HONOUR KILLING- By the Society, for the Society


ABSTRACT

This article puts a light on the tree of honour killing which is watered and nourished by old and degraded mentality blinded by castism and gender biased beliefs, the tree which grows from the seed of gender discrimination and illiterate small minds of people who will go to the extent of ending an innocent life because one human practiced their basic human rights. Through this article I will attempt to look into the root causes and the reasons which lead a human being to commit the ultimate crime of ending another human life. I will also look into various  regulations and policies which are in place and how well these laws are actually being applied for prevention and conviction. What we, as a society cando for reformation will also be discussed.

Male dominated society. Patriarchal society. Traditional Values. Our Culture. Caste System. Good Morals. These are a few of the terms that we have grown up with and accepted as part of our family values and incorporated in the societal norms. The most convenient thing for an upper caste male seeing as they are born with the kind of importance and respect, that we all desire.

I amgoing to discuss the issue of Honour killings here. An honour killing or customary killing is the murder of a member of a family or social group by other members, due to the belief of the perpetrators (and potentially the wider community) that the victim has brought dishonour upon the family or community.[1] This is a term given to homicides where there is no apparent cause or motive other than the fact that Indian cultural values have somehow been deteriorated according to upper caste perception.These dire offences include a female wanting a divorce from a possibly abusivehusband, a female wanting to abort a child, a female getting raped by a loathsomepredator, a female conversing with a non family male or a female marryingsomeone of the “lower caste” section of the society. Often the lower case malein such situations also suffers the wrath.

Some might wonder why the common use of the word “female” here. It is an obvious established fact that the onus of upholding the family morality lies upon the females living under his roof and it’s a highly embarrassing situation should anyone ever question the ability of a man to control his woman. Whatever actions the man thereafter has to take in order to restore the so called disobedience and regulate the control on his women, thereby maintaining his reputation and societal status is understandable.  This thinking was largely prevalent in the old primitive times wherein the power of a man was judged by his land his women, the two most important possessions. We have progressed, Human Rights have evolved, the constitution now gives equal rights to all and yet somewhere in the minds of all, this regressive attitude remains. The want for societal approval leads to dominating women which is a direct cause to such gruesome crimes.

It is a well known fact that during the partition time, there were several Muslim and Hindu women who were left behind in the religiously undesirable country. These women, those of who survived, after struggling immensely settled down in their respective countries and formed new families. But a not so well known fact is that 20 years after the partition, both the countries decided that they could not tolerate their women habiting in enemy nations and felt it to be unacceptable. So therefore they launched a “recovery mission”. Obviously nobody really thought of the women and how they had been managing since the last 20 years. The women were snatched from their families and sent back to their previous households. What happens thereafter? How can these households accept women who have had marital relations with the enemy and are not chaste enough anymore? Such would not be tolerated in the respected households. Therefore measures were taken to uphold the family honour. One shudders to imagine the plight of these women and the extent to which they have suffered and faced disrespect.

The caste system continues to be the second underlying cause of the Honour killings. Sociologists believe that the reason why honour killings continue to take place is because of the continued rigidity of the caste system. Upper Caste families take pride in their ancestral roots and believe a marital union with the lower caste sect of the society is undesirable, even heinous. Such a match is looked at with disgust and when the problem arises from within their own family; extreme measures are taken which stem from their own innate ideals along with wanting to avoid disrepute within the society. They want to preserve the family honour at any cost. Now as has become the norm, the son-in-law is killed along with the daughter. Thus, this practice continues though it should have been removed by now.

Human Rights are those inalienable rights to which a person is inherently entitled simply because she or he is a human being regardless of their country, religion, caste or gender to get them.[2] UDHR guarantees the freedom to marry and focuses on consent.[3] Article 21 of the constitution guarantees right to life and personal liberty; including the right against honour killing as held by the Supreme Court in the case of Surjit Kumar v. State of U.P.[4] Article 14 and 15 enumerate equality between all the citizens of India and prohibits discrimination on the basis of religion, caste or sex.[5] Article 17 prohibits untouchability.[6] Thus, the principles of the UDHR along with the constitution articles gives the basic freedom to an individual for choosing their life partners and prohibits exercise of unduly authority over the lower caste in the society. The People in our country however feel such rights are restricted to Western countries and allowing this will somehow dilute the Indian Values.[7]

Lately there has been an influx of cases especially in the regions of North and West India. Khap Panchayats have been formed consisting of the elder residents of a village who take it upon themselves to endorse these killings in the name of saving the family’s honour. The Khap Panchayat claims that the women who obey their male relatives and the families that regulate their females have nothing to fear. [8] The statistics that we have are still out numbered as most of such cases are reported as suicides to avoid penalty, as claimed by many International Organizations.

The problem is severe as there is no proper act governing the honour killings in the country. It comes under the general IPC. All India Democratic Women’s Association (AIDWA) in consultation with many women’s organisations and individuals drafted a comprehensive law entitled “The Prevention of Crimes in the Name of Honour and Tradition Bill” and gave it to the government. The Bill defines honour crimes in relation to a violation of the rights of the couple. The Bill goes on to list the various types of crime, in addition to murder; it suggests preventive measures, it provides for punishment of varying degrees, it includes khap panchayats or other bodies acting in the name of caste or community, it ensures accountability of the police and administration. Based on the experiences of women’s organisations actually dealing with the issues, the Bill covers all aspects. But in spite of the united efforts of the Commission and women’s organisations, the bill was not passed.[9]

Illiteracy, to an extent is a major factor for such crimes, but a more deep rooted cause is the mentality of the society. As long as the Gotra system and the caste system are in place, there will be division in the society. The reservation system exists in order to bring the socially backward castes at par with the rest of the society. It is necessary for the protection against discrimination of certain sections of people in the society. But in my opinion, the reservation system is also unintentionally creating a divide between the castes and is segregating the people by acknowledging the existence of differences between the people in the society. It is the basic human mentality to be comfortable around people whom they think are like minded and similar to them. Thus, as long as the government sanctions and accepts the difference amongst the people, the difference with exist. But the government the other hand cannot remove this system because of the existing society which is unfair to the lower section and thus it is forming a vicious cycle.

Therefore the change has to come from within us, as a society. Education will be a huge contributing factor in this. We need to understand the ancestry and caste of a person ultimately does not matter and what matters is a person’s free will. Most of all, the families need to respect their women and trust them to make the right choices and forge the correct path for themselves.


[1] https://www.civilserviceindia.com/subject/Essay/honor-killing-in-india2.html

[2] https://en.wikipedia.org/wiki/Human_rights#Sexual_and_reproductive_rights

[3] http://www.un.org/en/universal-declaration-human-rights/

[4] https://www.lawctopus.com/academike/article-21-of-the-constitution-of-india-right-to-life-and-personal-liberty/

[5] https://www.legalbites.in/law-notes-constitution-right-to-equality-under-article-14-of-constitution/

[6] http://www.simplydecoded.com/2015/04/03/article-17-constitution-of-india/

[7] https://www.bbc.com/news/world-asia-india-24170866

[8] https://www.aljazeera.com/indepth/opinion/2013/11/honour-killings-india-crying-shame-20131127105910392176.html

[9] https://www.thehindu.com/opinion/lead/Honour-killings-are-a-separate-horror/article14168010.ece

Child Labor -An Enigma,Still Requires Introspection

Adrish Guha Majumder

ABSTRACT

Taking a view of the present scenario of child labor in India, related laws and its shortcomings, the article deals with the subject of child labor which is an enigma now a days in India and in the world scenario. It introduces itself with the definition of child labor, its causes, practice, problems and consequences of the same. It takes into consideration the various measurements taken to curb this problem. It canvasses the legislative, administrative and judicial actions . It briefly explores through the provisions specially for the child welfare, directive principles and the specific child labor laws as a part of the legislative actions .It encompasses the national law commission reports on child labor and the international conventions . It talks about the 11th five year plan enacted to curtail the evils of child labor. It cites the examples of the ILO (international labor organization) reports and views on the concerned topic under administrative actions . As a matter of confirmation and implementation of the laws, the article converse about the previous court cases as a part of the judicial actions. These laws were enacted but unfortunately it is not effective because of the half hearted measures and lack of implementation. It cites various examples where it can be seen that, instead of various measures taken , the problem of child labor is increasing paying no heed to the measures. The law has been lacking in constant work-force and it is very important to combat the main problems that are prevailing now a days and thus it need to be amended and modified according to the situation. The article itself gives some remedies and suggestions to restrain the problem to some extent as possible with the help of law.

 

1. INTRODUCTION

‘Share is no trust more sacred than the one the world holds with children. There is no duty more than ensuring that their rights are respected, that their welfare is protected, that their lines are free from fear and want and that they grow up in peace – Kofi A. Annan

 

i. What is the Importance of child welfare in the present civilized society?

In a layman language, civilized society means a society or a community which is enriched with substantial amount of culture in it. Now this amount of culture , its growth and development depends on the well being of a child. A child is full of vigor and this should be nurtured to get the best benefits. They should be provided with congenial atmosphere around them for their proper growth.

The child is a soul with a being, a nature and capacities of its own , who must be helped to find them , to grow into their maturity, into fullness of physical and vital energy and the utmost breadth, depth and height of its emotional, intellectual and spiritual being; otherwise there cannot be a healthy growth of a nation

It should be ensured that behind the mask of social service or upliftment and evil design of child trafficking is not lurking. It is the duty of the State to ensure a safe roof over an abandoned child

ii. What is child labor?

Generally child labor is the activity they perform ( objectionable) , which exploits them mentally, psychologically, physically. There are no universally accepted definitions of child labor, it varies. According to some social scientists child work is always unobjectionable, suppose a poor child is working in a stationery shop helping the owner, then it is not child labor but if in this case this little child is not paid or has been forced by the owner to do other hectic tasks then the child becomes a child labor. The moment the activity leads to the exploitation of the child resource then it becomes rigidly objectionable. According to U.N conventions child labor means all the activities regarding soldiering and prostitution. But in this case prostitutions is not considered as child labor because these are the utter illegal sources and this is only practiced in case one do not have any other options to choose.

