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The blog aims to simplify the intricacies of Constitutional Law and explain diverse issues through the lens of the Constitution. We seek to glorify the democratic spirit of the Constitution and imbibe Constitutional Objectivity in every citizen. The primary focus – though not exclusive- of this blog is upon the text, history, philosophy, interpretation, and values of the Constitution. Join our initiative and connect with us.

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Marital Rape in India: The Public/Private Dichotomy

[This is a post by Panya Mathur, Contributing Member]

[Editorial Note: Constitutional Renaissance Blog would like to thank Ms Bansari Kamdar for having an insightful discussion on ‘Marital Rape Laws’ in India. Reach out to Ms Kamdar here.]

In India, there exists a complex conundrum in relation to the vast number of issues surrounding the criminalisation of marital rape. There has been a great measure of sanctity involved with marriage. Marriage is seen as a sacrament, a union of two souls, who will remain in complete exclusivity to one another for all purposes in their lifetime. This can be proved by the existence of personal laws in the country. For instance, the institution of marriage in the Hindu community occupies a prime role in the social construct of a Hindu. The concept of consent in the sexual relationship in a marriage is dicey and difficult to navigate. A marriage rests on the concepts of a moral cement that produces ‘two-in-one-ship’. 

The exception to Section 375 of the Indian Penal Code, 1860 (for brevity IPC) states as follows:

“Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
And the Section 376B of the Indian Penal Code reads as follows:

“Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.” 

The notion of the Marital Rape exception can be traced as far back as 1736 when Sir Matthew Hales declared that ‘the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which cannot retract.’  

The horrors of Harvender Kaur

In the case of Harvender Kaur v. Harmender Singh Choudhary, the Court did not hesitate to opine that “the introduction of constitutional law in the home is most inappropriate. It is like introducing a bull in a china shop and that neither Article 21 nor Article 14 had any place in the privacy of the home. In a sensitive sphere which is at once most intimate and delicate, the introduction of the cold principles of constitutional law will have the effect of weakening the marriage bond”. In the case of Smt. Saroja Rani vs. Sudarshan Kumar Chadha, the bench judge explicitly agrees to the judgement given in the Harvinder Kaur Case, hoisting the requirement of the existence of a private sphere wherein the law does not seek a stance, in order to preserve the moral fabric and sanctity of the society. 

However, what has been conveniently ignored by the Hon’ble Court is that in both conditions of rape and marital rape the primary definition of rape remains a constant that is sexual penetration or intercourse wherein there exists a lack of consent. Therefore, to prove that the crime of rape has occurred, it is essential to prove the absence of unequivocal consent. Moreover, the burden to prove this absence of consent usually rests on the victim; however, in certain cases such as that in the case of minors, it is presumed that consent does not exist due to the presumption created in law that such minors are incapable of providing consent to any sexual acts. Similarly, in the case where the victim and perpetrator are in a marital relationship, there is a presumption of consent on the part of the wife even when such equivocal consent required by Section 375 is not present. The same can be proved by the mere existence of the exception to Section 375 of I P C.  Moreover, the State has selectively penetrated into this marital sphere by enacting legislation that deals with the violence of women in matrimonial homes. PWDVA, 2005 and Section 498A of the IPC provides a remedy for women who are victims of forms of abuse in the marital sphere. Hence, to empower women and protect them from violence in a domestic relationship, the State should rightfully criminalize marital rape break down the public/private dichotomy. The Supreme Court in the case of Independent Thought v. Union of India, partly struck down a part of the exception clause in section 375 citing it to be in violation of the Protection of Children from Sexual Offences Act, 2012 and in violation of a child’s fundamental rights. The court notes that marriage cannot be the sole reason for any reasonable differentiation for girls between the ages of 15-18 years. In doing so the court explicitly made note of the fact that marriage cannot be reasonable classification. Even though the court keenly observed that the judgment did not speak of adult marital rape it is important to note that the court held a woman’s right cannot be subservient to her personal rights simply on basis of marriage.

In the case of State of Tamil Nadu vs. K. Shyam Sundar, the Court has held that whenever there is express arbitrariness that exists in law or State action, irrespective of whether it was legislative or not, Article 14 immediately springs into action, and the said action is struck down. Moreover, the term ‘arbitrary’ means an act that has been done in a manner that is unreasonable, and has been done at pleasure and has been done in a capricious manner without any determining principle, not founded on the nature of things, is non-rational and does not have a standard functioning principle. In order to find out that an act is arbitrary, there must be proof of ‘substantive unreasonableness’ and in the said circumstance, the test of reasonable differentia has not been complied with, because the purpose of criminal laws prohibiting rape or indeed any kind of physical violence or unwanted touching is to maintain a person’s bodily integrity. 

Conclusion

However, it must be noted that there are numerous other legislations that protect the rights of married women which have been provided by the Legislature. One cannot look at the exception to rape in isolation, and state that the rights of married women have been deprived. The overall position is that the husband can still be liable for domestic violence or cruelty under the IPC and other specific legislation. Spousal rape should be viewed as an abuse of the marriage relationship, with some protection being deemed necessary for the abused spouse. The State provides protection for the same under the Protection of Women from Domestic Violence Act, 2005 as well as the Section 498A of Indian Penal Code. Moreover, the marital sphere does not rest on the pillars of contracts sealed with permanent terms and conditions that must be maintained to continue the relationship. Neither does the concept of marriage exist on the tenets of Constitutional Law to enforce inalienable rights into a relationship of such sanctity. Thus, it can be concluded that there exists a lack of protection that exists when it comes to the rights of married women in the country. And this lacunae in the law should either be resolved by removing the exception 2 of Section 375 of the Indian Penal Code, that excludes married women from the purview of its protection, or by extending the purview of Section 498A and other such laws. 

A Conservative Amendment in a Liberal Constitution: The First Amendment

[Editorial Note: The author would like to thank Tripurdaman Singh for his book Sixteen Stormy Days: The Story of the First Amendment of the Constitution of India and Amit Varma for a wonderful discussion on his podcast Seen and the Unseen]

It was the year 1951 and the Supreme Court had passed two judgments, Brij Bhushan v. the State of Delhi and Romesh Thapar v. the State of Madras, upholding the freedom of speech and expression as guaranteed under the Article 19(1) of the Indian Constitution. It was before the First Constitutional Amendment when the Constitution was considered to be ‘fairly liberal’ as the freedoms guaranteed under Article 19 were not subject to so many restrictions as we see today. Restrictions were there in the original Constitution as well, no doubt, as they are necessary. Then, the freedoms were the rights and the restrictions were the exceptions to those rights. But what followed after these two judgments was an act of Parliament (more of Nehru’s) which turned the freedoms into (somewhat) exceptions.

The First Constitutional Amendment, 1951

It has to be kept in mind that the first amendment was discussed and passed by the provisional parliament which did not have a ‘popular mandate’. It was the provisional Parliament’s members who framed the Constitution but they were not the constituent assembly. But for Nehru, it did not make any difference, as he said in the assembly:

“Now, that Constituent Assembly which has gone into the history of India is no more; but we who sit here, or nearly all of us, still continue that tradition, that link. In fact, it is we after all, who was the Constituent Assembly and who drafted this Constitution. Then we were not supposed to be competent enough to draft the Constitution. But now, the work we did was so perfect that we are not now competent enough to touch it! That is rather an odd argument.” 

He was right somehow, they were not competent to amend the Constitution as they did not have any popular mandate and this amendment could have waited till the elections. But it was nothing, but sixty stormy days of debates, discussion and dictatorial behaviour! Before the amendment, Article 19(2) read as:

“(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevents the State from making any law relating to, libel, slander, defamation, contempt of court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.”

It did not have any ‘reasonable restriction’ clause in it. But the restrictions were not so much. After the amendment, clause 2 of Article 19 read as follows:

“(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

This means that parliament can frame a ‘law’ which can restrict the freedom of speech and expression if that law is in furtherance of the restrictions given thereunder. Restrictions like public order or incitement to an offence are vague and can create a long-lasting chilling effect and they are, even now. Suppose, there is a rally in protest against any law passed by the state, then the state can restrict that protest and say it violates the public order, hence, citizens cannot exercise their right to speak against the government and they can invoke the draconian section 124A (Sedition) of IPC, 1860 [which is an offence under a law made by the state].

