Brain mapping vs. Article 20 of constitution

Sir 20th question

Sir isn't brain mapping done with the concurrence of the accused?

Then how can it violate article 20 (3) as they are not forced to give self-incriminating evidence?

Now, read the articles that you quite

Sir according to it the accused can't be forced to be a witness against himself

Hmm

What does brain mapping involve? procedure?

Brain mapping involves studying the anatomy of the brain and its functioning sir.

Sir, I think for lie detector test and brain mapping police should take permission from judge. Am I right ?

It can only happen with the consent of the accused.

Am I right ?

Yes

However, the court can also order in pursuit of truth a lie detection test

In any case, a brain mapping brings out the inner recesses of a person's memory

Scientifically, not very sound yet

And the act is involuntary

In a way, the person is forced to reveal the secrets that he would not normally have done

Sir I was thinking if it violates any fundamental right it would be article 21 (right to privacy) rather than 20 as it's done with his consent

So Article 20 also makes sense in a stretch

Consent vs. involuntary expose

So as it's an involuntary expose despite the consent it violates 20

Sir how?

Or isn't the convicts consent mandatory which is why the violation of 20

Yes

On May 5, 2010 the Supreme Court in India (Smt. Selvi vs. State of Karnataka) declared brain mapping, lie detector tests and narco-analysis to be unconstitutional, violating Article 20 (3) of Fundamental Rights. These techniques cannot be conducted forcefully on any individual and requires consent for the same. When they are conducted with consent, the material so obtained is regarded as evidence during trial of cases according to Section 27 of the Evidence Act

Sir, according to this it does not violate if consent is taken....and the question doesn't clearly specify if consent was taken....so can we presume it wasn't taken?

That is what we discussed now

Consent vs involuntary expose which becomes evidence against the accused

He becomes a witness against himself!

How is a writ of prohibition a constitutional remedy?

Prohibition: This writ is issued by a higher court (High Court or Supreme Court) when a lower court has considered a case going beyond its jurisdiction. How can this writ become a right to constitutional remedy? Elaborate.

Constitution clearly says who will do what. a lower court is having jurisdiction up to certain level. It can’t exceed it. Suppose a court exceeds it. it will be violation of your right of 'due procedure before law' or 'rule of law'

What is the remedy then??

1.       1. Curative (you file an appeal)

2.       2. Preventive (stop the proceedings)

Prohibition is this preventive provision! Else imagine a court not giving bail and putting him in prison!!! So, any protection you get under law, can’t be subverted by ANYBODY!!

That is the protection that the writs offer.

Tamil Nadu Reservation Policy and 9th Schedule

Q) The Supreme Court ruled that more than 50% reservation is not allowed. But in case of Tamilnadu it is provided by the 76th Const. Amendment that 69% of reservation is allowed which is far exceeding the 50% ceiling. Why?

A) 9th schedule protects from judicial scrutiny. In 1994- Tamilnadu reservation act included in it so 69% exists. 2007 SC judgment states that law under 9th schedule can be scrutinised if it violates fundamental rights.

Q) I agree Sir that the 76th amendment act 1994 has placed the TN reservation act in 9th schedule & to protect it from judicial review. But my question is why TN is allowed to have reservation more than 50% (i.e 69%) - why not other states? What is special about TN to have this exceptional case?

True and that is why the exception was brought in not to allow that if it violates fundamental rights

SC has clarified that the reservation could go beyond 50%, considering the proportion of the backward classes in respective state.

The parameters laid down by the SC in Mandal case judgment are to be followed to redox reservation quota to more than 50%. Your question is to be answered in the light of SC judgment and the social make up in the state.

Any reservation in excess of 50% for backward classes will not be violative of Articles 14 and/or 16 of the Constitution.. But at the same time, they should be made under Article 16(4) or under Article 16(1)&(4) cannot be extended to a totality of 100%

It further states that Article 16(4) itself does not limit the power of the govt in making the reservation to any max percentage; but it depends upon the quantum of adequate representation required in the Services

The final verdict in TN case is not yet out. SC only agreed temporarily and the govt continues to extend it year after year.

