially an instrument to impose the will of the
"strong over the weak" by sufferings. These are a calculated assault
on human dignity and whenever human dignity is wounded, civilization takes a
step backward. Universal declaration of human rights in 1948 in reference to
article 5 stipulates, "no one shall be subjected to be tortured or to be
cruel inhuman or degrading treatment or punishment". The constitutional
guarantee provided in article 20 (3) provides that of a person excused of an
offence cannot be compelled to be a witness against himself. Article 22 (2)
provides that the person arrested or detained in the custody shall be produced
before the nearest magistrate within a period of 24-hour of such arrest
excluding the time necessary for journey. The accused shall be informed of the
ground of such arrest and shall not been denied that right to concern and
defend himself by legal practitioner of his choice. The personal liberties is
protected under article 21 except according to the procedure established by
law. Thus personal liberty is a sacred and cherished right under the
constitution (UBI JUS IBI REMIDIUM).
No comments:
Post a Comment