History of Article 326: Why did India choose Universal Adult Franchise?

Article 326 of the Indian Constitution states there every citizen of India who is not less than 18 years of age shall be entitled to be registered as a voter. The Constitution or any law made by the Parliament such as Representation of Peoples’ Act can restrict a citizen to be a registered as a voter only on the grounds of ‘non-residence, unsoundness of mind, crime or corrupt or illegal practices’. But before the Constitution was enacted there were several reservations against Article 326 of the Constitution. In this article, the author will analyse the reasons which made the founding fathers choose a universal adult franchise over the limited franchise.

India’s History and the Committee Reports

When India attained independence in August 1947, the citizens were lacking basic standards of education and literacy. They were divided broadly into different classes, linguistic and religious groups. Ivor Jennings, a constitutional thinker, advised that India must create a limited franchise. Even the Report on Indian Constitutional Reform of 1918 recommended what Ivor Jennings advised- a limited franchise. It was in 1930 that the Report on Indian Statutory Commission recommended ‘an extension of the vote to correspond to growth in adult literacy. This was a colonial logic which was based on the assumption that only the educated masses can vote in a democracy. Even the Report of the Indian Franchise Committee which was published in 1932 recommended that uneducated and illiterate masses don’t have an informed ‘outlook towards public affairs and political participation’.

The Indian organisations such as the Indian National Congress and the Muslim League were mostly divided on issues of power in the colonial administration. It was the Motilal Nehru Committee of 1928 which responded to the Commission reports by demanding a Universal Franchise for free India. The logic of the Committee report was that the exclusion of those who are kept out of franchise will be harmed and they might ‘de-legitimise’ the democratically elected government as well because those in power will not be their ‘own‘ representatives. Even the Sapru Committee in 1945 advocated for Universal Adult Franchise. The Sapru Committee observed that the substantial changes can be made only if there is full responsibility accredited to the government. There must be a fear of getting voted out from power. If those in power will know that a certain section of the society will not decide their fate in the next election, then they will not work for the welfare of that section as those citizens are denied voting rights. Hence, the ‘Indian’ committees recommended for Universal Franchise as opposed to the committees made by the Englishmen.

 De Facto exclusion of Lower Caste

During the colonial period and even before that, the citizens belonging to the so-called lower castes were not allowed to attain education and they were forced to do odd-jobs. Education was for the elite and the ‘upper castes’. Dr B.R. Ambedkar aware of this fact pressed for inclusion of lower caste in the franchise as ‘qualifications based on education and property during colonial rule meant the de facto exclusion of the lower caste’. For Ambedkar, who negotiated with the colonial rulers, right to vote became a focal point as he believed that ‘suffrage could itself serve an instructive role and that participation in political life would bring about consciousness among the lower castes’. As L.T. Hobhouse says in his work 1911 text Liberalism that “the success of democracy depends on the response of the voters to the opportunities given to them. But, conversely, the opportunities must be given in order to call forth that response”. To Ambedkar, the right to vote was not a privilege but a right! He believed that if it is treated as a privilege then “political emancipation of the un-enfranchised will be entirely at the mercy of those that are enfranchised”.  For ‘lower caste’, first, education was denied and then, the franchise was denied because of education. Hence, if education was kept as a criterion then it would have been erroneous and arbitrary.

Participatory Democracy and Adult Franchise

As Madhav Khosla in his book says “the apparent relationship between restrictions in the franchise and good governance had little truth”. A Parliament without any reform that is to say the inclusion of all sections of society is “not a blessing to anyone”. Democracy and participation are like Vikram and Betaal, where ‘democracy is solely about the expression of preferences at the ballot box’. Participation in an election is equivalent to the removal of isolation of a person because when a person casts her vote, she feels that her voice is being heard and she is there in the law-making process (through her representative) which will be governing her behaviour in a democratic society. ‘If democracy was about shaping the associations in one’s life, a limitation on suffrage would place the lower classes under the control of the powerful. It would mean that such classes would be deprived of the chance to shape interactions in their life.’ Putting limitations on suffrage is a form of coercion on someone’s right.

In Conclusion

Some members of the constituent assembly, like Thirumala Rao, considered universal adult franchise as ‘a dangerous weapon’ and Mahavir Tyagi considered it a ‘monstrous experiment’. K.T. Shah, a celebrated personality in the Assembly, stated that imposition of literacy as a requirement for the franchise would ‘ensure better governance’. But such a model will discourage the government from creating and spreading education and literacy among the illiterate classes as those classes might vote-out the government in the future elections if their demands are not met.

The Assembly ignored the idea of the limited franchise. The founding fathers chose universal adult franchise over limited franchise giving every citizen (who is above 18 years of age) a Right to Vote. A citizen has a right to express her opinion at the ballot box after every five years and choose their representatives. It is the most celebrated rights in the Indian Constitution which allow the marginalised and the ill-treated communities to choose the fate of their leaders. The country chose to tackle the issues of illiteracy among others by universal adult franchise!

