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Law Optional (Constitution & Constitationalism in India, Public Interest Litigation) by Rajnish Jindal

To participate in answer writing program, Register yourself for the test. Copies will be evaluated only for the registered students. Registration will be closed after the scheduled date.

48 Hrs. Answer Writing, Copy Evaluation and Marks Improvement Cycle

  • Step 1 (Answer Writing): Questions will be uploaded on the portal on the scheduled date at 7:00 AM.  You have to write your answers on an A4 size sheet leaving margins on both sides based on the UPSC pattern. Mention your name on the 1st page and page number on each page. After writing the answer, Click pictures of each page of your answer sheet, merge them all in a single PDF and upload in the comment section of the same question. Answers should be uploaded before 7:00 PM on the same day.
  • Step 2 In Next 48 Hrs (Copy Evaluation & Discussion): After evaluation, the first 50 copies will be uploaded on the same comment box and will be sent to you. In the evening 8:00 PM marks improvement sessions for the test with respective faculty in a group will be conducted online. So that students can get a wider perspective of the topics. Here you can discuss your evaluated copies also with the faculty.

Instruction:

  • Attempt both questions
  • The test carries 30 marks.
  • Write Each answer in 150 words.
  • Any page left blank in the answer-book must be crossed out clearly.
  • Evaluated Copy will be re-uploaded on the same thread after 2 days of uploading the copy.
  • Discussion of the question and one to one answer improvement session of evaluated copies will be conducted through Google Meet with concerned faculty. You will be informed via mail or SMS for the discussion.

Question #1. Whether a Constitution ensures constitutionalism in a country? How far has our Constitution helped to achieve constitutionalism in India?

Question #2. Public Interest Litigation, far from being a force of democracy, has become an industry of private interest litigation. Critically analyze.


(Examiner will pay special attention to the candidate's grasp of his/her material, its relevance to the subject chosen, and to his/ her ability to think constructively and to present his/her ideas concisely, logically and effectively).

Model Answer

Question #1. Whether a Constitution ensures constitutionalism in a country? How far has our Constitution helped to achieve constitutionalism in India?

Ans.

A constitution is a body of fundamental principles according to which a state is constituted or governed. The constitution is the fundamental law of land which fulfills aspirations and goals of a society. The constitution is a living document which grows and evolves according to needs and aspirations of changing society through instruments viz., amendments to the constitution, judicial interpretations and judgements, statutes. While the A political philosophy is based on the idea that government authority is derived from the people and should be limited by a constitution. It finds its origin in Magna Carta (1215) of King John of England and English Bill of Rights. The western idea of constitutionalism is negative in orientation as it seeks to restrict, disempower and limit the state. While India has a positive side as well which operates in the idea of welfare state notion of our country.

The Main difference between the Constitution and Constitutionalism is that the constitution is a written document that outlines the structures and functions of the state. On the other hand, constitutionalism is an unwritten idea or the soul of all liberal democratic constitutions that aim to limit the powers of the state and protect individual rights. The historic Kesavananda Bharati judgment outlines the difference between the Constitution and Constitutionalism in India. The verdict limits the plenipotentiary amending powers of the parliament. They cannot alter the basic structure of the constitution- the soul of the document or the idea of constitutionalism.

A written Constitution is no guarantee for Constitutionalism. Even Nazi Germany had a constitution but that does not mean that it adhered to the philosophy of Constitutionalism be it a negative or positive aspect of it.

As the Supreme Court said in S.R. Chaudhuri v. State of Punjab (2001) “the mere existence of a Constitution, by itself, does not ensure constitutionalism. What is important is the political traditions of the people and its spirit and determination to work out its constitutional salvation through the chosen system of its political organisation.”

Unless primacy to democratic policies and individual rights is not given, Constitutionalism cannot survive. Subtle assaults to individual rights especially freedom of Speech and Expression and privacy, such as sedition laws, surveillance laws undermine Constitutionalism.

Again in R.C. Poudyal v. Union of India (1994) court said that, “Mere existence of a Constitution, by itself, does not ensure constitutionalism or a constitutional culture. It is the political maturity and traditions of people that give meaning to a Constitution which otherwise would merely embody the political hopes and ideals”.

For constitutionalism, a constitution needs to have some qualities which would either restrain the government from acting against its citizens or compel it to act for securing a dignified life to each one of them.

The design and character of the Indian Constitution ensure that the powers of the Executive and the Legislature is limited so that the discretion given to these organs does not turn into arbitrariness, an arbitrary exercise. The Fundamental Rights, the basic structure, federal setup of the administration, the amendment procedure all limit the State in a particular way.