The Reasons for Amendment and the Opposing Views

In the cases of Brij Bhusan and Romesh Thapar, the government attempted to curb the freedom of the press and the right to free speech and expression. But the Court struck down that imposed restraint on civil liberties. When the question of interpretation of Article 19 came up, the Supreme Court held that if the maintenance of public, order or securing the public safety was something which did not affect the security of the State or the overthrowing of the State, then there could be no restriction on freedom of speech. The amendment was being made to overrule these judgments [hence, the words public order etc. were added], but PM Nehru said ingeniously in the assembly as he said: “We are not putting down any kind of curb or restraint. We are removing certain doubts so as to enable Parliament to function if it so chooses and when it chooses. Nothing else happens when this Bill is passed except to clarify the authority of Parliament.” These amendments have chilling effects till now. We still see so many violations of civil rights in the name of these so-called restrictions.

Nehru’s vision of freedom was more conservative (and not so liberal) as a Prime Minister than as a leader of the Congress party during the freedom struggle. According to him, the freedom of speech ‘carries with itself responsibilities and obligations’ and if they are not performed, then there would be no freedom. This goes against liberal thought.

The Parliament and the government could have dealt with the problems of public order or incitement of offence through preventive detention laws. Now, supposing there are persons who are preaching murder and who are doing, something of that character, supposing there is some newspaper which is doing something of that character and the writer is there, the individual can be secured under the Preventive Detention Act. So, if the Parliament or the Government want to prevent a person or group of persons from committing acts which they consider to be against the interests of public order, then they are already clothed with sufficient authority to do so.

The amendment does not bear any fruit, except increasing the power of the government. Another restriction which is placed is the restriction on criticism or speech on ‘friendly relations with other states’. On this Shyama Prasad Mukherjee, who I feel is a text-book example of a classic liberal during the debates, said: “I have not been able to find any precedent in any part of the civilised world whereby law under the provisions of the Constitution criticism of foreign powers is taboo.

He cast doubts on the meaning of ‘friendly relations with other states’, as he said: “we may say anything about a foreign country with the utmost friendship in our hearts but if that country misunderstands and says that it offends it or it affects our friendly relations with them, you are at once bound by the provisions of the Constitution.” If the government today passes any law in furtherance of these restrictions, then anything can be restricted and the civil liberties and freedoms will merely become exceptions.

The fears apprehended by Dr Shyama Prasad Mukherjee are now re-surfacing back in 2020 as we witness internet shutdown(s) in Kashmir using Section 144 of Criminal Procedure Code, use of draconian laws like National Security Act and Unlawful Activities Prevention Act (UAPA) to curb Freedom of Speech and Expression among other violations. We see these violations of free speech and civil liberties and the reason (not the sole reason though) behind such regressive measures is this hurried, hasty and (“unconstitutional”) First Constitutional Amendment Act. PM Nehru, despite his charismatic leadership and vision, did put the Constitution and civil liberties in danger.

In conclusion, let us revisit the prophetic warning given by Dr Mukherjee and try to draw parallels in contemporary times:

“Maybe you [Nehru] will continue for eternity, in the next generation, for generations unborn; that is quite possible. But supposing some other party comes into authority? What is the precedent you are laying down?

The fears imagined by Mukherjee in 1951 still haunts us today!

Guest Post: Analyzing the Scope of Voluntary Forfeiture of Political Party Membership

[This is a guest post by Rohan Bhatnagar]

The Anti Defection Law under the Tenth Schedule of the Indian Constitution ensures that legislators maintain their allegiance towards their respective political factions. This article precisely analyzes the reasons behind members voluntarily forfeiting their party’s membership and provides solutions for curbing the same.

Introduction

Defection lures the Members of the Legislature to secure powerful berths. It is used as a bait for obtaining their services. Defection weakens the Opposition and India’s democratic foundations. The Tenth Schedule of the Indian Constitution specifies voluntary forfeiture of a political party’s membership as a basis for disqualifying a Member of the Legislature. The author purports to provide precise analysis and solutions regarding the issue in this article.

Analyzing Statutory Provisions to determine Voluntary Forfeiture of Party Membership

Paragraph 2 (1) (a) of the Tenth Schedule stipulates voluntary forfeiture of political party membership as a ground for defection. According to this provision:

“2. Disqualification on ground of defection— (1) Subject to the provisions of [paragraphs 4 and 5], a member of a House belonging to any political party shall be disqualified for being a member of the House—

(a) If he has voluntarily given up his membership of such a political party. ”

The provision necessitates that members must adopt the principles of political dignity and morality for prohibiting defection within the Legislature. Diligently adhering to these principles preserves the Legislature’s reputation. Further, it affirms allegiance to one’s political affiliation. 

The expression ‘voluntarily gives up membership’ is wider than the term ‘resignation’. A member may forfeit his party membership expressly or impliedly. It is discernible through his conduct. It must be authentic and must not be made under coercion. It becomes effective upon the occurrence of such an event. 

Rival parties entice members into assessing and affirming considerations such as ministerial berths. Factors including offering pecuniary benefits, differences in ideological and policy-related affairs and a party’s functioning style constitute defections.

The Tenth Schedule also includes splits outside the floor of the House within its purview. When members form a separate faction within the same political party by voluntarily forfeiting its membership, it attracts disqualification proceedings. 

In Rajasthan, several members of the State Legislature allegedly visited Delhi to collude with the opposing faction. The Speaker disqualified them for attempting to topple the State Government. Similarly, in Madhya Pradesh and Karnataka, legislators voluntarily resigned and defected to the opposing faction, inviting disqualification under the Tenth Schedule. 

The onus of proving lies on the person alleging that such a faction created a split in the original party. The test is a split involving one third party member. The time for engineering such a split is immaterial. A floor test determines public confidence in a party’s leadership. 

Article 191 (1) disqualifies members under any one of the following heads, namely, “being chosen as” a member or for “being a member” of the House. Article 191 (2), on the other hand, uses the phrase “for being a member of the House”. Thus Article 191 (2) and Paragraph 2 of the Tenth Schedule employ the same language.  

It implies that disqualification under the Tenth Schedule differs from the other categories enunciated under Article 191 (1). Members are not barred from consequently contesting elections, thus avoiding subsequent prohibition from becoming members of the Legislature. Further, Section 36 (2) of the Representation of People Act, 1951 empowers the Returning Officer to reject a candidate’s nomination. 

The Speaker or the Chairman acts as a Tribunal in disqualification proceedings. He must act in a quasi-judicial capacity for determining the question. His decision must be based on objective facts. The 33rd Constitutional Amendment mandates that the Speaker must accept a member’s resignation. 

Thus members cannot resign unilaterally. He inquires about the resignation’s genuineness upon its receipt. ‘Genuineness’ refers to its authenticity and the members’ personal choice to resign. It may be rejected if forged or made under coercion. However, the Courts may review his decision.

The Court’s scope for judicial review under Articles 136, 226 and 227 respectively is confined to the grounds of mala fides, violation of constitutional mandate, perversity in the Speaker’s decision and non-compliance with the principles of natural justice.  

Consequently, it bars members from using privileges such as the right of publishing proceedings and its prohibition, the right of excluding strangers, disciplinary powers, the power for punishing for contempt and regulating internal proceedings if found guilty of defection. 

Other Provisions

  • The Constitution of India, 1950: Articles 75(1B), 164(1B) and 361B bar any person who is disqualified under the Tenth Schedule from being appointed as a Minister or from holding any political post from the date of disqualification till the date of expiry of his office term or his date of re-election to the legislature, whichever is earlier. 
  • The Representation of the People Act, 1951: Section 9(1) of the Representation of the People Act, 1951 mentions disloyalty to the State as a ground for disqualification. Such a Member may be disqualified for 5 years from the date of disqualification. 
  • The Members of Rajya Sabha (Disqualification on Ground of Defection) Rules, 1985: Rule 3(a) of the Rules stipulates that the ruling party’s leader must submit a written statement listing the names and particulars of his party members. Rule 4(2) states that Members must furnish information concerning their particulars as required by Form-III before the Secretary-General of the House. 
  • The Members of Lok Sabha (Disqualification on Ground of Defection) Rules, 1985: Rule 10 and Rule 11 are framed on identical lines as Rules 3(a) and 4(2) of the Rajya Sabha Disqualification Rules, requiring the Ruling Party’s leader to submit a written statement listing the names and particulars of his party members. Further, the members shall also furnish information concerning their particulars before the Secretary-General of the House.

