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Year __ 5th year BLS LLB Assignment--- family law andEnvironmental law

Family law

Q1Dissolution of Christian Marriage?

Introduction :-

According to the preamble of this Act, it amends the law relating to the divorce of people professing
Christianity. It even confers upon certain courts the jurisdiction to settle these matters. This is the only
codified law regulating divorces amongst Christians.

WHO IS A CHRISTIAN :

A Christian is one, who professes the religion of Jesus Christ

Definition 3 of the Indian Christian Act, 1872 defines the term ‘Christian’ as “a person professing
Christian Religion”. Under the Act, Indian Christians include native converts to Christianity and under
their Christian descendants.

born to Christian parents is a Christian. - Generally, a person who is baptized is a

Christian.

- A person, who professes to be a Christian is a Christian, even though he has not

- Been baptized (K LB David v/s. Nilmoni, AIR 1953).

Indian Divorce Act 1869

According to the preamble of this Act, it amends the law relating to the divorce of people professing
Christianity. It even confers upon certain courts the jurisdiction to settle these matters.

This is the only codified law regulating divorces amongst Christians. The British had first enacted this law
before Independence and it continues to be force today.

The Act came into existence on 1 April 1869. It applies to the whole country except the state of Jammu
& Kashmir. Furthermore, it applies only to those people who profess the Christian religion. The parties
must also reside in India to apply for any remedy under the Act.

. meaning- Short title. Commencement of Act.—This Act may be called the Divorce Act, and shall come
into operation on the first day of April, 1869.

2. Extent of Act.—4 This Act extends to 5 [the whole of India [except the State of Jammu and Kashmir

Extent of power to grant relief generally.— Nothing hereinafter contained shall authorise any Court to
grant any relief under this Act except where the petitioner [or respondent] professes the Christian
religion,

and to make decrees of dissolution.—or to make decrees of dissolution of marriage except where the
parties to the marriage are domiciled in India at the time when the petition is presented,

or of nullity.—or to make decrees of nullity of marriage except where the marriage has been
solemnized in India and the petitioner is resident in India at the time of presenting the petition, or to
grant any relief under this Act, other than a decree of dissolution of marriage or of nullity of marriage,
except where the petitioner resides in India at the time of presenting the petition.

Marriage dissolution

Christian marriage in India can be dissolved under the Indian Divorce Act of 1869 (under Section X)
under three conditions:

By Section X A (as amended in 2001) both parties can file for a divorce by mutual consent.

According to Section X (I), either party can file for divorce on the grounds that the other party is
of unsound mind. These grounds require two conditions:

The party must be medically certified as 'incurable.

'The relevant medical symptoms must have been noted at least two years prior to filing for divorce. If
the symptoms were treated at any point in time, but ultimately became incurable, the period of two
years will be counted from the date when the disease was certified as incurable.

Women can request a divorce under Section X (II) on three exclusive

grounds: rape, sodomy and bestiality.

A woman married under The Indian Christian Marriage Act of 1872 can seek dissolution of her marriage
under the Indian Divorce Act of 1869

Grounds for Dissolution of Marriage

Section 10 of the Indian Divorce Act contains grounds on which a court may dissolve a marriage. In order
to avail a divorce, the husband or wife must file a petition before the District Court. This is basically the
court under whose jurisdiction the parties solemnized their marriage or they reside or last resided
together.

The court may grant a divorce under any of the following grounds:

a) When one of the parties commits adultery;

b) If a party ceases to be a Christian;

c) In case of a party being of unsound mind for two years;

d) If a party has been suffering from leprosy or a venereal disease for two years;

e) In case of a party wilfully refusing to consummate the marriage;

f) When a party has deserted the spouse for two years or more;

g) In case of a party treating the spouse with cruelty.

Apart from these grounds, the wife can present a petition of divorce on additional grounds. For
example, she can file for divorce if her husband has, after marriage, been guilty of rape, bestiality, etc.

Divorce by Mutual Consent

According to Section 10, the grounds we saw above must exist for a party to file for divorce. However, it
may so happen that both parties wish to seek divorce mutually. For this purpose,
the Parliament amended this Act to insert Section 10-A.

According to Section 10-A, parties may together mutually file a petition for divorce in the District Court.
In order to do this, they must have lived separately for two years and must be unable to live together. In
case parties do not withdraw this petition between 6 to 18 months, the court may dissolve their
marriage.

Nullity of Marriage

Apart from the dissolution of marriage, the Act also contains provisions for nullity. Either the husband or
the wife may file a petition for this before the District Court. There are a few grounds for which a party
may file such a petition.

For example, the impotency or lunacy of a party at the time of marriage can be ground. One can also file
this petition if the other party was still married to his/her former spouse during the marriage.

