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Monday, November 24, 2014

Difference between ICC and ICJ

International Court of Justice – ICJ

  • It is the primary judicial branch of United Nations and settles legal disputes and provides advisory opinions submitted to it by its member states. ICJ is a civil court.
  • UNSC enforces its court’s rulings.
  • ICJ is composed of 15 judges elected for 9 years term by the UNGA and UNSC.
  • International Court of Justice is one of the most important guarantors of peace, security and co-operation among states.

♦ India and ICJ

  • Justice Dalveer Bhandari currently serves as permanent judge at ICJ.
  • Recent ruling by ICJ, awarded Bangladesh more than 9,700 square miles in the Bay of Bengal, ending a maritime dispute spanning more than three decades.

International Criminal Court – ICC

  • It was set up after the ad hoc tribunals to deal with Rwanda war crimes proved ineffective. ICC is a criminal court.
  • ICC is based on the principle of complementarity. ICC was not created to supplant the authority of national courts. However, when a state’s legal system collapses or when a government is a perpetrator of heinous crimes, the ICC can exercise jurisdiction. ICC is a court of last resort.
  • USA opposed the ICC for fear that it will be used politically against U.S. nationals.
  • ICC ensures that those who commit serious human rights violations are held accountable. Justice helps promote lasting peace, enables victims to rebuild their lives and sends a strong message that perpetrators of serious international crimes will not go unpunished.

♦ India and ICC

  • India is not a party to ICC. The major objections of India to the Rome Statute are :
    • Since ICC is subordinate to UNSC, permanent members are vested with unbridled powers.
    • Terrorism and nuclear weapons usage is not in the purview of ICC.
  • There is criticism that India on signing up the Rome Statute, would immediately come under ICC jurisdiction for human right violations under AFSPA, abuses in Naga movement, Kashmir conflict.



  
INTERNATIONAL COURT OF JUSTICE- ICJ
INTERNATIONAL CRIMINAL COURT – ICC
ESTABLISHEMENT YEAR
1946
2002
RELATIONSHIP WITH U.N
Official court of U.N, commonly known as “World Court”.
Independent. Not governed by U.N. Can receive referrals from UNSC. Can initiate prosecution without UN action.
HEADQUARTERS
Peace Palace , Hague
Hague
JURISDICTION
U.N Member states. Can give advisory opinions to UN bodies. Cannot try individuals. Applies International Law
Individuals accused of international crimes. Uses International Law, as war crimes violate Geneva Convention.
TYPES OF CASES
Sovereignty, boundary disputes, maritime disputes, trade, natural resources, human rights, treaty violations, treaty interpretation, etc.
Genocide, crimes against humanity, war crimes, crimes of aggression.
DERIVES AUTHORITY FROM
States that ratify the U.N. Charter become parties to the ICJ Statute. Non-UN member states can also become parties to the ICJ by ratifying the ICJ Statute.
Rome Statute
APPEALS
ICJ decision is binding. UNSC can review if states do not comply.
Appeals Chamber, according to Rome Statute.
FUNDING
U.N funded
contribution from state parties to the Rome Statute; voluntary contributions from the U.N; voluntary contributions from governments, international organizations, individuals, corporations and other entities.


  Credit : ForumIAS.com

Sunday, November 23, 2014

Constitutional Framework

Salient Features of the Indian Constitution
Introduction
The Indian Constitution is unique in its content and spirit. Though borrowed from almost every other constitution in the world, the Indian constitution has several salient features that distinguishes it from others.
The Constitution has undergone a substantial change on the account of several amendments, particularly the 7th, 42nd, 44th, 73th, 74th Amendments. Infact, the 42nd Amendment Act(1976) is also known as the 'Mini Constitution' due to the numerous important changes. However, in the Kesavananda Bharathi case(1973), the Supreme Court ruled that the constituent power of Parliament under Article 368 does not enable it to alter the 'basic structure' of the Constitution.

(1)Lengthiest Written Constitution
Constitutions are classified into written, like the American Constitution, or unwritten, like the British Constitution. The Indian Constitution is lengthiest of all the written constitutions of the world. It is a very comprehensive, elaborate and detailed piece of document. Originally, the Constitution consisted of a Preamble, 395 Articles( divided into 22 parts) and 8 Schedules.
Four factors have contributed to the elephantine size of the Constitution, namely:
(1.1)Geographical factors, the vastness of the country and its diversity.
(1.2)Historical factors, e.g, the influence of the Government of India Act of 1935 which was bulky.
(1.3)Single Constitution for the Centre and the State except for the state of Jammu and Kashmir.
(1.4)Dominance of legal luminaries in the Constituent Assembly.

(2)Drawn from Various Sources
The constitution has borrowed most of its provisions from the constitutions of the other countries as well as from the Government of India Act of 1935.
The structural part of the Constitution has been drawn from the Government of India Act of 1935, The Philosophical part(the Fundamental Rights and the Directive Principles of State Policy) has been drawn from the American and the Irish constitutions respectively. The political part(principles of the Cabinet Government, relations between the legislature and the executive) have been largely drawn from the British Constitution.

