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Law and Justice

20- LAW AND JUSTICE

Introduction

MINISTRY of Law and Justice is the oldest limb of the Government of India dating back to 1833 when the Charter Act, 1833 was enacted by the British Parliament. The said Act vested for the first time legislative power in a single authority, namely the Governor-General of Council. By virtue of this authority and the authority vested under him under section 22 of the Indian Councils Act, 1861 the Governor-General in Council enacted laws for the country from 1834 to 1920. After the commencement of the Government of India Act, 1919 the legislative power was exercised by the Indian Legislature constituted there under. The Government of India Act, 1919 was followed by the Government of India Act, 1935. With the passing of the Indian Independence Act, 1947 India became a Dominion and the Dominion Legislature made laws from 1947 to 1949 under the provisions of section 100 of the Government of India Act, 1935 as adapted by India (Provisional Constitution) Order, 1947. Under the Constitution of India which came into force on January 26, 1950, the legislative power is vested in Parliament.

Ministry of Law and Justice

Department of Legal Affairs

Legislative Department

Department of Justice

Assigned legal functions including the interpretation of the Constitution and Laws, litigation, legal profession, law reforms, treaties and agreements with foreign countries in the matters of the civil law, legal services including Indian Legal Service, etc.

Concerned with the drafting of the principal legislation for the central government.

Concerned with the appointment, resignation and the removal of the Chief Justice of India, the judges of the Supreme Court/High Courts etc.

Indian Legal System

The Indian Legal System comprises four components:

  • The basic values and principles enshrined in the Constitution
  • Rights and obligations conferred by ordinary statues
  • Organizational set up to enforce these rights and obligations within the Constitutional norms
  • Legal and judicial personnel

Sources of Law:

  • The main sources of law in India are the Constitution, statutes (legislation), customary law, and case law.
  • Statutes are enacted by Parliament, state legislatures, and union territory legislatures.
  • Besides, there is a vast body of laws known as subordinate legislation in the form of rules, regulations as well as bylaws made by central/state governments and local authorities like municipal corporations, municipalities, gram panchayats, and other local bodies.
  • This subordinate legislation is made under the authority conferred or delegated either by Parliament or state or union territory legislatures concerned.
  • Decisions of the Supreme Court are binding on all courts within the territory of India.
  • Local customs and conventions which are not against the statute, morality, etc., are also recognized and taken into account by courts while administering justice in certain spheres.

Enactment of Law:

  • The Parliament is competent to make laws on matters enumerated in the Union List.
  • State legislatures are competent to make laws on matters enumerated in the State List. Parliament alone has the power to make laws on matters not included in the State List or Concurrent List.
  • On matters enumerated in the Concurrent List, laws can be made by both Parliament and the state legislature.
  • But in the event of repugnancy, the law made by Parliament shall prevail over law made by state legislature, to the extent of repugnancy, be void unless the latter law having been reserved for the consideration of President, has received his assent and in that event shall prevail in that state.

Judiciary

  • At the apex of the entire judicial system exists the Supreme Court of India with a High Court for each state or group of states and under the High Courts, there is a hierarchy of subordinate courts.
  • Panchayat Courts also function in some states under various names like Nyaya Panchayat, Panchayat Adalat, Gram Kachehri, etc., to decide civil and criminal disputes of petty and local nature.
  • The highest court in each district is that of District and Sessions Judge.
  • This district court is the principal court of civil jurisdiction and can try all offences including those punishable with death.
  • He is the highest judicial authority in a district.
  • Below him, there are courts of civil jurisdiction, known in different states as Munsifs, Sub-Judges, Civil Judges, and the like.
  • Similarly, criminal courts comprise the Chief Judicial Magistrate and Judicial Magistrate of First and Second class.

Supreme Court:

  • During the British regime, the King in Council, or Privy Council as it was generally called, was the highest forum to entertain appeals from the judgments and orders passed by the courts in India.
  • On enactment of the Judicial Committee Act, 1833, it came to be called the Judicial Committee of Privy Council.
  • The decisions of the Judicial Committee used to be couched in advisory form, though, in practice, the Crown always accepted its advice, and it was unthinkable that its report will not be given effect to.
  • The Privy Council acted as a channel, through which English concepts came to be assimilated with Indian laws.
  • It served as a bridge between the Indian and the English legal system, over which legal ideas traveled from England to India.
  • It was through this body, that the common law of England was introduced in India under the British regime, as the base of its legal system.
  • Government of India Act, 1935 introduced a federal constitution to India, involving the distribution of powers between the Centre and the constituent units.
  • The Federal Court of India began functioning from October 01, 1937.
  • To begin with, Federal Court had a very limited jurisdiction, confined to original jurisdiction in disputes between the center and constituent units or inter se amongst the latter, advisory jurisdiction, and appellate jurisdiction on a certificate from the High Court.
  • After achieving independence in August 1947, there was a demand from the Indian polity for enlarging the jurisdiction of the Federal Court and granting more powers to it.
  • From 1949 appeals to the Privy Council were abolished altogether and the entire appellate jurisdiction was vested in the Federal Court.
  • On January 26, 1950, the Federal Court gave way to the Supreme Court of India under the new Constitution.
  • After its inauguration on January 28, 1950, the apex court commenced its sittings in a part of the Parliament House.
  • The original Constitution of 1950 envisaged a Supreme Court with a Chief Justice and 7 puisne Judges - leaving it to Parliament to increase this number.
  • In the early years, all the Judges of the Supreme Court sat together to hear the cases presented before them.
  • As the work of the Court increased and arrears of cases began to cumulate, Parliament increased the number of Judges from 7 in 1950 to 10 in 1956, 13 in 1960, 17 in 1977, 25 in 1986, and 30 in 2009.
  • As the number of the Judges has increased, they sit in smaller Benches of two and three—coming together in larger Benches of 5 and more only when required to do so or to settle a difference of opinion or controversy.
  • It comprises the Chief Justice and 30 other Judges appointed by the President of India.
  • Judges retirement age: 65 years.
  • Eligibility to become a Judge:
    • A person must be a citizen of India
    • must have been, for at least five years, a Judge of a High Court or of two or more such Courts in succession, or an Advocate of a High Court or of two or more such Courts in succession for at least 10 years or he must be, in the opinion of the President, a distinguished jurist.
  • Provisions exist for the appointment of a Judge of a High Court as an ad hoc Judge of the Supreme Court and for retired Judges of the Supreme Court or High Courts to sit and act as Judges of the Supreme Court.
  • Removal of Judges: A Judge of the Supreme Court cannot be removed from office except by an order of the President passed after an address in each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of members present and voting, and presented to the President in the same Session for such removal on the ground of proved misbehavior or incapacity.
  • A person who has been a Judge of the Supreme Court is debarred from practicing in any court of law or before any other authority in India.
  • The proceedings of the Supreme Court are conducted in English only.
  • Supreme Court Rules, 2013 replacing the 1966 Rules, have been framed under Article 145 of the Constitution to regulate the practice and procedure of the Supreme Court.
  • Justice Sharad Arvind Bobde is the 47th Chief Justice of India.

High Courts:

  • High Court stands at the head of the state’s judicial administration.
  • There are 24 High Courts in the country, three having jurisdiction over more than one state.
  • Among the union territories, Delhi alone has a High Court of its own.
  • The other six union territories come under the jurisdiction of different State High Courts.
  • Each High Court comprises a Chief Justice and such other Judges as the President may, from time to time, appoint.
  • The Chief Justice of a High Court is appointed by the President in consultation with the Chief Justice of India and the Governor of the state.
  • The procedure for appointing the High Court judges is the same except that the recommendation for the appointment of Judges in the High Court is initiated by the Chief Justice of the High Court concerned.
  • Judges retirement age: 62 years.
  • Eligibility to become a Judge:
    • Must be a citizen of India
    • Should have held a judicial office in India for 10 years or must have practiced as an advocate of a High Court or two or more such Courts in succession for a similar period.

Jurisdiction and Seat of High Courts:

  • Each High Court has powers of superintendence over all courts and tribunals within its jurisdiction.
  • It can call for returns from such courts, make and issue general rules and prescribed forms to regulate their practices and proceedings, and determine the manner and form in which book entries and accounts shall be kept.

Power of Supreme Court and High Courts:

  • Supreme Court has the power to issue any person or authority and government within its jurisdiction,  direction, order, or writs, including writs which are in the nature of for enforcement of Fundamental Rights and for any other purpose.
  • This power may also be exercised by any high court exercising jurisdiction in relation to territories within which the cause of action, wholly or in part arises for the exercise of such power, even if the seat of such government or authority or residence of such person is not within those territories.

Subordinate Courts:

  • The structure and functions of subordinate courts are more or less uniform throughout the country.
  • These courts deal with all disputes of civil or criminal nature as per the powers conferred on them.
  • These courts follow two important codes prescribing procedures, i.e., the Code of Civil Procedure, 1908, and the Code of Criminal Procedure, Cr. P.C., 1973, and further strengthened by state-level amendments.
  • Under Article 235 of the Constitution of India, the administrative control over the members of subordinate judicial service vests with the concerned High Court.
  • Further, in the exercise of powers conferred under the provision to Article 309 read with Articles 233 and 234 of the Constitution, the state government shall frame rules and regulations in consultation with the High Court exercising jurisdiction in relation to such state.
  • The members of the State Judicial Services are governed by these rules and regulations.