Using Judicial Precedents for analyzing the Scope of Voluntary Forfeiture of Party Membership

Scope of the Tenth Schedule

In Kihoto Hollohan v. Zachillhu, the Supreme Court observed the role of political parties in the electoral process and remarked that the Tenth Schedule must exist to avoid tarnishing the society’s conscience and moral fabric. The Court further observed that Paragraph 2 (1) (a) of the Schedule provided for equal application of the principles of political propriety and morality across the vast spectrum of the Legislature. 

Thus, members of the Legislature must be prohibited from defecting to restore public faith in the electoral process. The Court also struck down Paragraph 7 which barred the Court’s jurisdiction to adjudicate matters concerning disqualification of members.

The 52nd Constitutional (Amendment) Act’s purpose was ensuring that Members of the Legislature do not change their sides easily, since these acts are capable of destabilizing the system. Explanation (a) to Paragraph 2 (1) creates a deeming fiction. Courts assume a grave situation and consider that such material facts exist. They pronounce their judgment accordingly. Fully enforcing it ensures that the defecting member cannot circumvent the legal provisions. 

Preserving Freedom of Speech and Expression

The Court in Kihoto Hollohan’s case observed that the provisions of the Tenth Schedule neither violated the freedom of speech and expression nor infringed the Parliamentary and the State Legislature proceedings stipulated under Articles 105 and 194.

The scope of the expression ‘Voluntarily Given Up Membership’ 

The term ‘voluntary’ implies that the resignation is not based on threat, force or coercion. The scope of the expression ‘voluntarily given up membership’ was examined in Ravi S. Naik vs. Union of India & Ors. The Court observed that ‘voluntarily giving up membership’ cannot be equated with ‘resignation’. It has a wider connotation. Further, a member’s conduct sufficiently infers that he has voluntarily forfeited his party’ membership. 

In G. Viswanathan vs. The Hon’ble Speaker Tamil Nadu Legislative Assembly, where members of the Legislature met the Governor and submitted him a letter requesting him to dissolve the Assembly, it invited disqualification under Paragraph 2 (1) (a) of the Tenth Schedule. It was held that voluntarily giving up party membership may be express or implied. The essential condition is a member joining an opposing political faction. 

Separate Factions within the same party and Coalition Governments 

Members can be disqualified under Paragraph 2 (1) (a) of the Tenth Schedule if separate factions exist within the same political party. The time gap of such a split is immaterial. It may occur through unilateral severance or detachment from party links. However, the provision is inapplicable where a member having a different political affiliation withdraws his support to the Chief Minister in a coalition government. Its rationale is that their allegiance lies to the people and not towards members of a particular political party. 

Conclusion

Defection is a social evil striking at the foundation of the Indian democracy. It is anti-democratic and corrupt as it involves only a personal gain and not a conscientious change of heart of the legislator. Political parties must lead the way in ethical governance by not indulging such practices. Defecting members should be eternally barred from contesting elections. Intraparty splits must also be prohibited. Further, the Election Commission’s opinion in disqualification proceedings as a sine qua non in disqualification proceedings before the President or the Governor advert to their final decision restores public faith in the electoral mechanism. 

Right to Protest, Restrictions and Democracy: Supreme Court and the Chilling Effect

Recently in the case of Amit Sahni v. Union of India, the Supreme Court passed a judgment on an infructuous matter which will have a long-lasting effect on civil liberties, especially the right to protest. The judgment of the Court feels like a judgment written by the central government in furtherance of an ‘executive court’. The 3-judges bench creates a chilling effect on the free speech and expression and the right to assemble peaceably (without arms).

The matter relates to the protests being held that Shaheen Bagh (New Delhi) and it was filed in February 2020. The protestors at Shaheen Bagh were dispersed in March after the Nation-wide lockdown which, ‘usually’ lead to dismissal of the matter. The judges ignored the factual matrix present in the case and the reasons for blockade were not because of the protestors, but the administration (police) which blocked the nearby roads and public routes. The Court classifies the constitutional and peaceful protests as “encroachments or obstructions.”

What did the court say?

The Court recognised the right to protest and the right to dissent in a democracy. The Court held that the Articles 19(1) (a) and (b), “in cohesion, enable every citizen to assemble peacefully and protest against the actions or inactions of the State.” Then, the Court moves onto the “reasonable restrictions” stated under Article 19(2) and (3). The judgment looks like as if the norm is turned into an exception, and the exception is now the norm. The Court tried to balance the right to protest with the right of other citizens to commute. It must be noted that the balancing is not done by applying the principles of proportionality, but by presuming that the protests ‘always’ disturbed the smooth traffic and commute of the citizens. The Court did not accept the plea that “an indeterminable number of people can assemble whenever they choose to protest.” This creates a chilling effect on the right to protest – the court cannot sit as an executive and lay down policies. Suppose the government plans to make some amendment in the Constitution which infringes the basic structure of the Constitution, then should the citizens sit quietly and just witness the democratic backsliding or come on the streets to express their will? As Gautam Bhatia says “in today’s day, it is important to retrieve and to build constitutionalism without the Courts, even as it remains equally important to continue to engage with and in the courts.” The check on the executive power must come from the fourth branch of democracy, which is the civil societies, media and the citizens. (See the blog on Executive Aggrandizement and democratic backsliding)

The Right to Assemble Peacefully and the Right to Protest

The rights are guaranteed under clause 1 of Article 19 which are not absolute. The restrictions on those rights placed under clause 2-6 cannot be read widely, but narrowly. They are the exceptions to the rights and must be narrowly tailored. The Supreme Court in the case of Shreya Singhal v. Union of India held that “a restriction in order to be reasonable must be narrowly tailored or narrowly interpreted so as to abridge or restrict only what is absolutely necessary.” Further, even in the Constituent Assembly the fears of wider interpretation of ‘reasonable’ restrictions were evident as one of the members Mr Sahaya said:

“In the larger interests of the country, and particularly at the formative stage of the country, to give such wide powers in the hands of the State and with regard to such Fundamental rights as, freedom of speech, freedom of assembly and freedom of movement would, I believe, be harmful and result in the creation of a suffocating and stuffy atmosphere as opposed to the free air of a truly free country.”

The right to assemble peacefully is a fundamental right and an enabling right which leads to opening up of spaces and opportunities for civil societies and citizens at large to engage effectively in decision-making processes. This right help to foster increased transparency and accountability and are basic prerequisites for the ultimate goal of securing substantive enjoyment of different human rights in a constitutional democracy. The right to assemble peacefully is a vehicle which enables other socio-political-economic rights. The state can restrict the said right only by a law in the “interests of the sovereignty and integrity of India or public order”. Fearing the so-called “reasonable restriction”, one of the members of the constituent assembly said (H.J. Khandekar):

“For instance, we are given to believe that we could carry on organised agitation for the welfare of Labour, that we can make, in an organised fashion, a demand for the grant of bonus, and if necessary can assemble in public meetings to back up this demand. The truth is that the law restricting the right of holding public meetings would be enforced. Consequently in view of such a law or laws of this kind to be passed in future it may not be possible to hold any public meeting. Thus it is clear that the Government would be in a position to prevent if it so desires, any agitation by Labour for demanding bonus, since all these restrictive laws would be applicable to the workers also. I, therefore, fail to see the significance of the right of forming associations when I find that its substance is taken away by clause (4).”