But the trend, unless revised, is on these lines of non interference and allowing the states to exercise their option

Is Cut motion equivalent to No Confidence motion?

Q. A Cut motion if passed, leads to no-confidence automatically or only want of parliamentary confidence...?

Rules of transaction of parliament does not mention about automatic loss of confidence. Then how can we say that Cut motion if passed leads to no-confidence...?

When cut motion is passed it shows that the govt is not able to muster majority in its policies. So its strength is questioned. But still a separate 'no confidence' is to be moved.

Sir... so automatically no-confidence is not proved and govt doesn't have to resign after the passage of cut motion

It need not. But then nobody will sit quiet and watch. .immediately opposition will move NC. And of the CM or PM continues after cut motion then he will be the most shameless!

There is no rule that govt has to resign. But all govts have resigned so far.

The word 'resign' means that is voluntary.

So to force it, you need a seperate NC motion. Get it?

Resigned even before no-confidence motion was passes...?

Yes. All of them do.

It's like: when the heart stops you die. But still there is doubt, the doc pronounces it!

Got that Sir... But the stmt... "If passed, is equivalent to no-confidence motion " is FALSE?

No. Is right.

It's is not equal but equivalent

Why distinction between commercial and political capitals in some states?

1.       Unlike newly created capitals, are there some generic reasons/patterns which together justify the separation of Financial and State Capitals in older States? Example- Indore v/s Bhopal (MP), Gandhinagar v/s Gujarat (Gujarat), Delhi v/s Mumbai etc

There is no connection at all! While the cities evolved where there was trade and commerce, the 'capital' cities were imposed by the government, considering the strategic factors. Commerce and strategic factors need not be same, and most of the times they are different!

The pattern is: capitals are made in a way that they are easy to reach, and they can sustain themselves. Whereas commercial capitals evolved.

Can’t we leverage Commercial advantages of a financial capital and make it into a Strategic capital? Pretty much like a brownfield project? Why start afresh like a Greenfield one?

Strategic and political

Political reasons

Andhra Pradesh can continue with Hyderabad. But they are not. Why?

They want to show they can create a capital like Hyderabad

But what about say- Gandhinagar v.s Ahmedabad? or Bhopal v/s Indore?

Bhopal was seat of power. You can't control bastar from indore. People won't agree.

So the reason is symbolic?

No. Realpolitik

Strategy includes connectivity too

Why no Criminal Proceedings against Governor, Cognizable v/s Non Cognizable

Q) Governor, Regarding the arrest of governor- during his term of office is Governor is immune to criminal proceedings, he cannot be arrested or imprisoned. But civil proceedings can be instituted against him during his term of office by giving two months notice.

My question is Why only for civil cases, not for criminal?Even though criminal proceedings not instituted for personal acts?

COGNIZABLE V/S NON-COGNIZABLE

o   Previous conversation here: http://mentorspeak.blogspot.in/2015/03/what-are-cognizable-non-cognizable.html

o   An offence is called as cognizable, when the police officer can take 'cognizance' of the 'crime' and take further action. The further action, is most of the cases is to arrest the suspect

o   Non-cognizable means, an offence, which the police officer cannot take congnizance as an offence. He cn merely record the incident, and then report to the nearest Magistrate/judge. Then the court decides if that action amounts to a crime or not.

o   For example, when a govt servant demands a document from you, and you refsue to privide. It is an criminal offence. But, it can be taken cognizance only by a court, after hearing the details from the police.

o   Whereas, a murder is a cognizable offience, means, the police can himself/hrself come to an conclusion that its a crime and act accordingly.

CRIMINAL PROCEEDING V/S CIVIL PROCEEDING

o   The state charges a person, of an act which is deterimental to the state

o   if the dispute is between two individuals its a civil dispute!!

o   yes, state is represented by the governor, or the president. So, the governor or president can't book a case on themselves!!

o   Thats why criminal proceedinsg can't be initiated on head of the state!!

o   all the proceedings of individuals and state need not be criminal in nature!! But, all criminal proceeisngs are always bwteeen state and the individual!!

o   Criminal proceedings are subset of big set between govt and individuals!

