Constitution of india and Professional ethics Unit 5

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Constitution of india and Professional ethics Unit-5


This article is requerd contenThe preamble to the constitution declares that India is a sovereign, Socialist, Secular & Democratic

Republic that secures to all its citizens. Justice- Social Economic & Political.
All these words written in capitals have there own significance. A democratic systems stands on the
foundations of equality and liberty. Indian constitution guarantees essential boons of Justice, Liberty,
Equality; Secularism & Socialism under Part-III containing Fundamental Rights and the Ideals of
Social and Economic Democracy has contained in Part IV having Directive Principle of State Policy.
Fundamental Rights were deemed essential to protect the rights and the liberties of the people against
the encroachment of the power delegated to them to the government.
They are limitation upon all powers of the government and they are essential for the preservation of
public and private rights.

I. WOMEN AND CHILDREN
II. BACKWARD CLASSES
SPECIAL PROVISIONS UNDER THE CONSTITUTION FOR WOMEN AND CHILDREN
The framers of the Indian constitution best owed sufficient thought on the position of women &
Children in the social order. This is evident from the provision of the constitution, which have not only
ensured equality between men and women but also provided specifically certain safeguards in favour
of women & children. Equality of status & of opportunity is a concomitant to the principle of social
justice. Women & children require special treatment on account of there nature. The reason is that
‗Women‘ Physical structure & performance of material functions requires special care.
ARTICLE 14:
―The State shall not deny to any Person EQUALITY BEFORE THE LAW OR EQUAL
PROTECTION LAWS with in the territory of India."
This provision aims at establishing Equality of status in the preamble and guarantees to all persons,
including women and children, The right to equality in law. Article 14 is general provision & has to be
read subject to the other provisions with in the part-III on Fundamental rights. Hence, any law making
provision for women and children under Article 15 (3) cannot be challenged on the ground of
contravention of Article14. The special provisions made under these provisions must be with in
reasonable limits.
ARTICLE 15 :
The state shall not discriminate against any citizen on grounds only of religion, race, Caste, Sex, Place
of birth or any of them.
No Citizen shall, on grounds only of religion, race, caste, sex place of birth or any of them, be subject
to any disability, liability, restriction or condition with regard to –
Access to shops, public restaurants, hotels & place of public entertainment; or
The use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partially
out of state funds or dedicated to the use of the general public.
Nothing in this Article shall prevent the state from making any special provisions for women and
children.
SPECIAL PROVISIONS FOR WOMEN:
Article 15(3) has enabled the state to make special provisions under: -
Section: 354 Indian Penal Code (IPC) : Assaulting or using force to a woman with intent to outrage
her modesty; imprisonment for 2 years or with fine or with both.
Section 497 IPC: Which only punishes man in cases of Adultery & Exempts the women from
punishment even though she may be equally guilty as an abettor. This provision is also applicable for
children.
Section 497 (1) Criminal Procedure Code: Making special treatment for women and children in
matter of granting Bail.ts pls help to improove this article Section 494 IPC: This makes Bigamy a punishable offence.
The Hindu Marriage Act of 1955 has made Bigamy punishable offence & Given greater strength to
monogamy
Reservation of seats in local body.
The Hindu Succession Act, 1956 made for reaching changes in the law improved the position of
women & treated women on par with men in case of property succession.
Separate educational institutions exclusively for women.
Reservation of a seats or places for women in public conveyances & places of public resort.
The Factories Act, 1948 provides separate facilities & treatment for women.
Maternity Benefit Act, 1961 provides free medical treatment & maternity leave for women.
The State is competent under Article 15(3) 16(1) 16(2) & 16(4) of the constitution to give preference
to women in Government Jobs where they are equally mentions but more suited than men. These
constitutional provisions, no doubt ensures equality of opportunity to women. The purpose of Article
15(3) is to improve the status of women, to empower them in a manner that would bring about
effective equality between men & women.
The supreme court gave wider interpretation to the phrase ―Special Provisions􀀀 under Article 15(3) to
include with in ambits not only positive state acts like concessions, preferences, benefits, etc but also
reservation of posts or appointment in public service in favor of women. Based on wider interpretation
of the Supreme Court Rule 22-A(2) of Andra Pradesh State & subordinate service rules provided to the
extent of 30% of the posts to women. Therefore, Based on the above instances of Article 15(3) has
been described as ‗Protective discriminations‘ for women. The framers of the constitution took a
pragmatic view. In incorporating Article 15(3) because they expected that this provision might
compensate the laws of opportunities suffered by women during the last several centuries. Hence
clause (3) of Article 15 of the constitution may be described as a compensatory provision for women.
