Constitutional law of India

The Forty Eighth Edition of the book has incorporated all constitutional developments which have taken place since the publication of the last edition. The author is pained to witness that the country is passing through a very critical stage. Corruption has shaken its democratic edifice. Corruption has become part of our life. The hosting of the Commonwealth Games, the Adarsh Housing Society scam, Allocation of 2 G Spectrum scam, Land scam in Karnataka, Public Sector Banks Loan scam show that it has incurably affilicted our society threatening the democratic structure of our nation. The Constitution is the supreme law of land. The framers of the Constitution were very wisemen and men of foresight and have laid down a fine framework in the Constitution so that our political leaders/administrators will lead the nation honestly and with hard labour in the world as a well managed and developing country. With this end in view, they have made provisions for the establishment of an independent and impartial judiciary so that it will keep check on the arbitrariness of the executive and legislature and provide cheap and quick justice to the citizens of the country and make their lives happy and prosperous. Alas! this hope of the framers has been belied. Corruption has also affected the judiciary. It is part and parcel of the society. Politicians' attack on the judiciary is continuing unabated. While no one can deny the fact that it has been affected by corruption, but the judiciary is ready to remedy it. The biggest reforms which require our immediate attention is delay in Courts. The common man needs that his cases are decided quickly by Courts It is a fact that the politicians are only afraid of the judiciary. They want that it should be in their control. For the last 45 years the appointments of the judge of the higher Court was vested in the hands of the executive. During this period, corruption in the judicial appointment was prevalent on a large scale. Now it has been taken over by the Supreme Court. Politicians are levelling charges of corruption on it.

Despite these constraints, the judiciary has pronounced a number of historic judgments for the protection of the fundamental rights of citizens and maintaining unity and integrity of the Nation.

In a landmark judgment in Suchita Srivastava v. Chandigarh Administration the Supreme Court has held that right to personal liberty in Article 21 of the Constitution includes the right of a woman to produce a child or not to produce or refuse to participate in sexual act, or can insist on the use of contraceptives, or carry on pregnancy to its full term to give birth and raise child. A medically retarded woman inmate of welfare home in Chandigarh became pregnant as a result of rape. The Chandigarh administration, the respondent, approached the High Court seeking approval for termination of her pregnancy as she was mentally retarded and an orphan and no parent or guardian to look after her prospective child. She did not give her consent for abortion as required by the Termination of pregnancy Act. Medical opinion was that her retardedness was of a mild nature and she was physically capable of continuing her pregnancy. In spite this, the High Court ordered the termination of her Pregnancy. The appellants filed an appeal to the Supreme Court which held that the order of the High Court was illegal and liable to be quashed. The Court said that the Termination of Pregnancy Act distinguishes between "mental illness" and "mentally retarded" for this purpose "while consent of the guardian is essential for abortion for mentally ill woman" it is not necessary in case of "mentally retarded woman. A woman has option to make choices to produce a child or not and carry pregnancy to its full term and give birth or raise child. It is part of her personal liberty under Article 21 of the Constitution. No restriction can be imposed on such right

In Worter Karamlki v. State of Meghalaya, AIR 2010 Gau 51, it has been held that the freedom of religion extents to rites and ceremonies associated with religion and the member of Seng Khasi denomination of village Maulongs of Meghalaya had right so cremate dead bodies of their near and dear on a plot allotted to them by the Elders of their village. The respondents threatened them to dispossess them from their cremation ground. They made several complaints to the concerned authorities of the state to take proper action to protect their rights but no action was taken by the State to protect their right of religion. Ultimately, they approached the High Court for the enforcement of their right. The High Court held that the concerned authorities of the State must take appropriate action for the enforcement of their right of burial ground.

In Salvi v. State of Karnataka, AIR 2010 SC 1974 the Supreme Court has held that Narcoanalysis. Polygraph, Brain Finger Printing test without consent of the criminals amount to testimonial compulsions and are prohibited by Article 20 (3) of the Constitution. The compulsory administration of the Narcoanalysis techniques constitutes, cruel, inhuman or degrading treatment under Article 21 of the Constitution. These tests also violate the right to privacy and amount forcible interference with persons' mental process. It was argued that these measures could help the investigating agencies to prevent criminal activities in future as well as circumstances where it is difficult to gether evidence through ordinary means. The Court however held that it is the function of the legislature to make law for this purpose not for Court which is protector of fundamental rights of citizens.

In Ng. Momon v. State of Manipur, AIR 2010 Gau 102 the appellant was the Chairman of Komlathabi village in Manipur. There was a Government Primary School in the village. The school was blown away by a heavy storm. The Chairman approached the concerned authorities for the construction of the building of the school. But the authorities decided to shift the school to another adjust village to Liwachanging. He filed a writ petition in the High Court for direction not to shift the school from its original site Komlathabi. The responded argued that there are private schools in the village and children can go there for study. The Single judge of the High Court held that it is for the executive to decide where the school is to be located in the interest of the school going children. He appealed against this order. The High Court held that shifting would deprive school going children of the age of 6 to 14 years of their fundamental right to have free and compulsory education in government school under Article 21-A of the Constitution and the order of the single judge was quashed. The authorities were ordered to establish school in Komlathabi village within four weeks.

In State of W.B. v. Committee for Protection of Democratic Rights, West Bengal, AIR 2010 SC 1476, the complainant alongwith large member of workers of a political party were returning to their homes. They were attacked with miscreants with firearms who killed 11 of them and injured number of members. The complainant managed to escape and lodged an FIR with the Police. The police started investigation of the crime but it did not proceed satisfactorily. A writ petition by PIL was filed in the High Court alleging that since the police administration in the State was in the influence of the ruling party and assailants were members of the ruling party and there was no hope that the investigation of crime would be impartial and fair, therefore, it should to transferred to the CBI. an independent authority. The High Court agreed with the petitioner's argument and ordered that the investigation should be transferred to the Central Bureau of Investigation (CBI). The State filed an appeal in the Supreme Court against this order. It argued that the Constitution of India establishes a federal government where there is distribution of power between Centre and state and no government can encroach in the sphere of other government. There is separation of powers which require each organ to confine itself within field allotted to it. Thus the federal structure as well as principle of separation of powers being part of the basic structure. The Superior Court cannot in exercise of their powers under Articles 32 and 226 order to investigate crime in another State by the police of another State. The distribution of powers between the Centre and the States imposes restriction on Superior Courts to exercise their powers under Article 32 and Article 226. The Union Government argued that these restriction cannot impose any restriction on the Superior Courts which are obliged to protect the fundamental rights of the citizen and in a federal structure it is the duty of the Courts to uphold constitutional values and to enforce the constitutional limitations as an ultimate interpreter of the Constitution. The Constitution is supreme and its supremacy is maintained by the Courts. The powers of judicial review conferred on the Superior Courts are basic structure of the Constitution. The restriction imposed by Constitution on Parliament or by any statute passed by Parliament on executive cannot apply to the judicial review. The Supreme Court held that the order of the High Court to investigate crime taken place in West Bengal without the consent of state is valid.

In B.P. Singhal v. Union of India, a five judge Constitution bench of the Supreme Court has unanimously held that the Governor cannot be dismissed arbitrarily on the ground that it does not agree with the view of the government in power at Centre, or has lost its confidence. Ordinarily there must be some genuine reason for his dismissal. The Governor holds a constitutional post and is neither the agent nor is servant of the party in power at the Centre. But there can be a limited judicial review of his dismissal.