Month: August 2020

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The ‘disastrous effect’ of lockdown and Abrogation of Article 370

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

Introduction

The situation regarding the coronavirus pandemic had been getting worse since the last two months and is deteriorating till now. It is known to us that there is massive lockdown throughout the nation, the effects of which still persist and have been huge on the whole country including that of unemployment, hunger, migrating worker’s crisis etc. This issue has almost put the matter of the Indian Government’s revocation of the special status which was given by Article 370 of the Indian Constitution.

The indefinite curfew which was imposed on Jammu and Kashmir was the result of the extension of the state of emergency, invoked under Article 356.

What is Article 370 about?

Article 370 of the Indian Constitution gave a special status to Jammu and Kashmir. The history of it dates back to the time when India had just gained independence and there were many princely states existing independently. The Indian Government made all the other princely states to be annexed within Indian states but Jammu and Kashmir became one of the most disputed areas with Pakistan wanting its control over it and the residents opting for independent status.

To solve this dispute, it was proposed by the representatives of the constituent assembly that only the clauses of the original Instrument of Accession should be applicable on Jammu and Kashmir. The rest of the Constitution of India would not apply to them. They would be provided with autonomy and when the State’s Constituent Assembly would be formed, it would further decide on the matters of the State. Thus, the State had its own functioning Constitution. Non-residents were not allowed to buy lands in Jammu and Kashmir except the permanent residents, along with this article and under the Article 35A which was in turn in violation to the Article 14 of the Indian Constitution which stated: “Equality before the Law”.

Why the Article 370 was revoked and how was it done?

In April 2018, it was stated by the Supreme Court of India that Article 370 had gained a state of permanency as the State Constituent Assembly was ceasing to exist. It was at this point that the Government opposed the ruling of the Supreme Court and thus, claimed Article 370 as “inoperative” in spite of its sheer existence in the Constitution. On 5th August 2019, the President issued an order namely- the Constitution (Application to Jammu and Kashmir) Order, 2019 thus suspending the Constitution (Application to Jammu and Kashmir) Order, 1954. By the issuing of this Presidential Order, it was declared that all the provisions of the Indian Constitution were applicable on the State. The President’s rule was imposed thus negating the role of the state’s Governor and Jammu and Kashmir came under the list of the Union Territories.

Talking about how the revocation was made, we have to discuss the clauses which were present in the following Article. The President issued the order with the “concurrence of the Government of State of Jammu and Kashmir”. As the State Constituent Assembly ceased to exist, the President took control of the state by invoking Clause I of Article 370, which clearly stated that in this situation the President had the power to modify and change the subjects related to Jammu and Kashmir on the Indian Constitution. In order to carry out this power, the first change was made by him in Article 367 and a new clause was added because this Article dealt with the interpretation of the Indian Constitution.

The phrase “Constituent Assembly of the State” was replaced with “the Legislative Assembly of the State”. As the State Constituent Assembly was suspended, the Legislative Assembly needed to be referenced on the following matter, to which the Order stated that any reference made to the Legislative Assembly would be interpreted as a reference made to the Governor of Jammu and Kashmir. The Governor of the State is appointed by the President, who in turn works mostly on the advice of the Cabinet and the Prime Minister. Consequently, it would mean that the central Government would be functioning in place of the State Legislative Assembly.

The passing of the Resolution

The Home Minister of India moved the Resolution in the house of Rajya Sabha in order to provide the President with any kind of additional recommendations or suggestions on the Order. The Resolution was being highly debated and was passed by the Rajya Sabha with 125 votes i.e., 67% of the total votes in its approbation on 5th August 2019 and with 61 votes i.e., 33% of the total votes against it.

The bill was sent to the Lok Sabha for its reorganisation and after much debate, the bill was passed with 370 votes i.e., 86% of the total votes, in its favour and 17 votes i.e., 14% of the total votes against it on the 6th of August, 2019. Alongside with the resolution for reorganisation, the resolution which recommended the revocation of Article 370 was passed with 351 votes in its approbation and 72 against it.

