Basic Concepts Of Political Science – Part II Notes 11th Political Science for Tnpsc Exam
11th Political Science Lesson 4 Notes in English
4. Basic Concepts Of Political Science – Part II
- Law is the prescription of rules and regulations sanctioned by the sovereignty for the state.
- Law as, Bodin said, is the command of the sovereign. Similarly Aristotle has rightly pointed out that if there is no law even man will behave like a beast.
- In order to preserve society and protect the progressive nation, law has become an integral part of the system world over.
- The enormous power of law could not be a complete solution to maintain an order in the society due to the limitations it is framed with.
- Law is a tyrant for criminal and a guardian for its citizen.
- There is always an intense debate that happens on, why the law is lenient in some part of the world and so powerful in another part of the world.
- The question of leniency and powerful the law is, ascertained by its functions especially the punishment it involves.
- For example, law in a democratic country is much different and concerned than the law in a totalitarian state.
- And more, how the law unfurls freedom for its citizens matters a lot while executing and exercising it. Ignorance of law is not an excuse anywhere in the world.
- Hence it is pertinent to introduce the concept of law to the young minds to understand it as the basic rules and regulations as sanctioned by our constitution.
Meaning Of Law
- The term ‘Law’ was derived from an old Teutonic root ‘lag’ “which means something which lies fixed or evenly.
- Without law life may witness utter chaos and confusion and in fact it is law that regulates life.
- The word law is used to denote ‘uniform’. There are two kinds of laws. They are: physical and human law.
- Physical law regulates nature where as human law regulates human life.
- The term law in political science is used to mean body of rules to guide human action.
- The function of state is done through government and the government in turn interprets the will of the state through law.
Views On Law
- “Law is the command of the sovereign” according to John Austin
- “Law is the collection of rules which the state recognizes and applies in the administration of Justice” said Salmond
- According to krabbe “Law is the expression of the judgments of value which we human beings make by virtue of our disposition and nature”
- “Law is that portion of the established thought and habit which has gained distinct and formal recognition in the shape of uniform rules backed by the authority and power of the government.” Said Woodrow Wilson
- “A law is of general rule of external human action enforced by a sovereign political authority.” Said Holland
What is the purpose of Law?
- According to Maclver “A law does not become a law until and unless it is backed by the state.
- The purpose of law is to establish sure foundations in the certitude of which men can rebuild the many mansions of society.”
- The term ‘Law’ is considered as a body of rules to govern human action and as well to regulate human life by the discipline Political Science.
- ‘It is not the issuing of law that makes the state, it is the force of the state that makes law” believe Hocking.
What are the purposes of Law?
- Protect basic human rights
- Promote fairness
- Help resolve conflicts
- Promote justice
- Promote order and stability
- Promote desirable social and economic behaviour
- Represent the will of the majority(on some issues)
- Protecting the rights of minorities
Are you aware of the classification of Laws?
- The relationship of citizens and the regulation of relations among one another are determined by private laws.
- The laws that determine the relation of citizens to the state are public laws.
- Public law perceives state as an arbiter as well as one of the parties interested in it.
Different kinds of law in Relation to our many different roles
iii. Constitutional laws
- The common law differs from statutory law because it is mainly based on precedent.
- Statutory law is a more formal body of the legal system that consists of written legislation.
- This legislation will mainly be based on rules and regulations either mandating or prohibiting certain behaviors of the general public.
- Common law, on the other hand, will allow judges to decide cases based on the rulings of prior cases with similar circumstances.
- Constitutional laws are the basic laws according to which the government in a state conducts itself.
- The laws that define interpret and regulate the functions of the government are known as constitutional laws.
- For example, the election of President, the powers and functions of the Supreme court and method of the appointment of the governor are constitutional affairs.
- The laws which are not related to the forms and functions of the government and to the fundamental rights but are related to the social and economic affairs of all citizens are known as ordinary laws.
- For example, the abolition of child marriage and prohibition etc come under ordinary laws.
iv. Statute Laws
- Statute laws are the laws which are framed by the Legislative Assembly or by the Parliament.
- Democratic Government being popular in most of the countries, the laws of those government are framed mostly by the Parliaments in those countries.
- Ordinances are generally issued by the executive branch of the government as per the law of the state.
- Ordinances are temporary by nature and are issued by the President in the absence of parliament, especially to face the emergency.
vi. Common Laws
- Common laws are those laws which rest on customs but are enforced by the courts like statute law.
- Common laws are popular in England.
vii. Administrative Laws
- The office and responsibilities of government servants are interpreted and governed by Administrative law.
- It is the Administrative law that enable the public officers to separate law and procedure from private individuals.
- These laws also make an attempt to interpret the privileges of government officials.
- Administrative laws are not popular in England, U.S.A. and India.
- They are popular in France and a few countries of Europe.
- For example, When any dispute arises between a citizen and government servant the administrative court resolves the issue with administrative laws.
viii. International Laws
- The rule that determine the conduct of the civilized states in their relation with other states in international arena is otherwise called International law.