The following are the relevant provisions in respect of women in Directive Principles of State Policy.
Article 39(a): Equal Right of men and women to adequate means of livelihood and free legal aid.
Article 39(d): Equal pay for equal work for both men and women.
Article 42: Directs the state to make provision for securing just human conditions and for maternity
relief.
Article 47: Duty to raise the stand of living and improvement of health.
SPECIAL PROVISIONS FOR CHILDREN:
Article 15(3) empowers the state to make special provision for children. The constitution makers had
known that the India of their vision would not be a reality, if the children of the country are not
matured and educated. For this and thief exploitation by different profit makers for their personal gain,
the constitution makers incorporated.
Under Part III Fundamentals Rights the following provisions. Article 15(3) empowers the state
to make special provisions for children under this clause and it is an exceptions for children under this
clause and it is an exception to the rule against discrimination provided by clauses (1) & (2) of Article
15. Special provisions may be made either by legislation or by executive order.
Article 21-A : The Constitution (86th amendment ) Act, 2002 added this Article 21-A has made
education for all children of the age of 6 to 14 years a fundamental right.
For the success of democratic system of Government, education is one of the basic elements.
Education gives a person human dignity & develops himself & contributes to the development of the
country. The makers of the constitution realising the importance of education have imposed a duty on the state under Article 45 as one of the directive principle of State policy to provide free & compulsory
education to all children between the age of 6 to 14 years. The Supreme Court during 1993 in
Unnikrishnan Case declared that right to education for the children of the age 6 to 14 is a fundamental
right. Even after this, there was no improvement, but the Government enacted constitution (86th
Amendment) Act, 2002 which would make education a Fundamental Right.
The question arises as to how this right would be implemented since the population of the
country has considerably increased & the number of Children of age from 6 to 14 years are in crores.
Article 24 :No Child below the age of 14 years shall be employed to work in any factory or mine or
engaged in any other hazardous employment.
This Article prohibits employment of children below 14 years of age in factories & hazardous
e h t f o s t e s s a e r a n e r d l i h C . n e r d l i h c f o e f i l f o y t e f a s & h t l a e h c i l b u P f o t s e r e t n i e h t n i s i t I . t n e m y o l p m en
ation.
The following are Indian legislations dealing with prohibition & regulation of child labour.
The General Legislations are :-
The Factories Act, 1948.
The Plantation workers act, 1951.
The Mines Act, 1952.
The Merchant & Shipping Act, 1958.
The Motor Transport Workers Act, 1961.
The Karnataka Shops 7 Commercial Establishments Act, 1961.
The Beedi & Cigar Workers Act, 1966.
The Dangerous Machinery Act, 1983.
Further, Part IV Directive Principles of State Policy imposes upon the states the obligation under
Article 39(e) to protect health & strength of workers & tender age of children & to ensure that they are
not forced by economic necessity to enter avocations unsuited to their age or strength.
Article 39(f): The Children are given opportunities & facilities to develop in a healthy manner & in
conditions of freedom & dignity & that childhood & youth are protected against exploitation & against
moral & material abandonment.
Fundamental Duty Under Article 51 (K) in Part IV-A:
The Constitution (86 Amendment) Act 2002 has added a new clause (K) to Article 51-A who
provides ―who is parent or guardian to provide opportunities for education to his child as the case may
be, ward between the age of six & fourteen years.
Some of the employments like cinema production, operation, TV serial production, domestic
works, commercial advertisements, activities involved in tourism etc in which employment of child not
covered by the existing legislations.
II CONSTITUTIONAL PROVISIONS FOR BACKWARD CLASSES :
In the preceding lecture we have analyzed the constitutional provisions for women & children. It is
now necessary to know the constitutional provisions for backward classes in Article-14, 15, 16 & 17 &
other provisions of the constitution.
Determination of backward classes:
The term ‗Backward classes‘ has not been defined in the constitution. The preamble to the constitution
declares that it secures to all its citizens Justice, Social, Economic & Political. In the light of
Distributive Justice Article 14 guarantees Equality before law or equal protection of laws for all.
