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. 

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The Right to Information and Abrogation of Article 370

[This is a post by Suvechha Sarkar, Contributing Member. Her previous post on ‘disastrous effect of lockdown and abrogation of Article 370’ can be accessed here.]

Introduction

The erstwhile state of Jammu and Kashmir, one of the northern states of India, which was considered as a State until 2019 was reorganised into a Union Territory. The living conditions along with the rights of the residents of Jammu and Kashmir has been under major threat from the day of the removal of its autonomous position as a ‘state’. Apart from the violation of certain Human Rights, one of the most important fundamental rights of the Indian Citizens, to hold the administration accountable is also being infringed there. It was none other than the Right to Information which falls under Article 19(1) of the Indian Constitution.

Right to Information and the Constitution of India

The Right to Information is a part of  Article 19(1) which states that every citizen has Freedom of speech and expression. It has been a topic of hot debate whether or not the Right to Information falls under the ‘speech and expression’. In the year 1976, in the case of the State of Uttar Pradesh v. Raj Narain, the Supreme Court stated in its judgement that it is not possible for people to express or speak up if they do not know about what is happening around them properly and thus it falls under the provisions of Article 19. (further, refer to S.P. Gupta v. Union of India) Though there were no particular provisions in the Constitution stating it as the Fundamental Right, on the 13th of October, 2005, the Right to Information Act was brought into effect.

To illustrate the Act, if we ever go to a government office and ask for the information of their working, they would certainly not provide us with it, and would rather ask one to see their way out. If we want to exercise our right to information, then the right needs to be laid down in the law (RTI Act). After the introduction of the RTI Act, the citizens can claim the information legally, even with the help of the judiciary (in an appeal if the appellate authority rejects to provide the asked information). Before the RTI Act was introduced, many other states had by then passed the Act. The states were namely: Jammu and Kashmir, Delhi, Rajasthan, Madhya Pradesh, Maharashtra, Karnataka, Tamil Nadu, Assam and Goa.

The rights which were listed under the Acts mainly consisted of:

  1. Right to Information
  2. Seek any kind of information from the government bodies
  3. Receive copies of governmental documents
  4. Do an inspection of the works done by the government.

The Jammu Kashmir Right to Information Act, 2009

The first Right to Information Act (State Act) was enacted on 7th January 2004 in Jammu and Kashmir. The main focus of the Act was to gain information from the government alongside the Government records. This Act was repealed and replaced further by the Right to Information Act of 2008 and finally by the Jammu and Kashmir Act of 2009. The 2009 RTI Act of Jammu and Kashmir fell under the election campaigns of Omar Abdullah. After he came to power, a draft of the Act was introduced and the Bill was finally passed on 12th March. 

The Act  stated as undermentioned:

6. Request for obtaining information. – (1) A person, who desires to obtain any information under the Act, shall make a request in writing or through electronic means in English, Urdu or Hindi accompanying such fee as may be prescribed, to –

(a) the Public Information Officer of the concerned public authority;

(b) the Assistant Public Information Officer, specifying the particulars of the information sought by him or her.”

The Right to Information Act of 2005 by the Central Government was not applicable to the state of Jammu and Kashmir. The state’s Act ultimately provided the activists, civil society groups and the advocates of transparency and accountability with RTI 2009. The then Jammu and Kashmir Government had taken this as a part of their electoral promise. Information could be sought by the residents of the state in the form of large size paper copies, floppy disks, compact discs and many more, by paying a certain amount of fees. This was how the Right to Information Act was being brought to use in the erstwhile state of Jammu and Kashmir.

Abrogation of Article 370 and effect on RTI

The state RTI Act clearly states that a person who desires any kind of information as listed under the Act, he or she can seek for the following by the means of internet (‘through the electronic mode’) or in written form. Prior to the abrogation of Article 370 on 5th August, curfew under Section 144 of the Indian Penal Code (with essential services cut down), was being imposed in various parts of the state, especially in the Kashmir Valley. It was after this situation that many of the Indian Media started complaining that they were unable to receive any information from the Kashmir Valley despite their several reasonable attempts as the internet services were completely stopped in the valley except in the government working offices for carrying out their respective tasks. 

