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FR-Article 31-35 EXCEPTIONS AND REMEDIES BY ATRISHEKHAR - Coggle Diagram

- - - - Still the Court maintained that the
        compensation must be fair and just.
    - - By this amendment Article 19 (1) (f) and 31 (2) were eliminated/repealed and Article 31 (1) was removed from Part 3 and the same provision was made legal right and placed under Article 300A.
      - Article 300A mentions that no person shall be deprived of his property save by authority of law.
      - Though Right to Property is completely removed but the exception to Right to Property which were 31A, 31B and 31C remained in the Constitution.
      - There is no provision in the Constitution which can compel the State to provide compensation on acquiring property of an individual. The earlier provision which provided for the compensation/amount (Article 31 (2)) was removed from the Constitution.
      - Right to compensation still exists for the religious denominations (Article 26) and Minority education institution (Article 30 (lA)).
      - Article 31A also provides for compensation for acquisition of land within the ceiling limit held by a person under his personal cultivation and for other structures.
      - Land Acquisition Act 2013 provides for compensation but there is no constitutional obligation to pay compensation for acquiring property of individuals.
  - - - Under this case the Court ruled that
        those Laws in the Schedule 9 which are violating those elements of Part 111 of Constitution which are held to be part of Basic Structure and included in the Constitution after April 24th 1973(Date on which the Basic Structure Verdict announced) can be challenged in the Court and can also be struck down by the Court.
    - - According to this Article, if a law is made to give effect to Article 39(b) and 39 (c) (Pillars of
        Socialism) shall be immune from judicial invalidation and review even if they violate Article 14 and 19
      - These two clauses of Article 39 mentions that:
        
        (b) the ownership and control of the material resources of the community are so distributed as best to subserve the common good;
        
        (c) the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment.
        
        o The 31C was further amended by 42nd Amendment Act 1976 and under this the protection in
        
        Article 31C was extended to all Directive Principle instead of only Article 39 (b) and 39 (c).
        
        Expansion was struck down by Minerva Mills Case, 1980. It restored the protection to Article 39 (b)
        and 39 (c) only
        
        Article 31D (Added by 42nd Amendment Act 1976): As per this Article, any law that provides for
        checking Anti-national activities shall be immune from being struck down on the grounds of violation of Article 14 and 19. By 43rd Amendment Act 1977, the Article 31D was repealed.
    - - No person shall be deprived of his property except authority of law
      - If the State intended to acquire the private property of an individual only on two conditions is:
        
        a. public purpose
        
        b. adequate compensation
        
        The right to property is still a legal or constitutional right, but it is no longer a fundamental right. It is not a part of
        the Constitution's basic structure.
      - Right to Property as a Legal Right
        
        It can be regulated, modified through ‘ordinary legislation by the parliament.
        
        It protects‘private property’ from executive action but not from legislative action.
        
        Aggrieved person cannot directly approach the Supreme court under article 32.
        
        Aggrieved person can file a petition with the High Court under Article 226.
      - Supreme Court Judgement on Right to Property
        
        Jilubhai Nanbhai Khachar v. State of Gujarat-
        
        SC said that right to property under Article 300A is not a basic structure of the Constitution. It is only a
        constitutional right.
        
        State of Haryana v. Mukesh Kumar case (2011)-
        
        It was held that the ‘right to property’ is not only a constitutional or statutory right, but also a human right.
- - - - (3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2),Parliament may by law empower any other court to exercise within the local limits of its jurisdiction
      - (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.
      - (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part all or any of the powers exercisable by the Supreme Court under clause (2). .
      - (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
  - - - You may have the body
        
        To release a person who has been detained
        
        Can be issued against any person - private or official
        
        The writ, on the other hand, is not issued where the
        
        Detention is lawful,
        
        o The proceeding is for contempt of a legislature or a court,
        
        o Detention is by a competent court, and
        
        o Detention is outside the jurisdiction of the court
        
        It protects Fundamental Right of individual liberty
        against illegal detention.
    - - It means ‘We Command’
        
        To secure the performance of public duties by courts
        
        It can also be issued against any public body, a
        corporation, an inferior court, a tribunal or government for the same purpose.
        
        The writ of mandamus “cannot” be issued: -
        
        o Against a private individual or body;
        
        o To enforce departmental instruction that do not possess statutory force;
        
        o When the duty is discretionary and not mandatory
        
        o To enforce a contractual obligation;
        
        o Against the President of India or the state governors; and
        
        o Against the chief justice of a high court acting in judicial capacity.
        
        It is usually not used against a private entity unless it is entrusted with a public duty. The nature of the duty must be public.
    - - It means ‘to forbid
        
        Prohibit inferior court from continuing the
        proceeding
        
        It is issued by a higher court to a lower court or
        tribunal to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it does not
        possess.
        
        Thus, unlike mandamus that directs activity, the prohibition directs inactivity.
        
        The writ of prohibition can be issued only against judicial and quasi-judicial authorities.
        