[The author would like to thank Professor Madhav Khosla for his book “India’s Founding Moment: The Constitution of a Most Surprising Democracy” and the single quotes used in this article are from his book only.]

Hate Speech vs Free Speech: Where is the current strongest?

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

In this blog, I will be focusing upon the legal provisions with respect to the concept of Hate Speech by critically analyzing Indian precedents and certain foreign judgments to differentiate between discussion and the advocacy of incitement acts which are considered prejudicial to maintenance of peace and harmony. Furthermore, I will be enunciating upon an effort to find a transformative yet harmonious approach in relation to hate speech on Freedom of Expression and examining the restriction thereof, followed by the conclusion.

Introduction

“…[T]hat the law shall be certain, and that it shall be just and shall move with the times.”Lord Reid, Judge as Law Maker

The disparity in jurisprudence on hate speech has been considered as remotely distant in Indian Constitutional Law while the terrain of free speech still remains a contested field. “Hate speech is termed as the speech that carries no meaning other than the expression of hatred for some group, such as a particular race, especially in circumstances in which the communication is likely to provoke violence”, as defined by Black’s Law Dictionary. According to Article 19(1)(a), the right to freedom of speech and expression is granted to every citizen of democratic India. However, the constitution also provides for the reasonable restrictions against free speech in the interests of sovereignty and integrity of India, 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 under Article 19(2) of The Constitution of India. The 2017 Law Commission Report, No. 267 recommended the introduction of new provisions within the penal code that specifically punish incitement to violence in addition to the existing ones while examining the scope of hate speech laws in India. Moreover, free speech is considered quintessential for every democracy to work efficiently. The doctrine of free speech has evolved as a bulwark against the state’s power to regulate speech. The liberal doctrine was a measure against the undemocratic power of the state.

Thus, this gives us an inference upon the reflection and attitude of our legislature and the juncture of decision making by the judiciary towards the issue of hate speech and the real extent of its reasonable restrictions thereof.

Hate Speech: Regulations and Legal Provisions in India 

In a democratic country like India which possess diverse communities of people, castes, creed, religions and languages as its unique nature, the principle of autonomy and free speech does not malign properly and wholly. This idiosyncratic nature of our Indian structure is one of the greatest challenges before the principle of autonomy and free speech principle. There is a constant battle of opinions to ensure that this liberty is not exercised to the detriment of any individual or the disadvantaged group or section of the society. 

As per the Indian Penal Code, the concept of hate speech constitutes under Section 153A, which is the offence of promoting communal disharmony or feelings of hatred between different religious, racial, language or regional groups or castes or communities, Section 153B of the Indian Penal Code, 1860 categorizes the offence of promoting religious, racist, linguistic, community or caste hatred or incites any religious, caste or any other disharmony or enmity within India, through any speech either in written form or spoken, Section 298 also classifies the offence of uttering words with the deliberate intent to wound the religious feelings of any person, Section 505 similarly criminalizes the act of delivering speeches that incite violence. As per the Representation of the People Act, 1951, Section 123(3A) also criminalizes hate speech of candidates contesting elections. 
In 2014, a Public Interest Litigation was filed before the Supreme Court of India seeking guidelines on hate speech during elections. It observed that hate speech attempts to marginalize individuals on the basis of their membership in a group which impacts such people socially by diminishing their social standing and acceptance within society. Hate speech, the Court observed, lays the groundwork for aggravated attacks on the vulnerable communities in the future. This weakens the ability of people to participate wholly in a democracy. It was further observed that the existing laws in India were sufficient to tackle hate speeches. The root of the problem is not the absence of laws but rather a lack of their effective execution, the Court reiterated.

Analysis of Hate Speech in India: Extent of Reasonable Restriction Principle and Position of State

The issue of the validity of hate speech laws and the extent of already existing hate speech laws has always been a heated debate in India. This issue has time and again raised before the legislature, court as well as the public. Under Article 19(2), the hate speech can be curtailed on the grounds of public order, incitement to offence and security of the State. In the infamous case of Ram Manohar Lohiya v. State of Bihar, the Apex Court observed that “One has to imagine three concentric circles. Law and order represent the largest circle within which is the next circle representing public order and the smallest circle represents the security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not the security of the State.” The standard approach applied for restricting Article 19(1)(a) is the highest when imposed in the interest of the security of the State. 

Further, the Supreme Court while upholding the constitutional validity of Section 295A IPC ruled that this section does not penalize every act of insult or attempt to ‘insult the religion or the religious beliefs of a class of citizens but it penalizes only those acts of insults to or those varieties of attempts to insult the religion or the religious beliefs of a class of citizens, which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class.’ It was held that if an act does not actually cause a breach of public order, its restriction ‘in the interest of public order’ will be deemed reasonable with respect to Article 19(2), since it has a much wider connotation than interest and maintenance of public order. 