Restitution of Conjugal Rights

The Act also contains a provision for restitution of conjugal rights under Section 32. Under this provision,
a party may seek restitution if his/her spouse withdraws from their company. Under restitution, the
marriage remains but both parties do not possess all marital rights temporarily.

Custody of Children

The Divorce Act contains some provisions governing custody of children in cases of dissolution or nullity
of marriage. Section 41 empowers courts to make interim orders with respect to custody. Even after
passing a final decree of separation, the court may award custody to any specific party.

Case law

M.C. Abraham, "Dissolution Christian Marriage" (February 1983) Cr 14 Journal 2, 4.

According to this article, there is no need to to add any ground of divorce. "Union for life is the method
of Christian marriage and not separation". As we have already stated1, the majority of views favours at
least the introduction of equality between the sexes, in regard to divorce amongst Christians

In B.D. Cardoza v. Glady B. Cardoza,{6} where a wife obtained consent by concealing the fact that by
operation her fallopian tubes were removed and she was incapable of giving birth to a child the petition
for declaration of annulment of marriage was allowed and decree passed. Where a wife delivered a child
after 203 days of marriage and the child was not premature and the husband had neither access nor
knowledge about her pre-marriage pregnancy, was held in P. V Sabu v. Mariakutty,{7} that the husband
is entitled to a declaration of nullity of marriage on ground of fraud.

2. Maintenance under Muslim Law 

Introduction :- The concept of Maintenance in Muslim law was introduced to provide support to those
people who are not capable to maintain themselves. The principle of maintenance includes the basic
requirement of a person for survival and includes amenities like food, clothing, shelter, education and
other necessities of life. Many acts have been passed and laws made for the protection of women from
certain atrocities faced by them in their matrimonial life. However, the lacunas are never filled and each
time there is a lack of some regulation that tends to be unendurable for women. Laws for different
religions are not the same due to distinction in their practices and traditions. Therefore, except for the
common law that exists for all, there are personal laws of every religion by which they are governed.

Meaning— Maintenance under Muslim Law known as ‘Nafqah’ means amount spent by a man on his
family to provide for food, shelter, clothing, lodging and other essential requirements for livelihood. A
muslim husband has obligation to maintain his wife during the subsistence of marriage. A husband is
require to maintain his wife irrespective of his financial condition.

We shall discuss the aspects of maintenance in Muslim law from the viewpoint of the persons who are
eligible for maintenance. Such persons are:

[Link]

2. Children- Both boy and girl

3. Parents and Grandparents and

4. Any other relatives

OBLIGATION OF HUSBAND

The husband’s obligation to maintain his wife exists so long as the wife remains faithful to him & obeys
all his reasonable orders.  If she does not, then he is not liable to provide maintenance to her. However,
there are exceptions to this rule i.e even if the wife does not conform as per her husband wishes she can
still claim maintenance if:

1.   If the husband keeps a concubine.

2.   If the husband is guilty of committing cruelty towards his wife.

3.  If the marriage cannot be consummated owing to his illness, malformation, his absence from her
without her prior permission or the husband has still not attained the age of puberty.

MAINTENANCE UNDER PRE-NUPTIAL AGREEMENT

Maintenance for Wife

Under Muslim law in India, maintenance is known as ‘Nafqah’. ‘Nafqah’ is the amount that a man
spends on his family.  The right to maintenance of a Muslim woman is absolute and not conditional on
whether she can maintain herself or not.

Hence all the Muslim women earning or not earning are eligible for the right to maintenance which is
contrary to most of the other religious acts where only dependent women are eligible for the
maintenance.

It is the duty and liability of the husband to provide adequate maintenance to his wife in all the
circumstances irrespective of his financial condition. However, a Muslim woman cannot claim
maintenance from her husband in the following cases:

She has not attained puberty.

She has abandoned her husband and marital duties with sufficient reason.

Where she elopes with some other man.

In a case where she disobeys the reasonable commands of her husband

Quantum of Maintenance

The quantum of maintenance is not prescribed under any personal law. The court decides the quantum
on the basis of the financial condition of husband and wife and any other circumstances relevant to the
case. The Shia Law decides the quantum of maintenance by taking into consideration the requirements
of the wife. The Shafei Law determines the quantum of maintenance by the post of the husband. Thus,
the basis of determination of quantum of maintenance is different for different sub-castes of Muslims.

Maintenance under Anti- Nuptial Agreements

A Muslim marriage is construed as a contract, an agreement that is made between the parties to the
marriage (nikah) which prescribes the rights & duties of both husband and wife. In this agreement, the
wife can stipulate some conditions for husband and in case of breach of such conditions; she has a right
to live separately and is also eligible to receive maintenance.

The quantum of the maintenance and the terms are to be agreed and settled at the time of marriage
itself. The wife can stipulate the contract of the marriage in case the husband ill-treats her/ or takes a
second wife or keeps a concubine.