Part II of the Jammu and Kashmir Reorganisation Act of 2019 clearly stated that:

“3. On and from the appointed day, there shall be formed a new Union territory to be known as the Union territory of Ladakh comprising the following territories of the existing State of Jammu and Kashmir, namely:— “Kargil and Leh districts”, and thereupon the said territories shall cease to form part of the existing State of Jammu and Kashmir.

4. On and from the appointed day, there shall be formed a new Union territory to be known as the Union territory of Jammu and Kashmir comprising the territories of the existing State of Jammu and Kashmir other than those specified in section 3.”

This part stated that the governance of the state would directly go to the President thus taking away the autonomous power of the State, which was now turned into a Union Territory.

The effects of lockdown in the “Heaven on Earth”

A year has passed with the revocation of Article 370. The conditions in Jammu and Kashmir have not got any better. Long before the lockdown due to pandemic situation, the state had been going through several curfews, lockdowns, restrictions on communication mediums and also the infringement of various fundamental rights due to the imposition of the State of Emergency under Article 356. Various political leaders had been arrested including the previous chief minister of the State.

The revocation of autonomy of the State had spurred up the residents which led to massive protests and widespread unrest. The Right to access the internet of the state was being taken away as the connection was being cut off except for some of the working agencies. This infringed their Right to Privacy. It subsequently has separated the whole valley from the rest of India as well as the rest of the world. There are no particular judgements by the Supreme Court regarding the question of whether the Right to access the internet is a fundamental right or whether it falls under the Right to Privacy. In the famous case of Faheema Shirin v. State of Kerala and ORS, it was stated that it falls under the Right to Education and Privacy under Article 26 and Article 21 of the Indian Constitution.

The voice of Kashmir has been further diminished by the limitations imposed on the newspapers and press release there, thus infringing the Right to information of the people living there. The Indian Supreme Court had been flooded with several pleas regarding the lockdown which mainly consists of petitions of Habeas Corpus. While some of the pleas have been heard, several others are still pending which consists of petitions challenging the revocation of Article 370, and against the atrocities which are being committed in the State.

Conclusion

There is no free flow of information, no internet or broadband connection, no proper security or no proper means for the people of Jammu and Kashmir till today, even after more than 1 year of the revocation has passed away. The “Heaven on Earth” may be easily compared to “hell” at the present.

The whole of India has been silent and the world is still unaware of the problems which the residents are facing. Human Rights are being threatened each and every day. Being citizens of the same country, it becomes our duty to stand beside our fellow brothers and sisters instead of turning a blind eye. The delays in the hearing of the Petitions, the ignorance of the population has been the big question as to when will the lockdown in Jammu and Kashmir be lifted and when will the “Paradise” return to its previous beautiful and peaceful state.

(The views are personal)

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Gender Equality or Religious Beliefs: Conflicting Rights?

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

“Religion is regarded by the common people as true, by the wise as false, and by the rulers as useful.” -Lucius Annaeus Seneca

Through this article, I intend to introduce the concept of Right to Religion as well as Right to Equality as enshrined under the Constitution of India. I will be discussing the scope of these rights in detail and will be commenting briefly on the case of Indian Young Lawyers Association v. State of Kerala, popularly known as the Sabrimala Judgement, which is a landmark judgement that shines some light on the conflict between these fundamental rights.

Right to religious freedom

Articles 25 to 28 of the Constitution of India provide the right to freedom of religion. The right to practice any religion freely is provided under Article 25 of the Constitution of India.

Under Article 25, two distinct terms namely religion and conscience have been conceptualized. While the bare constitution makes no mention of these aforementioned terms, the jurisprudence of the courts has laid down comprehensively the meaning and boundaries of the term ‘religion’. In one of its earliest cases, Comm., Hindu Religious Endowments Madras v. Sri Lakshmindru Thirtha Swamiar of Sri Shirur Mutt, the Supreme Court has laid down extensively the meaning and ambit of ‘religion’,

“…religion is certainly a matter of faith with individuals or communities and not necessarily theistic… a religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well- being, but it would not be correct to say that religion is nothing else but a doctrine of belief…it may prescribe rituals and observances, and modes of worship…might even extend to matters of food and dress.”