National Mission for Justice Delivery and Legal Reforms:

  • National Mission for Justice Delivery and Legal Reforms was set up in 2011 with the twin objectives of increasing access by reducing delays and arrears in the system and enhancing accountability through structural changes and by setting performance standards and capacities.
  • Department of Legal Affairs has formulated the National Litigation Policy, 2015, which is under active consideration of the government.
  • Lack of an adequate number of judges to handle the large number of cases pending in courts is often cited to be one of the main reasons for delays.
  • In the case of Imtiyaz Ahmed versus State of Uttar Pradesh and others, the Supreme Court asked the Law Commission of India to evolve a method for scientific assessment of the number of additional courts to clear the backlog of cases.
  • The criteria of judge-population ratio for determining the adequacy of the Judge Strength in the country has been reviewed by the Law Commission in its 245th Report (2014) prepared on the direction of the Supreme Court in this case.
  • In this report, the Law Commission has observed that filing of cases per capita varies substantially across geographic units as filings are associated with economic and social conditions of the population.
  • As such the Law Commission did not consider the judge population ratio to be a scientific criterion for determining the adequacy of the judge's strength in the country.
  • The Law Commission found that in the absence of complete and scientific approach to data collection across various High Courts in the country, the Rate of Disposal method to calculate the number of additional judges required to clear the backlog of cases as well as to ensure that new backlog is not created is more pragmatic and useful.
  • In August 2014, the Supreme Court asked the National Court Management System Committee (NCMS) to examine the recommendations made by the Law Commission and to furnish their recommendations in this regard.
  • NCMS submitted its report to the Supreme Court in March 2016.
  • It has interalia, observed that in the long term, the judge strength of the subordinate courts will have to be assessed by a scientific method to determine the total number of Judicial Hours required for disposing of the case load of each court.
  • In the interim, this Committee has proposed a “weighted” disposal approach—disposal weighted by the nature and complexity of cases in local conditions.
  • On account of the concerted efforts made by all stakeholders, there has been a gradual increase in the sanctioned strength of the subordinate judiciary over the past few years.
  • It has increased from 17,715 at the end of 2012 to 22,619 by December 2017.
  • In the case of the high courts, the Chief Justice of India gave an in-principle concurrence in April 2014 to the joint recommendation of the Chief Ministers and Chief Justices Conference held in April 2013 to increase the sanctioned strength of High Courts by 25 percent.
  • Several states have already accepted this proposal, as a result of which the sanctioned strength of high courts has increased from 906 judges in 2014 to 1,079 judges in December 2017.
  • The judge-population ratio in the country, taking into account the sanctioned strength of judges at all levels now stands at about 19.61 judges per one million of the population.

Judicial Infrastructure:

  • The primary responsibility of infrastructure development for the subordinate judiciary rests with the state governments.
  • A centrally sponsored scheme has been in place since 1993-94 to assist the states for the development of judicial infrastructure.
  • It covers the construction of court buildings and the residential accommodation of judicial officers.
  • Until 2011, the central and state governments used to contribute an equal share under the scheme but from 2011-12 onwards the central government was contributing 75 percent of the funds.
  • In the case of states in the northeastern states, the central government provides 90 percent of the funding.

e-Courts Integrated Mission Mode Project:

  • The e-Courts Integrated Mission Mode Project is one of the e-Governance projects being implemented in High Courts and district/subordinate courts of the country.
  • The project has been conceptualized on the basis of the “National Policy and Action Plan for Implementation of Information and Communication Technology in the Indian Judiciary-2005” by the e-Committee of the Supreme Court of India.
  • The e-Committee was formed in 2004 to draw up an action plan for the ICT enablement of the Judiciary with the Patron in Chief-cum-Adhoc Chairman as the Chief Justice of India.

Access to Justice for the Marginalised:

  • In partnership with the United Nations Development Programme (UNDP), the Department of Justice (DoJ), Ministry of Law and Justice, is implementing a decade long program on Access to Justice for Marginalised People (2008-2017).
  • The project extends to the eight UNDAF states of Bihar, Chattisgarh, Jharkhand, Madhya Pradesh, Rajasthan, Uttar Pradesh, Maharashtra, and Odisha.
  • This project focuses on strengthening access to justice for marginalized people by developing strategies that address barriers to accessing justice in legal, social, and economic domains.
  • The project is presently in the second phase of implementation.