In such a case, she has the right to live separately from her husband and she is also eligible to claim
maintenance against the husband.  However, it has to be noted that the husband’s liability is limited
only till the iddat period and the wife can claim maintenance only during the period of iddat and not
beyond that.

Maintenance to Muslim Divorced Woman until Her Remarriage

In terms of Section (3) (a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, a Muslim
husband is liable to make reasonable and fair provision for the future of the divorced wife.

This includes her maintenance as well.  Accordingly, the husband has to make a fair and reasonable
provision for the maintenance of the wife beyond the iddat period as per the terms of Section 3 (1) (a)
of the Act.

A divorced Muslim woman who has not remarried and who is not able to maintain herself after iddat
period can claim maintenance under Section 4 of this act from her relatives who are entitled to her
property after her death. This has provided additional rights to Muslim women.

Maintenance of the Children

Muslim Father is under the obligation to maintain his legitimate child until he attains the puberty age.
Under Muslim Law, the father has to maintain his son only until he attains majority.

While he has to maintain his daughter until her marriage and till the time she goes to her husband’s
home. Under the law, the father is not under a duty to maintain the illegitimate child.

Thus after perusing the above-mentioned facts, it can be easily concluded that the maintenance
provisions of Muslim Law are different from other personal laws and are very unique.

CASES

Mohd. Ahmad Khan v Shah. Bano Begum[1]

This is a landmark case in which the Supreme Court in their delivered judgment stated that ‘ A woman
has a right to claim maintenance under Section 125 CrPC as the code is a criminal law and not a civil
law’. According to SC, there was no conflict between Section 125Cr. P.C and the Muslim personal law as
this section is a part of criminal procedure code and applies to all not restricted to a particular caste,
creed, or religion even if its nature is criminal and nature of Muslim personal law is civil.

Daniel Latifi v. Union of India[2]

The court in this case said that the Muslim husband’s liability under this act is not limited to the Iddat
period. He is supposed to make arrangements within this period of iddat for his wife’s maintenance.
So the maintenance would also account for after the iddat period but the husband must arrange it
before the end of the iddat period. Also, the court held the Muslim women (protection of rights on
divorce) act 1986 as constitutional.

twari v. Ashgari[3]

In this case, the Allahabad High Court held that if the husband has married a second wife, the first wife
can live separately and claim maintenance against him.

Conclusion

Thus, from the above article, it can be stated that the maintenance provisions of Muslim Law are
different from other personal laws. The provisions for maintenance of child are not a matter of concern
as they are provided adequate maintenance under the law but the position of the wife is poor as
compared to other laws. Though the legislature has enacted an act, it has not created much difference
in the condition of the wives. The proper efforts and contribution of legislature and judiciary is required
to improve the position of wife under Muslim Law

Environment law. (kajal patil)

Air Pollution ACT 1981

Introduction- An Act to provide for the prevention, control and abatement of air pollution, for the
establishment, with a view to carrying out the aforesaid purposes, of Boards, for conferring on and
assigning to such Boards powers and functions relating thereto and for matters connected therewith.

Short title, extent and commencement.—

(1) This Act may be called the Air (Prevention and Control of Pollution) Act, 1981.

(2) It extends to the whole of India.

(3) It shall come into force on such date1 as the Central Government may, by notification in the Official
Gazette, appoint

Definitions.—In this Act, unless the context otherwise requires,— (a) “air pollutant” means any solid,
liquid or gaseous substance 2 [(including noise)] present in the atmosphere in such concentration as
may be or tend to be injurious to human beings or other living creatures or plants or property or
environment;

(b) “air pollution” means the presence in the atmosphere of any air pollutant.
(c) “approved appliance” means any equipment or gadget used for the bringing of any combustible
material or for generating or consuming any fume, gas of particulate matter and approved by the State
Board for the purposes of this Act.

What is an ‘air pollutant’ and what is ‘air pollution’? 

Section 2(a) defines ‘air pollutant’ as any solid, liquid or gaseous substance that may be harming or
injuring the environment, humans, other living creatures, plants or even property. Through a 1987
Amendment, the noise was also included in the list of substances that are deemed to be harmful to the
environment. Therefore, this Act also provides for the regulation of noise pollution. 

Section 2(b) defines ‘air pollution’ as the presence of any air pollutant in the atmosphere. 

What Boards are set up under this Act?

Section 2(f) classifies the Boards to be set up under this Act under two categories: Central and State
Boards. 

Section 2(g) defines ‘Central Board’ as being the same as the ‘Central Pollution Control Board’ which has
been constituted under Section 3 of the Water (Prevention and Control of Pollution) Act 1974, which
stipulates that this Board shall be set up by the Central Government of India, for the purposes of the Act.
This Board’s powers extend to the whole of India. 