In Shreya Singhal v. Union of India, the court observed that expression could only be restricted when discussion and advocacy amounted to incitement, however, when no ingredient in offence of inciting anybody to do anything which a reasonable man would then the tendency of being an immediate threat to public safety or tranquillity would diminish. Therefore, the context of speech plays a vital role in determining its legitimacy under Article 19(1)(a) of the Constitution and that our commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered.

Hence, after analyzing the recent landmark decisions, it could be re-iterated that a speech protective regime has been followed in India. The main cause of action behind such a stance is the apprehension and fear of misuse of restrictive statutes by the State. Such a regime has been followed in the United States and the Courts therein are extremely cautious in restricting Article 19 of the Constitution to avoid vitriolic approaches from the public. Pluralism, tolerance, peace and non-discrimination have been termed non-derogatory values by the ECHR in ascertaining the extent of free speech allowed under the Convention.

Conclusion

Hate speech poses a complex situation against freedom of speech and expression. The constitutional approach to these challenges has been far from uniform as the boundaries between impermissible propagation of hatred and protected speech vary across jurisdictions. 

In a landmark judgment of Canada v Taylor, the constitutional validity of hate speech laws was challenged since it violated the right to freedom of speech and expression. It was held that hate and propaganda contribute little to the aspirations of Canadians or Canada in the quest for truth, the promotion of individual self‑development, or the protection and fostering of a vibrant democracy where the participation of all individuals is accepted and encouraged. The Supreme Court of Canada opined that hate speech laws are indeed a part of the global commitment to eradicate racism and communal disharmony. 

However, ‘with every right comes responsibility’; and therein, is the need for a limitation on the right to freedom of speech and expression so as to prevent the destructive and regressive effect it could have. There is a massive need to revise and amend the existing anti-discrimination legislation with respect to hate speech without curtailing the freedom of speech and expression of people. Laws should be implemented in a non-selective, non-arbitrary and transparent manner, along the lines of golden principles of the constitution which should not be used to stifle dissent or the legitimate exercise of freedom of expression. Lastly, the fight against hate speech should not be pursued in isolation but with a harmonious holistic approach. Our constitutional history must be maligned with the traditional approaches along the lines of recent development and usage of hate speech laws, especially in terms of yellow journalism these days. With excessive interference of the media into the facts and evidence of the case has led the judiciary to negatively view such journalists as ‘thought intelligentsia’, which in turn impacts the justice delivery system as well. Therefore, a harmonious balance must be drawn while dealing with such matters and reasonable restrictions must be applied and followed strictly and not liberally in our diverse democratic country.

Case Study on State Assemblies of North East India: Need for Reservations for Women

[Editorial Note: Constitutional Renaissance’s Research on State assemblies of North East can be accessed here]

In this article, we conducted a research on the incumbent Members of Legislative Assembly (‘MLAs’) in eight states of North East (Assam, Tripura, Manipur, Mizoram, Arunachal Pradesh, Sikkim, Meghalaya and Nagaland) as a sample data to analyse the number of women MLA in these regions, their family backgrounds, political parties and their income, whether they are from a relatively poor or rich background (click here to see our summarised research). This research tries to answer the question “whether women are proportionally represented in the State Assemblies according to their population in the state.” As the Tribune reports, ‘the Perception of Electoral Integrity Index gave India 40/100, under the Varieties of Democracy’s Female Rights Index, with India performing its lowest in political power. In the EIU’s Democracy Index (2019), India suffered a downfall in political participation from 7.22 to 6.67.’ Currently, in-state assembly elections, there is no proportional reservation for women, unlike in the third tier of government (Panchayats) where we have 33% reservation for women. Through this research, we will be proposing that there is a requirement for proportional reservation for women in the state assemblies and in Parliament to avoid ‘political lockout’ and to keep our democracy legitimate.

Liberal Constitution and ‘political lockout’

In liberal constitutions, like that of India, the state has an indispensable duty to protect the rights of the citizens and to ensure that the freedoms and civil liberties are not compromised at any cost. Although the denial of these civil liberties presents many stability problems for democracy. But ‘political lockout’ of a section of society out of power raises concerns with regard to the whole legitimacy of the democracy. That section of society could be Scheduled Castes, Scheduled Tribes, Other Backward Classes or women as well. In the words of Tarunabh Khaitan, political lockout means ‘when a group comprehensively loses any genuine prospects of garnering even a threshold level of political power at least some of the time, it has been ‘locked out’ of power’. We have always thought of political representation debate with regard to caste and religion. But keeping a whole group, which is women, out of politics may also repose serious threat to the legitimacy of the liberal order established by the Constitution. For instance, if a particular group is kept out of power for long and they are refused to participate in decisions which affect their lives, then that group will lose faith in the democracy as their interests are not fulfilled either represented in the law-making body. We have seen in the past when committees are formed for a particular purpose but they keep out a section of a society which are the most affected section, then it raises alarming concerns about that committee, to an extend delegitimizing it (for instance, see this). Through our research, we have found that women in north-east have been kept out of power for some time and they have been denied equal participation in the law-making process. In the northeast alone, out of 498 seats (MLAs) spread over eight different states, there are only 24 elected women representatives.