The Court by giving the state the wider power to designate the area of the protest and the number of people in the protest somehow validates the fears put forth by the Hon’ble member of the Assembly. The Court also says that the protestors, exercising their right to protest, infringes the right to commute of other citizens as protests lead to traffic jams etc. This requires balancing of rights, not just a blanket assumption. According to the Special Rapporteur on the rights to freedom of peaceful assembly and of association (20 March 2019, Geneva), it was recommended that, “The State’s obligation to facilitate includes the responsibility to provide basic services, including traffic management, medical assistance and clean-up services. Organizers should not be held responsible for the provision of such services, nor should they be required to contribute to the cost of their provision.” On the choice of place and time, which the Court declined to entertain, the Rapporteur recommends that,

“The choice of the venue or location of an assembly by the organizers is an integral part of the right to freedom of peaceful assembly…… Likewise, public areas around iconic buildings are a logical place for to convey a message with regard to institutions housed in these buildings.”

If the state is to ‘choose’ the place of protest, then it will infringe the right to protest as the protests are done to create an impact on the decision-making process and are for maximum participation by the citizens. It is done to make citizens aware of the actions and inactions of the state. If the state chooses the place of protest, then it might choose a place far from the central place of attraction where those sitting in the institutions can see. Like it happened in Jaipur where the place of protest chosen by the state government was 9 kilometres away from the earlier site chosen by the protestors. The free flow of traffic should not automatically take precedence over freedom of peaceful assembly. In this regard, the Inter-American Commission on Human Rights has indicated that “the competent institutions of the State have a duty to design operating plans and procedures that will facilitate the exercise of the right of assembly … [including] rerouting pedestrian and vehicular traffic in a certain area”. Furthermore, the Special Rapporteur points to a decision of the Spanish Constitutional Court which stated that “in a democratic society, the urban space is not only an area for circulation, but also for participation.”

A protest is done in the larger public interest, it is done to exercise dissent against various policies of the state (and sometimes against the judgments of the Court). Holding a protest outside the city, or where there is no attention will ‘extinct’ the genesis of the protest and will fetch no fruits. The Supreme Court held “it has to be borne in mind that total extinction is not balancing” (see Asha Ranjan v. the State of Bihar (2017) 4 SCC 397).

The difficulties caused to the citizens exercising their ‘right to free movement’ is due to the states’ failure to take adequate and sufficient steps. If the state will take necessary actions to “ensure that such dharnas and demonstrations are held within their bounds [and the traffic is diverted, instead of closing the roads], it would have balanced the rights of protestors as well as the residents.” (Mazdoor Kisan Shakti Sangathan v. Union of India, 2017)

Instead of being a mute spectator, the state and the police authorities should have arranged routes and spaces near Shaheen Bagh for the commuters to exercise their right to ‘free movement’ instead of blaming the protestors for their own insufficiency and inadequacy. The decision of the court to provide a blanket ban on the demonstrations lead to infringement of rights of the citizens and creates a chilling effect. It is the duty of the state to balance the rights of stakeholders and the Court must only adjudicate and protect the rights of every citizen. The purpose of holding protests is that they reach concerned persons for whom these are meant and to exercise the democratic right guaranteed by the Constitution. The decision of the Court is wrong as it will lead to fresh restrictions on the right. To conclude, in the words of TM Krishna, “Unless public spaces are freely available for demonstrations, we will remain a mute democracy.

Breaking the Complexity of Farm Acts

[This is a post by Surabhi Srivastava, Contributing Editor]

Through this post, I am making an attempt to discuss the new farm bill (now an Act) on a comparative analysis basis. Certain questions, such as whether the Centre had the power to make laws in this area? Or what is the dispute going on between centre and state? Why in certain states there is comparatively more hue and cry regarding this bill? And can the proceedings in the Parliament be challenged in the Supreme Court of India? The final question, whether farmers are in actuality going to get any benefit out of this bill?  Give a quick read to this article and find out the answers!

Understanding the existing Agricultural Produce & Livestock Market Committee system

After the nation got independence in 1947, the farmers used to sell their produce directly to the customers but owing to the Zamindari system and other unavoidable circumstances the farmers had taken a loan from some or the other sources. In result, the money lenders (including Zamindars) use to charge an exuberant amount of interest from the farmers, consequently, the money lenders use to buy the produce of the farmers in the lowest possible price and again when the farmers wished to grow crops etc., he would not have enough fund to conduct his farming activity. Again, the farmers would turn to the money lenders and the story would viciously repeat. The farmer was struck in this merciless situation and their exploitation was on a loop.

 To solve the issue regarding the exploitation of farmers, the government comes into the play and enacts, Agricultural Produce & Livestock Market Committee Act (for brevity Act). This laid the prohibition of direct exchange of goods between the farmer and any other person, rather all the process of sale would take place through mandis which were established through the ACT. The mandis were, however, run by the State Government. Now let us look at the present-day functioning of the APMC ACT, each state has its own APMC and the State divides it area wise according to its own convenience, awarding one mandi to each area. Suppose, if a trader wants to buy some product from that mandi then he would have to acquire the licence of that mandi and similarly if a farmer wants to sell his produce in a mandi he will have to acquire a licence too. This process is a mandate.

Further, if we go on to see how the product is sold according to APMC, then it is according to the auction system, the goods are divided into two categories for the purpose of sale, one being MSP (Minimum Selling Price) and Price Discovery, the price in case of the former is fixed by the Government of India and to be noted that not all crops fall under the category of MSP, there are only 22 crops that are permitted to the credit of MSP. The latter includes all other crops apart from those 22 falling under MSP; here the goods are sold according to the market situation such as demand and supply. Furthermore, in APMC, goods are sold through a chain, in nutshell, there are various middlemen between the farmer and the end consumer, the new Farm Bill is on its way to do away with this system.

However, the present chain functions as follows:

(1) Farmers take produce to APMC

(2) Commission agents (first-person farmers gets in connection within APMC mandi )

(3) Traders (from here it goes to the retailer, wholesaler, vendors etc. and at last reaches the customer)

(4) Transaction agents (approaches the farmer and informs him about the selling price of his produce, and charges at least 3-4% market fees from the farmer)

(5) Farmer

This whole process is not transparent, as in the farmer is totally aloof of the process as to how the price of his produce is fixed. By the time the product actually reaches the customer, there is at least a hike of 50% price from what is being paid to the farmer and about 25% of the total produce of the farmer is wasted. For instance, if an apple has reached a customer for Rs.50/- the farmer has got only Rs.5-7/- for it. The rest of the amount is eaten up by middlemen etc. Thus, this is the existing APMC system.

Now two flaws are patently seen in the system, first- who can become a trader? Since the whole AMPC is controlled by the State Government so much believed fact is that only those people who are politically inclined towards the government attain this position. Second- due to numerous middlemen, the consumer is buying the product at a much-inflated price and the farmer is left with no choice but to sell his produce at a low price.  

The APMC act was introduced with a purpose to do away with the exploitation of farmers in the hands of Zamindars and money lenders but with the passage of time, the Act itself has become a means to exploit the farmers. Most of the time, the traders form a cartel and refuse to buy the produce beyond MSP, on the other hand, the production of the farmer is perishable in nature and hence, he is bound to sell it at the lowest cost, quoted by traders. To increase the MSP, farmers of various states have appealed multiple times. Thus, the APMC Act has become counterproductive and failed to fulfil its purpose. Even if we do not come up with a new Farm Bill, still the APMC should be amended for the betterment of farmers. Additionally, the government must interfere a little less in the matters of agriculture to bring in reforms in the hands of private organisations. However, the new mechanism should be well equipped with the problems of the  21st century, such as if the export gets cancelled, who would bear the cost? What should be the consequence if the traders are buying produce in less than MSP?

Findings in the new Farm Bill

On the other hand, the newly passed farm bills will give farmers the freedom to trade across states and empower them to turn into traders of their own products and be in control of the process. The intent behind these three bills is that the new regulation will create an ecosystem where the farmers and traders will enjoy the freedom of choice of sale and purchase of agri-produce and promote barrier-free inter and intra-state trade and commerce outside the physical premises of markets notified under State Agricultural Produce Marketing legislations. Practice similar to the new farm bill has already been adopted by some states in India such as- Karnataka, Bihar and Maharashtra. These states have figured out a remedy of paying penalty for the foul on part of traders to buy produce lesser than MSP and also they talk about paying remuneration to farmers. The agriculture sector is pretty much monopolised, hence it is the need of the hour that the government should withdraw its involvement because a monopoly for that matter is not healthy for any sector. It is a well-established fact that monopoly benefits only a certain section of people and it eradicates fair play.

