Wednesday, April 25, 2012

From Golaknath through the era of Emergency to Minerva...in short ..!!!


In 1967, in Golak Nath vs. The State of Punjab, a bench of eleven judges (constituted for the first time) of the Supreme Court deliberated as to whether any part of the Fundamental Rights provisions of the constitution could be revoked or limited by amendment of the constitution. This question had previously been considered in Shankari Prasad v. Union of India and Sajjan Singh v. State of Rajasthan. In both cases, the power to amend the rights had been upheld on the basis of Article 368. Chief Justice Subba Rao writing for the majority (five judges dissenting) held that:

* A law to amend the constitution is a law for the purposes of Article 13.
* Article 13 prevents the passing of laws which "take away or abridge" the Fundamental Rights provisions.
* Article 368 does not contain a power to amend the constitution but only a procedure.
* The power to amend comes from the normal legislative power of Parliament.
* Therefore, amendments which "take away or abridge" the Fundamental Rights provisions cannot be passed.




The Kesavananda case (1973)

Six years later in 1973, thirteen judges of the Supreme Court, including then Chief Justice Sikri, heard arguments in Kesavananda Bharati v. The State of Kerala and thus considered the validity of the 24th, 25th and 29th amendments, and more basically the correctness of the decision in the Golak Nath case.
This time, the court held, by the thinnest of margins of 7-6, that although no part of the constitution, including fundamental rights, was beyond the amending power of Parliament (thus overruling the 1967 case), the "basic structure of the Constitution could not be abrogated even by a constitutional amendment".

However nine judges (including two dissentients) signed a summary stating that "the view of the majority" in the case was

1. Golak Nath's case is overruled.
2. Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution.



The Emergency (1975)

In 1975, shortly after the imposition of the Emergency, a bench of thirteen judges was hastily assembled to hear the case of Indira Gandhi v. Raj Narain. Presided over by Chief Justice A.N. Ray, the court had to determine the degree to which amendments were restricted by the basic structure theory. On November 10 and 11, the team of civil libertarian barristers–again led by Palkhivala–continuously argued against the Union government's application for reconsideration of the Kesavananda decision. Some of the judges accepted his argument on the very first day, the others on the next; by the end of the second day, the Chief Justice was reduced to a minority of one.


On the morning of November 12 Chief Justice Ray tersely pronounced that the bench was dissolved, and the judges rose. The doctrine could thus famously be applied in Indira Gandhi vs. Raj Narain to the 39th Amendment of 1975, which attempted, among other provisions, to pass legislative judgment over the election of Indira Gandhi in 1971.
Extending the doctrine (1981)

The doctrine was expanded in the Minerva Mills case of 1981. In Minerva Mills Ltd. v. Union of India,Palkhivala successfully moved the Supreme Court to declare that Clauses (4) and (5) of Article 368 of the Constitution are invalid. These clauses had been inserted as a response by the Gandhi government to the decision in the Kesavananda case by the Constitution (Forty-Second Amendment) Act, s. 55. The clauses read:

(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976 shall be called in question in any court on any ground.

(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.

The Court held that since, as had been previously held in the Kesavananda case, the power of Parliament to amend the constitution was limited, it could not by amending the constitution convert the power into an unlimited power (as it had purported to do by this amendment). The court went on to invalidate the amendment of Article 31-C by the Forty-second Amendment. This view of Article 31-C, but not the basic structure doctrine, was questioned but not overruled in Sanjeev Coke Mfg. Co v Bharat Cooking Coal Ltd.

IMPORTANT AMENDMENTS IN THE INDIAN CONSITUTION



The first Amendment Act to the Indian Constitution was made in the year 1951
According to it, Articles 15, 19, 85, 87, 174, 176, 341, 342, 376 were amended and Articles 31A and 3IB inserted and Ninth Schedule was added.


