Ajay Kumar

@TLFellow

Lawyer, Author, Philosopher. I am a vibe. (RTs are not endorsements) (Views are purely personal)

Bangalore

Joined July 2024

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Ajay Kumar

@TLFellow

5 months ago

Looping in this hero @monn6111 since he wanted "facts" cause he was too lazy to read previous threads. Like the rest of you. Anyway here you go. Lamba Chauda Explanation. Read Fully. One final time and then I block this fucker: The Indian Constitution is not exhaustive. I know it sounds strange. But it is not. This is because we are a Westminster Democracy. Our Constitution is actual convention, constitutional text and in some cases statute (like General Clauses Act can be amended to effectively amend the Constitution like in Art 370 J&K. Citizenship Act is a constitutional amendment cause Part II itself says that Parliament can change the constitutional provision with an act not an amendment). What does this mean? In a Westminster System you have the concept of a "Crown". The Crown is a Part of all three branches of Government. In the Executive Sphere we say King. In Parliament the concept is "King - In Parliament" and in the Judiciary its the "King's Courts". In India this principle is maintained. I.e. The President is the Head of the Executive Branch. The President is also a "House" of Parliament. The Third house. Article 79. "There shall be a Parliament for the Union which shall consist of the President and two Houses to be known respectively as the Council of States and the House of the People." On the Judicial Side the Power is the Power to Appoint Judges and also the power to issue mercy and clemency. She can even legally overturn a judicial verdict Now the President is the Head of the Executive. "53. (1) The executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution." Other interesting things. The "State Emblem of India" was pre-constitutional. It was adopted by the Interim Government. On 26 January 1950 the "Government of India" adopted it. The Government of India means the President and her Secretaries acting as advised the Cabinet. So to any person who follows along. When I say President of India, I mean the Government of India. So now the question arises. Where do you actually get the power to adopt an emblem? Well it is an executive act and not a legislative act. The Definition of "Law" in India includes all manner of executive acts as well. Presidential Orders. This country's entire Foreign Direct Investment policy for example comes from a "Press Note" of the DIPP. A notice put-on a University Notice Board is also "Law". So a resolution adopting the National Emblem makes it the National Emblem. Since it is fundamentally an emblem that is used by the Executive Branch. Parliament for example has its own Logo. The Lok Sabha and the Rajya Sabha have their own emblems which are adopted and used in accordance with the standing orders of the house. The source of power that creates the Emblem is an Executive Power. Now coming to the two statutes and "Rules" that this "Man" has been harping about: 1. Emblems (Prevention of Improper Use) Act, 1950 (https://t.co/4p064OXiom) 2. The State Emblem of India (Prohibition of Improper Use) Act, 2005 https://t.co/ROtPEo1rSB The first Act is concerned with "Improper Use". See Section 3 which creates the prohibition "Notwithstanding anything contained in any law for the time being in force, no person shall, except in such cases and under such conditions as may be prescribed by the Central Government, use, or continue to use, for the purpose of any trade, business, calling or profession or in the title of any patent, or in any trade mark or design, any name or emblem specified in the Schedule or any colorable imitation thereof without the previous permission of the Central Government or of such officer of Government as may be authorised in this behalf by the Central Government." If you read it you will see the prohibition is to use it for "any trade, business, calling or profession or in the title of any patent, or in any trade mark or design.". I don't think the Governor is planning on hosting a ticketed fancy dress party where people wear the Emblem. So the first act just does not apply. On the Second Statute. The one that he seems to be quite agitated about. Again we must see Section 3. What does it actually say? "Notwithstanding anything contained in any other law for the time being in force, no person shall use the emblem or any colourable imitation thereof in any manner which tends to create an impression that it relates to the Government or that it is an official document of the Central Government, or as the case may be, the State Government, without the previous permission of the Central Government or of such officer of that Government as may be authorised by it in this behalf." Now two aspects here (a) you can't use it in a way that it "tends to create an impression that it relates to the Government " or (b) "or that it is an official document of the Central Government, or as the case may be, the State Government". Now a "Hat" is not a document. This is perhaps something we can agree on. So (b) goes. Now (a). The Governor already relates to the Government. Since he is appointed by the President and is a part of the Government of a State. I.e. He is the Government. At the State Level the concept is same as the National Level. Govt is 3rd Chamber. He appoints State Court Judges. Can issue Clemency and is the head of the Executive Branch