Section 6 states that in the case of Union Territories, the Central Board shall exercise the powers of a
State Board under that Act, or it may even delegate these powers or functions to any person or body of
persons.

Section 2(o) defines ‘ State Board’ as a Board set up in those states where the Water (Prevention and
Control of Pollution) Act, 1974 is in effect and where the State Governments have decided to set up
these Boards. This Act also applies to States where the Water (Prevention and Control of Pollution) Act
1974 is not in effect. ‘State Board’ is the same as the ’State Pollution Control Board’.  

Therefore, we observe that while the Water ( Prevention and Control of Pollution) Act 1974 in the first
instance, applies to only those States in which it has been given effect but the Air ( Prevention and
Control of Air Pollution) Act 1981 applies to the whole of India in the first instance. 

Constitution of the Boards

Section 3 and Section 4 of this Act state that the appropriate powers and functions shall be given to the
Central Board and the State Boards respectively, and they shall exercise these powers and not go
outside the ambit of these powers.

Powers and Functions of Central Board-

The main function of the Central Board shall be to improve the quality of air and to prevent, control or
abate air pollution in the country.
It may:

Advise the Central Government on any matter concerning the improvement of the quality of air;

Plan and cause to be executed a nation-wide programme for the prevention, control or abatement of air
pollution;

Co-ordinate the activity of State and resolve disputes among them;

Provide technical assistance and guidance to the state boards, carry out and sponsor investigations and
research relating to problems of air pollution.

Organize through mass media a comprehensive programme regarding the prevention, control or
abatement of air pollution.

The Central Board may establish or recognize a laboratory to enable the Central Board to perform its
functions under this section efficiently.

Functions of State Boards shall be-

To plan a comprehensive programme for the prevention, control or abatement of air pollution;

To advise the State Government on any matter concerning the prevention of air pollution;

To inspect air pollution control areas at such intervals as it may think necessary, assess the quality of air
therein and take steps for the prevention of air pollution in such areas;

To inspect, at all reasonable times, any control equipment, industrial plant or manufacturing process,
and to give by order such directions to such person as it may consider necessary to take steps for
prevention of air pollution.

Penalties and procedures under this Act

Penalties

Under Section 37, whoever fails to comply with the provisions of Section 21, 22 and the directions issued
under Section 31A, can be sentenced to imprisonment for a term of one year and six months. This
sentence can be extended to six years and with fine, if the requisite compliances under the aforesaid
sections are still not carried out, with an additional fine of five thousand rupees every day.

Under Section 38, penalties for certain acts are laid down. These acts are-

Destroying, defacing, removing etc any pillar, post, stake or notice fixed in the ground under the
authority of the Board.

Obstruction of any person acting under orders of the Board from exercising his powers and functions
under the Act.
Damaging any property belonging to the Board.

Failure to furnish information to an officer or any employee of the Board, which is required by such
officer or employee.

Failure to inform about the excess release of emissions than the standard set by the State Board. Even
an apprehension of the release of excess emissions should be informed to the State Board.

Giving false statements to Board authorities when furnishing information.

Giving false information to the Board, for getting permission under Section 21 i.e. permission for setting
up industrial plants.

Procedures

Sections 42 to 46 cover procedures. Section 42 states that no suit, prosecution or another legal

proceeding shall lie against the government, any officer of the government or any member, employee or
officer of the Board, where the actions are done by such body or persons are done or intended to be
done in good faith in pursuance of this Act.

Section 43 states that the Court shall take cognizance of only those offences where the complaint is
made by-

A Board or any officer authorised under it

Any person who has given notice of not less than sixty days, of the alleged offence and his intention to
make a complaint to the Board or an officer authorised by it.

No court inferior to that of a Metropolitan Magistrate or Judicial Magistrate of First Class shall try any
offence punishable under this Act.

Case law

M.C. Mehta v. Union of India 1991 SCR (1) 866 (Vehicular Pollution Case)

In this case, a writ petition was filed by M.C. Mehta regarding air pollution caused due to vehicular
emissions. He prayed for the Court to pass appropriate orders to prevent pollution.

The Court held that environmental protection is the responsibility of the State as enshrined in the
Directive Principles of State Policy and Articles 48A and 51A of the Constitution. The Supreme Court
observed that the right to a healthy environment was a basic human right and this included the right to
clean air, covered under the ambit of Article 21 of the Constitution. In this way, the Court expanded the
scope of Article 21 to include the right to a healthy environment and clean air under the fundamental
rights. 

This paved the way for the introduction of lead-free petrol supply in Delhi and paved the way for the
introduction of compressed natural gas (CNG). The Court also assisted in setting up a committee that
was not just aimed at litigation but also finding long term solutions to the air pollution problem in Delhi.