A large number of children work in cottage industries producing carpets, matches, firecrackers, bidis, brassware, diamond, glass, hosiery, hand loomed cloth, embroidery, leather goods, plastic, bangles and sporting goods

iii. Classification of child labor

Child labor can be classified into child labor, street children, bonded children, working children and children for sexual exploitation as given by the 11th five year plan by the national commission for protection for child rights.

A recent state wise figure reveals that Andhra Pradesh topped the list with over 19 lakh child labor followed by Madhya Pradesh, Maharashtra, Uttar Pradesh, Karnataka and Bihar, each accounting for over two lakh

iv. Who is a child?

Like the definition of child labor , child also don’t have a particular precise definition. An universal definition of child was given by the constitution to fit all the situations and the definitions are allowed to vary with the laws, contexts and situations .

International conventions describe ‘child’ as any person who is under 18 years of age.

A child is one who has not completed 15 years of age

‘Child’ means a person who has not completed his fourteen year of age . Again the census also treats persons below the age of fourteen as children. The constitution of india debars a child below the 14 years to be employed in any factory or mine or any hazardous employment. ‘Child’ means a person who, if a male has completed 21 and if a female not completed 18 years .

v. Issues with child labor

Stunted growth for future generation: children are exploited only when they are being forcefully employed to any objectionable tasks. This really hampers the decent growth of the child and thus it do not give the space to build a bright future generation

Effecting human rights: in our legislation there are the constitutive rights of a child. Again in there are certain rights as in human beings are born free, right to life , liberty and security , right to recognition , no one should be subjected to torture or cruel, inhuman or degrading treatment or punishment . Right to survival, right , property , promoting high standards of health and nutrition , mental health should be protected , right to play and leisure

 

Effecting RTE(right to education): In the Indian constitution, article 45 deals with the compulsory education that the state shall Endeavour to provide early childhood care and education for all children until they complete the age of six years. Again in article 46, it deals with the promotion of educational and economic interest of scheduled castes, scheduled tribes and other weaker sections. Clearly, child labor violates the articles concerned.

Other than that the serious consequences are inability to harness human resources, adult unemployment, perpetuation of poverty, increased illiteracy , affecting the health and nutrition of the child, perpetuation of ill-treatment

 

Child trafficking:

In this era child trafficking is at the grass root level, child trafficking is the transportation, transfer, recruitment of children. This is generally done by act of coercion. They are trafficked generally so that the owner can have the work done by them without proper payments. Child labor is a part of the child trafficking.

Due to this, judicial activism has taken some steps to confront child trafficking and thus there was immoral trafficking act 1986. In a certain case, the H’onble High Court of Bombay observed that the traffic in children is not confined only to what larger scale than innocent Members of this House may be aware – in what is known as White Slave traffic, namely, the buying and selling of young women including minor girl for export or import, from one set of countries to another; and their permanent enslavement or servitude to an owner or proprietor of the establishments of commercialized. In addition to this it was held by H’onble Supreme Court that a proper cell be created by Women and Child Welfare Department of the State of Maharashtra in order to rehabilitated victim of trafficking in society and proper vigilance that should be acted upon periodically

In another case it was observed that children, who are being likely to be grossly abused, tortured or sold for the purpose of sexual abuse or illegal acts they will have to be produced before the Child Welfare Committee. Furthermore, the H’onble High Court of Bombay gave directions to state for Rehabilitation these victims of trafficking

Another gross problem of child labor leads to sexual exploitation. This generally happens with the young female child who is treated as mere goods and is transferred to brothels every year and they are only used as the characters of the sex industry prevalent in India. For this immoral trafficking resulting to prostitution there is one law enacted ‘suppression of immoral traffic in women and girls act of 1956(SITA)

This child trafficking problem cannot be restrained in isolation. The judiciary should take some survey about the subject to get the perfect figure of the child trafficking cases happening. it is a pernicious social ill, so it needs very stringent regulation governing it , the government as well as the non-governmental organizations should be a rigid watchdog for the same.

 

LEGISLATIVE MEASURES-

The problems of child labor are prevailing for many years even times before the drafting of the constitution. So the role of constitution as a major part of social justice also very much includes granting justice to the children resulting in the incorporation of some special provisions to ensure justice to the children.

‘Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth’(article 15). But clause (3) of article 15 serves an exception to the respective article. It states that the ‘nothing in this article shall prevent the state from making any special provisions for women and children.

Right to education has been made as a fundamental right (article-21A) by constitution (86th amendment) Act 2002. In this context the court observed that right to basic education is implied by the fundamental right to life (Article 21), when read in conjunction with the directive principle on education (Article 41). The Court held that the parameters of the right must be understood in the context of the Directive Principles of State Policy, including Article 45 which provides that the state is to Endeavour to provide, within a period of ten years from the commencement of the Constitution, for free and compulsory education for all children under the age of 14 . So, the child is also entitled to enjoy all the fundamental rights.

Prohibition of traffic in human beings and forced labor (article 23). Though this article do not talk specifically of children but they are necessarily included because now a days children are the most trafficked . their exploitation results in the violation of the above article.

Prohibition of employment of children in factories(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 as an additional security ensuring the proper justice to a child. In this context the Supreme Court directed that the employers of children below 14 years must comply with the provisions of the Child Labor (Prohibition and Regulation) Act providing for compensation, employment of their parents / guardians and their education

 

DIRECTIVE PRINCIPLES OF THE STATE POLICY

The underlying principles of the directive principles of the state policy is ‘ to fix certain social and economic goals for immediate attainment by bringing about a non-violent social revolution’ . it is also under the directive principles of the state policy where it has been tried to come into force some provisions in part IV to promote justice and equality in life, also in case of child labor

That the health and strength of workers , men and women , and the tender age of children are not abused and that the citizens are not forced by economic necessity to enter avocations unsuited to their age or strength (article 39e).

That the children are given opportunities and facilities to develop in a healthy manner and conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment (39f). in this context there was a case where the main issue under consideration of this case was relating to welfare measures for laborers working in mining leases. The court laid down comprehensive measures for the rehabilitation and supportive working environment of the laborers working in mine leases

Provision for early childhood care and education to children below the age of six years( article45). Promotion of the educational and economic interests of scheduled castes, scheduled tribes and other weaker sections of the society. (article 46)The children are trafficked and are worst sufferers who belong to these category of people because of the poverty and backwardness they face very often, so this will be effective in facing the problems child labor also.

Duty of the state to raise the level of nutrition and the standard of living and to improve public health (article 47). As this principle is there to effect the better health of the public very much directs towards the better health of a child also, because this is very inevitable in case of children.

 

CHILD LABOR LAWS

THE CHILDREN (PLEDGING OF LABOR) ACT, 1933

extended over all India except Jammu and Kashmir, but after sept1,1971 it has been executed to Jammu and Kashmir also. It brought into light the conditions under which the children worked. It has been very often noticed that the labor of the children is being pledged by their parents in lieu of some benefits, basically economic benefits. main object of this act is to eradicate the evils arising from the pledging of child labor generally done by their parents or employers in lieu of certain loans and advances. After this enactment, any person making such type of agreement should not taken into consideration any more rather than they will be subjected to penalty under this act.

THE EMPLOYMENT OF CHILDREN ACT, 1938

is applied to whole of India. To prevent overtime, unhealthy environment and hazardous employment of children, it was enacted .The act fixed the minimum age at which children work in passengers, goods or mails by rail or in the handling of the goods at dock wharves or quays at 13 years. The act also prohibited employment of children under 15 years of age in occupations connected with the transport of goods passengers or mail on railways. The minimum age for handling goods for stocks was raised from 12 to 14 years which was the age fixed by Indian ports act 1908. The period of rest was to include at least 7 consecutive hours between 10 pm and 7 am, prescribed in it.

CHILD LABOR ( PROHIBITION AND REGULATION) ACT 1986

was actually enacted to regulate the working conditions under which the children work under exploitative conditions. This act prohibited the children from work under the age of 14 years. According to section 3 of the act, it prohibits the children to work in certain occupations and environment as specified in the schedule of banned occupations as per part A of the schedule to this act. Part B of this act has added one more process into the existing list and that is ‘building and construction industry’ all are same as the existed one. There is also some mentioned process where no child is permitted to work as per section 2 of the act. Punishments are also provided by section 14 of this act where there is fine up to twenty thousand in case of any employments contravening section 3 of this act. Any police officer has the right to file a complaint of an offence under this act in any court of competent jurisdiction

FACTORIES ACT, 1948

defines a child as one who has not completed 15 years of age. This is an absolute prohibition of employment of a child who has not completed his fourteenth year. The acts prohibits a child to do certain works as per section 22(2) of the act. Prohibition of a young child in employing or dangerous machines as per section 23 of this act. Prohibition of employment of women and children near cotton openers as per 27 of this act. Provides for token to be supplied by employers and kept by non-adult workers as per section 68. It also provides for certificate granted to an adolescent workman that he is an adult as per section 70. Specific working hours for children as per section 71. Section 75 of this act also empowers the inspectors to require any such person for re-examination by surgeon and he may prohibit the employment.

MINES ACT, 1952

includes the excavations where some obtaining or extraction is going on including all bearing, bore-holes and oil well, all levels of inclined plans in the course or being driven in or adjacent to and belonging to a mine. It strongly prohibits the children to perform this type of work. He/she is only then allowed when they are above 16 years of age and they have a medical certificate of their own which is only valid only for 12 months as per 43 of the act. It also provides working hours for adolescents as per section 44 of this act. It also instructs and empowers inspector to take medical examination of a person employed in a mine if a child or adolescent. Section 68 of this act provides for penalty for employment of children under 18 years of age which contravenes section40 of this act which prohibits the employment of a child under the age of 18 years and the convicted is punishable with fine up to five hundred rupees.

MERCHANT SHIPPING ACT, 1958

prohibits employment of children below 15 years on sea going ships. Here no person(young) should not work as a stoker or trimmer as per section 110. Medical inspection is mandatory as per section 111. It also empowers central government to make rules respecting the employment of young persons. As per section 113 of this act.

APPRENTICE ACT, 1961

is to regulate and control the training undergone by the apprentice in the course of business. As per the act an apprentice is ‘as a person who is undergoing apprenticeship training in a designated trade in pursuance of control of apprenticeship’ the act prohibits any person to go internship who is below 14 years of age. In this context, the government has identified 56 trade for the purpose of this act.