Article 15 prohibits discrimination on various grounds. Article 16 ensures equality in public
employment. The ingredient of ‗Socialism‘ finds its place in the system of reservation & safeguards
that the state may introduce to uplift the weaker sections or backward classes of the society. Now the
question arises as to who can be considered as ―backward􀀀 & what criteria should be adopted to
determine it. As already mentioned the term ―Backward Classes􀀀 has not been defined in the
constitution, but the same term is used in Article 340 which provides the President may by order
appoint a commission to investigate the conditions of ―Backward Classes􀀀 within the territory of
India. The commission so appointed may in its report suggest, among others, steps that should be taken
to improve their conditions. But even here the definition of the term is not furnished. Therefore, the
State must have a clear idea as to who actually constitute Backward Classes. It is necessary to know thecriteria or factors which have to be taken into consideration to determine Backward Classes for the
effective utilization of reservation benefits depends much upon the clear determination of the said
classes of citizens for whose benefit & uplift they have been incorporated into the constitution.
The Scheduled Castes & Scheduled Tribes (SC & ST) being mentioned with the ‗Backward Classes‘ in
matters of reservation refers to classes persons other than the members of the Scheduled Castes &
Tribes. Article 341 & 341 of the constitution which provides that the President has been expressly
authorized to limit the notification to parts or groups of castes within the castes.
It is clear, therefore, that President‘s order shall specify the list of castes included in this category &
any other caste may be included in it if sufficient evidence is produced in its favor. But the presidential
notification is not open to judicial scrutiny. A person belonging to Scheduled Caste must be either a
Hindu or a Sikh. Thus, the reservation privilege is not available to the Christians, Muslims, Buddhists,
Parsis etc.
BACKWARD CLASS COMMISSIONS :
The prescribed of India, acting under Article 340 of the Constitution appointed the following
Backward Class commissions.
1. Kaka Saheb Kalelkar commission 1953.
2. Dr. Naganna Gowda committee 1960 (Mysore).
3. Kumara Pillai Commission 1964 (Kerala).
4. Sattanathan commission 1969 (Tamil Nadu).
5. Damodaran Commission 1967 (Kerala).
6. Mandal commission 1978.
SPECIAL PROVISIONS FOR ADVANCEMENT OF BACKWARD CLASSES.
PROTECTIVE DISCRIMINATION :-
Articles 14 to 16 of the Constitution guarantee the right to equality to every citizen of India. Article 14
embodies the general principles of equality expressed in the preamble. Articles 15 & 16 laid down
specific application of the General Rules laid down in Article 14.
Article 14: ―The State shall not deny to any person equality before the law or equal protection of laws
within the territory of India.􀀀
The concept of equality doesn‘t mean absolute equality among human beings, which is physically not
possible to achieve. It is a concept implying absence of any special privilege by reason of birth, creed
or the like in favour of any individual & also the equal subject of all individuals & classes to the
ordinary law of the land. The Concept Equality before the Law derived from English Rule of Law.
Equality before the law means like should be treated alike. Among equals the law should be equal &
should be equally administered. The protection of Article 14 extends both citizens & non-citizens & to
natural persons as well as legal persons.
ARTICLE 14 PERMITS REASONABLE CLASSIFICATION:
The classification however must not be ‗arbitrary, artificial or evasive but must be based on
some real & substantial distinction bearing a just & reasonable relation to the object sought to be
achieved by the legislation.
TEST OF REASONABLE CLASSIFICATION:
Classification to be reasonable must fulfill the following two conditions:-
The classification must be founded on an intelligible which distinguishes persons or things that are
grouped together from others left out of the group.
The differentia must have a rational relation to the object sought to be achieved by the Act.
ARTICLE 15 : The guarantee under Article 15 is available to citizens only & not to every person
whether ‗Citizen or non-citizen as under Article 14, Article 15(1) direct the State not to discriminate
against a citizen on grounds only of religion, race, caste, sex or place of birth or any of them. Article
15(2) prohibits both state & private individual, on the grounds only of religion, race, caste, sex or place
of birth or any of them with regard to (a) access to shops, public restaurants, hotels & places public
entertainment, or (b) the use of wells, tanks, baths, roads & places of public resort. The object of Art
15(2) is to eradicate the social evils of caste system.ARTICLE 15 (3) : SPECIAL PROVISIONS FOR WOMEN & CHILDREN :
Which we have already discussed in the earlier discussion, which is an exception to Article 15(1) &
(2).