Conclusion

It is observed that the legislation to deal with air pollution is pretty strict and well formulated. It
encompasses the scientific aspects of managing air pollution with the actions of State and Central
bodies. The Pollution Control Boards are bestowed with a wide range of powers and functions to check
emission limits and take appropriate action. However, enforcement still remains lax.

Noise pollution

Introduction- It is the loud noises which are fashioned by human activities that disturb the standard of
living in the affected area. It can shoot from things such as railroads, traffic, loud music, concerts,
aeroplanes, fireworks etc. This can even result in permanent or temporary loss of hearing as well as
disturbances to wildlife. Noise pollution, also known as environmental noise or sound pollution, is the
propagation of noise with ranging impacts on the activity of human or animal life, most of them harmful
to a degree. The source of outdoor noise worldwide is mainly caused by machines, transport, and
propagation systems.

Meaning-Noise pollution is generally defined as regular exposure to elevated sound levels that may lead
to adverse effects in humans or other living organisms. ... construction sounds like drilling or other heavy
machinery in operation. airports, with constant elevated sounds from air traffic, i.e. planes taking off or
landing.

Human Diseases Caused by Noise Pollution

Whether we realize we are subjected to it or not, noise pollution can be hazardous to our health in
various ways.

Hypertension is, in this case, a direct result of noise pollution caused elevated blood levels for a longer
period of time.

Hearing loss can be directly caused by noise pollution, whether listening to loud music in your
headphones or being exposed to loud drilling noises at work, heavy air or land traffic, or separate
incidents in which noise levels reach dangerous intervals, such as around140 dB for adult or 120 dB for
children.

Sleep disturbances are usually caused by constant air or land traffic at night, and they are a serious
condition in that they can affect everyday performance and lead to serious diseases.

Child development. Children appear to be more sensitive to noise pollution, and a number of noise-
pollution-related diseases and dysfunctions are known to affect children, from hearing impairment to
psychological and physical effects. Also, children who regularly use music players at high volumes are at
risk of developing hearing dysfunctions. In 2001, it was estimated that 12.5% of American children
between the ages of 6 to 19 years had impaired hearing in one or both ears

Various cardiovascular dysfunctions. Elevated blood pressure caused by noise pollution, especially

during the night, can lead to various cardiovascular diseases.

Dementia isn’t necessarily caused by noise pollution, but its onset can be favored or compounded by
noise pollution.

Psychological dysfunctions and noise annoyance. Noise annoyance is, in fact, a recognized name for an
emotional reaction that can have an immediate impact.

Effects of Noise Pollution on Wildlife and Marine Life

Our oceans are no longer quiet. Thousands of oil drills, sonars, seismic survey devices, coastal
recreational watercraft and shipping vessels are now populating our waters, and that is a serious cause
of noise pollution for marine life. Whales are among the most affected, as their hearing helps them
orient themselves, feed and communicate. Noise pollution thus interferes with cetaceans’ (whales and
dolphins) feeding habits, reproductive patterns and migration routes, and can even cause hemorrhage
and death.

Other than marine life, land animals are also affected by noise pollution in the form of traffic,
firecrackers etc., and birds are especially affected by the increased air traffic.

Social and Economic Costs of Noise Pollution

The World Health Organization estimates that one out of three people in Europe is harmed by traffic
noise. More than the purely medical effects of noise pollution on the individual, there is a significant
social and economic impact. Since noise pollution leads to sleep disturbance, it affects the individual’s
work performance during the day, it leads to hypertension and cardiovascular disease and costs the
health system additional time and money, and it negatively affects school performance in children.

Laws

Earlier, noise pollution and its sources were addressed under the Air (Prevention and Control of
Pollution) Act, 1981.

They are now, however, regulated separately under the Noise Pollution (Regulation and Control) Rules,
2000.

Additionally, noise standards for motor vehicles, air-conditioners, refrigerators, diesel generators and
certain types of construction equipment are prescribed under the Environment (Protection) Rules, 1986.
Noise emanating from industry is regulated by State Pollution Control Boards / Pollution Control
Committees (SPCBs / PCCs) for states / Union territories under the Air (Prevention and Control of
Pollution) Act, 1981.

Procedure under the Act

Under these Rules the loudspeakers or public address system shall not be used except after obtaining
written permission from the competent authority or a loudspeaker or public address system shall not be
used at night (between 10.00 p.m. to 6.00 a.m.) except in closed premises for communication within,
e.g., auditorium, conference rooms, community halls and banquet halls.