- There are no such framed laws that govern international relations but backed by public opinion and the rule of UNO as an international body matters for any nation to enjoy its sovereign status.
- There are also laws such as Sea law, where there are International borders and as well Air law that demands aircraft of other nation to fly with permission of respective nations.
Do you want to know the sources of Law?
- Customs play an important role in the framing of the laws. Most of the laws that came from customs are recognized by state later.
- Since ancient period we can notice that the dispute among tribals were resolved by the head of the Tribes using their customs and traditions.
- Customs became laws when tribes extended into the formation of state.
- State cannot actually ignore the customs of the country.
- The common law of England for example sprang mainly from customs.
- For example Bull-Taming sport culture of Tamils of India resulted into the creation of Jallikattu Law in 2017.
- The religion practiced by Primitive communities played a decisive role in evolving the laws of the state later.
- Religion was a basis of law for most of the nation.
- The origin of Hindu law can be traced in the code of Manu.
- The origin of Mohammedian law can be traced in Shariat law. Divine law is a law revealed through man from God.
- God is the ultimate source of divine law. For Christians Ten Commandments were the first law given by the Lord Almighty to his people and was considered as the basis of law.
- “Indeed the early law of Rome was little more than a body of technical religious rules, a system of means for obtaining religious rights through the proper carrying out of certain religious formulas”. –Woodrow Wilson
iii. Judicial decisions
- Gettell maintains that the ‘state arose not as the creator of law but as the interpreter and enforcer of custom’.
- The function of the Judiciary is to interpret and declare the law. While discharging its function the judiciary creates new laws.
- The laws later gets recognized by the state. Judicial decisions thus became an another source of law.
- Some time the verdict of High Court and Supreme Court are treated as laws.
- When laws are ambiguous and do not fit in, the principles of equity are applied and cases are decided according to commonsense and fairness.
- The name given “Equity” is the set of legal principles in countries following the English common law tradition, which supplement strict rules of law where their application would operate harshly, so as to achieve what is sometimes referred to as “natural justice”
- It also means “fairness”
- Equity has been described as “a gloss (meaning a supplement) on the common law, filling in the graps and making the English legal system more complete
- In English Law, equity means that body of rules originally enforced only by the court of chancery.
v. Scientific commentaries
- Another source of law are scientific commentaries.
- when the commentary appears it is understood only as an argument, later on its authority is recognized as more authoritative than the Judicial decision.
- “Equity is a body of rules existing by the side of the original civil law, founded on distinct principles and claiming incidentally to supersede the civil law in virtue of a superior sanctity inherent in those principles.” – Sir Henry Maine
- “The opinion of learned writers on law have often been accepted as correct law: in England , for instance the opinions of Coke and Blackstone in America of story and kent , in India of Vijnaneswara and Apararka” – A. Appadurai
- Most of the laws in the modern times are framed by legislature and it is one of the most important source of law.
- Indian constitution is a classical example where the best provisions of other constitutions are borrowed and made it available for the best of our nation
Sources Of The Indian Constitution
- Government of India Act 1935: The federal scheme. Office of the Governor. Role of federal judiciary. Emergency provisions
- UK Constitution: Law making procedures, Parliamentary Government, Rule of Law, Single citizenship and Bicameral Legislature.
- US Constitution*: Fundamental Rights, Independent judiciary, Judicial Review, Impeachment of the President, Procedure for the removal of the judges of the Supreme Court, High Courts and Role of Vice President.
- “The state is founded on the minds of its citizens, who are moral agents.. a bad people means a bad state and a bad laws.” – Gilchrist
How law is related to state and morality?
- Law and morality are complimentary to each other. Ethics reveals its citizens the code of conduct.
- Similarly the laws framed by state also aim to achieve the same goal. The sole aim of the state lies in the promotion of the welfare of the people.
- As there is a close affinity between law and morality, there also exist a good relationship between law and state.
- A bad state will have bad citizens and a good state will have good citizens. So it is the sole function of the state to keep a good standard of morality.
- Government of India is trying its best to eliminate the evil of untouchability. It has framed laws against untouchability.
- Though there is law against social ills it is understood that it is rather a sin to adopt the policy of discrimination on the grounds of caste and creed, colour and race, clans and tribes, groups and classes.
- The government is taking measures to prohibit the drinking of wine and also prohibits child marriages.
- Generally democracy does not have any such law as opposed to morality.
- Wilson maintains that the aim of the law of a state is to develop morality in the state.
- Hence the sovereign law-making authority pays due attention to the code of the intimacy between law and morality.
- ‘‘We regard the state as the condition or morality. The state and law continually affect both public opinion and actions; in its turn law reflects public opinion and thus acts as the index or moral progress” – Maclver
- “The best state is that which is nearest in virtue to the individual. If any part of the body politic -suffers, the whole body suffers”. –Plato
Distinction between Law and Morality:
- Laws are enforced by the state, if not obeyed to the commands of law, he is likely to be punished by the state.