RESERVATIONS IN MATTERS OF PUBLIC EMPLOYMENT :
Article 16 :
There shall be equality of opportunity for all citizens in matters relating to employment or appointment
to any office under the State.
No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any
of them, be ineligible for, or discriminated against in respect of nay employment or office under the
state.
Article 16 is an instance of the application of the general rule of equality before law laid down in
Article 14 and of the prohibition of discrimination in Article 15(1) with respect to the opportunity for
employment or appointment to any officer under the state.
Article 16(3) is an exception to clause (2) of this Article which forbids discrimination on the ground of
Residence. This Article empowers parliament to regulate by the law the extent to which it would be
permissible for a state to depart from the above principle. It provides that no one will be disqualified on
the ground one is not the resident of a particular state.
Article 16(4) is the second exception to the general rule embodied in Articles 16(1) & (2). It empowers
the State to make special provision for the reservation of appointments of posts in favour of any
backward class of citizens. Article 16 (4) applies only if two conditions are satisfied.
EMERGENCY PROVISIONS
The President can declare three types of emergencies:
1. National emergency
2. State emergency
3. Financial emergency
NATIONAL EMERGENCY UNDER ARTICLE 352
National emergency is caused by war, external aggression or armed rebellion in the whole of India or a
part of its territory. Such an emergency was declared in India in 1962 (Indo-China war), 1971 (IndoPakistan
war), and 1975 (declared by Indira Gandhi to maintain law and order in the country). The
President can declare such an emergency only on the basis of a written request by the Council of
Ministers headed by the Prime Minister. Such a proclamation must be approved by the Parliament
within one month. Such an emergency can be imposed for six months. It can be extended by six
months by repeated parliamentary approval.
In such an emergency, Fundamental Rights of Indian citizens can be suspended. The six freedoms
under Right to Freedom are automatically suspended. However, the Right to Life and Personal Liberty
cannot be suspended according to the original Constitution. It modifies the federal system of
government to a unitary one.
In January 1977 however, during the emergency declared controversially by Indira Gandhi, the
government decided to suspend even the Right to Life and Personal Liberty by dispensing with Habeas
corpus. Chief Justice Hans Raj Khanna defended the Right to Life and asked: "Life is also mentioned
in Article 21 and would Government argument extend to it also?". The Attorney General observed:
"Even if life was taken away illegally, courts are helpless.
The Parliament can make laws on the 66 subjects of the State List (which contains subjects on which
the state governments can make laws). Also, all money bills are referred to the Parliament for its
approval. The term of the Lok Sabha can be extended by a period of one year but not more than six
months from the date when the emergency has ceased to exist.
STATE EMERGENCY UNDER ARTICLE 356
State emergency is declared on failure of constitutional machinery in a state. Nearly every state in India
has been under a state of emergency at some point of time or the other. The state of emergency is
commonly known as 'President's Rule'If the President is satisfied, on the basis of the report of the Governor of the concerned state or from
other sources that the governance in a state cannot be carried out according to the provisions in the
Constitution, he can declare emergency in the state. Such an emergency must be approved by the
Parliament within a period of two months.
It is imposed for six months and can last for a maximum period of three years with repeated
parliamentary approval every six months. If the emergency has to be extended for more than three
years, it can be done by a constitutional amendment, as has happened in Punjab and Jammu and
Kashmir.
During such an emergency, the President can take over the entire work of the executive, and the
Governor administers the state in the name of the President. the Legislative Assembly can be dissolved
or may remain in suspended animation. The Parliament makes laws on the 66 subjects of the state list
(see National emergency for explanation). All money bills have to be referred to the Parliament for
approval. In this situation ministers of state legislature are not allowed to perform action in state.
FINANCIAL EMERGENCY UNDER ARTICLE 360
If the President is satisfied that there is an economic situation in which the financial stability or credit
of India is threatened, he or she can declare financial emergency. Such an emergency must be
approved by the Parliament within two months. It has never been declared. Such a situation had arisen
but was avoided by selling off of the gold assets of India
It remains enforced till the President revokes it.
In case of a financial emergency, the President can reduce the salaries of all government officials,
including judges of the Supreme Court and High Courts. All money bills passed by the State
legislatures are submitted to the President for his approval. He can direct the state to observe certain
principles (economy measures) relating to financial matters.
The phrase Emergency period used loosely, when referring to the political history of India, often refers
to the third and the most controversial of the three occasions.

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