Why are some states exceptionally vociferous?

Moving on to see the disparity in the intensity of revolt in various states, for which we need to understand that post-independence, not all states have developed at the same level or at the same pace, hence, some states are referred to as rich states such as Maharashtra, Gujarat, Tamil Nadu and Karnataka whereas, some states are referred as poor states such as Punjab. Therefore, for the development of a particular state, the funds are partially raised by the state themselves and some amount is donated by the Centre.  But this donation is not equal for all states. Suppose, all the States and UTs in India pay Rs. 100/- to Centre, now centre after collecting this amount has to redistribute it while redistributing it will not return Rs. 100/- to each state rather some states may get Rs. 15 or Rs. 40 or Rs. 150, depending on their requirement to develop so if it’s a poor state it may get more than it contributes i.e. more than Rs. 100 and on the contrary a rich state may end up getting lesser than-what it contributed, in this example, less than Rs. 100/-

The amount unreturned from the Centre could have been used for the State’s own development. Now let us apply the same logic in agricultural income. For its development, a States relies on its own income and contribution from the state, but we have noticed that during redistribution some states get less than what they contribute, so the States has to fill the monetary gap created by the Centre. The unreturned amount could be used by the state in its rural development, keeping this in mind, let us see case by case analysis.

Say in Punjab, in turn only Rs. 40 comes in lieu of Rs. 100, but it does need funds to develop its state, for this purpose State levies taxes on mandis, this tax is highest in Punjab, for the current year its value was 1750 crore.

It must be noticed that the tax amount is obtained from the mandis but the new system talks about eradicating the mandi system and creating a sort of ecosystem and the tax levied will not be credited into the state’s piggy bank leading to sufferings in the state development. In 2015, Shanta Kumar Committee gave a finding, which said there are only 6% of the farmers who are actually receiving the benefit of MSP. 94% of the farmers are not even aware of the concept of MSP.    

More than half of all government procurement of wheat and paddy in the last five years has taken place in Punjab and Haryana, according to Agriculture Ministry data. More than 85% of wheat and paddy are grown in Punjab, and 75% in Haryana, is bought by the government at MSP rates. Farmers in these States fear that without MSPs, market prices will fall.

Deduction of power to make law on “Agriculture”

The Seventh Schedule of the Constitution contains entries upon which Centre, State or both together can make laws in relation to any issues (i.e. Union List, State List and Concurrent List). List II; Entry 14 of the Constitution specifically provides power to the State for making laws in any matter relating to agriculture. 

Now, on the other hand, the Constitution provides power to the Union under Article 248 to legislate any matter which is of the State List, in the National Interest. This Article breaks all the distinguishing powers and barriers given in List I, List II or List III and provides ultimate power to the Union for making any law in any respect if they ought to believe that it is in the national interest.

On the basis of my understanding, two questions remain unanswered: 1st, what are the criteria to calculate a matter to fall under National Interest and 2nd whether the constitution-makers, while inserting this Article wanted to shadow List II under the power of Union?  

Recently Union with the assent of the President passed the Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Bill, 2020, the Farmers (Empowerment and Protection) Agreement of Price Assurance and Farm Services Bill, 2020 and The Essential Commodities (Amendment) Bill 2020 by the use of Entry 33 in the Concurrent List. This is a clear example of the crossing lines and misuse of the power vested under Article 248 of the Constitution by ultimately weakening the power of the State to make law under List II on the matter relating to Agriculture by maintaining the supremacy of the Union to make laws over matters of Agriculture. In the past also by using Entry 33, List III, the Union passed the Essential Commodities Bill, 1955.

To conclude, the farm bills (now Acts) look beneficial on the face of the farmers but it will be fruitful at the cost of state development. Also, the farmers may not be able to sell their produce at MSP since it will not exist anymore. At the same time, the government must do something to educate the farmers regarding their rights and benefits. Farmer’s reforms and farmer development must not be limited to passing bills but letting it reach them too.

CISCO Lawsuit: Evidence of Indian-imported Casteism in Silicon Valley

[This is a post by Minnah Abraham, Contributing Editor and Shreya Singh, Contributing Member]

“There is one caste….the caste of humanity”

Dalits in India, the so-called untouchables, are always seen at the bottom of the caste hierarchy in India, which is stagnated and not fluid. Much after caste segregation being banned within the country, disparities and violent discriminatory practices have always been inflicted against Dalits and still continue at different levels.

A few months ago, a suit against CISCO, a multinational technology company in Silicon Valley in the USA by the California Department of Fair Employment and Housing (DFEH), ensued for the wrongful discrimination against a Dalit Indian, by two of his Indian-origin superior co-workers. The CISCO event received a lukewarm response from India and US alike, even so much as calling the whole affair as nonsense, leaving the complainant abashed for playing the victim. The Civil Rights Law, 1964 prohibits discrimination only on the basis of race, colour, sex, national origin and familial status. As this case is still under litigation, the California government is pushing to increase the scope of this Act and include ‘caste’ as a substantial issue in the US laws.

Stressing on the global issue of casteism affecting communities in Asia, Middle East, Africa and in various diaspora communities, the very caste-based discrimination and violence contravene the basic principles of universal human integrity and equality, for this concept differentiates between ‘inferior’ and ‘superior’ age-old categories, which is unacceptable in today’s world. When there is an apparent element of a sense of hierarchy or any sort of manifestation of caste, that deprives oneself of human dignity, this goes against the principles of upholding the human rights of persons belonging to ‘national or ethnic, religious minorities’ as recalled in Human Rights Resolution 2005/79. The annihilation and eradication of those practices will ensure people, a sense of unity and solidarity and gives them a humane way of living, relating to one another. 

A survey commissioned by Equality Labs, a South Asian- American human rights start-up on “Caste in the United States” statistically proved the significance of caste discrimination in American society. The survey resulted that two-third of members belonging to the lowest caste (Dalits) faced caste-based discrimination at their workplace in America. Scholar and social activist Suraj Yengde, working with a non-profit organisation in the US, argues that caste discrimination has been a part of the US since the 1980s and has hardly been addressed by the US media activists. He stated that “People have resisted in private and in public in their own ways. Even hiding one’s caste is a way of fighting caste.”

What happened in the case of CISCO, refers to ‘transnationalization’ of caste, or in simple words, importing casteism to the US. In the words of Paik, “caste distinction is deployed by Brahmins to frame their own merit and put down Dalits as people who do not make it to the merit list at IIT and are got in through ‘scheduled caste’ reservations.” In spite of abolishing the so-called ‘untouchables’ and the Dalit system, which stands lowest in the Indian caste hierarchy of Hindu communities and its practise has extensively prohibited under Article 17 of the Indian Constitution, it failed to stop this vicious cycle of violence. What is worrying is that the attacks have gone up manifold in the last decade, in spite of stringent laws and emergence of hidden stories on caste-based discrimination by Dalits Indian in light of CISCO lawsuit. As B.R Ambedkar, one of the founding fathers of the Indian Constitution and a great political leader once stated, “If Hindus migrate to other regions on earth, Indian Caste would be a world problem.”

The case of CISCO astonishingly brings to light how the Indian communities living, portrayed as educated and skilled in pursuit of the American dream, emphasising in reality, the deep-seated caste-based beliefs which they hold on to, are still undetected.

What can be done?

The questions come to the mind as to how India has failed to implement stringent changes in abolishing the casteism fever which has shamelessly has spread to other nations; Is it the lack of proper implementation of rule of law towards holding the wrongful accountable, inability to understand the transcendence of morality above the particularities of politics play and respect toward a legitimate democracy, legally holding all the stakeholders, ranging from any persons of caste, creed, gender, and religion to persons holding positions, be it government officials, elected party leaders, corporate entities answerable to the laws of the country, accountable to each and every one of the Indian citizens. 