Appellate Tribunal for Foreign Exchange

  • The Appellate Tribunal for Foreign Exchange was established in 2000 under Section 18 of the Foreign Exchange Management Act (FEMA), 1999.
  • Under Section 19 of FEMA, the central government or any person aggrieved by an order made by Special Director (Appeals), or made by an Adjudicating Authority other than referred to in sub-Section (i) of Section 17, may prefer an appeal to the Appellate Tribunal that may be filed within 45 days from the date of receiving the order by the aggrieved person or the central government.
  • Section 20 of FEMA provides that the Appellate Tribunal shall consist of a Chairperson and the such number of members as the Central Government may deem fit.
  • The jurisdiction of the Appellate Tribunal may be exercised by the Benches.
  • The Bench may be constituted by the Chairperson, with one or more Members as the Chairperson deems fit.
  • A person who is qualified to be a Judge of a High Court or is or has been a Judge of High Court can be appointed as Chairperson of the Tribunal and a person who has been or is qualified to be a District Judge can be appointed as a Member of the Tribunal.

Enforcement Agencies

Police

  • Public order and police being state subjects under the Constitution, police is maintained and controlled by states.
  • The police force in a state is headed by the Director-General of Police/ Inspector General of Police.
  • State is divided into convenient territorial divisions called ranges and each police range is under the administrative control of a Deputy Inspector General of Police.
  • Besides the civil police, states also maintain their own armed police and have separate intelligence branches, crime branches, etc.
  • Police set up in big cities like Delhi, Kolkata, Mumbai, Chennai, Bengaluru, Hyderabad, Ahmedabad, Nagpur, Pune, etc., is directly under a Commissioner of Police who enjoys magisterial powers.

Indo-Tibetan Border Police

  • The ITBP was raised in the wake of Chinese aggression in 1962 with a modest strength of 4 Bns under an integrated ‘guerilla-cum-intellgence-cumfighting Force’ self-contained in supplies, communication, and intelligence collection.
  • It has evolved with the passage of time into a conventional border guarding Force.
  • Today, ITBPF guards 3,488 kms of Indo-China Border and is manning 173 Border Out Posts (BOPs) with altitudes ranging from 9,000 feet to 18,750 feet in the western, middle and eastern sector of the Indo China Border.
  • 8 ITBPF Bns are deployed in Maoist affected areas of Chhattisgarh.
  • They have scaled more than 180 Himalayan peaks including Mt. Everest four times including the 2012 expedition.

Border Security Force

  • International borders of India with Pakistan both east and west were being manned by the respective state police forces till Indo-Pak war in September, 1965.
  • Border Security Force was raised in 1965 with the strength of 25 Battalions and 3 Coys.
  • Over the years, the Force has grown in size and as on date, it has 186 Battalions including 3 NDRF battalions, 5 major training institutions, 11 subsidiary training centres and 03 minor training institutions.

Assam Rifles

  • The Assam Rifles raised as Catchar Levy in 1835 is the oldest Central Para Military Force in India.
  • The Force was raised primarily to guard the alluvial plains of Assam from the wild and unruly tribes inhabiting the surrounding hill tracts.
  • Gradually more such units were raised and employed for establishing posts in the interior and thus acted as the strong arm of the civil administration in extending the authority of the Britishers.
  • Their long association with the region reflects in the force being fondly called “The Sentinel of the NorthEast”  and “Friends of the Hill People” security in the north-eastern region and guarding the Indo-Myanmar border.
  • It has its headquarters at Shillong and the Force is completely deployed in the North East for guarding the Indo-Myanmar Border, spread over 1,631 kilometers.
  • It functions under the control of Ministry of Home Affairs.
  • Total strength: 63,747 personnel.

National Security Guard

  • The need for creating a special force for executing surgical operations based on tactical intelligence
  • was felt in India when Operation Blue Star was carried out by the army at the Golden Temple, Amritsar in 1984.
  • National Security Guard (NSG) was conceptualised and created after studying and analysing Special Force like SAS in the United Kingdom, GIGN in France, GSG-9 in Germany, Shar-et-matkal in Israel and Delta Force in the USA.
  • Accordingly, NSG was raised in October, 1985 as a Federal Contingency Force under the MHA.
  • 53 per cent of the personnel are drawn from the army while the central armed police like BSF, CRPF and ITBP contribute 47 per cent.

Central Reserve Police Force

  • CRPF was formed in July 1939 at Neemuch as the Crown Representative’s Police.
  • After independence it was renamed as the Central Reserve Police Force.
  • It was the CRPF which bore the brunt of the first onslaught of the Chinese aggression at Hot Springs in Ladakh in 1959 when a small CRPF patrol was ambushed and heavily out-numbered by the Chinese army.
  • The CRPF has also been deployed internationally at Kosovo, Haiti and Sri Lanka.
  • In Sri Lanka, two CRPF Battalions and one company of Mahila Battalion were a part of the Indian Peace Keeping Force.
  • Now, for the first time in the history of UN, a fully formed women’s unit is posted in Liberia as a part of United Nations Peacekeeping Mission.
  • It is the only Central Armed Police Force in the country which has 3 Mahila Battalions.
  • The bulk of the force is deployed in Jammu and Kashmir; left wing extremism affected states and in north-eastern states to tackle terrorist and insurgent activities.
  • It presently has 10 Cobra units, a specially trained force to fight the naxal means.
  • We now have two battalions of CRPF designated as Disaster Management battalions.