The research displays a lot of flustering concerns: about the legitimacy of democracy. Scholar Choudhary argues in his book that

‘the ambition of liberal constitutionalism is that a constitutional order must both be legitimate and must enjoy the allegiance of a sufficient number of its citizens.’

If a group, be it, women, any caste, any class, is kept out of power for some time then ‘that has the capacity to destabilise the constitutional settlement’. Through our research, we saw that the women who are in politics, and who become MLAs, are relatively richer to those women who do not get into politics. The data shows that all of the women MLAs who get elected are relatively richer with assets ranging from Rs. 1,49,77,798 (of a member from Tripura) to Rs. 1,86,28,851 (of a member from Assam). The plight of a woman who is not relatively rich and is not represented in the law-making process is so much that it might make the state assemblies illegitimate and no longer liberal as it does not represent democracy, rather a ‘plutocracy’. Plutocracy is a society that is ruled or controlled by people of great wealth or income. A majority group, who is relatively poor, is kept out of power.

Research shows us that there are no single women in all the states who are ‘relatively poor’ as compared to others. The MLA with the lowest income among all of them is from Tripura (CPI(M) party) who has assets worth Rs. 7,05,142 (But we never know if this has increased after getting elected as an MLA). If a set of group, which has a defining characteristic that is relatively poor and not-men, is kept out of political power (even the minimum share of power), then ‘the guarantee of fair political opportunity has been compromised’ (see Tarun Khaitan’s research). If need to make a democracy legitimate of authority beyond the formal declaration of ‘free and fair elections’, we must address the issues of ‘political lockout’, under-representation and every group must get a chance to represent itself in the position of power.

As Geetika Dang, Research analyst from Brookings India put it ‘while Mizoram has never elected a female member Parliament [as also shown through our research even in the case of state assemblies], perhaps the starkest example of the lack of female representation comes from Nagaland that has failed to elect a single female MLA in 55 years of statehood. Rano Shaiza, a member of United Democratic Party, was the first and only woman in this state who was elected to Lok Sabha in 1977.’ Our research shows that currently in Mizoram and Nagaland there are no women MLAs in an area where the population of women is 5.41 lakhs and 9.53 lakhs respectively. There is no state in North East India which does not regularly make laws for women but the voices of the women are not heard in the halls of the legislature as there is no one to represent them. Further, the data from Manipur raises more alarming concerns as for 14.17 lakhs women, there is only one MLA.

We also found something interesting that out of these total 24 elected MLAs in the North East region, only 4 of them have some kind of political background. Rest of them did not have any sort of political background, neither their husbands nor their parents are in politics. This shows a positive trend that women are becoming independent and without any political support, they are standing up and coming into a profession which is termed as ‘dirty’ in common parlance (but we are not sure about their political connection through other connections).

Although, it is true that every woman in North-East have a right to vote guaranteed by the Constitution, but just formal declaration of equality cannot justify the inequality faced by women in the law-making process (or even in their share of political power). Hence, there is a need for a minimum reservation of seats for women in the legislative assemblies.

 Answering the ‘inequality’ in Representation: A ‘Localised’ Solution?

One of the methods to ensure women representation in North-East region is by making sure all the women come together to support other women, basically lobby the support. This needs to be done through the Gandhian methods of localising the issues and answering them through a bottoms-up approach. As Simi Malhotra, Director of the Centre for North East Studies and Policy Research, Jamia Millia Islamia, said in a Development Seminar in 2019 that, “the paternalistic baggage of ethnicity, and hence the ethnic divide within the northeastern states, has been an impediment in this direction.  At the grassroots level, the women’s movement in the northeast and associated synergies and outlets of solidarity have to be explored.” But this casts another issue which is inevitable that only those women who are relatively richer will be able to organise women and get the support like how we see in national politics. Even the first generation politicians have strong economical backing. We hardly see any MP or MLA from a relatively poor background. As we have seen through our research that most of the women who are elected as MLAs are from an economically richer section of society.

Further, this, bottoms-up approach, is not an absolute guarantee that women will be represented in the assembly because keeping women out of politics is not just a problem of political parties who do not give chance to women, but also a constitutional and a social problem. The preamble uses the words ‘We the People’ gives ourselves this constitution, but if the ‘supreme document’ cannot guarantee a group minimum power in the political machinery, then the faith of that group would be shaken and hence, the problems need constitutional insurance/reservations.

‘Political Assurance’: Proportionate Reservation

Political empowerment of women is a necessity in eliminating gender inequality and discrimination. Political power is a (sort) of guarantee to the women which will ensure that the elected regime remains legitimate addressing all the issues related to women. If we look at the historical account of the efforts made to reserve seats for women in Lok Sabha and State Assemblies, we can trace a ‘background note’ by the Law Ministry which shows that efforts made to reserve seats for women in State Assemblies and House of People always failed due to lack of political consensus.