- The severe punishment one can be awarded to a person for not observing the scruples of morality is the social boycott.
- Morality is concerned with both internal and external affairs of man whereas law is concerned only with the external affairs of man.
- Hence, law punishes only those persons who violate laws by their external actions.
- Law punishes a person only when he commits a theft or dacoity or murder or any other physical crime.
- Law cannot punish a person for telling a lie or for abusing some one.
- Telling lies, condemning someone and being ungrateful and many other actions of man are sins but they are not crimes.
- Machiavelli maintained that even the immoral practices are legal, if they are applied for the benefit of the state.
What is Moral law?
- A law framed with a purpose of eliminating evils such as drinking of wine, gambling, theft, dacoity and murder are moral laws.
- The laws which are based on morality remain permanent
How Law and Public opinion are related to each other?
- The power of democracy lies in the participation of people in the democratic exercise of electing their representatives.
- People are not directly involved in the framing of laws, yet they could elect their representatives to legislature.
- People elect their representatives to execute the will of the electorate. The elected body are just expected to represent the will of the public.
- Here we can understand the close affinity of law and public opinion.
- The Modern state appeals to morality, to religion, and to natural law as the ideological foundation of its existence.
- At the same time it is prepared to infringe any or all of these in the interest of self-preservation.-J.M. Coetzee
- In democracy laws are framed only based on the support of public opinion. People carry out peaceful demonstrations to express their opinion or resentment.
- Common welfare of the people and social progress are the primary considerations of public opinion.
- In political theory, citizenship refers not only to a legal status as a member of a country but also a normative ideal which means the ruled are full and equal participants in the political process.
- Democracy and citizenship go hand in hand.
- Democracy focuses on political parties, electoral systems, rule of law, etc., while citizenship focuses on the attributes of individual citizens.
- Citizens have certain rights that differ from one country to another.
- Natural citizens are the citizens by virtue of their birth but naturalised citizens are the ones who acquire citizenship.
- Aristotle defined citizenship with reference to the birth place, family lineage and culture.
- Stoics viewed citizenship as a cosmopolitan ideal. Confucius emphasized it as the restoration of commonwealth, where everyone worked for harmony and welfare.
- In India too, there persisted the concept of “Vasudeva Kutumbakam”.
Citizenship and the City-state:
- Citizenship was an important theme in the ancient Greek and Roman Republics but they disappeared from the feudal systems.
- This was later revived as a desirable aspect of civic humanism during the Renaissance.
- Citizenship was considered only as participation of duties during the ancient Athens.
- Citizenship was considered as a pivotal importance to Aristotle as he perceives ideal state is possible only in a law-based state where citizens are law abiding.
- He states that an individual is a political animal who finds fulfilment only within the polis and hence desiring for political posts is natural.
- He says that citizenship is a criterion wherein the rule must be applicable to all irrespective of whether they are residents, aliens or even slaves from other countries.
- A citizen is one who enjoys the right to share in the deliberative and judicial offices and is able to exercise his political rights effectively under the constitutional system.
- Marshall, a liberal-social democrat links citizenship to social class in the context of capitalism.
- According to Marshall, citizenship has three essential divisions: civil, political and social.
- Every individual requires a right for freedom and that is what is in as civil component.
- This is also an important ingredient of rule of law. As a citizen we have the right to participate in political decision-making process.
- This is reflected in the political division. No citizen can be deprived of the prevailing
- Aristotle– defines citizenship as “he who has the power to take part in the deliberative or judicial administration of any state.”
- Greeks enjoyed the privilege of being governed by democracy; their government was made up of commoners, and they were allowed freedom of speech to a large extent through public speaking rights.
- Standard of living and they have all the rights to enjoy the fruits of this. Hence, Marshall stresses upon the social services.
Citizenship and Education
- In this, we shall study about the influence of education towards citizenship, according to various philosophers.
- Aristotle considers three qualities to be necessary for a man universally. They are:
- Loyalty to the constitution
- High degree of capacity to one’s duties and
- Quality of goodness and justice.
- A democratic nation upholds political and economic equality for which identification between a good man and good citizen are always necessary.
- Plato considers education is a cure to corruption and political instability.
- Hence, he speaks for effective and responsible form of education.
- Aristotle, Hume and Rousseau, point out that the citizens will need knowledge of the attitudes and the expectations of their fellow citizens.
- J.S. Mill and Tocqueville on the other hand stress upon the need of political knowledge and in order to participate and conduct the affairs of the local government, voluntary association or jury service, education is very much necessary.
Citizenship in India
- India is a secular, democratic and nation state.
- Why do you think Independence Movement began? The main reason was to bind together people of different religions, regions and cultures.
- Though there were differences with the Muslim League during the Partition of the Country, yet this strengthened the Indian National Leaders to maintain the secular and inclusive character of the Indian Nation state.