Thirty years have gone past since the Mandal Commission recommended inclusive changes towards the eradication of caste discrimination and recognizing the socially and economically backward classes. One of the most popular recommendations of the Mandal commission report, which still exists today, is the well-debated Reservation Policy in public/government jobs as well as educational institutions. Upon elaborating the report, one might come to a conclusion, not much of the effective inclusive strategies were brought into implementation. Listed below are the notable ones that could still be brought into the light, not to forget the farmers’ bills which, of course, resulted in angst and dissatisfaction among the farmer’s society. 

1. The financial assistance to the Agricultural sector  – As most fall in this category consisting of village artisans (skilled/unskilled), landholders, tenants and labourers, it is essential to introduce policies to ensure the concerned Dalit community is able to participate in the fast-paced economy, with the provision of support and financial incentives

2. Creation of employment in the Private sector for youth from backward classes – It is imperative to revive the private sector and manufacturing units to attract the youth towards employment positions rendering them a potential advantage towards growth. This, on the other hand, will lessen demand for job creation in the public and government sector.

International EU laws have another way of tackling the discriminatory practice, knowns as the principle of subsidiarity which amazingly calls for community-wide inclusive measures ensuring the minimum protection standards set against the practice of discrimination in all Member States. This extends not just in the employment sector, but in the healthcare, social sector and education. Recognising and implementing the practice of equal treatment, especially in the work sector, affirming European Commission’sRenewed Social Agenda: Opportunities, Access and Solidarity’, where each person in the society, irrespective of differences is seen as being of equal standing, without any interference from discrimination of any sort of perception of artificial barriers, which often holds oneself to take a step back and depriving the rightfully inherent opportunities. 

It is a peremptory time to consider the consequences of not paying attention to casteism reflected in the society within India and its spread toward neighbouring countries. This can render an opportunity to bring forth institutions, collaborations, nationally and internationally to work toward achieving a respectable community at global level, leaving the next generation without having to fear being able to express or practise at his/her own accord. 

Concluding remarks

The CISCO case has been filed under Title VII of the Civil Rights Act, 1964 which prohibits discrimination only on the basis of race, colour, religion, sex and national status. Unfortunately, this doesn’t address the issue regarding caste discrimination. However, California’s Fair Employment and Housing Act (FEHA) mentions the prohibition of bias based on ancestry which can open gates for interpretation by the court and include caste-based discrimination. This can be a ray of hope to the Dalit community living in the US and help them break the shackles and escape from this nightmare.  

In order for the Dalit community to cope up with these societal drawbacks, it is necessary to sensitise the public and spread awareness about the existence of caste-based discrimination in the American workspace. Corporates and non-profits in the US, especially tech companies which recruit South Asians at a large scale must have an understanding of Caste in general. There should be regular training organised for the Human Resources Department to address issues related to different levels of Caste Discrimination in American companies with South Asian employees.  

The existence of the Indian caste system is not recognized in the US and therefore, it’s not written in the US laws to prohibit caste-based discrimination. This gives the opportunity to Indian communities, who have transported to the US to exploit the very system, Indian founding fathers of Constitution are seeking to protect and eradicate the ancient notions of a hierarchical society. Although the discriminatory notions of racisms and casteism, which seeks to dignity, based e, colour, gender and hierarchical classes have a long way to go across the nations, the lawsuit against CISCO can set a precedent. This unfolding of events can act as a catalyst to bring an awareness of caste-based discrimination and how a perfectly structured modern, rational, and educated people are prone to slipping to old ways. 

A question arose in my mind while reading this article, i.e. when the claimed condition of Dalits in their native country is not so well, how can we expect another nation altogether to treat them well? If possible, highlight more on the fact that how the Indian state is not reacting to something like this.

A Diaphanous upon Constituent Assembly- II: In Purview of Women in Politics and their Remembrance

[This is a post by Diksha Dadu, Contributing Member]

In my previous article, I discussed the position of women in the Constituent Assembly and their attributes that led to the formation and participation of more women in politics and leadership roles thereof. Further, I also highlighted vital reforms brought about by the women while building our Constitution from scratch. In this article, I will be jotting down in continuance of the previous writing, the various reforms especially by the women and for the women which led to a structural and equally built political and constitutional structure in recent times. 

Abolition of Women Trafficking and Unequal Societal Norms and its Critiques thereof

“The average woman in this country has suffered now for centuries from inequalities heaped upon her by laws, customs and practices of people who have fallen from the heights of that civilisation of which we are all so proud, and in praise of which Dr Sir S. Radhakrishnan has always spoken”, argued Shrimati Hansa Mehta while criticising purdah system and women trafficking in Indian social norms. She was against the purdah system as women were confined within the four walls of their homes and were restricted to follow a certain social norm, therefore, she strongly opined for a better living in terms of societal norms and cultural ethnicity including a better standard of living for women. Since independence, the Indian women have been reduced to such a state of helplessness that she has become easy prey of those who wish to exploit in certain situations like giving dowry in a wedding, forceful marriages against the will of the women, and objections when women wanted to work. These situations were predominant post-independence and it was very difficult for women to take their stand and speak against the will of their families. Therefore, the women leaders in the Constituent Assembly voiced their opinion through debates and speeches for the abolition of such a system. She, further, debated over equality and proper state of living for Indian women who were forced into marriage and even forced into not remarrying if their husband dies.

“I may tell you, and I may draw your attention that no wife, no mother is feeling secure; And they are not sure when their husbands would come back, whether they would return home or not. Also, the menfolk, when they go out, are not quite sure by the time they return home, whether the wife or the daughters are safe there in the house.” 

That is the position, opined Shrimati G. Durgabai while pointing fingers towards the state and role of the state in protection of women. She believed that women are not safe inside and outside their houses because of the conventional approaches in society such as the dowry system, devadasi system and purdah system. She, however, supported the ideology of Mr Pandit Thakur Das Bhargava and argued extensively that such norms should be reviewed and women should be given equal and equitable status as men, for men and women are humans and humanity is the greatest work of God. 

However, it is pertinent to note that at times women took no interest whatsoever for voicing up their opinion on such vital constitutional matters themselves. Amongst the others, some important and abhorrent acts were domestic violence, dowry system, prostitution and devadasi system. It could be because of the patriarchal societal norms which restricted them from voicing their opinion and led them to live a cattle life. In this regard, the discussion about the amendment moved by K.T. Shah to draft Article 17 (Presently Article 23) on trafficking in human beings is worth noting. He observed:

“That in clause (1) of Article 17, for the words `Traffic in human beings and beggar’, the words `Traffic in human beings or their dedication in the name of religion to be Devadasis or be subject to other forms of enslavement and degradation and beggar’ be substituted.”

However, one of the women members expressed her reluctance for having such an amendment on the ground that the practice of Devadasi system had been made illegal in the State of Madras. Similarly, T. T. Krishnamachari launched a scathing attack on Shah’s suggestion by observing and pointing out that fundamental rights which are already incorporated in the constitution must be used as a strict action and must not be abused and action must be set up. 

“…. If those abuses are such where vested interests are likely to seek perpetuation of those abuses, well, I think we have to provide against them, but if public opinion is sufficiently mobilized against those abuses, I do not think we ought to put a blot on the fair name of India, possibly, by enacting in our constitution a ban on such abuses. …and do not try to import into these fundamental rights age-old peculiarities of ours that still persist, bad as they are in particular parts of society which can be made to disappear by suitable legislation in due course, perhaps in two, three or four years….”, reiterated T. T. Krishnamachari.

Therefore, if we look at the above excerpts from the past closely we will be able to derive two bold viewpoints. Firstly, the framers in the assembly who were against dowry practice and other such societal norms which gave women a secondary position in society. Secondly, the framers who believed that women should be associated with household chores and men with the outside work, and that purdah system made them respectable. One of the notable women for this approach was Begum Aizaz Rasu who criticised reservation for any particular sect yet agreed with Dr Ambedkar that it is for the majority to realise its duty not to discriminate against any minority. She believed that equality must prevail at all times and citizens, irrespective of men or women should be fully aware of their responsibilities and to evolve a system best suited to the needs, requirements, culture and genius of the people living here. Furthermore, it is essential to throw some light upon her closing remarks during the constituent Assembly Debate of 31 July 1947 wherein she instilled a sense of pride and respect while referring her speech to Dr B.R Ambedkar’s ideology as:

“Sir, as a woman, I have very great satisfaction in the fact that no discrimination will be made on account of sex. It is in the fitness of things that such a provision should have been made in the Draft Constitution, and I am sure women can look forward to equality of opportunity under the new Constitution. We feel that our interests are absolutely identical with those of the majority, and expect that the majority would deal justly and fairly with all minorities. At the same time, as has been pointed out by some honourable Members in their speeches, reservation of seats for minorities in the Services is a very essential thing and I hope that the members of this House will consider it when we deal with that question.”