BIDI AND CIGAR WORKS (condition of employment) ACT, 1966

also defines a child as a person who has not completed 14 years of age. Section 24 of this act ensures the enforcement of better work conditions for children connected with the manufacturing of cigar and bidi. In this act the children between 14 and 18 years are prohibited to work between 7 pm and 6 am as per section 25 of the act. Section 14 of the act also provided for maintenance of crèches and other facilities for children under the age of six years of female employees. Canteen, first aid, cleaning and ventilation are also incorporated in this act.

MOTOR TRANSPORT WORKERS ACT, 1961

prohibits the children under 15 years of age in any motor transport undertakings. In case of adolescent it also provides for certificate of fitness as per section 23 of this act and it also empowers inspectors to take medical examinations of employed adolescent as per section 24 of this act.

Legislative measures have been also taken to ensure the payment of minimum wages to labor. There are two central laws which impose certain obligations on employers and management in the field of wages. Payment of wages act, 1936 ensures regular and prompt payment of wages to employees and prevents exploitation of wage earner against arbitrary deductions and fines.

The minimum wages act 1948 imposes certain obligations on employers and managers in the field of wages and requires the central and state government to fix a certain minimum amount of wage in certain scheduled employments. The act also seeks to prevent ‘sweated labor’ to prevent the exploitation of employees and secure them in the enjoyment of minimum wages. This act ensures justice to those child labor who are not paid properly under coercive conditions

BONDED LABOR SYSTEM (ABOLITION) ACT, 1976

provides the abolition of bonded labor system with a view to preventing the economic and the physical exploitation of the weaker section of the society. As amended by the bonded labor system act (73 of 1985) section 4 of the act declares abolition of bonded labor system and lays down that the system shall stand abolished and every bonded labor shall on such commencement stand freed and discharged from any obligation to render any bonded labor. Enforcement of bonded labor also made punishable under section 16 with imprisonment for a term which may extend 3 years with fine which may extend to two thousand rupees.

Section 371 of IPC provides against habitual dealing of slaves in case of imports, exports, buys, sells should be punished with life imprisonment or with imprisonment of either description for a term not exceeding ten years and should also be liable for fine.

INTERNATIONAL LABOR ORGANISATION AND CHILD LABOR

ILO (INTERNATIONAL LABOR ORGANISATION) COMBATING CHILD LABOR

The International labor organization was set up in 1919 under the League of Nations and has been playing an important role in combating child labor. Mainly it has been focusing on five main issues like prohibition of child labor, protecting child labor at work, attacking the basic causes of child labor, helping children to adapt to future work, protecting the children of working parents .

The general conference of ILO as WORST FORM OF CHILD LABOR CONVENTION, 1999 considers the need to adopt various instruments so as to combat child labor, Effective elimination of the children working in such conditions and provide for their social rehabilitation, deciding upon some certain proposals with regard to child labor. In article1 it is stated that each member should take immediate effective measures to secure the elimination of child labor. The child shall apply to all persons who is under the age of 18 years (article 2). All forms or similar to slavery, trafficking of children, debt bondage, prostitution of a child, pornographic activities, trafficking of drugs etc. are termed as the worst forms of child labor as per article3. The members should establish and design measures to monitor the implementation of the existed provisions, the action, measures should be in consultation with proper government institutions to make it more relevant and finally the formal ratifications of the conventions should be communicated to director-general of international labor office.

After the widely ratified convention against the worst form of child labor, the ILO has been well equipped to multiple challenges involved by trafficking process. It takes on Special Action Programme to Combat Forced Labor (SAP-FL) and International Programme on the Elimination of Child Labor (IPEC). At that time the main concern of public was the then trafficking of the young female child from Albania, Moldova and Ukraine. The coercion by the traffickers on the female children was really very repulsive, even today also in every parts of the world a stringent investigation can bring into light thousand of these cases regarding child trafficking. One of the benchmark is the forced labor convention no.29 of 1930, this provides a clear definition. Under the convention a forced labor is that ‘all work or services exacted from any person under the menace of penalty and for which the said person has not offered voluntarily’ child labor forms a very major part in violating the human rights. Now a days it is surging rapidly. Even children are trafficked across borders to perform some other kind of work also. There are four major action steps taken by ILO like data collection and analysis, policy development and direct support including educational opportunities, community mobilization and outreach. Community mobilization is very important for proper monitoring the problems, it means community level governance for example in Philippines there are barangays are effective community mobilization only for children. This helps in clear positioning and implementation of plans to combat the problems.

The international labor organizations adopted the minimum age recommendation act, 1973 and have discussed certain elements about the topic. It gives priorities to planning and meeting the needs for children through all the national development policies regarding employment oriented programmes, ensuring better living standards, child allowances, proper educational opportunities. It also speaks about the minimum age that should be fixed in all kind of economic activities. The members should take as their objective to raise the age standard to 16 as per article 2 of the act. The conditions of employments should be measured whether they are satisfied or not. They should keep a watch whether the children are being undergoing through practical training session to keep a very safe and protective environment.

India is a signatory to the Universal declaration of human rights (UDHR), 1948. This is a common standard for all people and nation which comprises of human rights and fundamental freedom. It defines about the right of the human being to born free, equal dignity and rights and the spirit of brotherhood should also be present as per article 1. It speaks about the right to life, liberty, security of a person. Exposure to slavery and servitude shall be strongly prohibited. It is not acceptable for arbitrary detention and exile of any person. One is entitled in full equality to a fair and public hearing by an independent and impartial tribunal according to article 10 of the act. Everyone has the right to protection against any interference against his/her privacy, family or home. He/she has the full right to leave his/her own country and can return also according to the will. Everyone has the right to nationality and no one should be intentionally deprived of the nationality as per article 15 of the act. Everyone has the right to his own property and no one can be deprived of his property as per article 17 of the act. Everyone has the right to freedom of opinion and expression. They have the right to peaceful assembly and association and there should not be any compulsion to belong to an association. There is the right to social security for the members for the same. Including reasonable limitation of working hours and periodic holidays with pay, everyone has the right to rest and leisure as per article 24 of the act. With the adoption of the act, the human rights have been intensely implied for the betterment of all the human beings, specially the children who suffer the most.

The general assembly of the United Nations adopted the united nation declaration, 1959 on the rights of child where it mainly discussed about the physical and mental immaturity of a child needs special safeguard and cares before as well as birth so that the child can have a happy childhood enjoy for his good and for the society. In the principle1 it is said about the right to enjoyment of rights without any discrimination. It ensures a child’s right to special protection so that they can develop morally, mentally and physically. The child has the right to adequate nutrition and on the other hand he/she has the right to receive the early childhood care for survival, growth and development. The children who are physically disabled should be offered proper treatment and provided with proper educational opportunities. Free education is compulsory for every child, they must be provided with free primary education. There should not be any discrimination for children on the basis of race, caste. Status. Economy. There should be understanding, tolerance and brotherhood between them.

ADMINISTRATIVE ACTIONS

POLICIES FOR CHILDREN

The government of India has also adopted the National policy for children in 1971. It sets out the measures the proposals made by the government of India, to adopt the attainment of objectives that was set out earlier. It also includes actions that are designed to protect children from neglect, cruelty and exploitation. It mainly gives high priority towards the maintenance, well being, and education for the destitute children. It also stresses upon the vital role of the voluntary organizations that plays a vital role in imparting proper education, health services and social welfare to such children. The government should encourage these organizations that can help in the betterment of children. There are no. of programmes for the same. For example children from weaker section of society need special care, attention. Postulation for children who are deprived of the educational opportunities. Programme no. 7 directs the quality of opportunity. That it should be provided to children of all sections of the society including scheduled caste and scheduled tribes. Children with physical disabilities should be taken proper care with proper treatment, education and rehabilitation. Thus we can see that this policy is very effective and the international principles for the development of children are of utmost importance.

 

The National child labor policy, 1987

envisages strict-enforcement of the child labor (prohibition and regulation) act, 1986 for betterment of the condition of the child labor. It believes it in contemplating legal actions plans, general welfare and development plans on child labor and project based plan of action. Ten projects were taken to cover the sivakasi match industry, surat polishing industry, precious stone polishing industry of jaipur, Firozabad glass industry, brassware industry of Moradabad, carpet industry of bhadohi, lock making industry of Aligarh, carpet industry of Jammu and Kashmir slate industry in Madhya-Pradesh. Then the policy proposed that around 30000 children should be withdrawn and should be taken care by the government. The policy also increases this type of enforcing to create socio-economic situations which could diminish incidents regarding children being sent out to work.

 

The Convention of the right of the child (CRC), 1989

was unanimously adopted by the general assembly of the United Nation. The government of India ratified the convention. The CRC deals with the individual rights of the children less than 18 years of age to develop with full potential, free from hunger and want, neglect, exploitation and other abuses. It extends its provision to protect the child’s economic, social and cultural rights. The age of the child is specified (less than 18 years of age). The convention speaks about the parental guidance where the parents or the legal guardians have to provide the children in manner consistent with the evolving capacities of the child and guidance in the exercise rights of the child recognized in the conventions. The child should be registered immediately after birth and it has the right to nationality as per the convention. By this convention a child shall not be separated from its parents against their will and state parties should respect the right of the child who is separated from their parents to maintain personal relations and direct contact with both the parents on a regular basis except it is contrary to the child’s best interest. The child should be given the right to express their views, they have the right to share their own judgment accordingly and they should be given the weight age according to their level of maturity. The child has the right to freedom of association and peaceful assembly. Other than that there are articles where it has been discussed that the children should be protected from sexual abuse and economic exploitation, the child has the right to standard of living, social security and right to education.

The government of India has adopted the National Charter For Children, 2003 to reiterate its commitment towards eradicating the evils of child labor and exploitation. The intention of the charter is to secure the children the inherent rights and to ensure the healthy growth and development of a child which includes survival, life and liberty, promoting high standards of health and nutrition (the government should take a notice about the implementation of the health facilities and state should take the measures to implement proper health care and should aware preventively about diseases), assuring basic needs and supply( the government is there to ensure proper security for supply and needs for example- the authority should take the steps in supplying the basic materialistic needs by a street child), play and leisure, equality, freedom of expression, freedom to be in association, peaceful assembly and proper care for the children with disabilities.