Global citizenship and National citizenship
- National citizenship assumes that our state can provide us with protection and rights we need to live.
- However, states today are to tackle a lot of problems and hence individual rights are guaranteed to protect the safety of the people.
- Global citizenship on the other hand, deals with the importance of citizenship across the national boundaries.
- Here, one may need the cooperative action by the people and the governments of many states.
- Therefore, citizenship for all can resolve many socio- economic inequalities.
- Moreover, global citizenship reminds us that we live in a world where the states are interconnected with each other and strengthening the links is most important.
RIGHTS AND DUTIES
- The language of rights has formed part of our moral, legal and political vocabulary for many centuries.
- Rights are so common in our world that we might suppose that they are woven into a fabric of human rights.
- The significance of rights in the modern era is not limited to their entrenchment in the constitutions and their announcement in international declarations.
- If all human beings possess rights merely in virtue of being human, then all humans possess rights merely in virtue of being human, then all humans possess a certain equality of moral standing which cuts across differences of class, caste or race or religion.
Do you know about rights?
- Rights are important conditions of social life without which no person can generally realise his best self.
- It is only when people get and enjoy rights that they can develop their personalities and contributes their best service to the society.
- They are the common claims of the people which every cultures society recognizes as essential claims for their development and which are therefore enforced by the state.
- Isaiah Berlin defines rights in terms of positive liberties and negative freedoms.
- A positive right is an entitlement to: A right to free expression, for instance, entitles one to voice opinions publicly.
- A negative right is a freedom from; Freedom of person is a right to be free of bodily interference.
- Rights are the important rational and moral claims of the people for the societal development.
- They are available to all the people irrespective of caste, creed, race or gender bias.
- Rights are duties are interrelated to each other. “No duties, no rights.”
- “If I have rights it is my duty to respect the rights of others in the society”.
- Rights are justiciable.
- Rights are protected and enforced by the laws of the state. It is the duty of the state to protect the rights of the people.
- “Rights are powers necessary for the fulfilment of man’s vocation as a moral being…” T.H. Green
Let us differentiate Rights and Responsibilities
- Rights and responsibilities are inseparable.
- When someone is borne with a lot of responsibilities, they are automatically bestowed upon with enough rights.
- Rights actually enable an individual to perform their responsibilities in the different roles we play on a day to day basis.
What are your responsibilities?
- To safeguard the unity and integrity of India.
- To protect the public property.
- To conserve and protect the natural resources of the country like wildlife, lakes, forests and rivers.
- To maintain the spirit of brotherhood and create harmony among all irrespective of caste, creed, colour and economic status.
- To preserve the rich Indian culture and heritage.
- To respect the National Anthem and National Flag.
Are you aware of the different types of Rights?
i. Natural Rights
- These rights are parts of human nature and reason.
- Political theory explains that an individual has certain basic rights and the government cannot deny these rights.
- In classical political philosophy, “natural right” denotes to the objective rightness of the right things, whether the virtue of a soul the correctness of an action, or the excellence of a regime.
ii. Moral Rights
- Moral Rights include rules of good conduct, courtesy and of moral behaviour and stand for moral perfection of the people.
iii. Legal Rights
- Legal rights are equally available to all the citizens and they follow without any discrimination.
- Legal rights are those which are accepted and enforced by the state. Legal rights are of three types:
- Civil Rights: These are the rights which provide opportunity to each person to lead a civilized social life and that which are protected by the state. Right to life, liberty and equality are civil rights.
- Political Rights: These are the rights by virtue of which the people get a share in the political process.
- These rights include the right to vote, right to get elected, right to hold public office, etc.
iv. Economic Rights
- These are the rights which provide the economic security to the people.
- The people are empowered to make proper use of their civil and political rights. Right to work, right to adequate security, right to social security.
- Legal rights are what the law says there are, insofar as the law is enforced. They gain importance through legislation or decree by a legally authorized authority.
v. Contractual Rights
- These rights originate from the practice of promise – keeping.
- They apply to particular individuals to whom contractual promises have been made. The numerous examples of contractual rights include rights to purchase a product or service, right to sell a product or service.
vi. Human Rights
- Human Rights are the rights of highest order.
- They are morally important and are possessed in virtue of the universal moral status of human beings.
- They are protected and supported by international and national laws and treaties.
Have you heard of Bill of Rights and Fundamental Rights?
- The Bill of Rights, in the United States, was adopted as a single unit on December 15, 1791, and they constitute a collection of mutually reinforcing guarantees of individual rights and limitations on federal and state governments.
- James Madison proposed the Bill of Rights. Bill of Rights was influenced by George Mason’s 1776 Virginia Declaration of Rights & 1689 English Bill of Rights.
- The Bill of Rights derives from the Magna Carta (1215), the English Bill of Rights (1689), the colonial struggle against king and Parliament.
- The United States Bill of Rights plays a central role in American law and government, and remains a fundamental symbol of the freedoms and culture of the nation.