Concluding Remarks

“Equal right is a great thing and it is only fitting that it has been included in the Constitution. People outside have been saying that India did not give equal rights to her women. Now we can say that when the Indian people themselves framed their Constitution they have given rights to women equal with every other citizen of the country”, stated Shrimati Ammu Swaminathan.

However, even in present time women around the world at every socio-political level find themselves under-represented in parliament and far removed from decision-making levels which can be seen by looking at the ratio of female judges in the Hon’ble Supreme Court of India. Even today the political or the public field is uneven and not conducive to women’s participation. Throughout the world, women face obstacles to their participation in politics and barriers are to be found in prevailing social and economic regimes, as well as in existing political structures in India.

Moreover, Indian politics advertises women from a particular political background which is the primary reason among others as to why most of the women are unwilling to engage in the election system. Their proportion in the Parliament, as well as State Legislatures and other top political hierarchies, is not very significant and their participation in politics as voters, candidates, campaigners and office-holders in political parties, on an equal footing with men, remains a dream.

Infusing Personal Laws with modern times: Reconsidering ‘Narasu Appa Mali’ case

In this blog post, I will be discussing the need to reconsider the 1951 judgment of Bombay High Court in State of Bombay v. Narasu Appa Mali (‘Narasu’) where justices Chagla and Gajendragadkar held that uncodified personal laws cannot be tested on the touchstone of fundamental rights guaranteed under Part III of the Indian Constitution. By doing so the Court protected the ‘regressive practices’ from the strict scrutiny and technically, the Court held that these personal laws are above the Constitution (as there cannot be any rights-based challenge) and above the enacted laws made by the democratically elected governments (which could be challenged under Article 13).

The Ghost of Narasu

Ms Indira Jaising, Sr. Advocate termed the judgment of Narasu as a Ghost which still haunts us till date, not for good reasons. In the case of Narasu, the court was considering the Hindu Bigamous Marriages Act 1951 as it was contended that it violates the fundamental rights of the citizens as it discriminates between Hindus and Muslims in cases of polygamy (as per the Law the Hindus were prohibited and criminalised from marrying more than one wife, whereas the Muslims were still allowed to do so). The law was upheld by the Court as it was a ‘liberal, progressive law’ which aimed to eradicate and punish the social evil. Justice Chagla observed in Paragraph 11:

The Hindu Bigamous Marriages Act is attempting to bring amount social reform is a community which has looked upon polygamy as not an evil institution, but fully justified by its religion. It is also introducing this measure of social reform in a community where the women have looked upon their husbands with reverence and respect.

The problem is not with the decision itself, but with the reasoning deployed by the Court in reaching the conclusion— by holding that all personal laws are protected from any challenge under Part III (Fundamental Rights), which in turn safeguarded the regressive religious practices indefinitely (unless a law is made by the Parliament). As Chintan Chandrachud states in his book: “if and when personal law was codified by the democratically elected legislature, that would be subjected to greater judicial scrutiny than uncodified personal law lacking democratic sanction”. The Court’s idea of ‘personal laws’ is based on colonial jurisprudence. Warren Hastings plan of 1772 (Article XXIII of the plan) provided that the Quran would apply to Muslims and Shastra(s) would apply to Hindus. This led to the rigidity of religious identities and led to polarisation. The Brahmins and Qazis were called to adjudicate the disputes and to interpret the holy texts which led to contradictory interpretations and in the words of Flavia Agnes (in Oxford Handbook on the Indian Constitution), it led to ‘Brahminisation and Islaminisation of laws’. The effect of the judgment can be seen in various cases it like the judgment of Shri Krishna Singh v. Mathura Ahir(1979) wherein the Court refused to permit a Dalit to become a sanyasi. The Court, unfortunately, held that personal laws cannot be infused with the concept of modern times but they are to be interpreted and enforced as inscribed in religious scriptures and commentaries (Paragraph 31).

Exorcism of Narasu

The Court got many opportunities to overrule the judgment of Narasu. But it has lost many chances and sometimes sidestepped from going into the decision. The court has done so ‘by holding that a practice claimed to be personal law has in fact been codified by statute’. The Court did so in Shayara Bano v. Union of India (2015) wherein the Court held Triple Talaq (Talaq-e-biddat) to be unconstitutional but refused to consider the practice as a part of uncodified ‘personal laws’. Instead of that Justice Nariman held that the practice has been codified in the Shariat Act which can be reviewed by the Court under Article 13. Although Justice Nariman doubted the decision of Narasu (Paragraph 71). The decision of Narasu undermines the Constitution’s transformative nature which aims to eradicate the social evils and transform the society. The liberty of the individuals must not be taken away in the garb of personal laws and it is important to note what Dr Ambedkar said in Parliament on true nature of liberty:

“What are we having this liberty for? We are having this liberty in order to reform our social system, which is so full of inequities, so full of inequalities, discriminations and other things, which conflict with our fundamental rights.”

After Shayara Bano, Justice Chandrachud in his exceptional judgment (Sabarimala Judgment) noted that personal laws either codified or not cannot detract ‘from the notion that no body of practices can claim supremacy over the Constitution and its vision of ensuring the sanctity of dignity, liberty and equality’ (paragraph 101). If we treat personal laws (uncodified) different from the codified personal laws and make them immune from any rights-based challenge, then it undermines the supremacy of the Constitution. Any personal law which contravenes the equality clauses of the Constitution or any other provision must be ultra vires because in a Constitutional Democracy there is no space for regressive, constitutionally immoral and ancient laws. Interesting in 1996, in the case of Masilamani Mudaliar v. The Idol of Swaminathaswami Thirukoli the Supreme Court observed that any personal law which treats women as inferior is ‘anathema to equality’.

On personal laws, eminent jurist HM Seervai in his commentary on Constitutional Law notes that:

“There is no difference between the expression “existing law” and “law in force” and consequently, personal law would be “existing law” and “law in forcecustom, usage and statutory law are so inextricably mixed up in personal law that it would be difficult to ascertain the residue of personal law outside them.

Any law whether statutory, uncodified or codified personal law which treats any individual as inferior dilutes the bridge between the rights guaranteed by the Constitution and the self-realisation of those rights by the individuals. As per Justice Chandrachud in Sabarimala, the individual liberties must be recognised as ‘the basic unit of the Constitution’ and this requires that ‘existing structures and laws be viewed from the prism of individual dignity’ (paragraph 100). But even after casting a doubt on the ‘legality’ on Narasu in the Sabarimala case, the Court did not overrule the Narasu judgment explicitly and it remains good in law (symbolically and legally). One category of law, uncodified personal law, is effectively above the Constitution- unfortunately- and the victim(s) of such laws does not have any recourse whatsoever despite having guaranteed rights.

Hope for overruling Narasu

The reasons for overruling Narasu are compelling. The Constitution is a transformative document made for the revival of the society from the various clutches that hold it back. Many times, these personal laws infringe upon the rights of the individuals, in turn holding them from better opportunities which allow an individual to attain liberation (from the oppression of society) and live a dignified life with ‘positive social relationships’.

The Court has observed in Navtej Singh Johar v. Union of India in Paragraph 95: “the purpose of having a Constitution is to transform the society for the better and this objective is the fundamental pillar of transformative constitutionalism.” The Constitution is structured in a manner wherein it becomes important to realise the needs of changing society to keep itself practical, dynamic and vibrant. The Indian Constitution emerged in the light of historical struggle based on polarisation, discrimination, unequal treatment, lack of opportunities and undemocratic societal setup. Hence, it becomes the task of the Courts to interpret the ‘laws’, whether personal or codified, in a way which cherishes the dignity of all citizens and in the light of the fundamental values enshrined in the Constitution because these personal laws/custom/values of the society affect individual behaviour. Immunising these personal laws from judicial scrutiny will undermine the authority of the Constitution (J. Chandrachud in Sabarimala in Paragraph 99). There is a desideratum to recognise the importance to bring forth these changes and it requires judicial wisdom and political appetite.