of the State. How can a Governor use an emblem to pretend to be the Government when he is the Government? This circular problem is resolved by two key things. If you look at both statutes not one of them say "There shall be a State Emblem of India containing ......". They all treat the State Emblem as a Pre-existing fact. Because it is an executive decision. But where does this power come from? It comes from the Prerogative Powers. The Executive Branch is the "Font of Honours". Here by Honour I do not mean Bharat Ratna (though that's where that power also comes from). By this I mean titles, symbols, heraldry etc. An Honour is always wishing the "Gift" of the President. This means after checking with the PM, the President can permit anyone to wear it. Cause that means the entire cabinet has granted that permission. In all reality under our Constitution you only need an Act of Parliament for very few things. These are only largely when you set a policy into law (criminal law, company law etc). Otherwise you just need to go there to get money to run the executive branch (the budget, money bills). The House controls the Executive by the Power of the Purse. On the Uniforms Point: Go through the entire Army, Navy and Air Force Acts. Not one of them say "there shall be an Indian Army/Air Force or Navy". They assume these forces existed. These forces are "regulated" by this legislation, as post independence our constitution required court martial etc to come from statute and the British statutes on discipline no longer applied and the older regulations and statutes were found to be not fit for purpose. All three forces by the way have not been raised by a Statute but have always been raised by the Executive Branch via resolution. (The Indian Army for example was created when the Governor General decided to merge the three presidency armies). The Armed Forces are governed by the Executive Branch. The Executive can govern them how it likes until there is a Parliamentary prohibition on this. The uniforms the is talking about. The Dress Regulations. They do not come from the Army Act. They come from the conditions of service when you enter the services. The dress regulations are compiled and circulated by the Adjutant-General who reports to COAS who reports to MOD. As you can see there is a hierarchy. MOD is the President acting through her ministers. So yes. If the President of India woke up, called up Mr. Modi and said "Wouldn't it be just posh if they all wore ball gowns" and Mr. Modi agreed, there is nothing the law can do to stop it. She can take it further (the Executive Branch) and also has the power to authorise who ever she wants to wear the uniform. The uniform is therefore never laid down in law. Only defined in like an HR manual. The uniform is protected so anyone who not in the forces cannot wear it and pretend to be from the forces. But even so, that has to be "unauthorised". If the Central Government gave the Governor a Hat. He can wear it. He can stitch his own logo on the hat. Also his Hat did not have regimental insignia. Only the Emblem. Which means this "dressing like the army" thing no longer holds water. Because the Governor: (a) Is a representative of the President (b) Ranks higher than the highest military officer in the Order of Precedence (4/8 v 12 for the Service Chiefs) https://t.co/MzJfnUHePm (c) Is literally the Government so he can't pretend to be something he already is (d) The Rules he is talking about only prevent unauthorised (i) Use in Seals (ii) Display on Buildings. (e) He says it is prohibited in terms of Rule 10. He says that even though TN has the Emblem in its logo. The Governor cannot be used. This is not the language of Rule 10 at all. Rule 10 talks about the Emblem and a Governor can use it if he is in a state that has adopted it. The Rule 10 does not say that the Governor must use the emblem as it appears on the State Emblem. Why? Just like we use the Chakra as a separate symbol sometimes etc, the rule of Heraldry is once you adopt the whole thing, you can use it in parts. (f) Lastly and here is where it is critical. The offence is not possible. He can't pretend to be the Govt when is it. Section 119 of the Revised Evidence Act, provides that we have to presume he has permission. While I am sure he doesn't need one, even if he did. Before he can be attacked for unauthorised, you must prove no permission was given. Since he is the Governor. Since the State Government has said nothing (and they are quite vocal about things). We have to presume all protocol was followed. There is thing call professional courtesy. You respect a qualification. I don't attempt to teach people how to fly a helicopter. Interpretation of law is something that takes lots and lots of hard work. The use of an emblem is not a military matter but purely a legal one. Fun Fact: For the longest time passports were also issued under this power. The Executive Power I mean. Operation Sindoor is a classic case. We went and attacked Pakistan. No Parliamentary resolution needed. Dress is a service matters and are subject to the discretion of the employer. Here the employer is the President, she presides, she decides and it can be anything for the Forces as they have taken an oath to follow all orders even to the peril of their lives. I hope this is enough fact and argument. This is the third time I am repeating all of this. If Mr. Lancer cannot understand even after this. I wonder why we allowed such people to ever carry guns.