The Preamble to the Indian constitution seeks ‘to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation.’

In furthering these objectives, the Constitution expressly and impliedly provides various provisions for an independent judiciary, judicial review, the rule of law, the separation of powers, free elections, accountability, transparency, fundamental rights, federalism, and the decentralization of power. Together, these values promote constitutionalism. The role of the judiciary is central to this process. Indeed, it is indispensable. While the elected and representative branches of government bear the greatest responsibility for the implementation of constitutionalism through self-limitation, the unelected judicial branch nonetheless plays a key role in ensuring that those two elected branches do not, in their ostensible efforts to advance the values of those they represent, violate the fundamental rights of those that find themselves part of the otherwise unrepresented minority. Judicial constitutionalism allows for rapid developments responding to the will and aspirations of the people, both majority and minority. Most importantly in this regard, the judiciary ensures limited and effective government, and, above all, promotes the equality of all citizens enshrined in Article 14. Quite apart from being a negative development, constitutionalism generally, and judicial constitutionalism specifically, allows for the Preamble to have concrete meaning in the lives of the Indian people.

 

Question #2. Public Interest Litigation, far from being a force of democracy, has become an industry of private interest litigation. Critically analyze.

Ans.

Public Interest Litigation (PIL) refers to the litigations filed before the court of law for the protection of the Public Interest. The introduction of PIL in India was due to the relaxation of traditional rule of “locus standi” which stated that only the person whose rights have been violated has the power to move to the court for remedy. PIL is an exception to this rule. Article 32 and 226 of the Indian Constitution allows for the practice of Public Interest Litigation in which letters written by public-spirited people or organizations alleging violations of fundamental rights are converted into petitions. PIL is necessary for the maintenance of Rule of Law. The concept of PIL has been borrowed from the American Jurisprudence. In the USA, it was designed in the 1960s, to provide legal representation to the previously unrepresented groups like the minorities, people from the custody, migrant laborers, forced bonded laborers and other backward classes. It was established with the view that ordinary marketplace for legal services fail to provide fair services to these segments of the society. The history of PIL in India dates back to the 1970s when courts first started to go beyond the letter of the constitution and decided to uphold justice in its true spirit. Its seeds were sown by Justice V. R. Krishna Iyer in Mumbai Kamgar Sabha Vs Abdul Thai case. In 1979, this concept became popular in the Hussainara Khatoon case headed by Justice P.N. Bhagwati which resulted in the release of all the undertrials in Bihar, and about 40,000 undertrials all over the country. The monumental efforts of Justice V. R. Krishna Iyer and Justice P.N. Bhagwati resulted in the inculcation of PILs in the Indian judicial system and made the Supreme Court of India to the Supreme Court of all Indians. The new era of the PIL movement was heralded by Justice Bhagwati in the case of S.P. Gupta vs Union of India. It was held in this case that any member of the public or social action group acting bonafide can invoke the Writ Jurisdiction of the High Courts or the Supreme Court seeking redressal against violation of legal or constitutional rights of persons who due to social or economic or any other disability cannot approach the Court.

PILs are termed as non-adversarial litigations that pits the interest of one party over another. Instead of focusing on the traditional mode of litigation, PIL is recognized as a tool for social change. PILs are based on the principles of the citizens and the representatives which expands the rights of the third-parties to approach the court. PIL from its introduction is aimed at remedial purposes which creates a dynamic, welfare-oriented model of judiciary. It thus incorporates the Directive Principles, the claims of which cannot be directly brought before the Courts, into the domain of fundamental rights under part III of the constitution. PIL also strengthens the role of the judiciary as a watch-dog over other organs of the government which are the executive and the legislature.

The Supreme Court formulated a set of guidelines, in 1998 that are to be followed for entertaining letters and petitions received by it as PIL. These guidelines were further modified in 1993 and 2003. The letters and petitions that are recognized under PIL are:

 

  1.   Bonded Labor Matters
  2.   Neglected Children
  3.   Worker exploitation or labor law violation
  4.   Food adulteration
  5.   Police Misconduct
  6.   Misconduct against women
  7.   Petitions from jail regarding inhuman treatment, death in jail, speedy trail.
  8.   Petitions from Riot-Victims.
  9.   Harassment of villagers by co-villagers or police
  10.   Caste- or tribe-targeted misconduct

Exceptions- The cases that do not fall under the category that will be entertained as PIL are:

  1.   Landlord-tenant matter.
  2.   Service matters pertaining to pension and gratuity.
  3.   Admission to medical or other educational institutions.
  4.   Complaints against Central and State Government and Local Bodies.
  5.   Petitions for early hearing of the cases that are pending in the High Courts or Subordinate Courts.