On the other hand, Article 26 of the Constitution of India guarantees to every independent religious denomination the right to manage its affairs and maintain institutions for religious purposes and to manage and maintain the same. The interpretation of the term ‘religion’ for the purposes of Article 26 of the Constitution is a set of practices that have its belief in a basic set of doctrines and beliefs that the followers of such religion base their very spiritual well-being depend upon. The case of S.P. Mittal v. Union of India laid down a three-part test to determine whether a said group of religious worshippers can be construed to be a religious denomination for the purposes of Article 26 of the Constitution of India:

1.  Must be a collection of individuals who have a set of beliefs or doctrines which they regard as conducive to their spiritual well-being;

2.  A common organisation;

3. A distinctive name;

These two articles form the very basis of the fundamental right to practice a religion of choice to every citizen of the country. However, the rights enshrined under Article 25 are subject to public order, morality and health. Morality, in itself a very ambiguous and broad term, which gives rise to a plethora of interpretations across the population. Even the courts have failed to clarify the scope of the term ‘morality’ through its judgements and have resorted to an approach that differs from case to case.

Right to Equality

Article 14 of the Constitution of India mandates that the State shall not deny to any person equality before the law or equal protection of laws. It reads as:  “Equality before law. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” The permissible classification must satisfy the twin sets, namely:

(i) the classification must be founded on an intelligible differential which distinguishes persons or things grouped together from others left out of the class, and;

(ii) such differentia must have a rational relation with the object sought to be achieved by the legislation.  

In the case of Budhan v. State of Bihar, the Hon’ble Court stated that the validity of the Act depends on the object of the legislation in view and whatever has a reasonable relation to the object or purpose of the legislation is a reasonable basis for classification of the objects coming under the purview of the enactment. The court further stated that what is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It has been a well-settled principle by the Supreme Court in the case of FN Balsara v. State of Bombay that in every form of classification, there would exist some form of inequality, and the mere existence of such inequality is not enough to violate Article 14 of the Constitution.

It can be very well conferred from the various judgements pronounced by the Supreme Court that if a particular belief is deeply rooted in the various practices of the worshippers of a particular religion, then there exists a reasonable nexus between the object of the legislation and the classification itself; therefore, making the religious practice valid, and not arbitrary.

However, it is pertinent to note that Equality and non-discrimination are certainly one facet of Constitutional Morality. However, the concept of equality and non- discrimination in matters of religion cannot be viewed in isolation. Constitutional morality requires the harmonization or balancing of all such rights, to ensure that the religious beliefs of none are obliterated or undermined. (Constitutional Morality viz-a-viz will be discussed later on this blog)

Sabarimala Judgment

A five-judge Constitutional bench of the Hon‘ble Supreme Court ruled 4:1 in favour of allowing women of all ages to enter the temple and found the practice prejudicial in its very essence and that it violates women‘s right to practice religion. It also ruled that the devotees of Lord Ayyappa do not constitute a separate religious denomination as they do not have any common religious tenets specific and different to themselves other than those which are customary to the Hindu religion. The verdict established the principle that individual freedom prevails over professed group rights, even in religious matters and relooks at the stigmatization of women devotees based on a medieval perspective that menstruation symbolizes impurity and pollution. It declares that the exclusion on the basis of impurity is a form of untouchability. Justice Indu Malhotra, however, delivered a dissenting opinion. She argued that constitutional morality in a secular polity, such as India, requires a ‘harmonisation‘ of various competing claims to fundamental rights. She stated that the Court must respect a religious denomination’s right to manage their internal affairs, regardless of whether their practices are rational or logical. Justice Indu Malhotra also highlighted that the primary reason for the imposition of this custom is the very well-being of the idol itself and that the well-being of the idol can be translated to the well-being of the devotees thereunder and since such ideas are distilled into the human brain to be a part of one’s religious practices itself, it becomes a part of the person’s faith and therefore, cannot be violated by demolishing such faith under the guise of superstition or irrationality.

This judgement gave rise to a rather heated debate where citizens began to criticize the apex court for overreaching its judicial powers. Academicians across the country believe that notions of rationality cannot be invoked in matters of religion by courts and the apex court should have refrained from doing so. But some people also celebrated the decision as they believed that the practices which legitimise menstrual taboos due to notions of purity and pollution, limit the ability of menstruating women to attain the freedom of movement, the right to education, and the right of entry to places of worship and eventually their access to the public sphere. It is, however, fairly disappointing that not a lot of attention was paid to the constitutional framework that was discussed in this case and how the principle of harmonious construction was held to be of grave importance.