Again in 2008, Rajya Sabha’s Department related to Parliamentary Standing Committee on Personnel, public grievances, law and justice presented its 36th Report on The Constitution (One Hundred and Eighth Amendment) Bill, 2008 in which the committee recommended for proportionate reservation for women in Lok Sabha and State Assemblies. Further AIDMK member orally stated before the committee on the need for reservation for women.

Reservation for women is not a bounty but it is an honest recognition of their contribution to social development and to the society at large.

We have seen the justices of the High Court in the past few years (as well) making “misogynistic observations” in cases involving penal sections like Rape, Assault etc. It shows the mindset of the society towards the women that is horrific and has no place in the 21st century and it enhances the need for a political assurance as ‘there is no logic in saying that women are deficient in physical, mental and intellectual capabilities. Still, they have been forced to be earmarked as the weaker sections of the society. In fact, by keeping 50 per cent of the society weaker we have made the whole society weak. In such a situation, some compulsory legislative measures need to be taken for proportionate representation of the women in the State Assemblies and the Lok Sabha as well.’

The arguments against the reservation of women state that women empowerment cannot be done through such measures, instead, we need a societal change where everyone changes from within. But such ‘Gandhian’ bottom’s up approach fails in the long run as the people do not have an incentive to change their attitude and behaviour towards the other gender. Rather, constitutional insurances which guarantee formal equality accelerates the ‘process of change’ in the society as seen in the case and experiment of Reservation of 33% for women in Panchayati Raj. The Committee which recommended the reservation for women also observed that ‘the data shows that through 1/3rd reservation of seats for women in Panchayats and Nagarpalikas, they have been able to make meaningful contributions and that the actual representation of women in Panchayati Raj institutions has gone up to 42.3% i.e., beyond the reservation percentage.’

Impossibility of Reservation in Rajya Sabha: ‘Article 80 of the Constitution specifies that members of state assemblies will elect Rajya Sabha MPs through a single transferable vote.  This implies that the votes are first allocated to the most preferred candidate, and then to the next preferred candidate, and so on.  This system cannot accommodate the principle of reserving a certain number of seats for a particular group.  Currently, Rajya Sabha does not have a reservation for SCs and STs. Therefore, any system that provides reservation in Rajya Sabha implies that the Constitution must be amended to jettison the Single Transferable Vote system.’

Anyhow, leaving the Rajya Sabha aside, the Preamble of the Indian Constitution states and guarantees that every citizen must be secured of ‘equality of status and opportunity’. These commitments in the Preamble must be the objective of the legislature which they must seek to achieve while enacting an amendment for reservation of women. The data shows that the women are not represented equally in the Assemblies and there is a need for change, or else questions against the legitimacy of the democracy will strengthen. Equality for women is not just a game of mockery and gimmickry for ‘International women’s day’, but it is a continuous effort to eradicate various social, economic and political gaps between the genders.

This is a research conducted by Chaitanya Singh, Founder and Editor of Constitutional Renaissance Blog. The author would like to thank Ms Raksha Tripathy, Ms Sulagna Sarkar and Mr Yuvraj Ranolia for assisting in data analysis and research.

Understanding the Right to Privacy: The Puttaswamy Judgment-I

In 2017, the 9 judges of the Indian Supreme Court adjudicated a matter Puttaswamy v. Union of India (‘Puttaswamy’) and unanimously held that under the Indian Constitution, the Right to Privacy is a fundamental right. The Supreme Court declared that its previous judgments in MP Sharma (8 judges) and Kharak Singh (6 judges) are overruled as they did not recognise privacy as a fundamental right. Those judgments relied on the logic used in the A.K. Gopalan case which stated that every fundamental right to be read separately and individually. But that position got changed in R.C. Cooper v. Union of India, and subsequently in Maneka Gandhi v. Union of India, in which the Court held that fundamental rights cannot be read in water-tight compartments. In Cooper, the Court said that the fundamental rights ‘do not attempt to enunciate distinct rights’, rather they are interlinked. Hence, this article must be read in light of the principle enunciated in the Cooper case. In this article, I will try to highlight the reasoning behind Puttaswamy as to why the Court declared Right to Privacy as a fundamental right.

Understanding Right to Life and Dignity

Every human being by the virtue of her existence has a Right to Life which is a natural right guaranteed by the ‘Nature’. Further, this natural right to life is also guaranteed by the Indian Constitution under Article 21 which elucidates that the ‘state’ shall not violate any person’s right to life and personal liberty without the procedure established by law. The Right to life is not just the right of a person’s physical body, but also over her mental being. In Golaknath case, Justice Rao observed that ‘Fundamental Rights are the modern name for what has been traditionally known as Natural Rights’ [The usage of the word ‘natural’ here is opposed to the societal opinion/understanding of the rights ‘as they are since time immemorial’, rather it is based on the transformative nature of rights which are always evolving]. These rights, including the right to life, cannot be excluded or separated from human existence. Hence, the rights guaranteed under Part III of the Constitution are the natural rights of every human being, which it aims to preserve.