Under these Rules, whoever, in any place covered under the silence zone area commits any offence
relating to noise pollution shall be liable for penalty under the provisions of the Act or the competent
authority shall take action against the violator in accordance with the provisions of these Rules and any
other law in force.[31]

Thus, these are the various provisions provided under the Noise Pollution (Regulation and Control)
Rules, 2000. But these Rules are inadequate to cover the whole area for controlling noise pollution.
Recently, the Supreme Court gave directions to an amicus curiae to give suggestions to implement the
noise standards with regard to fire crackers. In response to the court’s earlier order issued in 1998,
inability has been shown about implementing noise standards prescribed under the Rules of 2000
because of lack of manpower as well as equipment and infrastructure for enforcing the noise pollution.
The Central Pollution Control Board suggested that power to issue licences for manufacture and sale of
fire crackers should be vested in State Government.

Analyses of Noise Pollution (Regulation and Control) Rules, 2000

The critical examination of the Act and experience during past years has proved that the Act is
inadequate and insufficient for controlling the noise pollution. The various drawbacks of the Act are as
follows:

Present Rules under the Act does not cover the whole area for controlling of noise pollution. It only
covers the noise of loudspeakers and amplifiers within the area of its operation. The noise of aircrafts,
trains, domestic animals, transport, industry and commercial establishments has not been covered by
the Rules.

The punishment provided under the Rules is not adequate and deterrent as compared to effect of noise
on the health and environment. Because of providing less punishment the Act becomes inadequate. No
time?limit is prescribed in the Rules for trial under the Act. The delay in the decision frustrates the
object of the Act.

There are no provisions made under the Rules for public awareness, public participation or public
coordination for controlling the noise pollution.

There is wide gap between the Act in theory and its implementation in practice.
Under Rule 4(2) of the Act authority is responsible for the enforcement of noise pollution control
measures. But the role of the authority to control the noise pollution is inactive.

There is no provision for coordination between the different departments of Government in the Rules
for controlling noise pollution. For example in the same areas, the Planning Department of the city
sanctions the plans for construction of residential houses and on the other hand, the Industrial
Department grants the licences for factories. As a result the inhabitants are facing lot of difficulties in
such areas due to industrial pollution. Therefore, the coordination among various departments of the
Government must be ensured under these Rules.

There are no provisions for permanent restrictions on noise producing areas for controlling of noise
pollution.

Conclusion

The study reveals that the law, pertaining to noise control is inadequate to curb the problem of noise
pollution. The constitutional provisions and various legislative enactments are insufficient for controlling
the noise pollution. We find that the remedies available in Law of Torts and Law of Crimes are
inadequate to control the noise pollution. It is very difficult to place restrictions on noise produced by
railway engines and aeroplanes. The Environment (Protection) Act, 1986 is inadequate to curb the
problem of noise pollution.

Q.1 powers and privileges and state legislatures

introduction

Parliament is the pivotal institution of our representative parliamentary democratic polity. Its role in
navigating India's voyage in the post-independence period of momentous developments stands in
comparison with the best of legislatures anywhere in the world. We can take legitimate pride and
comfort from the impressive record of the uninterrupted continuity of our parliamentary institutions for
over half a century. However, like all living institutions, Parliament needs to keep under constant review
its structural-functional requirements as also the entire gamut of its operational procedures. Also, it has
to be remembered that in parliamentary democracy just as Government is responsible to Parliament,
Parliament is also responsible to the people who are the supreme sovereign.

Article 105 and Article 194 grant privileges or advantages to the members of the parliament so that they
can perform their duties or can function properly without any hindrances. Such privileges are granted as
they are needed for democratic functioning. These powers, privileges and immunities should be defined
by the law from time-to-time. These privileges are considered as special provisions and have an
overriding effect in conflict.

Aim and objective

The most important function of the Parliament and the State legislatures is to represent the people. It is,
however, important to remember that in parliamentary polity the legislature has also to provide from
within itself a representative, responsible and responsive government to the people. One way to judge
whether the system is working well or not is to see whether it has brought into being governments that
last their terms and succeed in providing good governance to the community. The overriding objective
has to be to make both government and parliament relevant to meet today's challenges which bear little
comparison to those faced by our society in the middle decades of the twentieth century. The
fundamental challenges are economic and technological. Parliament has a decisive role in refashioning
the national economy, keeping in the forefront the ideals of a self-reliant economy that serves the real
needs and aspirations of our vast masses. Parliament can play this historic role only if it consciously
reforms its procedures and prioritizes its work.

Powers

The Parliament has the power, which is given by the Constitution of India, to make its own rules but this
power is subjected to the provisions of the Constitution. Though it can make its own rules, the rules
should not be made for its own benefit. If they make any rule which infringes any provision of the
Constitution then it would be held as void.

[Link] independence/autonomy

For the effective working of both the houses of parliament and their members, internal independence
should exist without the interference of any outside party or person. The houses can deal with their
respective issues internally without any interference of the statutory authority. 