THE BILL OF RIGHTS
The First Ten Amendments to the U.S. Constitution
- Freedom of Speech Religion, Press, Assembly and Petition
- Right to Bear Arms
- Quartering of Soldiers
- Arrests and Searches
- Rights of Persons Accused of Crimes
- Rights of Persons on Trial for Crimes
- Jury Trials in Civil cases
- Limitations on Bail and Punishments
- Rights kept by the People
- Powers kept by the states or the people
- India won independence from the British Imperial-colonial rule in 1947.India emerged as democratic, secular country that had high emphasis on Rights.
- On August 29, 1947, the Constituent Assembly set up a drafting committee under the chairmanship of Dr. B.R. Ambedkar.
- The total number of amendments that were made were approximately 7635, out of which nearly 2473 were actually moved.
- The 12th session of the Assembly held on January 24, 1950 elected Rajendra Prasad as the first President of the Indian Union.
- The legal and political luminaries of the Assembly affixed their signatures on the official copies of the Indian Constitution.
- Part-III of the Indian Constitution contains Fundamental Rights that is the critical foundation of the Democratic ethos of the Indian Constitution.
- The Indian Constitution in its text and scope is the most detailed and the most elaborate in the world.
- Every minute aspect of the fundamental rights are enumerated in the Constitution which is also one of the important aspects for it to be voluminous.
- The various facets of the Fundamental Rights are elaborated below:
Right to Equality
- Right to Equality guarantees equality before law to all the people irrespective of their caste, creed, gender and race, etc.
- It also emphasis on the prevention of discrimination to visit any public places.
- This permits anyone to visit temples, restaurants, hotels and places of public entertainment.
- It also guarantees equality of opportunity to employment to citizens in Union or states.
- Right to equality forbids any form of untouchability and considers this as a serious offence.
Right to Freedom
- Equality and freedom or liberties are the two kinds of rights necessary for democracy.
- This article assures freedom of speech and expression, freedom to assemble peacefully and without arms, freedom to form associations and to move freely throughout India.
- Do you know that this Article also provides you the freedom to practise any profession of your choice? Yes, you can. You can set up a clinic, a pharmacy or even a supermarket.
- “Duties and rights are inseparable, for the previlege of the later one has to perform the former”.-Mahatma Gandhi
Right to Life and Personal Liberty
- No citizen can be denied of his personal liberty.
- This means no person can be detained without informing the grounds of his arrest.
- An arrested person has also the liberty to consult and be defended by a lawyer of his choice.
- Besides this, he is not to be kept under custody beyond 24 hours and must be produced before the Magistrate.
- Preventive Detention is considered as a check on the actions of the miscreants which is actually the dire need of the hour.
- If the State feels that a person can be a threat to law and order as well as to peace and security of the nation, it can arrest or detain that person.
Right against Exploitation
- There are millions and millions in our country who are exploited and used. They are the underprivileged and the deprived, in the society.
- In the today’s scenario, human trafficking has become a serious exploitation of human beings.
- Human trafficking is buying and selling of human beings and treating them as slaves.
- Apart from human trafficking, child labour is another problem being faced where children are put into forced labour without payment.
- This is the reason why the Constitution has provided with the Right against exploitation, wherein trafficking in human beings and beggary are forms of forced labour.
- It also prohibits the children below the age of 14 years from employment in any factory or mine or any kind of hazardous labour.
Right to Freedom of Religion
- In India, all the people have the right to choose their own religion and faith. None can stop them from practising their religion as well as propagating it.
- These rights include the social as well as the personal aspects of the religion which are enjoyed by every citizen in the country.
- Right to freedom of religion guarantees to all persons freedom of conscience and authorises them to profess, practice and propagate any religion subject to the prescribed limitations of public order, morality and health.
- Article 26 allows establishing and maintaining institutions related to religious affairs and charitable purposes also.
- You can own a movable or an immovable property and administer the property in accordance with law.
Cultural and Educational Rights
- There are certain non-political rights of religious, cultural and linguistic minorities, groups or sections of people.
- Constitution guarantees these rights for them.
- No citizen is denied the admission to the State or the State aided educational institutions owing to caste, creed, gender, etc.
- The citizens have their right to get educated in any schools or colleges of their choice.
- If in case the institutions are found to practise discrimination, the government will not extend aid to such institutions.
- Moreover, the State should not dictate the pattern of education to these institutions too and must allow them to decide in order to preserve our culture.
Right to Constitutional Remedies
- Constitutional Remedies provides the rights to the citizens to move the Supreme Court or the High Court to protect their rights.
- Article 32 provides the remedies to the citizens at the Supreme Court while Article 226 by the High Court.
- The courts can issue writs or orders in the nature of Habeas Corpus, Mandamus, Certiorari, Quo Warranto and Prohibition or Injunction.
- Therefore, fundamental rights are critical and instrumental in protecting the rights and liberties of the individuals in the country.