(3)Blend of Rigidity and Flexibility
Constitutions are also classified into flexible and rigid. A rigid constitution is the one that requires a special procedure for its amendments, like the American Constitution. Whereas, in a flexible Constitution, amendments can be made like other ordinary laws, like the British Constitution.
The Indian Constitution is neither rigid nor flexible but a blend of both. Article 368 provides for two types of amendments, they are;
(3.1)Some provisions can be amended by a special majority of the Parliament, i.e., a two-third majority of the members of each house present and voting and a majority(i.e. more than 50%) of the total membership of each house.
(3.2)Some other provisions can be amended by a special majority of the Parliament and by ratification by more than half of the total number of states.
At the same time, some other provisions can be amended by a simple majority of the Parliament in case of ordinary legislative process. These amendments do not fall under article 368.

(4)Federal System with a Unitary Bias
The Constitution establishes a Federal system of Government. It contains all the features of a federation, i.e., a two governments, division of power, supremacy of the Constitution, independent judiciary and bicameralism.
However, there are a large number of Unitary or Non-Federal features such as a strong centre, single Constitution, single citizenship, flexibility of Constitution, integrated judiciary, appointment of Governors by the Centre, all-India Services, emergency services and so on.
Moreover, the term 'Federation' is nowhere used in the Constitution. Article 1, on the other hand, describes India as a 'Union of States' which implies two things:
(4.1)the Indian federation is not an agreement by the states.
(4.2)no state has the right to secede from the federation.

(5)Parliamentary form of Government
The Constitution has opted for the British Parliamentary form of Government rather than the American Presidential form of Government. The Parliamentary form of Government is based on the principle of cooperation between the legislative and the executive while the Presidential form is based on the 'Doctrine of Separation of Powers' between the two.
Also known as the Westminster model of Government. The Constitution not only establishes Parliamentary system at the Centre but also in the States. Key features include:
(5.1)Presence of nominal and real executives.
(5.2)Majority Party rule.
(5.3)Collective responsibility of the executive to the legialature.
(5.4)Membership of the Ministers to the legislature.
(5.5)Leadership of the Prime Minister or the Chief Minister
(5.6)Dissolution of the Lower House(the Lok Sabha or the Assembly)

Even though the Indian Parliamentary system has been based on the British pattern, there are fundamental differences between the two. For e.g. Indian Parliament is not a sovereign body like the British Parliament, further Indian state has an elected head whereas the British State has hereditary head(monarchy).

(6)Synthesis of Parliamentary Sovereignty and Judicial Supremacy
The doctrine of the sovereignty of the Parliament is associated with the British Parliament whereas the judicial supremacy is associated with the American Constitution.
The Supreme Court, on one hand, can declare the parliamentary laws as unconstitutional through its power of judicial review. The Parliament, on the other hand, can amend a major portion of the Constitution.

(7)Integrated and Independent Judiciary
The Constitution establishes a judicial system that is integrated as well as independent. The Supreme Court of India stands at the top in the integrated judicial system. The High Courts are below it, at the State level. Under a high court, there is a hierarchy of subordinate  courts. This single system of courts enforces both Central as well as the State laws.
Supreme Court is a federal court, the highest court of appeal. the guarantor of the Fundamental rights of the citizens and the guardian of the Constitution. Hence, there are various provisions to ensure its independence-security of the tenure of the judges, fixed service conditions for the judges, all the expenses of the Supreme Court charged on the Consolidated Fund of India, prohibition on the discussion on the conduct of judges, ban on practice after retirement, power to punish for its contempt.

(8)Fundamental Rights
Part III guarantees 6 Fundamental Rights
(8.1)Right to Equality(Article 14-18)
(8.2)Right to Freedom(Article 19-22)
(8.3)Right against exploitation(Articles 23-24)
(8.4)Right to Freedom of Religion(Articles 25-28)
(8.5)Cultural and Educational Rights(Articles 29-30)
(8.6)Right to Constitutional Remedies(Article 32)
These are meant to promote the idea of political democracy, they operate as limitations on the executive and the arbitrary laws of the legislature. They are justiciable in nature. The aggrieved person can directly go to the Supreme Court which can issue writs of habeas corpus, mandamus, quo warranto for the restoration of his rights. However, they are not absolute and are subject to reasonable limitations(constitutional amendment). They can also be suspended during the operation of emergency(except the rights guaranteed by Articles 20 and 21).

(9)Directive Principles of State Policy
They can be classified into 3 categories, socialistic, Gandhian and liberal-intellectual.
They are meant for promoting the ideal of social and economic democracy. They seek to establish a 'welfare state in India'. However, unlike the Fundamental Rights, the Directive Principles of State Policy are non-justiciable, they cannot be enforced by the courts for their violation. Yet, the constitution itself declares that these are fundamental to governance in the country and it shall be the duty of the state to apply to these principles in making laws. Hence, imposing moral obligation on the State authorities to apply these.