 

The National Plan of Action for Children, 2005

makes out 12 key areas which should be grabbing greatest attentions. They are reducing infant mortality rate, reducing maternal mortality rate, reducing malnutrition among children, achieving cent percent civil registrations of the new born, complete abolition of female feticide and child marriage, all legal and social protection for children and monitoring, reform and review of the proposed and the implemented plans for the abolition of the problem.

 

The Integrated Child Development Service (ICDS). 1975

plays a unique role in the betterment of the life of children, they provide various programmes for the children. It was developed to improve the nutritional and health status of children in the age-group 0-6 years, to lay the foundation for proper psychological, physical and social development of the child, it aims at reducing incidence of mortality, morbidity, malnutrition and school dropout, achieving effective co-ordination of policy and implementation amongst the various departments to promote child development and to ensure about the proper health and nutritional needs of the children. They arrange various programmes like

Nutrition including supplementary nutrition: in this nutrition they generally monitor the growth and surveil the nutrition. The child in each family communities are weighted often with their age and they have with them the cards (measuring weights with age) , therefore it is easy for them to asses the nutritional status. They visit every family and there is a provision within themselves for feed supporting to families.

Immunization: it includes proper immunizations to the pregnant women, infants for various diseases that can affect them like tuberculosis, tetanus, hepatitis etc. thus this section of the policy is for prevention and precautionary measures for the diseases

Health checkups: proper and regular health check-ups are conducted for the betterment of the health of a child. They are transferred to their sub centers for the better governance on the concerned arrangements.

Non formal pre-school education- they arrange a village courtyard for the children. In these arrangement normally joyful activities takes place resulting in the pre-school development of a child. Generally it is a preparation towards the school and these mainly aim at the optimal development of a child.

They also arrange funds for the state (100 % in nutrition). Actually they are resource sponsored and they provide funds to the state. When the states are out of fund then they finance the state, further there are many conditions for their funding process.

THE ELEVENTH FIVE YEAR PLAN:

The 11th five year plan aims at better investment in the educational sector. It is proposed to allocate 1.25 lakh crore for education which is a major leap from 30000 crore of the last plan. It is expected for the plan to cover a its previous achievements and to ensure inclusive growth curbing the negative sections. But merely plans won’t fetch the absolute motive; it has to be perfectly implemented through all out the proposed sectors. Previously it was claimed to have spent through various ways for the development at elementary levels but there was no positive results for the same. The increment of fund is not the only step that has to be done; all the proposed plans fail only when there is lack of plan of allocation of resource like unless a previous defective structure is not refined then it is useless to invest for the establishment of a new unit. The children here are given training, nutrition and regular health check up. In this plan there is a condition for amendment of the child labor act 1986, that there should not be the use of world ‘regulation’ because in this case the child labor negotiation should be non-negotiable, the provisions must be increased and should be stricter. The child labor should not be tolerated any more. New child labor eradication policy should be revised, the child labor has to be abolished in all forms and children enjoying the right to education are non-negotiable. In case of national child labor programme, it also should be revamped in case of migrated students. The intra state migrated students should be provided with additional transitional educational centers (TEC). This should be the joint effort of the state. The 11th five year plan comes up with the topic of social mobilization where the children can be prevented from all the work force. The children should go to government formal schools rather than leaving the home for full day work. For the children to leave work , so that they can get the free elementary education , the prime need is the connection between all the departments like labor ,police ,education ,youth affairs, panchayti raj.. the synchronization between all those will actually bring the synergy to achieve the real motive.

 

JUDICIAL ACTIONS

The role of Indian judiciary and judicial interpretation has been very remarkable now a days because of the increasing statutory invention in the present scenario and the judiciary is very much successful in giving the justice to the needy.

The Supreme Court is the apex court and has been assigned a very important role, and constituted as a guardian of the constitution which is the yardstick of the ground norms of the legislation . It is the duty of the judiciary for the establishment of proposals through which the society or the nation can move forward very effectively. It is a matter of pride that the Indian judiciary system has been able to inaugurate the trust of the common people that is the reason why the people bring their grievances to the court. In case of child labor relating issues or issues affecting many child right infringements, relating to child exploitation etc. the courts have many cases which actually go side by side with the constitution and makes the respective law effective.

The child must be groomed well in the formative years of his life. He must receive education, acquire knowledge of man and materials and blossom in such an atmosphere that on reaching age, he is found to be a man with a mission, a man who matters so for as the society is concerned. In this case, the framers were aware about the prohibition of the child in national building work unless he/she receives the primary education and then there was the insertion of the article (article45) where it is ensured to provide the free education to the children. They should also be provided with proper care and should be financially helped like they should get the minimum wages.

There was another case regarding the employment of children in carpet industry in the state of Uttar Pradesh. The appellant proposed for the proper investigation of the fact. After observation the apex court interpreted that the child of today cannot develop today unless the assurance of physical and mental health. The court held that the every child irrespective of caste, age, birth, colour should have the right to health, well being and education.

In another case there was same observation where the children were subjected to right to health, meaningful right to life with fundamental rights .

This is the reference of another case where apex court receives a letter regarding the workers who were mainly related with the manufacture of beedi and cigar, the children were not given proper wage, shelter and protection which generally leads to child resource exploitation. When the court ordered the society to provide a report of the activities, then it was found that there were many defects in the report. later it was observed that the manufacture of this kind of things leads to hazardous effect on the concerned. The court has adjourned the case for around 8 weeks because of the ineffective implementation of the law and later designing measures to combat this problem was taken by the state, central and the counsel for the employers

There was a case in chattisgarh where a girl child was seen in manufacturing a beedi in her house. This case was taken to court and under the child labor prohibition act it is an offence for sure but it was yet to prove that the age of that girl was less than 14 years. There was no medical or valid argument to present that girl with in 14 years of age. Other than that, beedi manufacturing has two parts. One is to roll the bidi and other case is to supply the raw materials in case of the latter one, the raw material provider enroll themselves legally and there ia no offence in it but in this case as it was not proved that the girl was not below 14 years of age, that’s why the proceedings were quashed.

The same as the above case was also there in the state of U.P where a child was seen in the carpet industry working when the inspection was made by the enforcement officer but again the age proof of the child was not produced by the authority as a result the conviction was unsustainable.

Now we will discuss about a case in Madhya Pradesh where a petitioner is challenging when a fine of RS.20000 was imposed on him for child labor of 14 years of age. Generally prohibition of employment of children in factories says that a single child shall not work with an age less than 14 years of age and as the petitioner was employing a child who is 14 years of age is an offence indeed. So the challenge was not even taken into consideration.

In this case a child below the certified age was employed and was investigated by an officer whose appointment was visualized by section 17 of the child labor prohibition act, 1986 and anything which is contravening the child labor prohibition act, leads to the imposition of penalty of RS 20000 ( twenty thousand) which could be deposited in a fund of child labor

Very recently a petition was filed by the NGO ‘Bachpan bachao andolan’ regarding the prohibition of the children working in circus as mere labours. The supreme court issued a notification prohibiting all the children from working in circuses. It was under article 21 about the fundamental rights of these children.

The Indian government has banned the employment of children under age 14 as domestic servants or in hotels, restaurants or small tea shops in a bid to protect the rights of the children. It also prohibits the children from working in any motels, bars or any other recreational activities

Earlier in case of child labor, the sufferers don’t have that access to the court to express their grievances but now a child labor can easily reach the court and demand for his fundamental rights. This is only because of the locus standi of the court.

In a certain case, it is seen that the supreme court that the employment act of India does not feature the construction work because this is a type of hazardous work and under article 24 one under the age of 14 years is prohibited to act in such activities

SARBHA SIKHSA ABHIYAN

The scheme was adopted by the government of India to provide free education to all under 6 and 14 years of age. This is tagged with the state government to exercise the scheme of elementary education effectively towards every parts of India. Recently the scheme aims at opening new schools in primitive remote places. Not only opening schools they also develop the infrastructure, proper fooding facilities, drinking water, sanitation etc. they are now recently working on to introduce the computer education in the course to increase the quality of education to a very contemporary level.

MID DAY MEAL SCHEME

The concept of mid-day meal originated from a saying of a boy when he said that he will only go to school if he will be provided with food the initiative was taken by the state of Karnataka and later it was stated by the Supreme Court of India that it is a direction to all of the state government to ensure the mid day meals in all types of primary schools in India. Thus it helps to encourage the elementary primary education.

CONCLUSION

HALF HEARTED MEASURES: LACK OF IMPLEMENTATION AND REMEDIES:

After discussing about the measures and actions taken in form of administration, legislation and judicial we can easily interpret that India has really been successful in designing the laws, but that laws are only laws when they are properly implementation. Its like having all the plans without organizing and hard work which thereafter plays an important role in the happening of things. The stark reality is that, if we look India, then we could see that the problem of child labor has no where decreased and still prevalent in the nation affecting the future generation badly. Children are now also found in roadsides, coal mines, industries subjected to exploitation mentally, physically and psychologically. According to one estimate, more than 20 per cent of India’s economy is dependent on children, the equivalent of 55 million youngsters under 14 . Some recent current issues are discussed below

1. Child workers, some as young as 10, have been found working in a textile factory in conditions close to slavery to produce clothes that appear destined for Gap Kids, one of the most successful arms of the high street giant. Speaking to The Observer, the children described long hours of unwaged work, as well as threats and beatings. The discovery of the children working in filthy conditions in the Shahpur Jat area of Delhi has renewed concerns about the outsourcing by large retail chains of their garment production to India, recognized by the United Nations as the world’s capital for child labor .

2. A City-based Child line, a 24-hour helpline for children in distress, rescued 116 children from serious abuse and provided shelter to 46 in 2011. The number of cases of child trafficking, abuse, child labor and beggary increased during 2011 in comparison to 2010, said a report released by the same helpline, which completed 11 years of operation on Monday .