Dignity, as an expression, finds its place in the Preamble of the Constitution as it states that ‘ensuring the dignity of every individual’. An individual is the focal point of the Constitution and human dignity weaves through the provisions of the Constitution. [Article 14: Guarantee against arbitrariness; Article 19: Individual Freedoms; Article 21: Life and personal liberty] The Court in the Francis Mullin case strongly observed that the fundamental rights must be interpreted to enhance the human dignity and ‘worth of the human person’. The Right to Life is not just animal existence and it is much more than just mere survival. On human dignity, the five-judges bench in M. Nagraj exposits that, “no exact definition of human dignity exists. It refers to the intrinsic value of every human being, which is to be respected. It cannot be taken away. Every human being has dignity by virtue of his existence.” Further, observing about dignity, it has been observed in Selvi’s Case that forcible intrusion into a person’s mental processes is also a violation of Human Dignity.

Privacy and Human Dignity

Ancient philosophers such as Aristotle distinguishes private life from public life. He distinguishes the spheres where the government can intervene and where it cannot; certainly as he observes that government cannot intervene in an individual’s privacy.  Individual’s private life is mainly for “private reflection, familial relations and self-determination” (refer to the constitutional database to read the hyperlinked article). The individual is sovereign over her mind and body. As Justice Chandrachud posits (Puttaswamy ¶32),

“If the reason for protecting privacy is the dignity of the individual, the rationale for its existence does not cease merely because the individual has to interact with others in the public arena.”

An individual has all the freedom and liberty over his body and mind and she must be set free from any kind of intrusion. Privacy, as a right, is important for an individual to exercise control over his or her personality. ‘Privacy ensures that a human being can lead a life of dignity by securing the inner recesses of the human personality from unwanted intrusion.’ (Puttaswamy ¶113) Life without dignity, privacy and liberty is no life as they are inalienable to a human being. No state can violate these rights as they exist even before the advent of the Constitution. The constitution is ‘not the sole repository of the right to life.’ India has signed and ratified UDHR and its Article 12 recognises the Right to Privacy which cannot be taken away by anyone.

 Further, the argument that the right to privacy is not available under the text of the Constitution is based on a primitive understanding of it. The Constitution is a transformative text which evolves over time and it cannot be viewed as a document ‘written in ink to replace one legal regime with another’. It is a document which rests on the goals enshrined in the Preamble and the aim is to realise those goals. The Constitution does not tells us what is a right or do we have a right or not? It only puts the limitations on the power of the state. It is not the source of liberty of man as liberty exists by the mere virtue of existence in the world.

Therefore, the right to privacy is a part of the liberty of an individual and privacy protects the individual’s autonomy and dignity. The ‘pursuit of happiness’ which everyone seeks is founded upon liberty and dignity of an individual. ‘Both are essential attributes of privacy which makes no distinction between the birthmarks of an individual.’ The guarantee of the right to privacy liberates the individual and helps her in realising her potential and autonomy.

In conclusion, while embracing the Supreme Court’s judgment in Puttaswamy v. Union of India, a paragraph from Max Planck Encyclopaedia of Comparative Constitutional Law (2015) is something to look forward to:

“The right to privacy can be both negatively and positively defined. The negative right to privacy entails the individuals are protected from unwanted intrusion by both the state and private actors into their private life, especially features that define their personal identity such as sexuality, religion and political affiliation, i.e., the inner core of a person’s private life….. The positive right to privacy entails an obligation of states to remove obstacles for an autonomous shaping of individual identities.”

[Note: There are certain reservations about the Court’s judgment with regard to ‘declaring Privacy as a Natural Right and not merely a Fundamental Right’. This has been argued here and here]

Protection of Animal rights under the Indian Constitution

[This is a post by Suvechha Sarkar, Contributing Member]

The whole world is under great threat as a result of the drastic climate change that has been happening for the last three decades. The global warming and the extinction of many animal and plant species have been something which could not be overlooked due to the adverse condition which we are facing in our day to day lives. The most threatened part of nature is that of the trees and animals. In the 21st century,  animal managers have been facing greater and bigger problems as compared to ever. They constantly have to keep up with their inventive and innovative sides.

In India, in the past 10 years, there has been a gradual rise in the number of cruelties against animals. It must be stated as the shame of humanity, especially in India where animals are being worshipped. There are provisions in the Indian Constitution, in the Indian Penal Code which lays down laws against the brutalities against animals but the question remains how strict the laws are.

Laws in India regarding the Rights and Welfare of animals

The Indian Constitution lays down some of the Animal Rights under the Fundamental Rights, Fundamental Duties and the Directive Principles of State Policy. Apart from these the rest of the laws and punishments concerning animal rights are listed in Section 428 and 429 of the Indian Penal Code, Criminal Procedure Code, 1974, the Wildlife Protection Act, 1972, The Prevention of Cruelty to Animals Act, 1960.

SECTION 428 OF INDIAN PENAL CODE, 1860

The following act states that if someone causes any harm or mischief by killing or injuring any animal, by any means the value of which is ten rupees or more than that is entitled to maximum 2 years of imprisonment and may be entitled with fine or maybe with both.