The Committee to Protect Journalists (CPJ) informed that one of the local journalists, who was also an editor of a news website-The Kashmiriyat Walla, was arrested by the Kashmiri Police under no specific charges. The Press release was completely stopped and there were various other instances where editors of various newspapers were being arrested without unspecific charges and put under unlawful detention. However, the news channel Indian Times Now stated that their channel did not find much of a restriction, which is really surprising as other news channels and individuals were totally cut off from the valley. Several other Indian Media Reporters, outside Kashmir, claimed that they were unable to get any information from the Muslim majority areas in Kashmir except for a few blocks (as reported by Reuters here). 

The curtailment of the freedom of speech and expression by the government and thus taking away the right to get information from the residents of the state has led to the ‘questioning of the idea of democracy’ in the Indian Constitution because the Right to Information is inherently mentioned in the text of Article 19(1)(a) of the Indian Constitution (see Swapnil Tripathy v. Supreme Court of India and Anuradha Bhasin v. Union of India) and the violation of which would obviously make the citizens question it. Many appeals and complaints were being filed not only before the judiciary but also before the State Information Commission but there were no fruits.

Conclusion

The Right to Information has been recognized by the judiciary as a fundamental right under the Freedom of Speech and Expression. In the age where the whole world is solely dependent on the information from the media, its value can be easily associated with the socio-cultural, economic and political development of a country like India. The Right to information is important because it is at present the basis of the development. The right to know something is also closely related to the Right to Education as stated under the Article 21-A of the Indian Constitution. Thus, the following right should be attributed to every citizen as it is a part of personal liberty and it is essential to form an informed opinion. The access to information should be equated and kept into account that it is guaranteed and treated as a norm (and not an exception). As in the case of Jammu and Kashmir, the rest of the country should raise their voice and every ounce of information must be circulated thoroughly so that the drastic condition of the residents comes into notice of the whole world. For it is always said, “unity is the strength of India”. The Right to Information should aim at providing transparency of the administration as well as public life.

Social Media and Right to Privacy

[This is a post by Raksha Tripathy, Columnist]

People like to express themselves, and are curious about other people.” -John Cassidy

Introduction

Justice Louis Brandeis of the United States Supreme Court gave one of the earliest meanings of privacy as an individual’s right to be left alone.” The Black Law Dictionary defines ‘Right to Privacy’ as, “The right to be left alone without intrusion or interference by the government into personal affairs.” 

Article 12 of the Universal Declaration of Human Rights (UDHR), 1948 enunciated privacy right as,

“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

India is a signatory to UDHR which mandates our country to take steps in enacting laws to grant this right to privacy and ensure the protection of its citizens.  

The social networking sites (SNS) have become an essential part of our lives which is evident by the number of users who are a part of it. It has provided a platform to enhance skills, knowledge and is creating tools for one’s interest. The freedom to post personal information without rational judgement has paved the way for online predators to access the information maliciously. Along with such freedom brings privacy concerns.

Right to Privacy as a Fundamental Right

The question of privacy as a right was presented before the Court in MP Sharma v Satish Chandra back in 1954 where the power of search and seizure was held not to be one’s privacy violation, and the bench held that Right to Privacy is not a fundamental right. In the case of Kharak Singh, the validity of Right to Privacy as a fundamental right was raised which was dismissed by the majority of judges saying, “Our Constitution does not in terms confer any like constitutional guarantee.” However, one of the judges, Justice Subba Rao in his dissenting opinion said that,

“…Further, the right to personal liberty takes in not only a right to be free from restrictions placed on his movements but also free from encroachments on his private life. It is true our Constitution does not expressly declare a right to privacy as a Fundamental Right, but the said right is an essential ingredient of personal liberty. Every democratic country sanctifies domestic life…”

The Right to Privacy was a debatable topic in India. However, it was in K.S Puttaswamy v Union of India where it was considered as a fundamental right under Article 21 of the Indian Constitution as an integral part of “personal liberty” enshrined under Part III of the Constitution. In 2017, the nine-judge bench of the Supreme Court gave this landmark judgment despite strong encountering arguments which stated that only a minuscule portion of the population is affected by the right to privacy; and it is an elitist construct. The opposition also contended that ‘Right to Privacy’ is a common law right but not a fundamental right and constitutional debates rejected privacy as a fundamental right.

Social Media and Privacy Breach

An SNS profile acts like an individual’s online personality or digital personality. It can create and bring content similar to a person’s interest and personal life. It also displays recommendation of events, contents, discussions based on the personal information which is quite vulnerable to a privacy breach. The Facebook data leak which affected 50 million users in which information like phone numbers, emails, and other details was compromised. These stolen data can be used as phishing mails to know an individual’s preferences, text messages or calls can be used maliciously along with other information. India was recorded as the second most affected country due to cyber-attacks which made Indian companies at a high risk of cyber-attacks to opt for cyber insurance policies. 