 

 

Rapid Action Force

  • In 1992, 10 Battalions of CRPF were reorganized and converted into 10 battalions of 4 coys each of Rapid Action Force (RAF).
  • The personnel in RAF are trained and equipped to be an effective strike Force in communal riots and similar situations.
  • These Battalions are located at 10 communally sensitive locations across the country to facilitate quick response in case of any such incident.
  • All these Battalions are organized on an unattached pattern and are working under the supervision of an Inspector General.

Commando Battalion for Resolute Action

  • Ten CoBRA (Commando Battalion for Resolute Action) battalions were raised between 2008 and 2011.
  • Out of the ten CoBRA battalions, nine are deployed in LWE (Left Wing Extremism, i.e. Maoists infested areas) and one in Assam.

Central Industrial Security Force

  • Raised in 1969, CISF is providing security cover to 303 units including 59 domestic and international airports and fire protection cover to 87 industrial undertakings.
  • With globalization and the liberalization of the economy, CISF is no longer a PSU-centric organization.
  • The Force is also one of the largest fire protection service providers in the country.
  • The specialized task of airport security was assigned to CISF in the wake of the hijacking of the Indian Airlines plane to Kandhar.
  • After the Mumbai terrorist attack in November 2008, the mandate of the force has been broadened to provide direct security cover to the private sector also.
  • Infosys Technologies Limited became the first private sector company to get the CISF security cover in August 2009.

Sashastra Seema Bal

  • SSB is the newest border guarding force of Union of India entrusted with the guarding of Indo-Nepal and Indo-Bhutan borders.
  • SSB is guarding the Indo-Nepal border since 2001 and was also given the additional responsibility of guarding the Indo-Bhutan border in 2004.
  • SSB came into existence under the name Special Service Bureau in early 1963 in the wake of the Indo-China conflict.

Civil Defence

  • Civil Defence includes any measures not amounting to actual combat, for affording protection to any person, property, place or thing in India or any part of the territory thereof against any hostile attack whether from air, land, sea or other places.
  • The Amendment to the Civil Defence Act, 1968 accorded legal sanction to the additional role of the Civil Defence constituents in the field of disaster management.
  • Civil Defence is primarily organized on a voluntary basis except for a small nucleus of paid staff and establishment which is augmented during emergencies.
  • Civil Defence volunteers are in various constructive and nation-building activities—including providing assistance to the administration in undertaking social and welfare services and in the prevention, mitigation of natural, man-made disasters as well as in post-disaster response and relief operations and law and order situations.

Home Guards:

  • Home Guards is a voluntary force, first raised in India in December 1946, to assist the police in controlling civil disturbances and communal riots.
  • Subsequently, the concept of the voluntary citizen's force was adopted by several states.
  • In the wake of Chinese aggression in 1962, the Centre advised the states and union territories to merge their existing voluntary organizations into one uniform voluntary force known as Home Guards.
  • The role of Home Guards is to serve as an auxiliary to the police in maintenance of internal security, help the community in any kind of emergency such as an air-raid, fire, cyclone, earthquake, epidemic, etc., help in the maintenance of essential services, promote communal harmony and assist the administration in protecting weaker sections, participate in socio-economic and welfare activities and perform civil defence duties.
  • Home Guards are of two types-rural and urban.
  • The organization is spread over in all the states and union territories except in Kerala.
  • Home Guards are raised under the Home Guards Act and rules of the states/union territories.
  • They are recruited from various cross-sections of the people such as doctors, engineers, lawyers, private sector organizations, college and university students, agricultural and industrial workers, etc., who give their spare time to the organization for the betterment of the community.
  • All citizens of India, who are in the age group of 18-50, are eligible to become members of Home Guards.
  • The normal tenure of membership in Home Guards is 3 to 5 years.
  • In the event of a national emergency, some portion of Civil Defence work is also entrusted to the Home Guards.
  • Ministry of Home Affairs formulates the policy in respect of role, target, raising, training, equipping, establishment, and other important matters of Home Guards Organisation.
  • Expenditure on Home Guards is generally shared between the centre and state governments as per existing financial policy.

Personal Law

  • The people of India are of different religions and faiths.
  • They are governed by different sets of personal laws in respect of matters relating to family affairs, i.e., marriage, divorce, succession, adoption, wills, etc.
  • The subject matter of personal laws is relatable to Entry 5 of List III- Concurrent List in the Seventh Schedule to the Constitution of India and hence the Union Legislature, namely Parliament and subject to the provisions of Article 254 of the Constitution.
  • The state legislatures are also competent to make laws in the field.