SECTION 429 OF THE INDIAN PENAL CODE, 1872

Whoever causes any mischief by killing or injuring any elephant, camel, horse, mule, buffalo, ox, cow or bull or any other animal by any means, the value of which may be fifty rupees or more, the person will be entitled with a punishment of imprisonment for a maximum of 5 years or with fine or maybe both.

SECTION 154 OF CRIMINAL PROCEDURE CODE, 1973

A person can file for an FIR against the cruelties towards animals or protect the animal rights, in the nearest or local police station under Section 154 of the Criminal Procedure Code, 1973. The person under fault will be punished accordingly considering the offence he committed falls under the cognizable or non-cognizable offence.

THE WILDLIFE PROTECTION ACT, 1972

Under this following act, injuries to both the trees and the wild animals are being prohibited (under Section 39). In the list of wild animals, it consists of all animals including the mammals, birds and the reptiles. For the case of reptiles and the birds, even their eggs fall under the protection of this Act. The punishment for the first offence under this act is imprisonment for three years or maybe a fine of twenty-five thousand rupees or maybe both. For the second offence under this following act, the imprisonment is for a term of seven years with a fine amount of ten thousand rupees.

THE PREVENTION OF CRUELTY TO ANIMALS ACT, 1960

Under this following Act, the law states protect the animals from the cruelties like slaughtering, transportation, cruelty against a pet or not providing an animal with the needed living condition etc. The punishment for the first offence under this act is a fine of a maximum of fifty rupees and in the case of a second offence, the person can be punished with maximum three-month imprisonment or fine of minimum twenty-five rupees and a maximum of hundred rupees. In some cases, it can lead to both at the same time.

Animal rights and the Indian Constitution

Fundamental Rights

The fundamental rights stated in the Constitution of India (Part III) lays down the rights of every citizen of India irrespective of the caste, creed, colour, race, place or religion. The main question which can be raised is what rights do the animals have when it is not only the people who are living in this country. The only fundamental right which can be used for fighting towards the rights of animals is that of Article 21 which is the Right to Life. Article 21 states “No person shall be deprived of his life or personal liberty except according to the procedure established by law.”

In the case of Animal Welfare Board of India v. A. Nagaraja & Ors., the Supreme Court had introduced some of the animal rights under the following article thus expanding its scope on a large scale. The case was filed against the game of Jallikattu which involved the use of bulls. Across the years, the game had led to the death of many humans along with the concerns for the welfare of these bulls as during the ongoing of the game, they were injured with sticks, knives in order to win. It was in this case, the Supreme Court passed the order in favour of the Animal Welfare Board of India. As a result, the game was banned. The court stated that “Article 51 A (g) of the Constitution is the “Magna Carta of animal rights” and made several observations to safeguard the “life” of animals under Article 21.

Directive Principles of State Policy

The directive principles are enshrined in Part IV of the Indian Constitution. It consists of fifteen principles which are in no way enforceable in the court of law and in a way helps the states to formulate its laws and policies. Article 48 and Article 48A of the Indian Constitution lays down the principles concerning the welfare of the animals and their rights. The following article talks about the problems regarding the cow slaughter. India is a country where cows are worshipped by people of many religions and considered sacred on a separate level. It states that the farmers or the farms should take enough care of the farm animals especially the cattle. It is stated that the farms should put the effort into making the breed better.

This particular provision prohibiting the slaughter of cows had been a matter of hot debate among the Constituent Assembly members. It was argued if it could be added under the list of the fundamental rights or not but ultimately it was decided to be added to the directive principles since it was in contradiction with the Article 9 of the Indian Constitution which stated the Right to Religion. In the case of Mohd. Hanif Qureshi v. State of Bihar (1959), the court dealt with the same problem. The judgement went in the favor of Article 9 observing that the banning of cow slaughter was next to impossible keeping in mind the diverse religious practices of the Indian citizen.

Fundamental Duties

The fundamental duties pertaining to the protection of animal rights are found in Article 51A, part IV of the Indian Constitution. Just like the directive principles of the State Policy, the fundamental duties are unenforceable in the Court of Law. Only two of the clauses in Article 51A of the Constitution consists of laws which are in concern of animal welfare. It is stated as follows:

“(g) to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures;

(h) to develop the scientific temper, humanism and the spirit of inquiry and reform.”

Conclusion

There has been an increase in the reports of cases concerning animal abuse and cruelties. As the year 2020 is passing by inside the four walls of our rooms, it is becoming more evident how the caged animals might feel. From cases of poaching to trapping them cruelly in iron traps or ropes, thus injuring them, to the cases of beating the stray dogs or poisoning them, beating them to death, the existence of humanity is constantly being questioned. It is not only the duty of Law to protect the animals. It also depends on us who are sharing the planet with them.