The data leak of February 2019, where Aadhar details of over 6.7 million users containing sensitive data like addresses, numbers, etc were leaked on Indane’s website. The JustDial data breach affected 100 million users, and the personal information of these users was uploaded on unprotected servers which included names, numbers and addresses. It did not only affect those using the JustDial app but even those who called the helpline of the company between 2015-2019. Another data leak of Facebook and Twitter users in November 2019 where emails ID, username and tweets were leaked by malicious apps and was confirmed by India’s cybersecurity watchdog, CERT-In. 

Indians are at a higher risk of a data breach as they comprise of more active users on social media platforms and tend to give away personal information easily as compared to other users in the markets. The careless approach, lax rules and regulations for app developers have added more to the violation of this right. “App permissions and the way app developers and owners seek permissions from users before the latter download apps vary with locations,” said Sivarama Krishnan, cybersecurity leader, India, at PwC. 

“Privacy regulations in Europe, Singapore and other markets compel app owners to seek explicit and more specific approvals from users who can be more discerning while in India they take a blanket approval. Because of this, the risks could be higher in India,” he said.
The Cambridge Analytica data breach controversy questions about how much data does Facebook and other social media platforms have because, unlike other countries where companies like Cambridge Analytica need a proper framework of collecting data. There is no such thing in India where over 90% of messages, photographs, and other updates are in the public domain making the users of India an easy target of data and privacy breach. The permission of expressly giving the contacts on the phone and other related information of the user is something we need to look into. 

In a Special Leave Petition 804/2017, where two students challenged WhatsApp’s new privacy policy famously known as, “Whatsapp Case. It happened post-WhatsApp was acquired by Facebook in February 2014. The students claimed Whatsapp divulges data of the users to Facebook, which violates Right to Privacy. Following the Cambridge Analytica fiasco, the CEO of Facebook Mark Zuckerberg back in April 2018 admitted that the company had not done enough to protect the privacy of 2.2 billion users’ data and is committed to safeguarding users’ data. However, data leaks continued in the following years, which was not just limited to Facebook, but other social media platforms such as Twitter. 

The huge controversy broke out when the Government introduced the Aadhar Scheme in which biometric and demographic data of the cardholders were collected and compiled for benefits like the Public Distribution System, Jan Dhan, etc. and later made Aadhaar cards mandatory for the public and private purposes. The Court dismissed this case on the grounds that minimal data was collected in the enrolment process. However, such data collection is at risk of leak and malicious use as the technological advancement in the country is not up to a certain mark where it can protect the data so compiled from hackers and others. This can be easily observed in the SBI data leak, the largest bank of India which had secured information of millions of its customers on an unprotected server without a password which compromised information like bank balances, recent transactions, etc. of the customers.

Conclusion

The Information Technology Act, 2000 has provisions such as Section 43, 66, 66F and 67, which protect user’s privacy. However, the absence of a data protection law to seek legal protection of such breach makes the matter worse in a country like India, which has the highest number of Android users in the global markets. If a data breach happens in India, it indeed amounts to the violation of Right to privacy enshrined in Article 21 of the Indian Constitution. The Indian users of such social media platforms do not have any legal recourse in case of data and privacy breach, whereas in other markets, such companies are susceptible to fines. Since it is an enormous liability of companies to afford fines which can go up to their annual turnover, and they take the security of such users in other markets more seriously than in India. The citizens themselves consider privacy as an elitist concept and pay the least attention to it.

We have a long way to go in terms of holding this right as a supreme right like other fundamental rights. The K.S Puttaswamy v Union of India has already left a footprint in other judgments such as the constitutionality of the Aadhar scheme and will be seen in future for the creation of data protection and prevention of data breach laws.

 

Indian Federal Structure: An Umbilical Cord between Centre and State

In this post, I will be analysing the Indian Federal Structure. The structure of the Indian Constitution is so unique that it is impossible to describe it in simple terms. Here, I will try to go through various Constituent Assembly debates and scholarly views to conclude the real ‘character of the Indian Federal Structure’.

“Personally, I do not attach any importance to the label which may be attached to it-whether you call it a Federal Constitution or a Unitary Constitution or by any other name. It makes no difference so long as the Constitution serves our purpose” – Rajendra Prasad.

