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Ashok Kumar (None)     07 February 2012

Reasonable restriction?

The President is in the town. On one of the roads from where her cavalcade has to pass, the police does not merely make it inaccessible to the public but also doesn't permit the shopkeepers to open their shop till 1 p.m i.e the time when the cavalcade finally passed. I had to suffer a heavy loss due to the high-handedness of the police. Is it a reasonable restriction? Awaiting your response.



 10 Replies

shivendra sachan (advocate)     08 February 2012

if u are a soapkeeper, ur loss should been about Rs.500 or 600. So in this context us fundamental rights are not violated.

Democratic Indian (n/a)     08 February 2012

Question: Is it a reasonable restriction? Who decides what is "reasonable" and what is "not reasoanble"? One who has the lathi decides. Have you heard the saying in Hindi "Jiski lathi usiki bhains"? Do the citizens of this country have any "lathi" to weild over those in power? Were the founders of American Constitution fools when they enacted the Second Amendment to the US Constitution? In a free democratic republic, the people are sovereign and the sovereigns are never unarmed. Like it or not this is the acid test of freedom, liberty and sovereignity. We do not have anything out these three.

 

Are people of India truly free, liberated and sovereign? India is a Dominion. Read the meaning of the word Dominion in any dictionary. Don't believe me? Read this Independence of India Act 1947 https://www.opsi.gov.uk/acts/acts1947/pdf/ukpga_19470030_en.pdf Two Dominions were created, India is one of the two Dominions.

 

Still don't believe me? Read the Article 367(1) of Constitution of India that belongs to "We the people of India". I mention it below:

 

Article 367(1) in The Constitution Of India 1949

(1) Unless the context otherwise requires, the General Clauses Act, 1897 , shall, subject to any adaptations and modifications that may be made therein under Article 372, apply for the interpretation of this Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India

 

As per Article 367(1) we are subjects of a "Dominion". I am not saying it, our Constitution is saying it. Fundamental Rights , Freedom, Life and Liberty, Sovereignity of subjects are decided by their masters because all these belong to them. That is why the subjects are always kept disarmed. It is also said beggers cannot be choosers. That is why Adv. Shivendra Sachan has rightly and wisely advised and converted your fundamental rights into a monetary value. If the value of your fundamental rights is around Rs 500 or Rs 600, then such fundamental rights are not your fundamental rights.

 

Have you ever read the following:

 

The usual road to slavery is that first they take away your guns, then they take away your property, then last of all they tell you to shut up and say you are enjoying it. -- James A. Donald

 

When the explicit enumeration of the Right to Keep and Bear Arms which was written in the draft Constitution as promised by Congress throughout the freedom struggle was removed from the final Constitution, why "We the people of India" did not protest? Were they sleeping?

 

When the First Amendment to the Indian Constitution done, why "We the people of India" did not protest? Were they sleeping?

 

When the 44th Amendment to the Indian Constituion was done to remove the explicit enumeration of Right to Property, why "We the people of India" did not protest? Were they sleeping?

 

Do the "We the people of India" need to be reminded of warning by James A. Donald? Now do not be surprised if "We the people of India" are told to shut up and say that they are enjoying it. Dear Ashok Kumar instead of being upset and complaining about your fundamental rights, you are supposed to be enjoying the President's visit!

1 Like

Vakeel Civil Court (Director)     08 February 2012

 

Democratic Indian Sir, your writings are good to read. I do not know you as a person and your contribution to DEMOCRATIC INDIA.

But I am reminded of famous words which I have heard on few occasions during my school days by my school principal i.e. Think not what the country has done to you, But think what you have done for your Country. 

1 Like

(Guest)

here there 2 kinds of fundamental rights: article 19

 

1] freedom to move in indian territory

reasonable restriction ground: public interest and protection of scheduled tribe

 

2] freedom to trade and business

 

reasonable restriction ground: qualification to do business, general public interest

 

your case does not fall in any 2 restrictions. therefore it is not reasonable restriction.

Democratic Indian (n/a)     09 February 2012

@  Vakeel Civil Court Sir Thank you for your soothing comments. My opinions in the post above are in tune with the opinions of your school principle. If "We the people of India" had not been sleeping but had been alert and vigilant, then they would not have been facing this condition today.


Some rights are so fundamental that they are not open for negotiations, trading, voting, majoritianism, popular interest, popular opinion etc.and need to be protected even from State, that is why they have been guaranteed in Constitution as fundamental rights. Therefore instead of subjecting to loose standards of judicial reviews of "reasonable" restrictions etc., the most strict form of judicial review i.e. doctrine of strict scrutiny is to be applied while adjuticating about violation of fundamental rights. One can read about Strict Scrutiny judgements at https://lawandotherthings.blogspot.in/2009/08/justice-sinhas-final-attempt-to-clear.html


The principle of strict scrutiny flows from the equal protection clause of Article 14 of the Constitution. To pass strict scrutiny, the law or policy must satisfy three tests:

1) It must be justified by a compelling State interest.