- By doing so, they establish the democratic way of living through these cardinal principles of equality and justice.
- Fundamental Rights therefore constitute the cornerstone of our national liberty, which are cherished and attained after trials and tribulations.
Right to Information
- Do you have any queries to the Government? You can very well ask them about how they work and who are the members who aid in their working.
- Wondering how? Yes, Right to Information Act of 2005 provides you this with this mandate of posing queries to the working of the Government.
- This is to empower the citizens and initiate transparency and accountability.
- An informed citizen is kept more vigil on the instruments governing the functions of the government thereby making them accountable.
Right to Privacy
- People of India will surely not surrender the most precious aspects of human persona, like, life, liberty and freedom.
- The citizen will surely not surrender all these rights to the mercy of the state.
- Right to privacy is moreover an integral part of human dignity.
- “The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution”
Rights of Transgenders
- Who are transgenders?
- Have you seen them? Yes, transgender people are individuals of any age or sex and their appearance and characteristics are different from how men and women are supposed to be.
- They exist in every culture, race and class, ages back.
- Today they are addressed as the third gender.
- The Supreme Court has infact directed the Union and the State Governments to grant legal recognition of their gender identity.
- Moreover, the fundamental rights must be available. They are also entitled with the provision of public health and sanitation and socio-economic rights.
Directive Principles of State Policy
- Part-IV of the Indian Constitution is Directive Principles of State Policy.
- It constitutes the most comprehensive political, economic and social programme for the welfare state.
- They have set up the blueprint for a humanitarian socialistic perspective.
- The Directive Principles are a set of rules enforced upon the State to direct policies towards securing adequate means of livelihood for men and women equally.
- It also enforces equal pay for equal work for both men and women.
- These principles ensures a decent standard of living and full enjoyment of leisure and social and cultural opportunities.
- The incorporation of Gandhian Principles under the Directive Principles of State Policy directs in promoting cottage industries on an individual or cooperative basis in the rural areas.
- These principles also endeavour in controlling the consumption of intoxicants
- Liberal Democratic Principles of the Directive Principles helps in securing a uniform civil code throughout the country.
- It also seeks to provide free and compulsory education to all children between the age group of 6 and 14 years.
- It also ensures that no child is subjected to any physical punishment or mental harassment.
- Articles 14–18 : Right to Equality
- Articles 19-22 : Right to Freedom
- Articles 23–24 : Right against Exploitation
- Articles 25–28 : Right to Freedom of Religion
- Articles 29–30 : Cultural and Educational Rights
- Article 32 : Right to Constitutional Remedies
- Do you feel or expect that the Government must be transparent and accountable to the citizens of the nation?
- If yes, then how are you reciprocating back to the Government? This is what Political Obligation is.
- It is related to moral affair.
- Every individual has to perform certain duties such as payment of taxes, participate in voting, perform judicial and military functions, but for what? It is in order to maintain the political institutions of the country.
- Political obligation binds a person to the performance of duties as mentioned in the Constitution.
- An individual has to follow the rules and regulations in the society for his own welfare and the society’s welfare.
- When the State is responsible towards the citizen, the citizen must also reciprocate to the Government.
- The proper functioning of the State depends upon the proper functioning of the systems of the government.
- The word ‘political’ actually deals with policy and the government’s administration.
- The framework of the political system is framed and then the limitations of the power are identified.
- T.H. Green states political obligation as, “it is intended to include the obligation of the subject towards the sovereign, the obligation of the citizen toward the state, and the obligation of the individual to each other as enforces by the political superior.”
Political Obligation and Political Authority
- When the state has a political authority, it has the right to compel the non-compliers.
- For example if anything within the State’s authority to levy the taxes, then the State has all the rights to compel the non-compliers to pay the taxes.
- However, even if the State does not enforce its authority, still it is the moral duty of the citizens to comply with the laws.
- Hence, every human being is subject to political obligation owing to the omnipresence of the modern nation state.
- Political obligation otherwise involves three major aspects:
The identifiable authority to which political obligation is rendered:
- If a person has an obligation to do or refrain from doing, he has to be directed by a person who has the authority or the power to direct or instruct.
- However, a person’s political obligation has a certain link to the citizenship of the state.
- A foreigner will not have political rights but will have legal obligation and protection.
To what extent political obligation can be rendered:
- The State can enforce laws and expect minimum obligation.
- This means that the people cannot be selective about the laws but have to obey the laws.
- Examples to quote can be voting, military duty, etc.
- These are the basic duties of the citizens which have to be compulsorily implied without being selective.
The basis of Political Obligation:
- Political obligations have gained momentum only after the sixteenth century.
- Earlier, the people considered Political obligation as the will of God.
- But, modern political theory differs in its explanation.
- This theory says that no person is forced to do a work but they voluntarily assume their own duties as their valid obligations.
- Do you know why the people assume in such a way? The reasons are self-interest and realisation of the state’s basic duties.