The Indian Constitution is sometimes called “federal”, “Quasi-Federal”, “Sui-Generis” or “Cooperative Federalism”. But interestingly the founding fathers themselves refused to adhere to any theory or dogma about federalism. As G. Ayyangar said in the assembly, ‘India had unique problems which were not confronted other federations in history’. (CAD Vol. V, page 38). As we all know, federalism does not have any ‘stable meaning’ or definite concept. Therefore, as L.K. Maitra said the founding fathers have pursued ‘the policy of pick and choose to what would suit them best, what would the genius of the nation best’. The outcome that we see today is sui generis (unique) Constitution.

As Granville Austin says the most singular aspect of the drafting of the federal provisions was the relative absence of conflict between the ‘centralizers’ and the ‘provincialists’. There no discussion on the effect of emergency provisions, distribution of powers between centre-state or over the distribution of revenue (which we see as a problem now due to the implementation of GST). The assembly members wanted more revenue for the states but they settled that the Union should collect the money and then distribute. The federal structure, as we see today, was acceptable to most of the members of the assembly. According to Dr Ambedkar,

“Ours is a Federal Constitution inasmuch as it establishes what may be called a Dual Polity which will consist of the Union at the Centre and the States at the periphery each endowed with sovereign powers to be exercised in the field assigned to them.”

Ambedkar said the Constitution avoided ‘tight mould of federalism’ and could be ‘both unitary as well as federal according to the requirements of time and circumstances’.

Reasons for the Centralizing tendencies: A Historical Account

I. Gandhi v. Nehru?

Gandhi wanted political decentralization where the focus is on the micro-level governance as opposed to centralized government. The idea is derived from the drawback of centralized decision making at the macro governmental levels. According to Gandhi decentralization of political power is the basic requirement for the success of true democracy. The concentration of power in his view distorts all democratic values. So he thought that “possession of power makes men blind and deaf; they cannot see things which are under their very nose, and cannot hear things which invade their ears.” Thus, his linking for decentralization originates from his urge for the shrinking of the state and the deepening of the roots of democracy. He, therefore, asserted that “If India is to evolve along non-violent lines; it will have to decentralize many things. Centralization cannot be sustained and defended without adequate force”.

But the assembly had other ideas and the way in which the Assembly framed these provisions, however, it may be helpful to look at the ‘forces bearing on its decisions’. The conditions precedent to the formation of the constituent assembly urged the members to create a powerful centre to prevent the country from disintegrating. Although the Government of India Act of 1935 gave powers to the provinces, the power was always in the hands of the British (centralised). Here the report of the Joint Parliamentary Committee stated that the central government under the 1935 Act would cease to authority over the matters listed under the provincial list, but ‘in virtue of his (Governor-General) powers supervising the Governors, he will have authority to secure compliance in certain respects with directions which he may find it necessary to give’. This centralizing tendency affected India’s future, as Austin says. The Indian never, in reality, got to participate in the ‘real’ federal process as seen in the USA or Australia.

Further, Nehru said, in contradiction to Gandhi, in 1936 that, ‘it is likely that free India may be a Federal India, though in any event there must be a great deal of unitary control’. Communalism also impacted the Indian federal structure and the effect of communal tensions on plans for a federal structure is evident in the reports of Nehru and Sapru Committee. Nehru in the report said, ‘We are called upon to determine the principles of the Constitution after considering these divergent views’ before us and they recommended for centralized federal structure based on 1919 Government of India Act. In the Sapru committee, the members wanted the provinces to have the ‘residuary power’ (as opposed to Indian Constitution currently which resides this power in Centre). But after the bloodshed of partition, the second report of Union Powers Committee dated 05.07.1947 in Paragraph 2 suggested that,

“It would be injurious to the interests of the country to provide for a weak central authority which would be incapable of ensuring peace, of coordinating vital matters of common concern, and of speaking effectively for the whole country in the international sphere… the Soundest framework for our Constitution is a federation with a strong Centre.” (Page 70-71)

In the meeting of the Negotiating Committee of the Chamber of Princes and the Assembly’s States Committee (08.02.1947), Nehru said we need to deal with the situation which might happen after the partition wherein there would be economic, refugee and food crisis. The new provinces might not be able to bear the strains of the new responsibility, hence, it was feasible to adopt a strong central government which could deal with the problems.