The Constitution (24th Amendment) Act, 1971: 
**It affirmed the power of the Parliament to amend any part of the Constitution. 
**After this amendment, the President is bound to assent to Constitution Amendment Bill. 
**Education was transferred to the Concurrent List by this amendment.
Education was transferred to the Concurrent List


(Concurrent list consists of 52 items. Uniformity is desirable but not essential on items in this list: Marriage and divorce, transfer of property other than agricultural land,education, contracts, bankruptcy and insolvency, trustees and trusts, civil procedure, contempt of court, adulteration of foodstuffs, drugs and poisons, economic and social planning, trade unions, labour welfare, electricity, newspapers, books and printing press, stamp duties)



The Constitution (31st Amendment) Act, 1973: 
increased the elective strength of the Lok Sabha from 525 to 545. 
Under the Act, the upper limit of representatives of the States goes up from 500 to 525 and that of the Union Territories decreases from 25 to 20.




The Constitution (36th Amendment) Act, 1975: By this Act, Sikkim became the 22nd State of the Indian Union.



The Constitution (37th Amendment) Act, 1975: was passed by Parliament on April 26, 1975, to provide for a Legislative Assembly and a Council of Ministers to Arunachal Pradesh, the country’s north-easternmost Union Territory.



The Constitution (39th Amendment) Act, 1975: The Bill was passed by the Lok Sabha on August 7 and received Presidential assent on August 9,1975. The Act places beyond challenge in courts the election to Parliament of a person holding the office of Prime Minister or Speaker and the election of President and Vice-President.

The Constitution (40th Amendment) Act, 1976: 
This Amendment has a three-fold objective: 
(1) It places beyond challenge in courts some major Central laws; 
(2) It gives similar protection to several State enactments, mostly relating to land legislation, by including them in the Ninth Schedule of the Constitution; and 
(3) It provides that the limits of the territorial waters, the Continental Shelf, the Exclusive Economic Zone and the maritime zones of India shall be specified from time to time by law made by Parliament.

The Constitution (42nd Amendment) Act, 1976: 
** It was enacted during the period of internal emergency. It was passed by Parliament on November 11, 1976 and received Presidential assent on December 18, 1976.
**The Amendment established  beyond doubt the supremacy of Parliament over the other wings of Government; gave the Directive Principles precedence over the Fundamental Rights; enumerated for the first time a set of ten Fundamental Duties.
** It further imposed limits on the power and jurisdiction of the judiciary; raised the term of the Lok Sabha and the Vidhan Sabha from five to six years; authorised the use of Central armed forces in any State to deal with law and order problems, made the President bound by the advice of the Council of Ministers and envisaged the establishment of administrative tribunals for service matters of Government employees and also other tribunals for economic offences. 
**The Act also clearly laid down that no Constitutional Amendment could be questioned in any court of law.




The Constitution (43rd Amendment) Act, 1978: It received the Presidential assent on April 13, 1978. This Act repeals the obnoxious provisions of the Constitution (42nd Amendment) Act passed during the Emergency. It restores civil liberties by deleting Article 3ID which gave powers to Parliament to curtail even legitimate trade union activity under the guise of legislation for the prevention of anti-national activities. The new law, which was ratified by more than half of the States in accordance with the Constitution, also restores legislative powers to the States to make appropriate provision for anti-national activities consistent with the Fundamental Rights. Under the Act, the judiciary has also been restored to its rightful place. The Supreme Court will now have power to invalidate State laws, a power taken away by the 42nd Amendment Act. The High Courts will also be able to go into the question of constitutional validity of Central laws thereby enabling persons living in distant places to obtain speedy justice without having to come to the Supreme Court.

