OAS Mains-2019 Daily Answer Writing-20/04/2020

Paper:   General Studies Paper-I

Section:  Indian Polity

Topic:  Constitution of India

Question 1

Trace the evolution of the Fundamental Rights in India?

Sample Answer

In 1928, a series of All Party conferences headed by Motilal Nehru drafted a constitutional scheme, called the Nehru Report. This constitution called for a parliamentary democratic system of government and protection of minorities. In 1931, the Indian National Congress, at its Karachi session further committed itself to individual rights and liberties which included social and economic rights in favour of the lower castes and for a living wage for the workers

Fundamental Rights were incorporated into the. Indian Constitution with the inspiration ‘of the leadership of the freedom struggle and the experience of the world’s leading democracies — UK, USA and France that had detailed provisions for the recognition and protection of individual rights in their Constitutions: Bill of Rights of UK, Bill of Rights of USA and Declaration of Rights of Man of France.

Fundamental Rights essentially safeguard individuals from any arbitrary State actions, but some rights are enforceable against private persons as well. For example, abolition of untouchability (Art.17) is a limitation on State action as also on individual actions.

Art. 15, 16, 19, 29 and 30 are available only to citizens & not to foreigners while others are enjoyable by non-citizens (except enemy aliens) as well.

Fundamental Rights can be amended by the Parliament only and no other Government organ – federal or state government.

The Supreme Court upheld the power of the Parliament to amend the Fundamental Rights from the commencement of the Constitution till the Golak Nath case verdict in 1967. But in the Golak Nath case ruling, it held that Parliament could not amend the Fundamental Rights as these rights enjoy a ‘transcendental’ status under the Indian Constitution. But in the Keshvananda Bharati case (1973) verdict, it permitted ‘limited power to the Parliament’ to amend the Fundamental Rights.

In the Kesavananda Bharati vs. State of Kerala case, the Supreme Court laid down the concept of “basic features” of the Constitution. The apex court ruled that basic features cannot be amended by the Parliament. What is meant is that the basic features cannot be restricted or violated but there is scope of enrichment and amplification. However, the legality of such amendment is open to judicial questioning by the Supreme Court. Fundamental Rights are not classified as a basic feature but if they are violated and there is no clear public purpose served by the violation, the violative law can be partially or wholly struck down by the Apex Court. The “Doctrine of Basic Structure” that was introduced in the Kesavananda Bharati vs State of Kerala (1973) was further reinforced in the Menaka Gandhi vs Union of India case (1978) and Waman Rao case in 1981 to the effect that it carries greater force than parliamentary legislation. That is, if Parliament amends the Fundamental Rights, it is invalid if it goes against the basic features of the Constitution as interpreted by the Supreme Court. It shows the enormous importance attached to Fundamental Rights in the Indian Constitution as interpreted by the Apex Court.

Another feature of the Indian Constitution is that it preserves Fundamental Rights against abuse by the government. Only a Constitution Amendment Act, if at all, can amend Fundamental Rights. Neither the federal nor the State Governments can amend the Fundamental Rights to restrict them. Under National Emergency (Art. 352,358 and 359) however, Constitution permits Suspension of the operation of all Fundamental Rights except Art. 20 and 21.

Question 2

“Positive discrimination rather than negative discrimination is crucial to the progress of Indian society’. Examine the statement with examples?

Sample Answer

Art. 14 establishes equality before law but historical facts of inequality mandate that special treatment for the disadvantaged groups be given. Constitution recognizes that affirmative action is necessary for genuine social development. Therefore, in Art. 15, there are provisions in support of marginalized sections of Indian society. One of the main goals of Art. 15 is to reform the traditional social order which is beset with discrimination against certain sections.

Preferential treatment in favour of SC/ST and OBCs regarding educational and other facilities is a social reform that is based on Art. 15. At the same time, the Supreme Court sought to balance the quota-based preferential action with general social good by limiting the quantitative extent of reservation permissible. For example, 50% is the limit laid down by the court for all reservations combined. Also, in the case of the SEBCs, creamy layer is excluded. Further, the Supreme Court sought updated data about the SEBCs in India to see if the quota set aside is in conformity with that or not.

Regarding women and their social progress on the basis of Art. 15, the following needs to be noted:

According to Supreme Court; reservation of posts exclusively for women is valid under Art. 15 (3) as the Article 15(3) covers every dimension of State action. Provisions in the criminal law and procedural law in favour of women have been accepted by the courts in view of their social weakness Reservation for women in local bodies (Panchayat and Nagarapalika bodies) and educational institutions is supported by Art. 15. In Visakha vs State of Rajasthan (1997), Supreme Court suggested measures to eliminate sexual harassment in the work place as it violates Art. 14, Art.15 and Art. 23. The Women’s Reservation Bill that is being nationally debated since 1996 is also based on the protective provisions of Art.15 (3). Constitution (108) Amendment Bill that was introduced in the Rajya Sabha in the budget session of 2008 is an attempt to empower women.

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