Issues:

Many people have begun to use PILs as a tool to file fake cases in order to harass people. Since filing a PIL is less costly than private litigation, this has become simple. People have a tendency to misrepresent their private interests as public interests due to the ease with which they can get a locus standi. People have begun to abuse the PIL to settle personal grudges and satisfy political or commercial agendas. According to the court, PIL should be treated as a "public interest lawsuit" rather than a "private interest litigation", "professional PIL shops". Lawyers, and more recently, law students, have attempted to use PILs to gain attention in the past. The court has even referred to these cases as "publicity interest litigation" on several occasions. The court stated that these litigations rather than achieving the goal of PILs, harm the public welfare. PILs have excessively been used for private gains in the guise of public interest. Many useful projects have been stalled because of clandestine PILs in the name of public interest. PIL has a tendency to inspire the judiciary into judicial overreach. This has tilted the balance of separation of power towards the judiciary. The executive and legislatures have been vocal about the judicial interference in their jurisdiction and the notion of judicial populism. Even the political pressure groups who could not achieve their aims through the administrative process have started using the PIL to further their aims and interests.

Solutions:

  1.   PIL has an important role to play in the civil justice system in that it affords a ladder to justice to disadvantaged sections of society, some of which might not even be well-informed about their rights.
  2.   The judiciary should strike balance by allowing legitimate PILs and discouraging frivolous ones. This can be achieved by confining PIL primarily to those cases where access to justice is undermined by some kind of disability.
  3.   At the same time, it is worth considering if some kind of economic incentives—e.g. protected cost order, legal aid, pro bono litigation, funding for PIL civil society, and amicus curiae briefs - should be offered for not discouraging legitimate PIL cases.
  4.   The PIL activists should be held responsible and accountable.
  5.   The court should not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain political objectives.

 

Procedure of Answer Writing:

To participate in the answer writing program, Register yourself for the test. Copies will be evaluated only for the registered students. Registration will be closed after the scheduled date.

Answer Writing, Copy Evaluation, and Marks Improvement Cycle:

Step 1 (Theme, Details & Its Topics):

  1. Every round of Answer writing initiative will be around a theme related to the Subject/Topic.
  2. Please read the theme and its description, and try to cover the topics given within the theme before writing the answer along with the sources.

Step 2 (Answer Writing):

  1. Questions will be uploaded on the portal on the scheduled date at 7:00 AM.
  2. You have to write your answers on an A4 size sheet leaving margins on both sides based on the UPSC pattern.
  3. Mention your name, email id, location, and phone number on the 1st page in the top right corner and the page number on each page.
  4. After writing the answers, Click pictures of each page of your answer sheet, merge them all in a single PDF and upload them in the upload section of the same question.
  5. Kindly submit your written answers before 7:00 PM. Only the first 100 copies will be considered for evaluation. No request for late submission or evaluation will be entertained once the 100 mark is reached.

Note: Answer sheets without the proper guidelines given above will not be accepted for evaluation.

Step 3 (Copy Evaluation): Copies will be evaluated in the next 72 hours of the test date. After evaluation, copies will be uploaded into your account. During the copy evaluation period, doubt clearing and discussion about the theme or topic of the test with respective mentors of the test will be done in the telegram group

Step 4 (Mentorship): Evaluated copies will be sent to you via mail and also uploaded into your account on the website. After that a mentorship session for the marks improvement with respective faculty will be conducted on the Google Meet, so that students can get a wider perspective of the topics. Here you can discuss your evaluated copies also with the faculty. Top 5 copies of every test will be shared in the telegram group for reference.

Note: Aspirants who have not written the test can also participate in the mentorship session.

For Updates and Mentorship of the session, you will be notified through SMS or Telegram Group.

For Notification And Update About the Program Join Telegram Group at: https://t.me/gsscoreopendailyanswerwriting

Note: You have to write your answers on an A4 size sheet leaving margins on both sides based on UPSC pattern. Mention Your Name on 1st page and Page Number on each page. After writing the answer, Click pictures of each page of your answer sheet, merge them all in a single PDF and upload in the Your Answer Copy section of the same question.

Copy submission is closed now for this test.

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