(10)Fundamental Duties
The original Constitution did not provide for the Fundamental Duties for the citizens. These were added during the operation of the internal emergency(1975-77) by the 42nd Amendment Act of 1976 on the recommendation of the Swaran Singh Committee.
They are: to respect the Constitution, national flag, national anthem, to protect the sovereignty, unity and integrity of the country, to promote the spirit of brotherhood, to protect the rich heritage and composite culture of the country and so on.
These serve as the reminder to the citizens that while enjoying their rights, they have to be conscious to the duties they owe to the country, their society, their fellow citizens. However, like the Directive Principles of the State Policy, they are non-justiciable.

(11)Secular State
The Constitution of India stands for a secular state, hence it does not uphold any particular religion. Following provisions reveal the secular character of the Indian state:
(11.1)The term 'Secular' was added to the Preamble by the 42nd Amendment Act of 1976.
(11.2)The Preamble secures liberty of belief, faith and worship.
(11.3)The State shall not discriminate against any citizen on the grounds of religion.
(11.4)The State shall not deny any person equality before law.
(11.5)Equality of opportunity in terms of public employment.
(11.6)Right to freely profess, practice and propagate any religion.
(11.7)Every religious denomination or any of its section shall have the right to manage its own affairs.
(11.8)No person shall have be compelled to pay taxes for the promotion of a particular religion.
(11.9)No religious instructions shall be provided in educational institutions maintained by the State.
(11.10)Any section can preserve its distinct language, script or culture.
(11.11)All minorities shall have the right to establish and monitor their own educational institutions.

Old system of communal representation has been abolished, however, it provides for temporary reservation for the SCs and STs for their adequate representation.

(12)Universal Adult Franchise
The Indian Constitution adopts the universal adult franchise as a basis of elections to the Lok Sabha and the State Legislatures. Every citizen who is of 18 years of age or more has the right to cast his vote without any discrimination of caste, race, religion, sex, literacy, wealth or so on. The voting age was reduced from 21 years to 18 years by the 61st Amendment Act of 1988. It was a bold experiment and highly remarkable given the vast size of the country, its huge population, high poverty, social inequality and overwhelming illiteracy.

(13)Single Citizenship
Though the Indian Constitution is federal in nature and envisages a dual polity(Centre and State), it provides for only a single citizenship, i.e. the Indian citizenship.
In countries like the USA, on the other hand, a person is a citizen of the state he belongs to and also a citizen of the USA. Thus, he owes allegiance to both and enjoys dual sets of rights - conferred by the state as well as the centre.
In India, any person living anywhere in India(for the exception of Jammu & Kashmir, few tribal areas etc) enjoys equal sets of civil and political rights.
But a history of communal rights, class conflicts, caste wars, linguistic clashes and ethnic disputes have not helped for the cause of a united and an integrated India.

(14)Independent Bodies
The Indian Constitution not only provides for the legislature, the executive, the judicial organs of the Governments but also establishes certain independent bodies. These are:
(14.1)Election Commission of India
to ensure free and fair election to the Parliament, the State Legislatures, the Office of the President of India and the Office of the Vice-President of India.
(14.2)Comptroller and Auditor General of India
to audit the accounts of the Central and the State governments. He acts as he guardian of the public purse and comments on the legality and propriety of government expenditure.
(14.3)Union Public Service Commission
to conduct examinations for recruitment to all-India services and higher Central services and to advise the President on disciplinary on disciplinary matters.
(14.4)State Public Service Commission
to conduct examinations for recruitment to the state services and to advise the Governor on disciplinary on disciplinary matters.

(15)Emergency Provisions
The Constitution contains elaborate emergency provisions to enable the President to meet any extraordinary situation effectively. The rationale behind the incorporation of these provisions is to safeguard the sovereignty, unity, integrity and security of the country, the Democratic Political system and the Constitution.
The Constitution envisages three types of emergencies:
(15.1)National Emergency on grounds of war or external aggression or armed rebellion.
(15.2)State Emergency(President's Rule) on the grounds of failure of the Constitutional machinery in the state(Article 356) or failure to comply with the directions of the Centre(Article 365).
(15.3)Financial Emergency on the grounds of threat to the financial stability or the credit of India(Article 360)
During an emergency, the states go in total control of the Centre. It converts the federal structure to a unitary  one without a formal amendment of the Constitution. This is a unique feature of the Indian Constitution.

(16)Three-Tier Government
Like any other Federation, the Indian Constitution originally provided for the dual polity and contained provisions with regard to the organization and powers for both the Centre as well as the state. Later, the 73rd and the 74th Amendment Acts added a third tier of government(i.e. local) not found in any other constitution of the world.
The 73rd Amendment Act of 1992, gave Constitutional recognition to the Panchayats(rural local governments)by adding a new Part IX and a new Schedule 11 to the Constitution. Similarly, the 74th Amendment Act of 1992, gave Constitutional recognition to the Municipalities(urban local governments) by adding a new Part IX-A and a new Schedule 12 to the Constitution. 

Credits : Indian Polity by M. Laxmikanth