The Constitution (44th Amendment) Act, 1978:
**The Constitution (45 th Amendment) Bill, re-numbered as the 44th Amendment came into force on April 30, 1979, when the President gave his assent.
** The Act removes major distortions in the Constitution introduced during the Emergency. 
**The duration of the Lok Sabha and State Legislative Assemblies has been reduced from six to five years—the normal term which was extended during the Emergency under the 42nd Amendment to achieve some political purposes. **The Right to Property ceases to be a Fundamental Right and becomes only a legal right according to the Constitution 44th Amendment. 
**The Act also extends, for the first time since independence, constitutional protection for publication of the proceedings of Parliament and State Legislatures, except in cases where it is proved to be “malicious”. 
**Another important feature of the Act is that any proclamation of Emergency need henceforward, be issued by the President only after receiving the advice of the Cabinet as a whole in writing. 
**The President will not be called upon to act on the basis of advice by the Prime Minister on his own without consulting his Cabinet. 
**Other safeguards provide that the proclamation will have to be adopted by a two-thirds majority of the members of both Houses of Parliament within a month.
** The 44th Amendment provides safeguards against future subversion of the Constitution for establishing an authoritarian regime. It contains provisions which are designed to make it impossible to impose the kind of emergency the country had experienced for 19 months.




The Constitution (45th Amendment) Act, 1980: The Act extends reservation of seats for the Scheduled Castes and the Scheduled Tribes in Parliament and the State Assemblies and the representation of Anglo-Indians by nomination for a further period of 10 years.

The Constitution (46th Amendment) Bill, 1982: It seeks to authorise the government to prepare an authoritative text of the Constitution, in Hindi.

The Constitution (52nd Amendment) Act, 1985: The Act has made defection to another party, after elections illegal. Any member defecting to another party after elections will be disqualified from being member of Parliament or State Legislature.

The Constitution (53rd Amendment) Act, 1986: It confers Statehood on Mizoram and ensures against unnecessary interference by the Central Government with the laws relating to spheres of social relationship and community conduct applicable to Mizoram.

The Constitution (54th Amendment) Act, 1986: It enhances the salaries of Judges of High Courts and Supreme Court of India. The salary of Chief Justice of India will be Rs 10,000; Chief Justice of High Courts Rs 9000; Judges of Supreme Court Rs 9000; and Judges of High Courts Rs 8000.

The Constitution (55th Amendment) Act, 1987: It grants Statehood to Arunachal Pradesh which consequently became the 24th State of the Indian Union.

The Constitution (56th Amendment) Act, 1987: It confers Statehood on Goa and forms a new Union Territory of Daman and Diu. Goa thus became the 25th State of the Indian Republic.

The Constitution (57th Amendment) Act, 1987: It made a special provision for the setting up of the new State of Goa. Consequently Daman and Diu were separated from the former to form a Union Territory.

The Constitution (58th Amendment) Act, 1988: It provides for special arrangements with regard to reservation of seats for Scheduled Tribes in the States of Arunachal Pradesh, Nagaland, Mizoram and Meghalaya. By amending Article 322 the adjustment of seats has been frozen until 2000 A.D.

The Constitution (59th Amendment) Act, 1988: It empowered the Central Government to impose Emergency in Punjab when deemed necessary. Under the amendment, President’s rule can be extended upto three years. Earlier maximum period was two years.

The Constitution (61st Amendment) Act, 1989: It lowered the voting age from 21 to 18.

The Constitution (62nd Amendment) Act, 1989: It provided for the extension by another 10 years of reservation of seats in the Parliament and State Assemblies for the Scheduled Castes and Tribes and reservation for Anglo Indian community by nomination.

The Constitution (63rd Amendment) Act, 1989: It repealed Amendment 59 which empowered the government to impose emergency in Punjab. 

The Constitution (64th Amendment) Act, 1990: It extended the President’s rule in Punjab by six months.


The Constitution (66th Amendment) Act, 1990: To bring land reforms within the purview of 9th Schedule of the Constitution.

The Constitution (69th Amendment) Act, 1991: Delhi made National Capital Region. The Act also made provision for Legislative assembly and a council of ministers for Delhi.

The Constitution (70th Amendment) Act, 1992: Before this act was made Article 54 relating to the election of the President provided for an electoral college consisting only of the elected members of Parliament as well as the legislative assemblies of the States (not of Union Territories). The amendment provide for inclusion of members of legislature of Pondicherry and Delhi.