A five-judge Constitutional bench of the Hon‘ble Supreme Court ruled 4:1 in favour of allowing women of all ages to enter the temple and found the practice prejudicial in its very essence and that it violates women‘s right to practice religion. It also ruled that the devotees of Lord Ayyappa do not constitute a separate religious denomination as they do not have any common religious tenets specific and different to themselves other than those which are customary to the Hindu religion. The verdict established the principle that individual freedom prevails over professed group rights, even in religious matters and relooks at the stigmatization of women devotees based on a medieval perspective that menstruation symbolizes impurity and pollution. It declares that the exclusion on the basis of impurity is a form of untouchability. Justice Indu Malhotra, however, delivered a dissenting opinion. She argued that constitutional morality in a secular polity, such as India, requires a ‘harmonisation‘ of various competing claims to fundamental rights. She stated that the Court must respect a religious denomination’s right to manage their internal affairs, regardless of whether their practices are rational or logical. Justice Indu Malhotra also highlighted that the primary reason for the imposition of this custom is the very well-being of the idol itself and that the well-being of the idol can be translated to the well-being of the devotees thereunder and since such ideas are distilled into the human brain to be a part of one’s religious practices itself, it becomes a part of the person’s faith and therefore, cannot be violated by demolishing such faith under the guise of superstition or irrationality.

This judgement gave rise to a rather heated debate where citizens began to criticize the apex court for overreaching its judicial powers. Academicians across the country believe that notions of rationality cannot be invoked in matters of religion by courts and the apex court should have refrained from doing so. But some people also celebrated the decision as they believed that the practices which legitimise menstrual taboos due to notions of purity and pollution, limit the ability of menstruating women to attain the freedom of movement, the right to education, and the right of entry to places of worship and eventually their access to the public sphere. It is, however, fairly disappointing that not a lot of attention was paid to the constitutional framework that was discussed in this case and how the principle of harmonious construction was held to be of grave importance.

Concluding Remarks

The philosophy of testing religious practices under the ambit of only Article 14, and the principles of rationality that it engages in, is in primary derogation of the Constitution in itself. By only applying the twin test laid down in Article 14 of the Constitution i.e. the fact that there should be a reasonable nexus between the object of the law and the very concept of intelligible differentia, the fundamental right protected under Article 25 of the Constitution of India is left untouched and undiscussed.  Furthermore, as discussed in the case of Bijoe Emanuel & Ors. v. State of Kerala & Ors, this Hon’ble Court laid down that the personal view of judges are irrelevant in ascertaining whether a particular religion or a belief followed therein should be protected under Article 25(1) of the Constitution of India. Unlike the Article 25 of the Constitution of India, which is subject to the other provisions of Part III of the Constitution, Article 26 is subject only to public order, morality, and health, and not to the other provisions of the Constitution of India. And as a result, the Fundamental Rights of the religious denominations are not subject to either Articles 14 or 15 of the Constitution. And thus, the principles of equality and non-discrimination as enunciated by Articles 14 and 15 are grossly inadequate in limiting the freedom to manage religious affairs under Article 26. The characterization of age may form a reasonable basis for the object of specific legislation. On satisfying both the parts of the twin test aforementioned, the statute must be held to be valid legislation. As already proved that the decision of the temple board is deeply based in the beliefs of the worshippers of the temple therein, there exists a reasonable nexus between the object of the legislation and the classification itself; therefore, making the classification valid, and not arbitrary.

(Note: In my next article, I will be focussing more on the aspect of essential religious practices as defined under Article 25 and its scope with special reference to Article 13 and 17 of the Constitution of India, in the light of the principles established by the Supreme Court in the Sabrimala Judgement. Access the Article here.)