3. In Goa there are around 100 child labors, a prevalence of tourism related sexual abuse and child trafficking. In Goa there is children act 2003 states that the children have to be given free education up to 7 years of age. But up till now there is no such action to do so. There was even a plan of action taken to eradicate child labor in Goa but no survey has been taken already .

4. Another case was there where a boy named ranjith with other 9 children was trafficked to Kerala from west Bengal. They worked in a gold shop at thrissur. They worked constantly for around 16 hectic hours and in that case they were given very low amount of food and money as their reward. They were beaten also in case of any disorder .

5. This is a case about child trafficking. A 17 year girl named as Rani was married to a 40 years old man for rs.10000. After his parents have died, she was got married. One day she went to the police station to complain about her property dispute, she was sexually abused by the police officer. Gradually, she was introduced to many people after when she was trafficked to many places. In this case rani was at the same time sexually abused and trafficked .

6. This is the case of sanu chaudhari when she was brought to India by a co-worker in a carpet industry. Sanu had a friend who tells her about the better payment facilities in raxaul and they settled to go there. But instead of raxaul sanu was actually trafficked in Mumbai, and she was sexually abused by many people, beaten by brothel guards and finally she took up as her profession.

As the above cases described, there are many cases like this which can actually make a clear picture of the fact that after designing so much measures and the measures remain restricted only in paper, not in reality. The judiciary, administrative and the legislation should scan the problem in a broader view, create and amend some existing laws. Here are some points which I think that should be taken into consideration.

 

ECONOMICAL PROBLEM:

First and fore most child labor arises out of mainly one reason that is poverty. We cannot always blame the laws for not having its effect on common people, there are some embedded problems also. For example in primitive villages where the law surely applies but the monthly income is of really negligible amount , then the child of the family below 14 years of age is sent for work to earn the bread for the family or they migrate to another place for any work. Then the children are seen as the financial provider of the family .This includes no offence in that case in case of morality. It is the responsibility of the government to maintain the economical equality between the peoples in India , the biggest problem to be achieved in the current scenario. A family with a very low income rate do not pay any respect towards the laws that prevails but according to them financial assistance is of more importance. Now if that particular family gets the assistance, then they would have hardly sent their children to earn livelihood. So as long there is poverty and destitution in this country, it is really hard to eradicate the evil. In a case the supreme court opined that the problem of the child labor is a very difficult problem and it is a purely economic problem that parents often want their children to be employed to make both ends meet . So onwards there should be some steps by the judiciary or the legislation regarding assisting financially to lessen child labor.

MASS ILLITERACY:

Generally in places where there is mass illiteracy in the community, various social evils are prevalent in that particular section of the society. In the 20th century also, many community think that a girl child is there only for doing household duties and there is nowhere access to education in their families .For these people the constitutional mandates are of no. importance. These categories of people are generally reluctant to send their children to schools and colleges. They send their children for work without knowing anything about the child labor problem and the corrupt employers mostly want these type of workers by whom they can easily make the work done. But this type of continuous practice cannot help in restraining the problem. The government should bear the responsibility to educate the people about the problems, consequences of child labor, about how it hinders the growth of the society, the exploitation of human resource and most importantly that is a punishable offence under law. It should be imparted that education is not only for restriction of child labor but it is also needed to earn money that is the prime factor they look at.

EDUCATIONAL AMMENDMENTS:

It is there that a child has the right to free elementary education between 6-14 years of their age. According to the reports of the Report On National Commission of Labor, the proposed 83rd amendment bill will guarantee the right to education children in time age 6-14 group. Only those who can afford to nurture their young children and provide them pre-school opportunities, will be able to take advantage of the right. The age group of 3+ must be included to ensure that children of disadvantaged groups have equality of opportunity in the school system

Another aspect is there that there are number of schools and plans of actions prepared , but their proper implementation is also important. According to the National University of Educational Planning and Administration (UNEPA), about 47 lakhs elementary school teachers have not studied beyond higher secondary examination. The government should keep training session for that teacher to ensure quality educational to the students. At the elementary level, the student have to be nurtured very properly, have to be equipped with analytical, conceptual skills because this is the base of education that he is receiving . in many cases it happens that for the sake of law , a school is set up. They don’t have proper infra, system and discipline. The teacher remains absent most of the days. In remote areas there is very low accountability rather no accountability in their systems resulting in very poor performance of the teachers. There should be some amendments or some serious measures to curb these problems.

 

BETTER INCOME OPPORTUNITIES

In India unemployment rate is not too high, that it should be ignored. Many of the cases where the peoples are indulging in some unsocial activities, the main reason behind it is the unemployment. In case of child labor as we have discussed above is mainly because of the economical problem that they face. Sometimes due to many realistic reasons and environment prevailing, parents have to send their children for work because he/she is the prime income holder of the family, at this point of time there should be a number of choices. It is therefore the responsibility of the state to provide income alternatives other than health, education, nutrition to the children, because in many families there is the immediate need of money, they cannot just keep their children in schools being the children, the main earner of the society. At this moment alternative income opportunities are needed. The state shall provide incentive along with education. In this case the students receiving incentive can help his family and on the other hand they can also share education both at a time.

ENFORCING THE RESPONSIBILITY ON THE PARENTS

The free elementary education is a constitutional right where it was stated that the state shall provide free education for the children aged between six and fourteen years of age. But this can only be successful in case the parents send them to school instead of sending them at work places. In many cases it happens that, though free education is imparted, still some children do not take part because of not having the consensus of their parents and they go for work under the compulsion of their parents. In this case there should be enforcement on the part of parents in which, the parents will be obliged to send their children to the school otherwise that will be a punishable offence. It will work best for the step mothers/fathers who generally do not send their children to the school and after this the problem will be solved because in this case the parents are in the binding force to send their children to schools . Article 51-A clause k deals with the topic but after the failure of the general persuasion of the clause, it is admitted to move to some stricter provisions. In a case there was opined that children are not mere chattels, they are not the play things of their parents, absolute right of the parents over the destinies and the life of the children has in modern, changed social conditions

 

PROPER ACCOUNTABILITY AND GOVERNANCE

A plan cannot be implemented without proper implementation. All the child labor laws, policies have been determined but not at all implemented properly. This needs proper governance and accountability of the authority. In many cases when it needs the proper investigation about the facts, then the potential to do that really lacks. Sometimes the police inspectors don’t feel themselves responsible for the job given to them. They don’t take the initiative to save the society. There is no one to fill the loop holes prevailing in the system. So the state has to take certain decisions to curtail the problems. The strictness of the law should be increased otherwise the flaws cannot be highlighted and rectified which will result in the ineffective implementation because of violation of laws. One of the effects of this improper governance is the rise of corruption. Illegal employment has been a mode of huge earning in India. The employers generally grab the most portion of amount generated by the child labor. The money generated by child labor is unaccounted and goes to the pockets of the employers. This black money id used again to bribe resourceful peoples all through. But in response only 9 percent of the total employers were arrested. Inspite of their 3 or 4 years of jail, they only got through the case by paying a mere amount for fine. Until now not even a single errant employer has been jailed for . The child labor generates 1,20.000 crores of black money every year.

May be it’s the most pathetic reason why the children have their exposure towards labor. Children whose parents have died and after that it is the immediate necessity of the children to earn something and unfortunately for that reason the child has to join the work. In this case the state should promote the case of adoption. With the help of adoption the child can have again someone who will guide the boy. In eradication of child labor, promotion of adoption is also very important.

According to the report of national commission of labor. A proper fund policy plan should be prevalent. With this facility, the state can use regarding child developments considerations. The best known example comes from Columbia. The government takes 3percent from private and public companies. The fund is then maintained by Columbia institute of child welfare.

On a gross, it can be observed that India has the dubious distinction of having the greatest number of child labor. They are being used by the employers that results in the proliferating amount of miserable and difficult lives for the children. Today the child labor has been nonexistent in the developed countries . But unfortunately in India it is still prevalent because of the poverty forces. The poor income of most of the families in India is the root cause for the problem. There are many voluntary organizations and NGOs who dedicate their duties to eradicate the evil are getting enough support from the government. Very often the open rallies are being arranged by them to infuse the sense of understanding of the problem to the minds of the common peoples. Other than that as discussed earlier there are many actions from the part of state, constitution to fight this problem , then also something is missing very badly and that is proper synchronization between all the measures. If the proper communication and semblance between all the measures can be ensured then the problem will not be as intense as of now. Another major factor that should be kept in mind after the synchronization , is to lower the level of ignorance and increase the mentality of the society. Former can be achieved by proper information allocation in the society and later can be achieved only with the help of the consciousness of the common people. If the community itself do not changes , then it is impossible to implement any ideas and plans because they are main characters dealing with the problem. Therefore the society plays a very important role in this process. We should take the initiative with mass work force and will without passing away the blame on to the others. If we are successful in doing this , then only we can get the solution of the problem.

Article 21: The Omnibus Article

Broadly speaking, the doctrine of separation of powers has not been expressly provided for in the Constitution of India, the Suprema Lex, but less to say it can be made out from the scheme of the Constitution.

Doctrine of Separation of Powers asserts the division of powers between the three wings of the state: the legislature, the executive and the judiciary.

If the work of the legislature is to frame laws and the work of the executive is to implement laws then the work of judiciary is to interpret laws. The Supreme Court in all its magnificence is the custodian of the Constitution.

There were several occasions when there was locking of the horns when question was to be decided in regards—whether judiciary comes under the ‘meaning of state’ so far as article 12 of the constitution is concerned, this question was finally settled with ruling in the case of Prem Chand Garg v. Excise Commissioner, where by it was held that judiciary is the third wing of the state howsoever functionally independent, with no deterrence to judicial activism which it enthrals.

Occasions have been there when the decisions rendered by the apex court had been put in spotlight either to appreciate its spirit of judicial activism or to criticise it for its judicial over-reach.

No legal provision has attracted more controversy than Article 21 of the constitution, which provides for ‘right to life and personal liberty’—the article on pen and paper &in black and white states:  ‘No person shall be deprived of his life or personal liberty except according to procedure established by law’

It is the judicial interpretation and judicial activism that has given enormous dimensions to this article making it an omnibus article.