The Indian Judiciary might not interfere with the proceedings or issues dealt in the parliament or by the
members in the course of their business. Nevertheless, it may interfere in the proceedings if it is found
to be illegal or unconstitutional.
[Link] from being arrested

The member of parliament cannot be arrested 40 days before and 40 days after the session of the
house. If in any case a member of Parliament is arrested within this period, the concerned person should
be released in order to attend the session freely.

[Link] to exclude strangers from its proceedings and hold secret sessions 

The object of including this right was to exclude any chances of daunting or threatening any of the
members. The strangers may attempt to interrupt the sessions.

[Link] to prohibit the publication of its reporters and proceedings 

The right has been granted to remove or delete any part of the proceedings took place in the house.

[Link] to regulate internal proceedings

The House has the right to regulate its own internal proceedings and also has the right to call for the
session of the Legislative assembly. But it does not have any authority in interrupting the proceedings by
directing the speaker of the assembly.

[Link] to punish members or outsiders for contempt

This right has been given to every house of the Parliament. If any of its members or maybe non-
members commit contempt or breach any of the privileges given to him/her, the houses may punish the
person.

The houses have the right to punish any person for any contempt made against the houses in the
present or in the past. 

Privileges mentioned in the constitution

Freedom of speech and publication under parliamentary authority

This is defined under Article 105(1) and clause (2). It gives the members of parliament freedom of
speech under clause (1)  and provides under Article 105(2) that no member of parliament will be liable
in any proceedings before any Court for anything said or any vote given by him in the Parliament or any
committee thereof. Also, no person will be held liable for any publication of any report, paper, votes or
proceedings if the publication is made by the parliament or any authority under it.

The same provisions are stated under Article 194, in that members of the legislature of a state is
referred instead of members of parliament.

Both the Articles, Article 19(1)(a) and Article 105 of the Constitution talks about freedom of speech.
Article 105 applies to the members of parliament not subjected to any reasonable restriction.
Article19(1)(a) applies to citizens but are subject to reasonable restrictions.
Article 105 is an absolute privilege given to the members of the parliament but this privilege can be used
in the premises of the parliament and not outside the parliament.

If any statement or anything is published outside the parliament by any member and if that is
reasonably restricted under freedom of speech then that published article or statement will be
considered as defamatory.

Privileges and fundamental rights

Part III of the Constitution contains fundamental rights wherein Article 19(1)(a) grants freedom of
speech to the citizens. It is subjected to reasonable restrictions. These restrictions are:- 

Sovereignty and integrity of India should be maintained,

 Security of the states should be maintained,

 Public order should not be disturbed, 

 Decency and morality should be maintained,

 Defamation should be avoided,

 Incitement to an offence should be avoided, 

Contempt of court should be avoided,

Friendly relations with foreign states should be maintained.

Where on the other hand the members of parliament have been granted powers, privileges etc. their
powers or privileges are absolute unlike fundamental rights for the citizens.

The Parliament enjoys mostly all the supreme powers while making laws and exercise its power to the
best possible extent because of the absolute nature of its powers and privileges.

The powers of the legislators are too wide such as they decide their own privileges, include points which
can breach the laid down privileges, and also decide the punishment for that breach.

Article 105(3) and Article 194(3) states that the parliament should from time to time define the laws or
pass the laws on the powers, privileges and immunities of the members of the parliament and members
of the legislative assembly.

Legislative Procedure: Article 196

The main purpose of Legislature is to make laws, pass a bill etc. To understand the working of
Legislature or Legislative Procedure let us first discuss the term “Bill”. By Bill, we mean a draft of the
legislative proposal. This bill after getting assent from both the Houses of Legislature becomes an Act
after getting assent from the Governor. Article 196 of the Indian Constitution tells us about the
provisions of the introduction and passing of the Bill. Except for the Money Bill and the Financial Bill
( procedure of passage of these bills are given in Article 198 and 207), the other bills can be introduced
in either Houses of the legislature. Any bill is said to be passed only when it got assent from both the
Houses of the legislature. Here both the Houses should agree on the amendment made to the bill. A bill
would not lapse when it is pending in the House and there is the prorogation of that House. A bill
pending in the Legislative Council of any state which is not passed by the Legislative Assembly shall not
lapse even on the dissolution of the Legislative Assembly. Also, there is a condition mentioned in Article
196 which states that if there is a bill pending in the assembly and at that time the assembly dissolute,
then the bill will also lapse ultimately. The bill will also lapse if it is passed by the assembly and is
pending by the Council.

Case Law

Gunupati Keshavram Reddy v. Nafisul Hasan and the State of U.P AIR 1952

The facts of the case:- The U.P. Legislative Assembly issued a warrant against the Home Minister who
was arrested from his residence in Bombay on the ground of contempt of the house. The Home Minister
under Article 32 applied a writ of Habeas Corpus on the ground that his detention under Article
22(2) violates his fundamental right.