II. Communalism: Community rights over States’ rights

The issue of communal politics since the 1920s till the independence also influenced the demand for a strong centre. The need for communal representation was more important than the bifurcation of power between the provinces (states) and the Centre. The emotional Indian, as Austin calls them, wanted community rights over the states’ rights, which were secondary and never assumed the importance they had in Australia and the USA. Even in 1919 and 1935 Acts, more reliance was placed for community rights (Muslims and Hindus) rather than rights of the provinces. The demand for the partition unified the provinces with the centre. Responsible Indian leaders, already confronted with a fragmented society, believed no new, divisive forces should be introduced.

Cooperative Federalism in India

In my opinion, the Indian state is neither quasi-federal nor completely federal. But what we have adopted is Cooperative Federal structure in which all governments has to understand an essential point that they are not independent rather interdependent and they should act for maximization of the common good [as also put forth by Professor M.P. Jain].

Even the Constituent Assembly religiously embraced ‘cooperative federalism’ which is characterized by the interdependence of federal and regional governments. According to Austin, it “produces a strong central government, yet it does not necessarily result in weak provincial governments that are largely administrative agencies for central policies”. Indian federalism has demonstrated this. Also, Geoffrey Sawer proposes that cooperative federalism has the following characteristics: (a.) Centre and States have a reasonable degree of autonomy [as seen in the distribution of lists]; (b.) Each of the parties can bargain about the terms of cooperation, and; (c.) at least if driven too hard, decline to cooperate. Although these pointers are not directly applicable to the Indian scenario, the Union and the States have shown to work in harmony in avoiding constitutional discord.

One of the benefits of this type of federal structure is, in words of Hon’ble Justice Dipak Misra, that the “national vision as set out in the Preamble to our Constitution gets realized”. The approach of the governments might be different, but the ultimate goal and objective remain the same. This will lead to the strengthening of constitutional functionalism in a Welfare state, like India.

The units of in the Constitution should stress on negotiations for achieving common goals amongst different levels of governments. According to Martin Painter, Australian proponent for Collaborative federalism, says

“The practical exigencies in fulfilling constitutionally sanctioned functions should bring all governments from different levels together as equal partners based on negotiated cooperation for achieving the common aims and resolving the outstanding problems.”

Such an approach requires continuous and seamless interaction between the Union and the State Governments. Under the Indian Constitution, we have Article 263 which establishes the Inter-state council whose duty is to “discuss subjects in which some or all of the States, or the Union and one or more of the States, have a common interest” [like COVID-19, 2020] and to “make recommendations upon any such subject and, in particular, recommendations for the better coordination of policy and action with respect to that subject”. Even the existence for Article 239AA aims for cooperative federalism between NCT of Delhi and the Union, as held in the case of NCT of Delhi v. Union of India. Further, the constitutional vision of cooperative governance is enhanced by the provision made in Article 258 under which the President may, with the consent of a State, entrust to it or to its officers, functions concerning any matter to which the power of the Union extends.

Hence, in conclusion, the Indian Constitution provides a platform for cooperation and deliberation between the states and the Union. The process by which national goals set out in the Preamble and DPSPs are achieved, not by the Union government acting alone, but by some or all of the governments and the territories acting collectively in cooperation. This should be the guiding star to them to move on the path of harmonious co-existence and interdependence. 

Untouchability In India: An Age-Old “Social Distance” Still Maintained

[This is a post by Shreya Singh, Contributing Member]

This article is divided into two parts. The first part explains about “Untouchability” posing as a social issue in Indian society and the efforts made by the government to tackle this issue through legislation and policies. The second part of this article is a critical analysis of the CISCO caste discrimination case which took place overseas and renders an awareness of how so-called “modern” Indians are capable of slipping back to this age-old practice.  

In an era of globalisation and industrialisation, India constantly strives hard to remain on the golden chariot for better development and infrastructure. Although India is making great strides in various fields, it is still held back due to untouchability which is the offspring of an age-old Caste System. Untouchability has been a long-term disease afflicting the Hindu society for centuries and has slowly but surely infected other religions in India as well. Historians and experts claim that the caste system followed today is heavily manipulated by the ‘Brahmanical-texts’ in order for them to stay in power in the hierarchical system. The Hindu ideologies that are propagated today are based on “Brahmanism” as it exists in a textual form (more accurately, a theory) which caters to the ulterior motives of the Sanskrit-oriented high castes. 