One of the first time when the efficacy of this article was explored beyond any reach and bound was in case of ‘Chairman, Railway Board v. Chandrima Das’, where by the apex court went on record to state that even though article 21 is in scheme of the fundamental rights garnered by the constitution and these rights are available to citizens only, article 21 is a mighty exception as it is applicable even to foreigners. It is important to make a distinction over here between a citizen and a non-citizen, as it is a question devoid of any doubt that Article 14 of the constitution is applicable even to non-citizens such as a ‘company’ (Chiranjit Lal Chaudary v. UOI), what to say of foreigners- Article 21 limits itself to citizens and so far as non-citizens are concerned to foreigners, not to a company- whether foreign or indigenous.

Fundamental rights enshrined in part III of the Constitution form the spirit of the Suprema Lex, protection to the same is offered by article 32 and 226, the writ jurisdiction of the Supreme Court and the High Court respectively. Here so far as article 21 is concerned by way of judicial interpretation and activism a new branch of rights have aroused over the decade—reason for this is that so far as the scheme of Indian Constitution is concerned  judicial decisions so rendered by the Supreme Court have the force of being the ‘law of the land’.

A set of exhaustive rights that article 21 in matter and in spirit is capable of offering is as follows:

Serial No. Rights offered under Article 21. Case law in which the right got recognised.
1. Right to food People’s Union for Civil Liberties v. UOI
2. Right to shelter Chameli Singh v. State of U.P.
3. Right to livelihood Olega Tellis v. Bombay Municipal Corporation
4. Right to education Mohini Jain v. State of Karnataka; Unni Krishnan v. State of A.P.
5. Right to clean environment M.C.Mehta  v. UOI
6. Right to privacy Govind v. State of M.P.
7. Right to marriage Lata Singh v. State of U.P.
8. Right to travel abroad Maneka Gandhi v. UOI
9. Right to live with human dignity Maneka Gandhi v. UOI
10. Right against bondage Bandhu Mukti Morcha v. UOI
11. Right to emergency medical aid Parmanand Katara v. UOI
12. Right, not to be driven out of a state NHRC v. State of Arunachal Pradesh

 

The rights so mentioned above are regal in sense and spirit. Apart from these, this article empowered the apex court to nomenclaturefew other rights by way of judicial interpretation. These are as follows:

Right to speedy trial (Sheela Barse v. UOI)

Right against prison torture and custodial death (Sunil Batra v. Delhi Administration)

Right to compensation for illegal – unlawful detention (Rudal Shah v. State of Bihar)

Right against handcuffing (Prem Shankar Shukla v. Delhi Administration)

Right against bar fetters (Charles Sobhraj v. Suptd. Central Jail)

Right against solitary confinement (Sunil Batra v. Delhi Administration)

It is very necessary to note that in a democracy no right is absolute. All rights are subject to reasonable restrictions of: morality, health, public order, state security, public safety & public policy.

 Justice Krishna Iyer while speaking for majority in the case of Sunil Batra v. Delhi Administration made it constitutionally clear that when a person gets arrested, he steps into the prison cell with his fundamental rights intact and not in devoid of them, he also made it amply clear that Article 21 is to be interpreted in the widest possible sense because fundamental rights form the spirit of the Constitution and Article 14, 19 and 21 are the spirit of the fundamental rights- over and onto which all other fundamental rights rest.

FACETS OF ARTICLE 21:

Is right to life inclusive of right to die? – This question was answered in great detail in case of Gian Kaur v. State of Punjab, here it was held that word ‘life’ is to be read in consonance with word ‘dignity’ so far as article 21 is concerned, but right to life in no stretch on imagination shall include right to die. ‘Right to life’ means‘right to life with human dignity’ and not mere animal existence, but it shall not include right to end life even under medical supervision by way of administration of lethal drugs or otherwise. Right to die shall not be available to anyone even though the claimant of this right is suffering acute pain and agony of all sorts, incapable of taking slightest care of himself and is living on ‘life support system’, this was the majority judgement in this case.

A legal breakthrough came about with Aruna Shanbaug case where by the apex court for the first time offered legality to the concept of euthanasia or mercy killing in some form (with conditions attached to it). A person in a persistent vegetative state (PVC), deriving his existence from life support system can apply for euthanasia, but here also his death shall not be occasioned by administration of lethal injection or otherwise but by merely removing the life support system from which he (patient) draws his existence.

Hence forth it shall not be wrong to say that with sociological and psychological development of the society, Article 21 is witnessing tremendous development—truly it is a welfare piece of legislation.

 Article 21 and Sec. 377, IPC:

It was in July 2009 that a judgement of Delhi High Court gave green signal to consensual sexual intercourse between same sex adults. It was celebration time for gay rights activists generally and for NAZ foundation in particular, but the judgement gathered a lot of fume and criticism. Judicial interpretation of Article 21 formed the crux of the judgement. In no time an appeal to the Supreme Court was filed against the decision rendered by the Delhi High Court. The case is still in pending in the apex court, observations made by the SC and articles published informing the same signal that its time for sec.377, IPC to go.

As a three judge bench decision of the SC (comprising of Chief Justice K G Balakrishnan, Deepak Verma and B S Chauhan) offered legality to live in relationships and pre-marital sex, late in March 2010, stating that Article 21 is not only a welfare piece of legislation but also a progressive piece of legislation, may be the same wisdom needs to be applied to settle scores between the ongoing dispute between article 21 and sec.377, IPC.

 Article 21 and the Death Penalty:

Sec.354 (3) of Cr.P.C, 1973 states that death penalty can be given only in rarest of rare cases; whereby the facts and circumstances of the case are so grave that they intrinsically shock the conscience of the court. Also, this provision provides that– the bench heading the particular case needs to give ‘reasons’ for their decision in case the punishment rendered is life imprisonment and ‘special reasons’ in case the punishment rendered is death penalty.

In case of Bishnu Deo Shaw v. State of West Bengal, it was held that ‘life imprisonment is the rule and death penalty is an exception’– also that death penalty is ultra vires the constitutional mandate- Article 21.

But, there have been cases where by death penalty had been upheld as a matter to meet the ends of justice, cases ranging from Bachan Singh v. State of Punjab to Machhi Singh v. State of Punjab and Dhananjoy Chatterjee v. State of West Bengal.

The ‘abolitionist’ argue that- crime breeds crime and murder breeds murder, murder and capital punishment are not opposites that cancel out each other but are of same kind.

The retentionist argue that all fundamental rights are subject to reasonable restrictions of public order, morality, health, public safety and state security and Article 21 is no exception.

So far as the criminal jurisprudencein regards to‘theories of punishment’ is concerned the trend has been revolutionary in nature- from retribution and deterrent theories of punishment to preventive, reformatory & rehabilitative theory of punishment.

Death penalty in India is given in the following cases:

  1. An act of treason or waging war against Government of India—sec.121, IPC; abetment of mutiny—sec.132, IPC.

     2.Perjury resulting in conviction & death of an innocent person—sec.194, IPC.

     3.Murder—sec.302 & 303, IPC.

     4.Abetment of suicide of a minor, an insane person or intoxicated person—sec.305, IPC.

      5. Attempted murder by a life convict (a person undergoing life imprisonment)—sec.307, IPC.

       6.Dacoity with murder—sec.396, IPC.

        7.Kidnapping for ransom—sec.364-A, IPC.

 

Much has been said by the abolitionists against the death penalty and much by the retentionists in favour of death penalty, the future in regards to abolition or retention of death penalty lies in the hands of society backed by social morality and psychology.

But, the truth of the matter is that India is still in transition phase– redefining its basis of morality and ethics, breaking away from old customs, usages and practises that is dead locking its socio-economic & political growth. India is witnessing high degree of legal development but at the same time crime rate in India continues to be high.

India leads the world with the most murders, 32,719 murders per year, followed by Russia with about 28,904 murders per year. (Source: Raman Sunil; ‘India tops list of murder numbers’; BBC News- June 2008)

There are nearly 17 dowry deaths in India every day; rape every 47 minutes; women-kidnapping and abduction every 44minutes; crime against fair sex every 6 minutes. (Source: Female criminality and victimity in India, 2005- S.S.Srivastava)

Facts on record indicate capital punishment needs to be retained, so far as ethicality of death penalty in regards to Article 21 is concerned- sec.354(3) of C.R.P.C., 1973 in matter and in spirit is enough to take care of that, as words used in the section are farsighted and far-reaching.

 Article 21 and the narco-analysis test:

Article 20 speaks of three doctrines in particular: doctrine of ex post facto law i.e. no one can be punished for law that is not time being in force & no one can be given punishment more than the statutory maximum; doctrine of self-incrimination i.e. no one can be forced to be a witness against himself & doctrine of double jeopardy i.e. no one can be punished twice for the same crime or misdemeanour.

It was in the case of Selvi v. State of Karnataka, 2010, in which SC for ever over turned the fortune of country’s expert agencies specialised in conducting narco-analysis test, brain mapping test & polygraph test. Relying on the language used in Article 20(3) the apex court said that conducting such tests is violative of the citizens ‘right against self-incrimination’. The apex court went on record to further more declare narco-analysis test violative of Article 21.

This decision of the SC attracted a lot of criticism on the following grounds:

  1. A test such as the narco-analysis test, brain mapping & polygraph test are conducted under medical supervision under a medical expert and hence is within the precincts of sec.45 of the Indian Evidence Act,1872.

 

     2.Narco-analysis test is somewhat a full proof measure because first narco-analysis test is conducted and then there by its results are checked and scrutinised by way of conducting lie detector test, polygraph test and brain mapping test.

 

    3.Where the world is moving scientifically forward to decide upon the evidential permissibility of PLR tests (past life regression analysis), declaring that lie detector test or brain mapping test is not a permissible piece of evidence is a step backwards.

Point 1 & 2 are very much convincing but not point 3. Well however the apex court did not answer any of these questions. Attracting article 21 to the following case was also seen with convincing eyes.

Conclusion: Article 21 saga is endless and doubtless to say that article 21 is a welfare piece of legislation; its extent is time and again redefined and re-extended. No fundamental right was ever interpreted with so much wisdom and acuteness as of article 21. Judicial activism and fair judicial interpretation of legal provisions is the key to public welfare in all lines of action, this is what article 21 saga is an example of- alllegal and judicial wisdom must be summarised in the following words ‘Salus populi est suprema lex’, the spirit of pro bono publico.