The Constitution (71st Amendment) Act, 1992: The act amends the 8th Schedule to the Constitution to include Konkani, Manipuri and Nepali Languages in the 8th Schedule of the Constitution.



The Constitution (72nd Amendment) Act, 1992: To make temporary provision for the determination of the number of seats reserved for the Scheduled Tribes in the State assembly of Tripura, until the re-adjustment of seats is made on the basis of the first census after the year 2000 under article 170 of the Constitution.

The Constitution (73rd Amendment) Act, 1992:
To ensure direct election to all seats in Panchayats; to reserve seats for SCs and STs in proportion to their population; and for reservation of not less than one third of the seats iPanchayats for women...  


The Constitution (74th Amendment) Act, 1992: was made to ensure direct election to all seats in Nagarpalikas and Municipalities.

The Constitution (75th Amendment) Act 1994: It provides for setting up of State-level Rent Tribunals to exclude the jurisdiction of all courts, except that of the Supreme Court, under Article 136 of the Constitution.

The Constitution (76th Amendment) Act, 1994: It relates to the Reservation of Seats in Educational Institutes and of appointments or posts in the Services under a State, for Backward Classes, Scheduled Castes and Scheduled Tribes. The Supreme Court had ruled on November 16, 1992, that the total reservations under Article 16(40) of the Constitution should not exceed 50 per cent.





The Constitution (77th Amendment) Act, 1995: According to this Act, the Government have decided to continue the existing policy of reservation in promotion for the Scheduled Castes and Scheduled Tribes.

The Constitution (78th Amendment) Act, 1995: It includes land reform laws in the Ninth Schedule so that they cannot be challenged before the courts.

The Constitution (79th Amendment) Act, 1999: It extends the reservation of seats for SC, ST and Anglo-Indians in the Lok Sabha and Legislative Assemblies for next 10 years.

The Constitution (80th Amendment) Act, 2000: It deals with an alternative scheme for sharing taxes between the Union and the States.


The Constitution (81st Amendment) Act, 2000: It provides that the unfilled vacancies of a year reserved for SC/ST kept for being filled up in a year as per Article 16, shall be considered separately for filling vacancies in the succeeding year and the previous list will not be considered for filling the 50% quota of the respective year.

The Constitution (82nd Amendment) Act, 2000: It provides that nothing in the Article 355 shall prevent the State from making any provisions in favour of the members of SC/ST for relaxation in qualifying marks with respect to examination/job/promotion.

The Constitution (83rd Amendment) Act, 2000: The Act amended Article 243 M to provide that no reservation in Panchayats be made in favour of SC/ST in Arunachal Pradesh where the whole population is tribal.


The Constitution (86nd Amendment) Act, 2000:

Provides Right to Education until the age of fourteen and Early childhood care until the age of six






87th amendment
June 22, 2003
Extend the usage of 1971 national census population figures for state wise distribution of parliamentary seats
88th amendment
January 15, 2004
To extend statutory cover for levy and utilization of Service Tax
89th amendment
September 28, 2003
The National Commission for Scheduled Castes and Scheduled Tribes was bifurcated into The National Commission for Scheduled Castes and The National Commission for Scheduled Tribes
90th amendment
September 28, 2003
Reservation in Assam Assembly relating to Bodoland Territory Area
91th amendment
January 1, 2004
Restrict the size of council of ministers to 15 % of legislative members & to strengthen Anti Defection laws
92nd amendment
January 7, 2004
Enable Levy of Service Tax
Include Bodo, Dogri, Santali and Maithili as National Languages
93rd amendment
January 20, 2006
To enable provision of reservation for other backward classes (O.B.C.) in government as well as private educational institutions
94th amendment
June 12, 2006
To provide for a Minister of Tribal Welfare in newly created Jharkhand and Chhattisgarh States
95th amendment
25 January 2010
Extended the reservation of seats in Lok Sabha and State Assemblies for SC and ST from sixty to seventy years
96th amendment
23 September 2011
Substituted "Odia" for "Oriya"
97th amendment
12 January 2012
Added the words "or co-operative societies" in Article 19(l)(c) and inserted article 43B i.e, Promotion of Co-operative Societies and added Part-IXB i.e, THE CO-OPERATIVE SOCIETIES