“Religion must be a matter of principles only. It cannot be a matter of rules. The moment it degenerates into rules, it ceases to be a religion, as it kills responsibility which is the essence of the true religious act.”- Dr B.R. Ambedkar

In his book Annihilation of Caste, Ambedkar gave examples of the various practices that were adopted in different states in India. From not being allowed to enter the village, to being prohibited from treading the path walked by a high caste Hindu, the untouchables have faced it all. They were forced to tie a black thread on their wrist for others to identify them as untouchables.  Religion became a matter of rules, not principles.

Constitutional and Statutory Provisions

The vicious act of “Untouchability” was observed as a Social Custom before the commencement of the Constitution. Draft Article 11(Article 17) was discussed during the Constituent Assembly on 29th November 1948. The term “Untouchability” is abolished under Article 17 of the Constitution of India but has never been defined. This was addressed as a Fundamental Right to promote consciousness amongst law and policy-makers. Article 17 states that- “Untouchability is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of Untouchability shall be an offence punishable in accordance with law”.

During the Constituent Assembly Debates, Mr K.T. Shah showed his concern regarding the vagueness of the term and the absence of a definition clause which could lead to misinterpretation. Mr Nazzirudin Ahmad with an intention to make the definition more specific proposed an amendment by adding the term “caste” and “religion” in the definition which stated that,

No one shall on account of his religion or caste be treated or regarded as untouchable.”

This was rejected by the Assembly as there were concerns regarding the restriction of the scope of Article 17 of the Constitution of India.  Justice Nittoor Srinivasa Rau, former Chief Justice of Karnataka observed that “the subject matter of Article 17 is not untouchability in its literal or grammatical sense but the practice as it had developed historically in this country“. Based on the constitutional provision, the Protection of Civil Rights Act, 1955 was introduced by the Central legislature to prescribe punishment for practising “Untouchability” and was later modified into SCs and STs (Prevention of Atrocities) Act, 1989 which provides them with special protection. However, the SCs and STs (Prevention of Atrocities) Amendment Act, 2018 was considered to be arbitrary and faced backlashes.

Despite the numerous efforts made towards the eradication of this social stigma along with the undivided attention of the government, this custom still remains a huge problem in our Indian society. A major factor which results in the promotion of the caste system is the Dalit vote banks and caste-based politics. Indian politicians promote the caste system in the garb of drawing votes, to continue staying in power.

There have been major gaps in the implementation of Rule of law. A Dalit girl’s family had to face social boycott for plucking flowers from an upper-caste Hindu family’s garden. We can observe how the caste system plays a major role in promoting untouchability and is probably the only reason for its existence. The Indian Constitution prohibits discrimination against caste but there is no provision that declares the abolition of the Caste System itself. The Caste System has been deeply ingrained in the Indian Hindu society.

“The outcaste is a by-product of the caste system. There will be outcastes as long as there are castes. Nothing can emancipate the outcaste except the destruction of the caste system.”– B.R. Ambedkar

The Equality Bill, 2019- A ray of hope ?

Keeping in mind of the various levels of discrimination that takes place in India, the Centre for Law and Policy Research has introduced the Equality Bill, 2019 which is an amalgamation of all the anti-discrimination laws covering intersectional, structural and systemic discrimination which includes sexual orientation, caste, gender identity, sex, age, etcetera. (the Bill will be discussed later on this blog) The bill has been inspired by UK, Australian, South African law and promotes equality by providing civil remedies to the victims of discrimination. This bill bids adieu to the old statutes related to anti-discrimination and is presented as an advanced model to curb discrimination by providing civil remedies, and not the usual criminal penalisation. Unlike criminal law, here is special attention to the enforcement of the law by minimizing the burden of proof by shifting it from the petitioner to the respondent i.e., the accused will have to prove his/her innocence in front of the court.

There still has to be further discussions regarding the need to strike a balance between the rights of both the parties. However, the bill, if passed, will bring about a revolution in India and would act as a reference model regarding anti-discriminatory laws on a global level.

Conclusion

Though there has been a significant reduction of cases regarding caste discrimination due to comparatively progressive laws, education and social awareness, untouchability hasn’t diminished in our surrounding and still manages to thrive despite the measures taken. Untouchability has managed to deepen its roots on the Indian soil and is still affecting the depressed classes. It has caused widespread hatred and oppression towards a community based merely on their birth. This has increased to such an extent that it is affecting Indian citizens living abroad (see here). The CISCO caste discrimination case which took place in Silicon Valley is a solid example. Due to the inefficient implementation of the laws, this social issue is going out of hands and has crossed national boundaries. The various nuances of this case will be further explained in the next article.