- The State is providing the people with physical safety and security.
- People are aware that securing justice or maximizing happiness cannot happen without the political authority.
- When these are provided by the state, naturally the people are responsible for political obligations.
Features of Political Obligation
- There prevails a source of political spirit and social service
- Honesty and integrity are the essential aspects when it comes to the performance of public duty.
- There must prevail political legitimacy and effectiveness
- The citizens also have the responsibility of guarding their guardians
Let us think over the kinds of Political Obligations
Political Obligations are of four kinds. What are they?
- Moral Obligation: Are you hospitable to the guests who come to your house? Do you help the poor? Will you not take care of your parents in their old age? These are your moral obligations.
- They do not legally bind the community and the individuals and if you do not behave within the moral obligations, you can also not be punished.
- However, this is your ethics and moral principle innate in you.
- Legal Obligation: Our nation is a welfare state where the Government focuses on providing us with the infrastructural facilities. Roads, health centres, hospitals, education, etc are few of the examples of concern.
- Positive Obligation: There are certain rules made by the state which cannot be disobeyed and hence they are considered as the positive obligation. Can you think of some examples related to positive obligations? Yes, paying tax and serving the defence are some of the examples under positive obligation.
- Negative Obligation: This is the direct opposite of positive obligation. Here, an individual is not permissible to do what the government prevents him from doing so.
- Now, think of some examples under negative obligation.
- Have you seen some people get drunk and behave in a very disorderly manner? Some drink and drive, some of them cause a lot of problems to the family after being drunk. In the same way, commission of crime is also a negative obligation.
- Hope, you understood what negative obligations are?
The Constitution and important obligations
- The Constitution is considered as a rule book of the state and it expects the citizens to adhere to the rules.
- If the Constitution has to work successfully, then people’s cooperation is also a must. “Law is a means to an end and never an end to itself”.
- There is a concept called the steam roller legislature. In case a law does not serve good then it has to be changed.
- There are situations where some laws are framed by the Government which are harmful and yet they get a support, which is called the Steam roller legislature.
- It is the duty of the citizen to resist such laws too.
- Hence, the concept of political obligation not only informs people to obey the rules and regulations of the authority of power but also informs to resist if the laws are found not to be good for the society.
Theories of Political Obligation
- All of us have some theories, values in life. We practise whatever is right and do not follow misguiding principles.
- In the same way, theories are applicable for political obligations too. There are different types of theories of political obligation:
The Divine theory
- In the olden days, people thought that the God created the state and the king was his representative.
- But this theory could be popular only during the ancient and middle ages but not during the modern era.
The Consent Theory
- This theory proposes that the authority of the state is based on the people’s consent.
- Hobbes, Locke and Rousseau justified this theory on the grounds that the authority of power was dependent on the people’s consent.
- But, later it could not be accepted because it treated state as an artificial organisation.
The Prescriptive Theory
- This theory states that the respect to the political authority is based on the principle of customary rights.
- It is a fact that political institutions are continuous from the past, this idea has been supported by Edmund Burke.
- But over a period of time, it lost its effect due to its overemphasis on the respect for the well-established practices.
The Idealistic Theory
- This theory regards man and the state as two entities.
- “Man” is regarded as a political and rational creature while “state” is considered as a self-sufficing community.
- This idealistic theory propounds that when the individual receives his rights from the state, he can have no rights that can conflict with the state.
- However, this theory proved to be quite abstract and which could not be understood by man.
The Marxian Theory
- The Marxian theory is actually different from the other theories. It has been classified into three stages:
- Pre- revolutionary stage- This stage explains political non-obligation
- Revolutionary Stage- It is an eventual change from political non-obligation stage to a stage of total political obligation.
- Post- revolutionary stage-This stage is a complete transition from total political obligation to social development.
- The Marxian theory of politics explains the state as an instrument of power in the hands of the proletariat.
- Towards the success of the revolution to consolidate the socialist order, it may lead to what is called as ‘withering away’ of the state.
- However, this theory was also considered to be illogical since it made man subservient to the state.
Why should we obey the state? Is it necessary?
- Though the theories mention about the political obligation, yet some seem to be abstract while some are illogical too.
- But, have you ever thought why should we obey the state?
- Is it because you fear or you have a sense of patriotism?
- Shall we see, what are the reasons that make an individual to obey the state?
- Fear of Punishment: Do you fear being punished by your teacher with an imposition if you go to school with an incomplete homework?
- Does your father obey the traffic signals properly fearing being penalised? Yes, fear is always there if we do not perform our tasks properly.
- In the same way, individuals perform their functions fearing punishments.
- In other ways, it is actually the coercive authority of the state that compels a man to conform to the system of regulations.
- Patriotism: Why do we stand up for our National Anthem? It is because of patriotism.
- We love our nation. Hence, to keep our surroundings as well as to keep the streets and roads garbage free is also our duty.
- So, the members of the state are conscious about the state they live as without that they cannot live as civilized human beings.