FIR v/s Chargesheet

o   First information report, is when the police records any communication made to them on occurance of an offence.

o   Charge sheet is a formal complaint on the crime committed filed by the police before the court.

Local Self Governments- Urban and Rural

Local government also depends upon the central bank and central cabinet minister for funds to their state, and subsequently the lower local self government of villages

Local govt means, the 3rd tier of the govt. You have a govt at the union level, called as UNION GOVT.

Then you have govt as state level: state govt, and you have govt at NOT district level, but at CITY levels! Like the municipal corporations! They are called as Urban local bodies. The district is called as Zilla panchayat. its a RUB, Rural local body. And the zilla panchayat has another 2 tires! Taluka panachyat and Gram panchayat!

So, we have 5 levels! Each of us will be voting for electing people at 5 levels, if you are in a rural area, and 3 levels if you are in an urban area!

For rural: 1. You vote for electing your gram panchayat member, 2. Elect your taluka panchayat member, 3. Zilla panchayat member, 4. MLA for state assembly 5. MP for parliament!! If you are living in the city, then: 1. Your corporator, 2. MLA, 3. MP

Some people are demanding same 3 levels in cities also!  Means: 1. Ward committe member, 2. Zone committee member, 3. Corporaror, 3. State. 5. Union

Many cities have ward committee system, though the members are not elected. But ZONE system is not there!

What is the rationale of having much more fragmentation in Rural areas as compared to urban areas?

Geography! City is a compact unit!  It will have a around 10,000 sq km; whereas a city will have area arond 100 sq km

So, you need to have one person who can 'reflect' your aspirations, that arise out of your lifestyle; social, economic and political! When the villages are spread far, their social economic life is different! One person can't claim to represent 10 villages!!

As for Urban Local bodies- they all come under urban planning areas, and urban development authorities!

Every town, village is divided into URBAN or RURAL; and each will have a LOCAL administration. If you are in the URBAN area, your place will be either:

                1. Town panchayat or

                2. Town municipality

                3. City Municipality

                4. City corporation.

You may ask why 4 levels?

This is based on population - less than 20k, is town panchayat ; Then upto 1 lakh, its Town municipality.  Above 1 lakh, it becoems a CITY! And above 10 laks, its a Corporation!!

How do you decide if a place is urban or rural?

Its mainly the working population- 75% men in non agri jobs

What is Cantonment board?

Cantonment is a place that is under the occupation of the military forces

As the civilian admn can't be allowed to interfere with the military areas, they are called as cantonment areas, and they are administarted NOT by the elected councils!! (ofcourse!!!), and they are managed by aa board of officers!!

Like IAS, there is IDES (indian defence estate service!!) They manage such cantonment areas!!

Cantonment is treated as urban area. The people work in armed forces and dont do agriculture anyway!!

Election Commission and State Govt

Whether post-dissolution, any government can still operate?

Even after dissolution, till the time the next person takes the charge ,the old government will (whose govt was already dissolved) they will be in power to prevent the leadership vaccum so that the day today works are not affected. They are called "lame duck government". This means that government without much powers.

Do they have enough powers to create friction in handling over the state machinery to the EC?

Nope. They can or may give a try. But election commission is all powerful once the assembly is dissolved. Once they give the notifications for next election its everybody’s mandate to facilitate ECI to conduct free and fair elections. Even Prime minister or president cannot dictate ECI since its a constitutional body. its given enormous powers in terms of its appointment and removal to ensure free and fair election.

And bureaucracy will also be given enough powers to handle the ruckus that MAY be created whoever in power.

Finally if state govt hinders ECI, then Governor can request or President can himself/herself bring the president's rule to chop the wings of state government.

In case of J&K does the EC need to consult the state govt for declaring elections?

ECI has its normal jurisdiction on JK. So does CAG and SC.