Marriage:

  • Law relating to marriage and divorce has been codified in different enactments applicable to people of different religions.
  • The Special Marriage Act, 1954 which provides for a special form of marriage and the registration of such marriages extends to the whole of India.
  • Persons governed by this Act can specifically register marriage under the said Act even though they are of different religious faiths.
  • The Act also provides that the marriage celebrated under any other form can also be registered under The Special Marriage Act, if it satisfies the requirements of the Act.

Hindu:

  • An attempt has been made to codify customary law which is prevalent among Hindus by enacting the Hindu Marriage Act, 1955.
  • This Act, which extends to the whole of India, applies also to Hindus domiciled in territories to which the Act extends and those who are outside the said territories.
  • It applies to Hindus (in any of its forms or development) and also to Buddhists, Sikhs, Jains and also those who are not Muslims, Christians, Parsis or Jews by religion.
  • However, the Act does not apply to members of any scheduled tribes unless the Central Government by notification in the official Gazette otherwise directs.
  • Provisions as regard to divorce are contained in Section 13 of The Hindu Marriage Act and Section 27 of The Special Marriage Act.

Christian:

  • As regards the Christians, provisions relating to marriage and divorce are contained in The Indian Christian Marriage Act, 1872 and in Section 10 of The Indian Divorce Act, 1869 respectively.
  • In The Divorce Act, 1869 comprehensive amendments were made through The Indian Divorce (Amendment) Act, 2001 to remove discriminatory provisions against women in the matter of divorce and to provide for the dissolution of marriage by mutual consent.
  • Further, Section 41 of the 1869 Act was amended by The Marriage Laws (Amendment) Act, 2001 to provide that an application for alimony or the maintenance and education of minor children be disposed off within 60 days from the date of service of notice on the respondent.

Muslims:

  • As regards Muslims, marriages are governed by the Mohammedan Law prevalent in the country.
  • As regards divorce, i.e., a Muslim wife has a much-restricted right to dissolve her marriage.

Parsi:

  • The Parsi Marriage and Divorce Act, 1936 governs the matrimonial relations of Parsis.
  • The word ‘Parsi’ is defined in the Act as a Parsi Zoroastrian.
  • A Zoroastrian is a person who professes the Zoroastrian religion.
  • The provisions of the Parsi Marriage and Divorce Act, 1936 have been enlarged so as to bring them in line with The Hindu Marriage Act, 1955.
  • Sections 39 and 49 of The Parsi Marriage and Divorce Act, 1936 were amended by The Marriage
  • Laws (Amendment) and education of minor children be disposed off within 60 days from the date of service of notice on the wife or the husband as the case may be.

Jews:

  • As for the matrimonial laws of Jews, there is no codified law in India.
  • Even today, they are governed by their religious laws.

Adoption:

  • Although there is no general law governing adoption, it is permitted by The Hindu Adoption and Maintenance Act, 1956 amongst Hindus and by custom amongst a few numerically insignificant categories of persons.
  • Since adoption is the legal affiliation of a child, it forms the subject matter of personal law.
  • Muslims, Christians, and Parsis have no adoption laws and have to approach the court under The Guardians and Wards Act, 1890.
  • Muslims, Christians, and Parsis can take a child under the said Act only under foster care.
  • Once a child under foster care attaining the age of majority, that is eighteen years old, he is free to break away all these connections.
  • Besides, such a child does not have the legal right of inheritance.
  • Foreigners, who want to adopt Indian children have to approach the court under the aforesaid Act.
  • The Hindu law relating to adoption has been amended and codified into the Hindu Adoptions and Maintenance Act, 1956, under which a male or female Hindu having legal capacity, can take a son or a daughter in adoption.
  • In dealing with the question of guardianship of a minor child, as in other spheres of family law, there is no uniform law.
  • Hindu law, Muslim Law, and the Guardians and Wards Act, 1890 are three distinct legal systems that are prevalent.
  • The Hindu Minority and Guardianship Act, 1956 has codified laws of Hindus relating to minority and guardianship.
  • As in the case of uncodified law, it has upheld the superior right of the father.
  • It lays down that a child is a minor till the age of 18 years.
  • Prior right of the mother is recognized only for the custody of children below five.
  • In the case of illegitimate children, the mother has a better claim than the putative father.
  • The act makes no distinction between the person of the minor and his property and therefore guardianship implies control over both.
  • The Muslim law recognizes that the mother’s right to custody of minor children is an absolute right.
  • Even the father cannot deprive her of it. Misconduct is the only condition which can deprive the mother of this right.