  

Neo-natal Mortality in India

Union Minister for Health & Family Welfare recently  said that in order to strengthen neonatal services in the country, funds are provided to States for establishing and running Special Newborn Care Units (SNCU), Newborn Stabilization Units (NBSU) and Newborn Baby Care Corners (NBCC). 

Funds have also been allocated to States for implementing Janani Shishu Suraksha Karyakram (JSSK) which provides for free care and transport of sick newborn for first 30 days of birth. As per SRS 2010 report of Registrar General of India, Neo-natal Mortality Rate is 33 per thousand live births in India.


 IMPORTANT DEFINITION
  • Perinatal mortality only includes deaths between the foetal viability (22 weeks gestation) and the end of the 7th day after delivery.
  • Neonatal mortality only includes deaths in the first 28 days of life.
  • Postneonatal mortality only includes deaths after 28 days of life but before one year.
  • Child mortality includes deaths within the first five years after birth.


What basically is Neonatal mortality ?

**Early neonatal mortality refers to a death of a live-born baby within the first seven days of life, while late neonatal mortality covers the time after 7 days until before 28 days. 
**The sum of these two represents the neonatal mortality. Some definitions of the PNM include only the early neonatal mortality. 
**Neonatal mortality is affected by the quality of in-hospital care for the neonate. Neonatal mortality and postneonatal mortality (covering the remaining 11 months of the first year of life) are reflected in the Infant Mortality Rate.

Various contributing factors for neonatal mortality include 
(a) Home delivery by unskilled persons 
(b) Lack of essential new born care for asphyxia and hypothermia 
(c) Poor child care practices 
(d) Lack of early detection of sick newborn 
(e) Inadequate/Delayed referral mechanisms 
(f) Inadequate infrastructure in govt. hospitals for specialized care of sick newborn.

 The medical causes of neonatal deaths  in India are Infections (29%) such as Pneumonia, Septicemia and Umbilical Cord infection; Prematurity (24%) i.e birth of newborn before 37 weeks of gestation and Asphyxia (19%)  i.e. inability to breathe immediately after birth that leads to lack of Oxygen.


What is Perinatal Mortality Rate ?

The PNMR refers to the number of perinatal deaths per 1,000 total births. It is usually reported on an annual basis. It is a major marker to assess the quality of health care delivery. Comparisons between different rates may be hampered by varying definitions, registration bias, and differences in the underlying risks of the populations.
PNMRs vary widely and may be below 10 for certain developed countries and more than 10 times higher in developing countries . The WHO has not published contemporary data.

What is SRS (Sample Registration System)?


 http://timesofindia.indiatimes.com/photo/12564573.cms


**The Sample Registration System (SRS) is a large-scale demographic survey in India for providing reliable annual estimates of birth rate, death rate and other fertility & mortality indicators at the national and sub-national levels.
**The field investigation consists of continuous enumeration of births and deaths in selected sample units by resident part time enumerators, generally anganwadi workers & teachers, and an independent survey every six months by SRS supervisors.
**The data obtained by these two independent functionaries are matched.
** The unmatched and partially matched events are re-verified in the field and thereafter an unduplicated count of births and deaths is obtained.
**The sample unit in rural areas is a village or a segment of it, if the village population is 2000 or more. In urban areas, the sampling unit is a census enumeration block with population ranging from 750 to 1000.
**At present, SRS is operational in 7,597 sample units (4,433 rural and 3,164 urban) spread across all States and Union territories and covers about 1.5 million households and 7.27 million population.