At the present situation, millions of rabbits, mice and various other animals are being used for various scientific experiments. They tend to develop various problems which are not only associated with their physique but also their mind. We need to understand that it’s not only the humans who are affected under the cu=ircumstances of loneliness but also them. The experiments usually involve usage of various drugs over them or even cutting them open in various instances. Many organizations have already been protesting against it but the use of certain animals for experimentation is still legal in all countries. The law should be reformed so that this cruel practice can be stopped because at the end all lives matter, be it humans or animals. 

The Indian Laws are constantly developed for the protection of the animals and their welfare but unlike some other countries, the animal laws in our country are far less rigid and as a result, many people are getting away with their act of cruelty. More amendments should be brought in the Constitution of India listing Articles in the context of animal protection and rights. It is indeed a crucial moment for us to prove that humanity still exists among us and has not faded away.

“Publishing of notice of Intended Marriage”: A Privacy loophole under Special Marriage Act

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

Marriage is considered as a sacred institution in India which is governed by codified personal laws. The Supreme Court of India has recently accepted a petition challenging the constitutionality of Section 6 under the Special Marriage Act, 1954 contending that the provision violates the Right to privacy, equality and non-discrimination vested in the Constitution of India. The Special Marriage Act, 1954 is distinct from other personal laws as it provides rules and regulations regarding marriage for the people of India and all Indian nationals in foreign countries, irrespective of the religion or faith followed by either party.

The Apex court has agreed to examine the provisions which obligate the Marriage Officer to publish a notice of an intended marriage allowing people to come forward and object the intended marriage within 30 days of the date of publication of the notice. The details include their names, date of birth, age, occupation, parents’ names and details, address, pin code, identity information, phone number, etc. which is a particular requirement of the Act. It also mentions that anyone can raise an objection to the marriage, and gives significant power to the marriage officer to investigate them as well.

The provision invades privacy and violates fundamental rights 

The right to privacy was recognised by the Supreme Court in the nine-judge bench landmark judgement in the case of K.S. Puttaswamy v. Union of India (2017). The Supreme court declared that right to privacy is a fundamental right and is an intrinsic part of the right to life and liberty under Article 21 of the Constitution of India, contending that it is the responsibility of the sovereign State/Nation to protect the privacy of an individual. Therefore, the State must not intervene in the personal lives of the people and the choices made by them which includes a person’s decision of whom he/she should marry. On the contrary, the said provisions of the Special marriage act, 1954 obligates the marriage officer to put personal details of the couple in the public domain for other people to decide whether the potential solemnisation of marriage is acceptable or not. 

The notice of marriage not only invades the private lives and liberty of the individuals but also jeopardizes the marriage as it may endanger the life or limb of the couple due to parental interference. In the case of Lata Singh v State of UP (2006), a two-judge bench of the apex court, in the landmark judgement stated as follows:

“This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence.”

In the case of Shakti Vahini v. Union of India(2018), the Supreme court held that the right to choose a life partner is a fundamental right under Article 21 and does not require the consent of anyone else other than the two legally competent persons (adults) for the solemnisation of marriage. The disclosure of marriage between inter-faith/inter-caste couples can invite religious conflicts amongst both the communities and may lead to physical violence and honour killings. A prominent example of such violence is the Khaap Panchayat in western Uttar Pradesh, Haryana and Delhi and the honour killings practised by them. The publishing of intended marriage mentioned in the Special Marriage Act may attract such communal conflicts and unfortunate blood-shed which will only create hatred amongst religious communities. 

It is observed that there is an inconsistency in the personal laws for the solemnisation of marriage under the Hindu Marriage Act,1955, does not demand a notice of intended marriage to be published which is contrary to the Special Marriage Act, 1954. This clearly proves the arbitrary nature of the laws and its failure in satisfying reasonable classification under Article 14 of the Constitution. The provision also violates Article 15 of the constitution of India as it promotes inequality in the society and discriminates people on grounds of religion, race, sex, caste and place of birth. 

Uniform Civil Code: Need of the hour 

The conflicting provisions in the personal laws have been a prominent issue in India. The conflicting requirements of multiple laws create unnecessary confusion in the judiciary and give rise to the arbitrary nature of judgements. The establishment of a Uniform Civil Code can bring relief to conflicts regarding the inconsistency of personal laws as it will apply equally to all the citizens of India regardless of their religion. It would help in bringing about a positive change in society by preventing communal violence and maintaining peace and harmony. 

Conclusion 

In India, marriage is hardly considered as a private affair between two consenting adults. It is believed in India that – “Marriage isn’t a union of two people; but the union of two communities/families”. Marriage is still a victim of patriarchy as it is driven by the notion that choosing a desired partner against the standards that have been set by society is unacceptable. The romanticisation of marriage being a topic of communal-union must not penetrate and affect the private lives and the choices made by individuals. 

There have been progressive decisions made by the state of Kerala regarding this issue as they have recently issued a circular to bring a halt to the publication of notice of marriage and this has been supported by high courts of Delhi and Rajasthan as well. The Supreme court must consider these progressive examples to make a rational decision and help in bringing about a significant change in Indian society.