The members develop a binding towards the state.
- Fear of disorder and anarchy: Do you like your house to be run in a disorganised manner?
- Imagine you have breakfast in the afternoon everyday and the clothes are strewn here and there.
- Would you like if your place is unclean?
- We don’t. It is a general principle that human beings always wish for peace and order.
- They not only obey the laws but also look upon the ones who do not obey.
- Habits and traditions: We are all brought about to follow good habits like being courteous, honest, discipline and obedient.
- This is what our traditional values instilled. Hence, in a nation, even the citizens wish to establish good traditions, and obedience to the state, that which becomes a habit.
- Therefore, let us understand that political obligations are necessary for the citizen to maintain a good system nationwide.
- Every individual hence has to abide by the laws for a good reciprocation from the state as well.
- Property is considered as a natural right which is necessary for human dignity, freedom and dignity of life.
- Property refers to the legal relations between the persons with respect to specific things which may be material or abstract.
- Abstract can be the copyrights of a book or a film, etc. Property does not only refer to the private property.
- Private property is one of the various forms of the property. The notion of private property relies upon the following features:
- Do you own a house? If so, it is called as your private property where you are the owner and no one can access your property or claim.
- As an owner you can use your property but altering or destroying the same requires the necessary authorised permission.
- The third feature is, if in case you wish to transfer, some forms of transfer may be forbidden or penalized by taxation, like gift tax or capital transfer tax.
- Other forms of property include the public property, common property or the state property.
- Property rights grant the owner an exclusive power to decide what will happen to a particular thing or resource. Public properties include transport, railways, etc.
Locke and the Utilitarian Justification
- According to Locke, the Government’s main function is to guarantee every citizen the protection of their individual rights and secure conditions to enjoy their properties peacefully.
- Humans need property which is also the necessary means of life.
- Humans do not plan their lives from moment to moment but rather plan with future material security.
- Security is an important aspect which can provide peace and happiness in the minds of the people.
- Hence, the utilitarian’s state that the system of property rights is necessary if the individuals is to achieve a sense of happiness.
- If at all the governments want to promote the happiness of it people, productivity must be encouraged by protecting individual’s property rights.
- No government should take away the property from the people who are expected to possess and enjoy.
Twentieth Century Developments
- Most of the developed and developing nations practised social welfare policies after World War II.
- The main components of these policies entailed taxation on property, transfer of basic industries, and basic public amenities like health and education to state control.
- With the advent of women empowerment in the 20th century, women too claim equal status.
- Feminist scholars state that an important condition for the subjugation of women has been owing to denial of access of women to resources to income, such as land.
- This is owing to the prevailing patterns of male ownership and control of such resources.
- Owing to this, status of women has been one of the dependence on men.
- This dependent status has actually led to their rights to own and claim property.
- The Indian Constitution does not recognize property right as a fundamental right.
- In the year 1977, the 44th amendment eliminated the right to acquire, hold and dispose of property as a fundamental right.
- However, Article 300 (A) was inserted in another part of the Constitution.
- This was to affirm that no person shall be deprived of his property save by authority of law.
- Hence, this has become a statutory right now.
- Hence, in a civilized society, the scope for coercion and forcible acquisitions needs to be minimal.
- Unless circumstances are compelling, no forcible acquiring of property must be initiated.
- The state should neither act as brokers nor as agents of big businesses but should be in according stronger property rights to the farmers too.
More To Know:
- In private laws the parties concerned are private individuals above and between whom stands the state as an impartial arbiter. – Holland
- “To turn all moral obligations, legal obligations would be to destroy morality. There is thus a legal conscience as well as a moral conscience, and they do not always coincide”. – Maclver
- Law and order exist for the purpose of establishing justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress. –Martin Luther King, Jr
The Citizenship Act’s rule
- The Maintenance and welfare of Parents and Senior Citizens Act was passed in 2007 by to provide maintenance and support to elderly parents and senior citizens.
- What the Act states …The Act established the Maintenance Tribunal to provide speedy and effective relief to elderly person.
- Maintenance, according to the Act, pertains to “provision for food, clothing, residence and medical attendance and treatment’’.
- The only condition for claiming maintenance under this Act is that the persons must be unable to maintain themselves from their own earnings and property.
- The Act mandates that the maximum maintenance paid will be 10,000/- per month.
- The maintenance amount is determined by the needs of the claimant and the aim is provide maintenance for the person to lead a normal life.
- Parents or senior citizens can avail the services of the State government appointed maintenance officer to represent their interests during proceedings before the Maintenance Tribunal.
- Lawyers are not allowed to present cases before the Tribunal according to the Act.
- Any person who is responsible for the protection and care of a senior citizen and intentionally abandons the senior citizen completely is liable to pay a fine of 5000/- or be imprisoned for three months or both.
Framing The Constitution
- It took the Constituent Assembly 2 years 11 months and 20 days to frame the Constitution.