The Supreme Court accepted the arguments and ordered his release according to Article 22(2). He was
not presented before the magistrate within 24hrs of his arrest or detention. Not presenting him before
the magistrate resulted in the violation of his fundamental right under Article 22(2). In this case, it was
opined that Article 105 and Article 194 cannot supersede the fundamental rights.

Conclusion

After analysing Article 105 and 194, one can clearly infer their absoluteness. These special provisions are
granted to the Parliament for its effective functioning. These articles also impose duties upon them to
make effective laws which do not harm the rights of others. The parliament or the Legislative Assembly
though can exercise their powers, privileges and immunities, cannot act as an ordinary Court of justice.

2. What is Cabinet form of Government, and its nature 

Introduction

Cabinet or parliamentary form of government is that in which; Legislature and executive are closely
related and share powers with each other. Cabinet is formed by the parliament and parliament is the
superior organ. There are two executives i.e. the elected president or king and the Prime Minister.

Definition

1. a government in which the real executive power rests with a cabinet of ministers who are individually
and collectively responsible to the legislature

2.A Parliamentary government is also known as the cabinet form of government because the cabinet is
the real executive in it. It is also called responsible government, since the cabinet always remains
responsible to the legislature for its [Link] Prime Minister is the head of the government.

Formation of Cabinet

When general election is over and prime minister is elected, then prime minister nominates his council
of ministers or cabinet. This responsibility of the prime minister is of prime significance. The list of
ministers is presented before head of state for his approval. They are commonly taken from the party's
ring leadership. Well experienced, alert and learned members are given preference because of the
sensitive nature of parliamentary System.

Origins

The cabinet system of government originated in Great Britain. The cabinet developed from the Privy
Council in the 17th and early 18th centuries when that body grew too large to debate affairs of state
effectively. The English monarchs Charles II (reigned 1660–85) and Anne (1702–14) began regularly
consulting leading members of the Privy Council in order to reach decisions before meeting with the
more unwieldy full council. By the reign of Anne, the weekly, and sometimes daily, meetings of this
select committee of leading ministers had become the accepted machinery of executive government,
and the Privy Council’s power was in inexorable decline. After George I (1714–27), who spoke little
English, ceased to attend meetings with the committee in 1717, the decision-making process within that
body, or cabinet, as it was now known, gradually became centred on a chief, or prime, minister. This
office began to emerge during the long chief ministry (1721–42) of Sir Robert Walpole and was
definitively established by Sir William Pitt later in the century.

Introduction to the Cabinet Office

Cabinet Office supports central government decision making processes in the following primary ways:-
providing impartial Secretariat services to the Executive Council, Cabinet and Cabinet committees

providing advice to the Governor-General, Prime Minister and other ministers on certain constitutional,
policy and procedural issues (especially those contained in the Cabinet Manual)

assisting in the coordination of the Government’s legislation programme .administering the New

Zealand Royal Honours System and acting as a channel of communication between the Governor-
General and the Government, and being responsible for the overall policy and administration of
Government [Link] key functions of the Cabinet Office are:
providing support for elections, the formation of Government, and transitions between
administrations to the Governor-General and the Prime Minister producing the Cabinet
Manual, CabGuide website, and Honours Lists issuing guidance to departments on centre-of-
government decision-making issues, through Cabinet Office Circulars briefing Ministers, Ministerial staff,
and departmental officials on central government and Cabinet processes and requirements and
maintaining a central record of Cabinet and committee submissions and minutes.

Cabinet Office is headed by the Secretary of the Cabinet, who is also Clerk of the Executive Council. The
two positions have distinct roles and responsibilities but are closely related in their functions of
providing impartial support to the Government. The role of Secretary of the Cabinet is primarily to
provide support to Cabinet and its committees. The role of Clerk of the Executive Council is to provide
support to the Governor-General and Executive Council.

Cabinet Manual

The Cabinet Manual is an authoritative guide to central government decision making for Ministers, their
offices, and those working within government. It is also a primary source of information on New
Zealand's constitutional arrangements, as seen through the lens of the executive branch of government.
The Cabinet Manual guides Cabinet's procedure, and is endorsed at the first Cabinet meeting of a new
government, to provide for the orderly re-commencement of the business of government.

A speech by the Secretary to the Cabinet provides a history of the New Zealand Cabinet Manual, its
purpose, the process of reviewing it, and the provisions of the Cabinet Manual that are particulary
relevant in the context of general elections and the formation of governments.

Change of government

When the Government changes, the Secretary of the Cabinet assists the incoming Prime Minister to
establish the processes of the new Government. The Secretary also advises an incoming Prime Minister,
as required, on the structure and organisation of Cabinet and its committees and the allocation of
Ministerial portfolios.

1.  Theories of punishment

2. Reformative theory of punishment