Anand Marriage (Amendment) Act, 2012:

  • The Anand Marriage Act, 1909 was enacted to remove doubts as to the validity of the marriage rights of the Sikh called “Anand” and it does not provide for the provisions of registration of marriages.
  • The Hindu Marriage Act, 1955 applies to all Hindus, Buddhists, Jains or Sikhs by religion.
  • It also applies to all other persons who are not Muslims, Christians, Parsis or Jews unless they establish that they were not governed by Hindu law, custom or usage prior to the Act.
  • Section 8 of the Hindu Marriage Act, 1955 provides for registration of Hindu marriages and as Sikhs were included in the definition of Hindu, under Section 2 of the Hindu Marriage Act, 1955, a Sikh marriage performed according to the Sikh marriage ceremony called “Anand” or other customary ceremonies could be registered here under the provisions of Section 8 of the Hindu Marriage Act, 1955.
  • However, vide The Anand Marriage (Amendment), Act, 2012, The Anand Marriage Act, 1909 was amended to provide for the registration of Anand marriages commonly known as Anand Karaj.

Election Laws and Electoral Reforms

  • The Acts in connection with the conduct of elections to Parliament, state legislatures and to the offices of the President and the Vice-President are:
    • The Representation of the People Act, 1950
    • The Representation of the People Act, 1951
    • The Presidential and Vice-Presidential Elections Act, 1952
    • The Delimitation Act, 2002
    • The Andhra Pradesh Legislative Council Act, 2005
    • The Tamil Nadu Legislative Council Act, 2010
  • These are administrated by the Legislative Department, Ministry of Law and Justice.
  • The electoral system of the country, which is also called the first-past-the-post system of elections, has completed sixty-six years.
  • At present the issue of electoral reforms in its entirety has been referred to the Law Commission of India for its examination and Report.

Delimitation of Constituencies:

  • The periodic readjustment of the Lok Sabha and Assembly constituencies is mandatory in a representative system where single-member constituencies are used for electing political representatives.
  • The electoral boundaries are drawn on the basis of the last published census figures and are relatively equal in population.
  • Electoral constituencies that vary greatly in population—a condition called “malapportionment”—violate a central tenet of democracy, namely, that all voters should be able to cast a vote of equal weight.
  • Delimitation and Elections are the two basic pillars of parliamentary democracy.
  • The first Delimitation Commission in India was constituted in 1952, the second in 1962 and the third in the year 1973.
  • The third delimitation exercise—based on 1971 census—was completed in the year 1975.
  • The present delimitation, based on 2001 census, has been undertaken after 30 years.
  • The population has increased by almost 87 per cent and the nature of constituencies in the country, by and large, had become malapportioned.
  • The Government, as part of the National Population Policy strategy, decided to extend the current constitutional freeze on undertaking fresh delimitation up to 2026 as a motivational measure to enable state governments to fearlessly pursue the agenda for population stabilization.
  • It has also been decided, however, to simultaneously undertake readjustment and rationalization of electoral constituencies, including those reserved for the Scheduled Castes and the Scheduled Tribes, based on the population census for the year 1991, without affecting the number of seats allocated to states in the legislative bodies so as to correct the imbalance caused due to uneven growth of population/electorate in different constituencies.
  • The Constitution (Eighty-fourth Amendment) Act, 2001 enacted in 2002 has effected the aforesaid policy decisions of the Government.
  • The Delimitation Commission had accordingly been constituted in 2002 under the provisions of the Delimitation Act, 2002 with Shri Justice Kuldip Singh, a retired judge of the Supreme Court as its Chairperson and Shri B.B. Tandon, Election Commissioner in the Election Commission of India and the State Election Commissioner as its members.
  • Subsequent to that the Constitution (Eighty-seventh Amendment) Act, 2003 was enacted and by that Act the basis of the delimitation of territorial constituencies was changed based on the 2001 census in place of 1991.
  • Although the rules for delimitation vary across countries, tasks involved in drawing boundaries are generally similar.
  • The procedure for delimiting the constituencies in India stands clearly spelt out in The Delimitation Act, 2002.
  • This legal framework provides for an independent and impartial Delimitation Commission.
  • The final orders of the Commission are not subject to any modification or veto by the Government.
  • The Commission drew the boundaries of the constituencies reserved for scheduled castes and scheduled tribes strictly in accordance with the constitutional and statutory provisions.
  • After getting finality of the delimitation exercise, in pursuance of the second proviso to Article 82 and second proviso to clause (3) of Article 170 of the Constitution, a Presidential Order dated February 19, 2008 was issued making new delimitation effective throughout the country.
  • With the issuance of the Presidential Order specifying the date on which the delimitation orders notified by the Delimitation Commission shall take effect, it was necessary to amend the relevant provisions and the First and Second Schedules of the Representation of the People Act, 1950 to reflect the changes made by the delimitation orders notified by the Delimitation Commission.
  • As a consequential requirement, the Representation of the People (Amendment) Act, 2008 amending the Representation of the People Act, 1950 in conformity with the delimitation was enacted and made effective from 2008.
  • By this amendment Act, the First Schedule and the Second Schedule to the Representation of the People Act, 1950 were replaced including other amendments.
  • Further, a new Section 8(A) was inserted in the Representation of the People Act, 1950, which, provided that if the President of India is satisfied that the situation and the conditions prevailing in Arunachal Pradesh, Assam, Manipur or Nagaland are conducive for the conduct of delimitation exercise, he may, by order, rescind the said deferment orders issued under Section 10(A) of The Delimitation Act, 2002 in relation to any of those states and provide for the conduct of delimitation exercise in the states by the Election Commission of India.
  • After the issuance of the Presidential Order of 2008, the Delimitation Commission had issued eight (8) orders/corrigenda amending its earlier orders in respect of Karnataka, West Bengal, Uttar Pradesh, Tamil Nadu, NCT of Delhi, Bihar and Gujarat.