2) The law or policy must be narrowly tailored to achieve that goal or interest.

3) The law or policy must be the least restrictive means for achieving that interest.

If the policy of asking all shops to shut down is put to test of doctrine of strict scrutiny, it fails miserably.

shivendra sachan (advocate)     24 February 2012

 

well, Thanks to DEMOCRATIC INDIAN SIR, for evaluating my comment as
monetory right.
my submission is that when we have written constitution then 'lathi'
is not necessary for 'we the people of india'. We have art.13 and 32,
226.
if we ll use lathi  against administrative activities of our rulars
then who ll establish rule of law? We? No, if 'we the people of india'
could have been able to rule ourselves, there was no need of
constitution.
No doubt soap keeper has suffered loss, but can u imagine he ll go to
court for 500 Rs.? No, i have not said that u dont have remedy, just
raise the plea, but the question is do u want to check the common
course of  administrative actions on the basis of loss of 500?
 After going through ur submission i have one question with you,
do u think president should not pass through that way because it was
going to bring loss of profit to the soapkeeper and it ll be voilative
of his fundamental right?
 
 
 

Democratic Indian (n/a)     25 February 2012

Why do we need a written Constitution in the very first place? If the government is something that is made up of saints and angels then even a written Constitution is not required.


Since government is never made up of saints and angels, a written Constution is just a small step in controlling the government. A Constitution in itself is nothing but a piece of paper document without any force in itself, there has to be some force behind it to implement it. The force behind it can be some dictator, undemocratic or corrupt government or the real force of people. The ultimate and real meaningful step in controling the government is the lathi in the hands of people so that government respects the Constitution. Otherwise government has a bigger lathi in its hand and starts using its lathi on people. This is exactly why the 2nd Amendment to the US Constitution was done, to diffuse the monopoly of violence by government. The day people give up lathi, Constitution or no Constitution, people are bound for self ruin. It has always happened everywhere in the world all through the history.

Democratic Indian (n/a)     25 February 2012

my submission is that when we have written constitution then 'lathi' is not necessary for 'we the people of india'. We have art.13 and 32, 226.


Having lathi does not mean that you are always using it. If you have it, you rarely ever need to use it. It is used when everything fails, as a last resort. But if you do not have lathi, then when you need it, you do not have it.


Having a written Constitution does not mean that people are not able to rule themselves. On the contrary it means that people are so wise to rule themselves, they have created a servant(government) with help of Constitution to serve them. If you keep a servant, you need to control him. If you start sleeping, youre servant will start controlling not only you but your entire house.


When people create a Constitution, they do not give up all their natural and fundamental rights. Instead they guarantee them for themselves in the Constitution. If you read the Constitution, all point to the fact that arms are fundamental right guaranteed to the people.


Part III of the Constitution has been copied from American Bill of Rights. The spirit and guarantee of the Second Amendment of US Constitution is very much present in our Constitution if we read the Preamble, Article 14, 19(1)(b), Article 21, Article 25, Article 51A(b),(c),(d),(i) and Article 246(5) and Arms Act 1959 and its objectives together.

 

The essence and spirit of Second Amendment is: Because a well regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. This spirit is directly reflected in Article 51A(d). A duty cannot exist without a corresponding right.

Few hints to understand, if one has the desire and inclination to understand:

(1) Preamble of the Constitution says:

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and 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 OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

If the justice, liberty, equality and fraternity are to be "secured" by getting disarmed, then why are we maintaining the armed forces and police? "We the people of India" are not separate from the State we have created. If the Preamble is getting offended by arms then "We the people of India" should have disbanded the armed forces and police long time back to honor the wishes of the Preamble of our Constitution. Otherwise the Preamble is surely not offended by arms.

(2) Article 14 says:

"The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, s*x or place of birth"

State is a juristic person in court of law and treated equally with citizen. Are we saying arms are not a fundamental right of the State? If yes then it logically follows that State be disarmed. Or are we saying arms are a fundamental right of only State?

The factual position is that arms are not an offense under Part III of the Constitution. If arms are not an offense under Part III, they are right under Part III, since Freedom and Liberty are guaranteed under Part III.

Because of Article 14 of the Constitution, anything that is an offense under Part III of the Constitution, the State cannot claim exception under the law from that offense. For example: murder, extortion, kidnapping, robbery etc. are offenses under Part III of the Constitution. There is no exception for the State to commit these acts under the law. Read 302 IPC, the State has no exception to commit murder since it is an offense under Part III.

But for the matters that are right under the Part III of the Constitution, the State can regulate these fundamental rights for its own interest and thus claim exception under the law. Example is Arms Act 1959, RTI Act 2005 etc. These laws have provisions for exception for the State.
There exists exception for State from Arms Act 1959. Clearly arms are not an offense under Part III of the Constitution.

(3) Article 19(1)(b) says:

to assemble peaceably and without arms;

In order to understand what Article 19(1)(b) means, we need to understand that fundamental rights are negative rights. By negative rights, it means you may or may not choose to exercise the fundamental rights.