 The judgment of Narasu was decided at a time (1951) when the societal conditions were different and it must only be read in the context of that time. But legally, interpretation of the Bombay High Court is wrong and it still haunts us today! To conclude, in the words of Chintan Chandrachud,

Even the most distinguished judges are prone to error. The greater error lies in the failure to make course corrections despite ample opportunity.” (Page 146)

Therefore, for the reasons stated above, the State of Bombay v. Narasu Appa Mali must be overruled.

The ‘Essentiality’ of the Essential Religious Practice Test: A Constitutional Paradox?

[This is a post by Panya Mathur, Contributing Editor]

In my previous article on this blog, I discussed the conflict between the concept of Right to Religion as well as Right to Equality as enshrined under the Constitution of India (here). In this article, I will be discussing the ‘Doctrine of Essential Religious Practices’ and its evolution through the various judgements of the Supreme Court of India in the last decade. I will also be discussing the relevance and applicability of the doctrine with respect to Article 13 and Article 17 of the Constitution of India. 

Understanding the Essential Religious Practice Test

The Essential religious practice test is a contentious doctrine that has been evolved by the Apex court of our country to protect and preserve only such religious practices which were essential and integral to the founding beliefs of any religion. However, it is pertinent to point out that the concept of Essential Religious Practice Test (“ERP Test”) is not expressly mentioned in the Constitution of India, but has been developed as a result of judicial activism which was necessitated by the changing perceptions and beliefs of the citizens. Irrespective of having a well-defined provision on freedom of religion under Article 25 of the Constitution of India which is only subject to the exceptions of public order, health and morality, the judicial development of the ERP adds a certain amount of subjectivity and ambiguity to the interpretation of freedom of religion. 

Whether a practice is essential to a religion or not must be said about that religion and not what the Court opines. This is because in a question with relation to religious practices, it may not be open to the court to resolve the dispute by blindly applying some religious formula. Even though in certain cases the Court might be the final authority formalising the said practice as essential, it has to place a deep enquiry into the very tenets of the religion and must ensure that the Constitutional Fabric that exists in the country protecting religions is maintained.

In the words of the renowned legal scholar Dr. Ronojoy Sen,

“The role of the Court in determining what constitutes a religion and essential religious practice has remained undiminished since the formative years of this doctrine. Subsequent rulings have built on case law but hardly ever reconsidered the doctrine of essential practices.”

The doctrine of “essentiality” was primarily invented by a seven-judge Bench of the Supreme Court of India, in the case of Hindu Religious Endowments Madras v. Sri Lakshmindru Thirtha Swamiar of Sri Shirur Mutt (‘Shirur Mutt’) in 1954 to clarify the Court’s position in this aspect. The Court, in this case, held that the term “religion” must cover all rituals and practices that are “integral” to any religion, and the court went a step further and took upon itself the responsibility of determining the essential and non-essential practices of the religion as well as its ambit.  The same year, Justice Mukherjee in the case of Ratilal Panachand v. State of Bombay, firmly held that the religious groups that have been given protection under Article 26(b) have autonomy in matters of religion and that no secular authority, even the Apex Court does not possess the right to declare a practice as a non-essential part of religion. Interestingly enough, in 1953 i.e. prior to the Shirur Mutt case and the Ratilal case, the Supreme Court in Saraswathi Ammal and Another v. Rajgopal Ammal made a starkly anachronistic comment in this respect,

“To the extent that any purpose is claimed to be a valid one for perpetual dedication on the ground of religious merit though lacking in public benefit, it must be shown to have a Shastraic basis so far as Hindus are concerned. The heads of religious purposes determined by a belief in the acquisition of religious merit cannot be allowed to be widely enlarged consistently with public policy and needs of modern society.”

This debate was once again revived after nearly 4 decades, in the public discourse when the Rajasthan High Court, in a widely criticized and desisted judgment, pronounced a religious practice of the Jain community as illegal and immoral, as the Bench strongly believed that the practice amounted to an act of self-destruction by the followers of the religion. The case, Nikhil Soni vs. Union of India , examined the Jain practice of Santhara or Sallekhana which involves a fast until death, traditionally undertaken at a time when the body of the said individual is unable to serve the purpose of life and is unable to cope with the responsibilities that come with being alive, in order to attain Moksha or salvation. 

Sabarimala Judgment and ERP Test

After the Judgement in Nikhil Soni by Rajasthan High Court, the Supreme Court intended to settle the debate once and for all in the case of Indian Young Lawyers Association v. the State of Kerala, popularly known as the Sabrimala Judgement, but only confused the citizens further. The ERP Test, in this case, however, has been consistently applied by the Supreme Court in a very inconsistent and spurn manner. The phrase “essential religious practice” rather than being construed objectively,  was determined at the whims and fancies of the Bench.

However, in this respect, it is pertinent to note that as per Article 13(3) of the Constitution of India, the term “law” includes “customs and usages having the force of law”. Justice Chandrachud, while refuting judgement of Narasu Appa Mali in the Sabrimala judgment, firmly stated that the definition of “law” under Article 13(3) is an inclusive definition in its true sense and it would be insensitive to put a rigid and restrictive interpretation upon terms of wider denotation. The definition of the term “custom” according to Hindu Law has been “Any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law…in any local area, tribe, community, group or family, if it is certain and not unreasonable or opposed to public policy. Since a religious practice is essentially one that has to be held in faith, any restriction placed on religious practice, is primarily not absolute in nature and is done so to protect the character and nature of the religion therein, due to continuous practice since times immemorial and thus, the same has gained the qualities of custom and falls under the Exception given under Article 13.

 It has been noted by this very Court in the case of Durgah Committee, Ajmer v. Sayed Hussain Ali, that,

“To strike a note of caution, in order that the practice in question should be treated as part of religion, capable of being protected under Art. 26, it must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices which are not an essential or an integral part of religion apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Art. 26. Similarly, even practises though religious may have sprung from merely superstitious belief and may in that sense be extraneous and unessential accretions to religion itself. Unless such practices are found to constitute an essential and integral part of a religion their claim for protection under Art. 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other.”

On the other hand, Article 17 of the Constitution of India, states that “Untouchability‘ is abolished and its practice is forbidden. The enforcement of any disability arising out of ‘Untouchability’ shall be an offence punishable in accordance with law.”  In the book Competing Equalities- Law of backward classes in India , the learned author states that,

“The courts have indicated that Untouchability does not include all instances in which a person is treated unclean and is a source of pollution. It does not include such temporary and explicable states of pollution suffered by e.g. women on child birth, menstruating women, moaners, persons with contagious diseases, person who eat forbidden food or violate prescribed cleanliness…Nor does it refer to situational or relative purity such as that between ordinary worshipper or priest or temple attendant…Thus, untouchability is confined to disabilities imposed upon groups commonly regarded as “untouchables” and its meaning is to be determined by reference to those who have seen no easier definition for untouchables than to define untouchability.

However, in the case of Sri Venkataramana Devaru v. State of Mysore, the Hon’ble court held that a fundamental difference between excluding persons from temples open for purposes of worship of the Hindu public in general on the ground that they belong to excluded communities and excluding persons from denominational temples on the ground that they are not objects within the benefit of the foundation of the temple. Thus, the former shall be hit by Article 17 and the latter shall be protected by Article 26, which can be construed to mean that an Essential Religious Practice cannot be brought under the ambit of the Article 17 of the Constitution of India, unless it’s a glaring violation of the same. The Hon’ble Supreme Court of India through the course of its judgements over the past decade seems to have intertwined multiple constitutional values and concepts to accommodate the facts of each case.

However, this has led to confusion and a lack of uniformity in the application of the Essential Religious Practices Doctrine. While it was widely contested whether the court had the mandate to interpret religious practices, the Supreme Court of India has held that  irrespective of a religious practice being essential or not, the constitutional values will and should prevail over essential and certain aspects of religion and the constitutional scheme should remain intact.