Electronic Voting Machines:

  • The use of Electronic Voting Machines (EVMs) was started in the country on an experimental basis in 1982.
  • It took more than two decades for the universal use of EVMs and during the General Elections to the Lok Sabha in 2004, EVMs were used in all polling stations across the country.
  • Thereafter EVMs are being used in all the elections of the House of the People and state assemblies.
  • The EVMs were developed at the behest of the Election Commission jointly with two Public Sector Undertakings, Bharat Electronics Limited, Bangalore (BEL) and Electronics Corporation of India Limited,  Hyderabad (ECIL) in 1989.

Voting Rights to the Citizens of India Living Abroad:

  • Section 19 of the Representation of the People Act, 1950 provides that every person who is not less than eighteen years of age on the qualifying date and is ordinarily resident in a constituency shall be entitled to be registered in the electoral rolls for that constituency.
  • The meaning of “ordinarily resident” is laid down in Section 20 of the said Act.
  • There are a large number of Indian citizens residing outside the country due to various reasons.
  • They have been persistently demanding for conferring them the voting rights.
  • In pursuance of the recommendations of the Standing Committee, the Government have withdrawn, with the leave of the Rajya Sabha, the earlier Bill, namely, The Representation of the People (Amendment) Bill, 2006 introduced on February 27, 2006, in the Rajya Sabha and introduced a fresh Bill, namely, The Representation of the People (Amendment) Bill, 2010 in August 2010, , to amend the Representation of the People Act, 1950 to :
    • Provide that every citizen of India, whose name is not included in the electoral roll and who has not acquired the citizenship of any other country and who is absenting from his place of ordinary residence in India owing to his employment, education, or otherwise outside India, (whether temporarily or not), shall be entitled to have his name registered in the electoral roll in the constituency in which his place of residence in India as mentioned in his passport is located
    • Provide that the Electoral Registration Officer shall make corrections of entries in electoral rolls and inclusion of names in electoral rolls after proper verification
    • Confer power upon the Central Government to specify, after consulting the Election Commission of India, by rules, the time within which the name of persons referred to in sub-paragraph above shall be registered in the electoral roll.
  • The said Bill has been enacted as the Representation of the People (Amendment) Act, 2010.
  • In pursuance of the provisions of the said Act the Central Government, in consultation with the Election Commission prepared and published the Registration of Electors (Amendment) Rules, 2011 on February 3, 2011, and Registration of Electors (Second Amendment) Rules 2011 on February 23, 2011.
  • The overseas Indians can now furnish the documents self-attested by them and get their name enrolled in the electoral roll of their respective constituency.

Reservation of Seats for Scheduled Castes and Scheduled Tribes

  • One such provision related to the reservation of seats for these communities in Lok Sabha and state legislative assemblies.
  • This provision found a place in Articles 330 and 332 of the Constitution.
  • Anglo Indian community:  Adequate safeguards were provided for them in our Constitution by giving representation to this small section of the society, under Article 331 of the Constitution by way of the nomination of two persons of that community in the House of the People by the President.
  • Likewise, provision for the nomination of one member each by the Governor, wherever necessary, belonging to this community in the state legislative assemblies was also incorporated.
  • Initially, the aforesaid provisions were made only for a period of ten years from the commencement of the Constitution.
  • Recently, through the Constitution (One Hundred Ninth Amendment) Bill, 2009 extension of the period for a further ten years has been passed by both the Houses of Parliament and received the assent of the President in January 2010.
  • The said Bill was enacted as the Constitution (Ninety-fifth Amendment) Act, 2009.

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