I will illustrate further with example of Article 19(1)(a), it guarantees freedom of speech and expression. "freedom of speech and expression" also includes "freedom of speech and without expression" since these two are negative rights and citizen may choose to use only freedom of speech without expression. Similarly when Article 19(1)(b) says "to assemble peaceably and without arms", it is not taking away or extinguishing any right by saying "without", it is merely stating one combination of the rights acknowledged by the Constitution. Please note that because of this fact, there is similar use of the word "and" in Article 19(1)(b) exactly as used in Articles 19(1)(a) and 19(1)(e).

(4) Article 21 says:

Protection of life and personal liberty.—No person shall be deprived of his life or personal liberty except according to procedure established by law.

Article 21 cannot say that citizen's self defense has to be done with bare hands only, but the State can do self defense with arms. Also Article 21 cannot say that citizen's do not have liberty to defend themselves with the best tools of self defense, but the State can do the same. That would be violation of Article 21 itself and Article 14.

(5) Article 25 says:

The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.

Kirpans are arms. If the arms are not guaranteed by the Constitution and it is also treating all the citizens equally as guaranteed under Article 14, then how can people professing Sikh religion enjoy the arms as fundamental right under Article 25 unless arms have also been equally guaranteed to all citizens under Part III of the Constitution?

(6) Article 51A mentions fundamental duties. All the Articles of the Constitution are at equal footing and in harmony with each other. Fundamental Rights and Fundamental Duties are two sides of the same coin i.e. one cannot exist without the other. If there is a Fundamental Duty under Aticle 51A, there is bound to exist a corresponding Fundamental Right under Part III. If any Fundamental Duty requires arms, there is bound to exist a corresponding Fundamental Right under Part III.

(i) Article 51A(b) says:

to cherish and follow the noble ideals which inspired our national struggle for freedom;

Noble ideals and national struggle for freedom were not without arms. It follows that there exists a corresponding fundamental right of arms under Part III of the Constitution.

(ii) Article 51A(c) says:

to uphold and protect the sovereignty, unity and integrity of India;

The duty of sovereign to uphold and protect the sovereignty cannot be expected be done without corresponding right to arms. It needs to be noted that in a free and democratic republic, the citizens themselves constitute the sovereign. It follows that there exists a corresponding fundamental right of arms under Part III of the Constitution.

(iii) Article 51A(d) says:

to defend the country and render national service when called upon to do so;

The duty to defend cannot be expected be done without corresponding right to arms. It follows that there exists a corresponding fundamental right of arms under Part III of the Constitution.

(iv) Article 51A(i) says:

to safeguard public property and to abjure violence;

"abjure violence" does not mean that one has to suffer violence from criminals by staying without arms. It does not mean that there is no right to the means or the tools to suppress the violence, to create an atmosphere that is concomitant with principle of "abjure violence". It follows that there exists a corresponding fundamental right of arms under Part III of the Constitution.

(7) Article 246(5) delegates the legislative powers to the Parliament to regulate arms, firearms, ammunition and explosives. If arms, firearms, ammunition and explosives are not fundamental rights or are offense under Part III, question of providing legislative powers to regulate them does not arise. It needs to be noted that Parliament does not have the legislative powers to pass regulatory laws to "regulate" acts that are offenses or crime under Part III of the Constitution. Example: Parliament cannot pass laws to "regulate" the offenses under Part III, by passing regulatory laws to issue licenses for murder, extortion, kidnapping, robbery etc. Since arms, firearms, ammunition and explosives are surely not an offense under Part III, therefore we have Article 246(5) and exceptions for the State under the respective laws for arms, firearms, ammunition and explosives.

(8) Read Arms Act 1959 and its objectives. Keeping in view the above mentioned points, if one scrutinizes the objectives and provisions of Arms Act 1959, they point towards the direction that arms are fundamental right.

I had tried to explain this matter earlier at https://www.lawyersclubindia.com/forum/RKBA-guaranteed-under-Articles-19-and-21-of-Constitution-36011.asp I will be updating that post with more points including these, so that things are even more clear to the casual reader and are available at one location.

Sudhir Kumar (Retd Govt Officer)     25 February 2012

experts will stands enlightened. You may file PIL if you are convinced that road blockade is unconstitutional

Democratic Indian (n/a)     26 February 2012

Yes the person who is suffering may decide to file writ or PIL. Read somewhere someone calling PIL as "Pagal's Interest Litigation" though I personally disagree with this idea. Also as advised by Advocate Shivendra Sachan, the cost, time and energy to pursue the matter in already overloaded courts and corrupted system may be more than the cost of fundamental right involved. Moreover if one reads the kind and quality of some judgements coming out of courts, everything is self explanatory.


Anyways those "servants of people" want people to shut down the shops when they travel down the road, can't they behave like true and dedicated servants by travelling at night or early morning when shops of their masters are closed? Or servants have displaced the rightful masters and now dictating terms to the former masters to close their shops? If people do not stay for ever vigilant and behave for ever like masters to keep the "servants of people" always under tight control, this or even worst is just what may happen.


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