Independency Of Judiciary

INTRODUCTION:

The question was been asked by the framers of our Indian constitution that what would be the status of your judicial System would be and this was the answer given Dr. B.R. Ambedkar in the following words:

“There can be no difference of opinion in the House that our judiciary must be both independent of the executive and must also be competent in itself. And the question is how these two objects can be secured“(1)

Then the question comes into our mind that what made the framers of our constitution to make the judicial system independent and make it self sufficient in itself. The answer to this question lies in the very basic understanding that so as to secure the stability and prosperity of the society, the framers at that time understood that such a society could be created only by guaranteeing the fundamental rights and the independence of the judiciary to guard and enforce those fundamental rights. Also in a country like India, the independence of the judiciary is of utmost importance in upholding the pillars of the democratic system hence ensuring a free society. It is so because it is a known fact that the independence of judiciary is the basic requirement for ensuring that there is a free and fair society under the rule of law. Rule of Law that is responsible for good governance of the country can be done through unbiased judiciary.

The doctrine of Separation of Powers which was brought together to have a check or make boundaries for the functioning of all the three organs of the country i.e.: Executive, Legislature and the Judiciary. It provides the judiciary to act as a guardian for the protection of law and it also act as body that checks that Legislature and Executive are working within their limits and they are not interfering in the functioning of each other and the task given to the judiciary to supervise the doctrine of separation of powers cannot be carried on in true spirit if the judiciary is not independent in itself. An independent judiciary supports the base of doctrine of separation of powers to a large extent.

It is easy to talk about the independence of the judiciary as the provisions are been provided in our constitution but these provisions introduced by the framers of our constitution can only be initiated towards making of the judiciary independent. The huge task lies in creating a free environment for the proper functioning of the judiciary in which all the other organs function in a harmonies way such that the independence of the judiciary can be achieved in the real sense. The independence of the judiciary has also to be guarded against the changing economic, political and social scenario.

In the words of Churchill: “Our aim is not to make our judges wealthy men, but to satisfy their needs and to maintain a modest and a dignified way of life suited to the gravity, and indeed, the majesty, of the duties they discharge.”

MEANING – THE INDEPENDENCE OF THE JUDICIARY

The meaning of the independence of the judiciary is still not completely clear after many years of its existence. Our constitution by the way of the Articles just talks about the independence of judiciary but it is no where defined what actually is meant by independence of judiciary.

The primary talk on the independence of the judiciary is based on the doctrine of separation of powers which holds its existence from several years. The doctrine of separation of powers talks of the independence of the judiciary as an institution from the executive and the legislature.

The other meaning of judicial independence can be hatched out by looking at the writings of the scholars who have done research in this field. Scholars have followed the “constituent mechanism” (i.e. what constitutes the judiciary) to define the independence of the judiciary. Scholars tried to define judiciary by propounding the independence of the judges which constitutes judiciary. Therefore the independence of the judiciary is the independence of the exercise of the functions by the judges in an unbiased manner i.e. free from any external factor.

So the meaning of independence of the judiciary can be understood as the independence of the institution of the judiciary and also the independence of the judges which forms the part of the judiciary.

Some scholars in their work tried to explain the words “Independence” and “Judiciary” separately, and said that the judiciary is “the organ of the government not forming a part of the executive or the legislative, which is not subject to personal, substantive and collective control, and which performs the primary function of adjudication”.

The final outcome them can be derived is that the independence of the judiciary as an institution and the independence of the individual judges both have to go hand in hand as the independence of the judiciary as an institution is not possible without the independence of the individual judges and is the institution of the judiciary is not independent, there is no question of the independence of the individual judges.

OBJECTIVE OF HAVING INDEPENDENT JUDICIARY :

Independence of Judiciary is sine guenon of democracy. In a democratic polity, thesupreme power of state is shared among the three principle organs constitutionalfunctionaries namely the constitutional task assigned to the Judiciary is no way less thanthat of other functionaries legislature and executive. Indeed it is the role of the Judiciaryto carry out the constitutional message and it is its responsibility to keep a vigilant watchover the functioning of democracy in accordance with the dictates, directives, andimperative commands of the constitution by checking excessive authority of other constitutional functionaries beyond the ken of constitution. So the Judiciary has to act asthe sentinel sine qua vive . Our Constitution does not strictly adhered to the doctrine ofseparation of powers but it does provide for distribution of power to ensure that oneorgan of the govt. does not trench on the constitutional powers of other organs. Thedistribution of powers concept assumes the existence of judicial system free fromexternal as well as internal presses. Under our constitution the Judiciary has been assignedthe onerous task of safeguarding the fundamental rights of our citizens and upholding theRule of Law. Since the courts are entrusted the duty to uphold the constitution and thelaws, it very often comes in conflict with the state when it dries to enforce orders byexacting obedience. Therefore, the need for an independent t and impartial Judiciarymanned by persons of sterling quality and character, underling courage and determinationand resolution impartiality and independence who would dispose justice without fear, ill will or affection. Justice without fear or fervor, ill will or affection, is the cordial creed of our constitution and a solemn assurance of every Judge to the people ofthis great country.

Secondly, the Judiciary, which is a repartee but equal branch of the state, to transform thestatus quo into a new human order in which justice, social, economic and political willinform all institutions of national life and there will be quality of status and opportunityfor all. The Judiciary has therefore a socio- economic distinction and creative function. The Judiciary cannot remain a mere bystander or spectator but it must become an active participant in the judicial process ready to use law in the service of social justice through a pro-active goal oriented approach. But this cannot be achieved unless we have judicial cadres who share the fighting faith of the constitution and are imbued with constitutional values.

NEED FOR THE INDEPENDENCE OF THE JUDICIARY

The basic need for the independence of the judiciary rests upon the following points:

To check the functioning of the organs: Judiciary acts as a watchdog by ensuring that all the organs of the state function within their respective areas and according to the provisions of the constitution. Judiciary acts as a guardian of the constitution and also aids in securing the doctrine of separation of powers.

Interpreting the provisions of the constitution: It was well known to the framers of the constitution that in future the ambiguity will arise with the provisions of the constitution so they ensured that the judiciary must be independent and self-competent to interpret the provision of the constitution in such a way to clear the ambiguity but such an interpretation must be unbiased i.e. free from any pressure from any organs like executive. If the judiciary is not independent, the other organs may pressurize the judiciary to interpret the provision of the constitution according to them. Judiciary is given the job to interpret the constitution according to the constitutional philosophy and the constitutional norms.

Disputes referred to the judiciary: It is expected of the Judiciary to deliver judicial justice and not partial or committed justice. By committed justice we mean to say that when a judge emphasizes on a particular aspect while giving justice and not considering all the aspects involved in a particular situation. Similarly judiciary must act in an unbiased manner.

CONSTITUTIONAL PROVISIONS Which Provide Judicial Independency

Many provisions are provided in our constitution to ensure the independence of the judiciary. The constitutional provisions are discussed below:

Appointment of the Judges

The procedure of appointment of the Chief Justice and other judges has created a lot of controversy because it is the key aspect of the independence of the judiciary. Art 124 specifies that the Chief Justice is appointed by the president after consulting with the judges of the Supreme Court and the high courts. Further, that while appointing other judges, the CJ must be consulted. Thus, the constitution clearly tried to prevent the executive from having complete discretionary powers in the appointment of the judges.

Until 1973, the senior most judge of the Supreme Court was appointed as the Chief Justice. However, this convention was broken when Justice AN Ray was appointed as the CJ by passing 3 more senior judges. This was seen as a blatant assault on the independence of the judiciary. The govt. pleaded that the word “consult” does not mean that the president is bound by the advice. He is free to make his own decision.

In 1977, in the case of Union of India vs Sankalchand Seth , which was related to the transfer of a Judge from one high court to another under art 222, SC held that the President has the right to differ from the advice provided by the consultants.

Judges Transfer Case 1

In the case of S P Gupta vs Union of India SC unanimously agreed with the meaning of the word ‘consultation’ as determined in the Sankalchand’s case. It further held that the only ground on which the decision of the govt. can be challenged is that it is based on mala fide and irrelevant consideration. In doing so, it substantially reduced its own power in appointing the judges and gave control to the executive.

Judges Transfer Case 2

this matter was raised again in the case of SC Advocates on Record Association vs Union of India . In this case, the SC overruled the decision of the S P Gupta case and held that in the matter of appointment of judges of high courts and Supreme Court, the CJ should have the primacy and the appointment of the CJ should be based on seniority. It further held that the CJ must consult his two senior most judges and the recommendation must be made only if there is a consensus among them.

Judges Transfer Case 3

A controversies arose again when the CJ recommended the names for appointment without consulting with other judges in 1999. The president sought advice from the SC (re Presidential Reference 1999) and a 9 member bench held that an advice given by the CJ without proper consultation with other judges is not binding on the govt.

As of now, due to the decision in Judges Transfer Case 2, the appointment of the judges in SC and High Courts are fairly free from executive control. This is an important factor that ensures the independence of the judiciary.

Security of Tenure:The judges of the Supreme Court and High Courts have been given the security of the tenure. Once appointed, they continue to remain in office till they reach the age of retirement which is 65 years in the case of judges of Supreme Court Art. 124(2)

124. Establishment and constitution of Supreme Court.

(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years:

In the case of High Courts judges the age is 62 as per Art. 217(1)

217. Appointment and conditions of the office of a Judge of a High Court.

(1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office, in the case of an additional or acting Judge, as provided in article 224, and in any other case, until he attains the age of sixty-two years

They cannot be removed from the office except by an order of the President and that too on the ground of proven misbehavior and incapacity. A resolution has also to be accepted to that effect by a majority of total membership of each House of Parliament and also by a majority of no less than two third of the members of the house present and voting. Procedure is so complicated that there has been no case of the removal of a Judge of Supreme Court or High Court under this provision.