        It is not available against administrative authorities,legislative bodies, and private individuals or bodies.
    - - It means ‘to be certified’
        
        TIt is issued by a higher court to a lower court or
        tribunal either to transfer a case pending with the latter to itself or to squash the order of the latter in
        a case
        
        It is issued on the grounds of excess of jurisdiction
        or lack of jurisdiction or error of law.
        
        Thus, unlike prohibition, which is only preventive,
        certiorari is both preventive as well as curative
        
        Previously, the writ of certiorari could be issued only
        against judicial and quasi-judicial authorities and not against administrative authorities.
        
        However, in 1991, the Supreme Court ruled that the
        certiorari can be issued even against administrative authorities affecting rights of individuals.
        
        Like prohibition, certiorari is also not available
        against legislative bodies and private individuals or bodies
    - - ‘by what authority’
        
        To restrain a person from holding a public
        office
        
        It is issued by the court to enquire into the legality
        of claim of a person to a public office
        
        Hence, it
        prevents illegal usurpation of public office by a person
        
        It cannot be issued in cases of ministerial office or
        private office.
        
        Unlike the other four writs, this can be sought by
        ‘any interested person’ and not necessarily by the aggrieved person.
        
        The writ can be issued only in case of a substantive
        public office of a permanent character created by a statute or by the Constitution.
    - - A writ is a formal written order issued by a body with administrative or judicial jurisdiction.
      - These writs are borrowed from English law where they are known as ‘prerogative writs.’
      - In India, the Supreme Court (under Article 32) and the High Courts (under Article 226) can issue the writs of habeas corpus, mandamus, prohibition, certiorari and quo-warranto.
- - - - The Army Act (1950)
      - o The Navy Act (1950)
      - o The Air Force Act (1950)
      - o The Police Forces (Restriction of Rights) Act,1966
      - o The Border Security Force Act and so on.
    - - o freedom of speech,
      - o Right to form associations,
      - o Right to be members of trade unions or political associations
      - o Right to communicate with the press,
      - o Right to attend public meetings or demonstrations, etc.
- - - - It is not described anywhere in the constitution
      - The concept of martial law borrowed from the English common law.
      - It refers to a situation where civil administration is run by the military authorities.
      - The administration run by their own rule and regulations framed outside the ordinary law.
    - - Effects:
        
        Can punish the civilians and even condemn them to death
        
        Supreme Court on Martial Law: The Supreme Court held
        that the declaration of martial law does not ipso facto result in the suspension of the writ of habeas corpus
        
        Can impose restrictions and regulations on the rights of the civilians
- - - - Article 16: Prescribing ‘residence’ as a condition
        for certain employments or appointments in a union territory or local authority or other authority
      - Article 32: Empowering courts other than the
        Supreme Court and the High Courts to issue directions, orders and writs of all kind for the
        enforcement of fundamental rights.
      - Article 33: Restricting or abrogating the
        application of Fundamental Rights to members of armed forces etc.
      - Article 34: Indemnifying any government
        servant or any other person for any act done during the operation of martial law in any area.
    - - Article 17: Untouchability
      - Article 23: Traffic in human beings and forced labour
  - - - Article 35A was added to the Indian Constitution by a Presidential order in 1954 – issued under Article 370 of the Constitution.
      - This provision allows the President to make certain “exceptions and modifications” to the Constitution for the benefit of ‘State subjects’ of J&K.
      - While Article 370 of the Constitution grants special status to J&K, Article 35A provides the special rights and privileges to the permanent residents of J&K.
        
        A permanent resident, according to Article 35A, was anyone who was a state subject on 14 May 1954 or who had been a resident of the state for 10 years and had "lawfully acquired immovable property in the state."
        
        The Jammu and Kashmir state legislature had the authority to change the definition of a permanent resident, as well as the applicable privileges, through laws passed with a two-thirds majority.
        
        Furthermore, it clearly defined which benefits could not be granted to non-permanent residents.
        
        Non-permanent residents are not permitted to own property in Jammu and Kashmir.
        
        The same non-resident cannot obtain a state government job in Jammu and Kashmir.
        
        A non-permanent resident is not permitted to enroll in any educational institution operated by the state of Jammu and Kashmir.
      - The Fundamental Right to Property is still guaranteed in the state.
      - Also, certain special rights are granted to the permanent residents of the state with regard to public employment, acquisition of immovable property, settlement and government scholarships.
      - It disallows people from outside the state from buying or owning immovable property there, settle permanently, or avail themselves of state-sponsored scholarship schemes.
      - Only the Jammu-Kashmir assembly can change the definition of Permanent Residents through a law ratified by a two-thirds majority.
    - - Through a Presidential Order issued on 5 August 2019, the Union Government revoked the special status granted to Jammu and Kashmir under Article 370, making the entire Indian Constitution applicable to the state.
      - This means that Article 35A is no longer in effect.
      - Furthermore, the Indian Parliament passed legislation dividing the state into two union territories, one of which was Jammu and Kashmir and the other Ladakh.
    - - CJI Chandrachud said that the law curtailed the rights to equal opportunity of state employment, acquire property and settle in Jammu and Kashmir for non-residents.
      - The court further said that the law had granted the state immunity from judicial review to these special privileges.