Salaries and Allowances: The salaries and allowances of the judges is also a factor which makes the judges independent as their salaries and allowances are fixed and are not subject to a vote of the legislature. They are charged on the Consolidated Fund of India in case of Supreme Court judges and the Consolidated Fund of state in the case of High Court judges. Their emoluments cannot be altered to their disadvantage (Art. 125(2))

125. Salaries, etc., of Judges

(1) There shall be paid to the Judges of the Supreme Court such salaries as may be determined by Parliament by law and, until provision in that behalf is so made, such salaries as are specified in the Second Schedule.

(2) Every Judge shall be entitled to such privileges and allowances and to such rights in respect of leave of absence and pension as may from time to time be determined by or under law made by Parliament and, until so determined, to such privileges, allowances and rights as are specified in the Second Schedule:

Provided that neither the privileges nor the allowances of a Judge nor his rights in respect of leave of absence or pension shall be varied to his disadvantage after his appointment.

Powers and Jurisdiction of Supreme Court: Parliament can only add to the powers and jurisdiction of the Supreme Court but cannot curtail them. In the civil cases, Parliament may change the pecuniary limit for the appeals to the Supreme Court. Parliament may enhance the appellate jurisdiction of the Supreme Court. It may confer the supplementary powers on the Supreme Court to enable it work more effectively. It may confer power to issue directions, orders or writs for any purpose other than those mentioned in Art. 32. Powers of the Supreme Court cannot be taken away.

Jurisdiction

The jurisdiction and powers of the Supreme Court are quite wide. The Supreme Court has a threefold jurisdiction.

Original Jurisdiction

The Supreme Court has originally jurisdiction i.e. cases which can originate with the Supreme Court alone over disputes between (a) the Government of India and one or more states (b) the Government of India and any stat and states on one side and one or more state on the other (c) two or more states. No other court in India shall have the power to entertain any such suit. Thus the Supreme Court is a Federal Court.

However this jurisdiction does not extend to disputes arising out of treaty or agreement which is an operation and excludes such jurisdiction. The Supreme Court’s may also be excluded in some other matter, inter-state disputes, matters referred to the Finance Commission, adjustment or certain expenses as between the Union and the States. Furthermore, ordinary commercial matters do not fall in this category. Most scholars include in the original jurisdiction the power of the Supreme Court to decide disputes regarding Fundamental Rights. It is original in the sense that the aggrieved party has the right to directly move the Supreme Court by pressing a petition. However some constitutional experts opine that the writ jurisdiction of the Supreme Court should be treated separately as the dispute in such cases is not between the units of the Union but an aggrieved individual and the Government.

Appellate Jurisdiction

The Supreme Court is the highest Court appeal from all courts in India. It hears appeals in (i) cases involving interpretation of the constitution- civil, Criminal or otherwise (Article 132) (ii) Civil cases irrespective of any constitutional issue (Article. 133) (iii) Criminal matters irrespective of any constitutional issue (134). Besides the Supreme Court may grant special leave to appeal in certain cases under article136.

In constitutional matters an appeal can be made if the High Court certifies that the cases involves a substantial question of law or general importance or that in its opinion the question needs to be decided by the Supreme Court.

In criminal cases an appeal lays the Supreme Court if the High Court certifies that the case is fit for appeal. But an appeal can be made without the certificate of a High Court if the High Court has in an appeal reversed an order of acquittal of the accused and sentenced him to death or where the High Court has withdrawn a case from the lower court, conducted the trail itself and awarded the accused the death sentence and more than 10 years imprisonment.

The right of the Supreme Court to entertain appeal by Special leave in any cause or matter determined by any court or tribunal is unlimited. The exercise of the power is left entirely to the discretion of the Supreme Court. However the power is clearly to be exercised only under exceptional circumstances where substantial question of law or general public interest is involved, where grave injustice has been done or where a tribunal has exceeded its jurisdiction or has run counter to nature justice.

Advisory Jurisdiction

The Supreme Court renders advice on any question of law or fact of public importance as may be referred to it for consideration by the President. These are no litigation involved and the opinion given by the Supreme Court is not to be considered as a judgment. The advice is not binding on the President who may or not accept it. The main use of this provision is to enable the Government to get an authoritative opinion as to the legal validity of a matter before action is taken upon it. The court however is bound to give its opinions on matters relating to disputes arising out of a treaty or agreement entered into before the commencement of the constitution.

Other powers

Article 129 declares the Supreme Court as a court of record thus its proceedings are recorded for perpetual verification and testimony its records are admitted in evidence and cannot be questioned in any court of law and it has the power to punish by fine and imprisonment any person guilty of contempt or its authority.

ii) The decision of the Supreme Court is binding on all courts within the territory of India. However the Supreme Court is not bound by its earlier decision it can come to a different decision if it is convinced that it had made an error or harmed public interest.

iii) The Supreme Court can make rules regarding the practice and procedure of the court with the approval of the President.

iv) The Supreme Court can appoint its officers and servants in consultation with the UPSC and determine their conditions of service in consultation with the President. The Supreme Court can recommend to the President the removal of the Chairman and members of the UPSC. Under Article 139-A the Supreme Court may transfer to itself cases from one and more High Courts it these involve question of law or of great significance. The Supreme Court may transfer cases from one High Court to another in the interests of Justice.

No discussion on conduct of Judge in State Legislature / Parliament: Art. 211 provide that there shall be no discussion in the legislature of the state with respect to the conduct of any judge of Supreme Court or of a High Court in the discharge of his duties. A similar provision is made in Art. 121 which lay down that no discussion shall take place in Parliament with respect to the conduct of the judge of Supreme Court or High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the judge.

Power to punish for contempt: Both the Supreme Court and the High Court have the power to punish any person for their contempt. Art. 129 provides that the Supreme Court shall have the power to punish for contempt of itself. Likewise, Art. 215 lays down that every High Court shall have the power to punish for contempt of itself.

Separation of the Judiciary from the Executive: Art. 50 contains one of the Directive Principles of State Policy and lays down that the state shall take steps to separate the judiciary from the executive in the public services of the state. The object behind the Directive Principle is to secure the independence of the judiciary from the executive. Art.50 says that there shall be a separate judicial service free from executive control.

Art 124(7) Prohibition on practicing before any court:

Art 124 prohibits a retired judge of a SC or a High Court from appearing and pleading before any court or tribunal.

CONCLUSION:

I conclude my project on saying that according to me Independence of judiciary is important for the purpose of fair justice. There should be no interference by the legislature or the executive, in the proceedings of the judiciary so that it may take a judgment that seems reasonably fair. In case of intervention, there may be an element of bias on the part of the judges in taking a fair decision. It is difficult to suggest any other way to make the Indian courts more self reliant and keep them away from the influence of the other two organs.

But I would like to support my project by saying that it has a independent status in our country as per the following points:

1) In the time when India got independence and the Supreme Court has given many judgment against the government of the time from 1950 to the late 1980 and most of them were regarded as an landmark judgment in our judicial system and it is till date regarded as the base of Indian Judicial System.

According to Land reform (early confrontation)

After some of the courts overturned state laws redistributing land from zamindar (landlord) estates on the grounds that the laws violated the zamindar’ fundamental rights, the Parliament of India passed the First Amendment to the Constitution in 1951 followed by the Fourth Amendment in 1955 to protect its authority to implement land redistribution. The Supreme Court countered these amendments in 1967 when it ruled in Golaknath v. State of Punjab that Parliament did not have the power to abrogate fundamental rights, including the provisions on private property.

Other laws deemed unconstitutional

On 1 February 1970, the Supreme Court invalidated the government-sponsored Bank Nationalization Bill that had been passed by Parliament in August 1969.

The Supreme Court also rejected as unconstitutional a presidential order of 7 September 1970 that abolished the titles, privileges, and privy purses of the former rulers of India’s old princely states.

The Court ruled that the basic structure of the constitution cannot be altered for convenience. On 24 April 1973, the Supreme Court responded to the parliamentary offensive by ruling in KeshavanandaBharti v. The State of Kerala that although these amendments were constitutional, the court still reserved for itself the discretion to reject any constitutional amendments passed by Parliament by declaring that the amendments cannot change the constitution’s “basic structure”, a decision piloted through by Chief Justice Sikri.

Emergency and Government of India: The independence of judiciary was severely curtailed on account of powerful central government ruled by Indian National Congress. This was during the Indian Emergency (1975-1977) of Indira Gandhi. The constitutional rights of imprisoned persons were restricted under Preventive detention laws passed by the parliament. In the case of Shiva Kant Shukla Additional District Magistrate of Jabalpur v. Shiv Kant Shukla, popularly known as the Habeas Corpus case, a bench of five seniormost judges of Supreme Court ruled in favour of state’s right for unrestricted powers of detention during emergency. During the emergency period, the government also passed the 39th amendment, which sought to limit judicial review for the election of the Prime Minister; only a body constituted by Parliament could review this election. The court tamely agreed with this curtailment (1975), despite the earlier Keshavananda decision. Subsequently, the parliament, with most opposition members in jail during the emergency, passed the 42nd Amendment which prevented any court from reviewing any amendment to the constitution with the exception of procedural issues concerning ratification. A few years after the emergency, however, the Supreme Court rejected theabsoluteness of the 42nd amendment and reaffirmed its power of judicial review in the case of Minerva Mills Ltd. & Ors. Etc. Etc vs Union of India & Ors .From the above cases and the points dealt in them it has shown that how hard it was for the judiciary to maintain its independent status and how much the parliament tries to take away the powers of the Supreme Court especially at the time of Indira Gandhi when she was the Prime Minister. The above mentioned are my view.But in the current time there is a debate going on whether in India is Judiciary really independent in nature because many of them say it is partly independent the people who differ from the Independency of judiciary say that on the base that is appointment of the judges and in the later part that the parliament has the power to appoint the retired Judge of SC in any position as a chairman or head of a commission this way the judge may have influence on giving the judgment.

BIBLIOGRAPHY:

WEBSITES:

1) http://hanumant.com/Judiciary.html

2) http://mulnivasiorganiser.bamcef.org/?p=482

3) http://en.wikipedia.org/wiki/Supreme_Court_of_India#cite_ref-6

4) http://www.publishyourarticles.org/knowledge-hub/political-science/what-are-the-powers-of-supreme-court-of-india.html

5) http://indiankanoon.org/doc/120358/

6) http://indiankanoon.org/doc/257876/

7) http://indiankanoon.org/doc/1735815/