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Executive Aggrandisement and Democratic Backsliding in India: A Conceptual Analysis

In the starting of the year 2020, there was a headline that “India falls to 51st position in Democratic Index” by a survey done by the Economist’s Intelligence Unit. Further back in 2018, the Indian National Congress, the main opposition party in the Parliament, launched a campaign called “Save the Constitution”. There are many incidents and events wherein the People claim that democracy is dying. Is democracy really crumbling?

The Constitution of India is based on democratic principles and the very democracy has been jeopardised by the elected government in the past (as well). But now it is not like the 20th century when we saw Mrs Gandhi’s emergency of 1975 and military coup in Pakistan (coup d’état by Musharraf), which shattered the democracy and the democratic principles of India and her adjoining neighbour. But how is the situation in 2020 different from 1975?  What we are witnessing now is not ‘shattering’ of the democracy, it is more like a gradual erosion. A democratic decay.

The Indian Constitution has established three organs of the state: Judiciary, legislature and executive, each of them are assigned a definitive sphere of powers and functions. To check upon these institutions, we have the idea of “Constitutionalism”— which is, various sorts of accountability demand to keep a check on the powers of the organs of the state in the form of rights against the state, limiting the scope of the authority of the organs among various other checks. Herein, a question arises, despite all these checks then how is the democracy backsliding or decaying in India in 2020?

Executive Aggrandisement and democratic backsliding

Democratic backsliding, as Bermeo says, is “the state-led debilitation or elimination of any of the political institutions that sustain an existing democracy”, which basically means that when the state eliminates or dismantles the aforementioned “checks” on its powers to sustain themselves in power. Backsliding happens precisely where oppositions are already incapacitated by electoral failures and other internal divisions like lack of leadership. In parliamentary democracies, like India, the political executive is discerned as the “sole repository” of the democratic mandate, which is the Modi-led-Cabinet in India (as the Executive’s political party, i.e. the BJP is mostly in majority in the legislature). In the book, “Constitutional Democracy in Crisis?”, Elkins states that “most, if not all, of the concerns regarding constitutional democracy, has to do with an executive”. When this executive weakens the checks on executive power by a series of institutional changes that hamper the power of opposition (accountability seeking) forces to challenge executive preferences, this ‘kind of’ democratic backsliding is called “Executive Aggrandisement”. The values of constitutionalism and democracy are hampered by the aggrandisement of the executive; institutional accountability is the key and inseparable from the “efficient institutional design”. The change brought by the democratically elected executive in weakening the checks upon itself is often done by labelling independent checking institutions as “anti-establishment/anti-government” or by “packing them with the cadre of their political party”, as reflected by Professor Khaitan of Oxford University. When there is a crisis of executive accountability, we can witness gradual erosion of accountability-seeking mechanisms such as 1. Electoral accountability (there is always fear and probability of electoral fraud and tampering, see here and here); 2. Accountability by the judiciary (power of judicial review, see Article 13) and legislature (see Article 74 and read here); and 3. Accountability to civil societies, media and the academics (read here and here).

The accountability to the legislature is mostly done away it, as the majority party-led by the Executive always controls the House and there is a little scope for the opposition to come forward and create pressure on the executive. Furthermore, in India, accountability to the “upper house or the Rajya Sabha” is also overridden by introducing important bills as ‘money bills’ (see Aadhar Act). The judiciary is already restricted due to many reasons such as it gets to ‘review’ the orders of the executive ex-post facto, it may be inefficient or be overworked and surprisingly, the Apex Court has become an “Executive Court” in India already, as Bhatia calls it. Hence, the final check on the Executive must come from the electorate, media, civil societies and academics as they are neither appointed nor elected by the executive. These external checks are really necessary to occlude the executive from backsliding democracy. However, the executive tends to tempt the electorates by showing them (illusory) short term promises and ‘cheaper methods’ like caste and communal politics, reservation etc to coax the voters to vote for their political party.

How is ‘executive aggrandisement’ done?

The most visible democratic backsliding can be seen when there is an attempt to side-line the right to free speech and expression (such as filing FIRs against journalists and activists) and judicial autonomy (such as transfers of the constitutional court’s judges who pass orders ‘against’ the executive and further, the ‘micro-assaults’ of the executive cannot be assessed individually by the Judiciary). Other ways are also brought in force such as blocking websites (read here and here), discouraging dissent, and enactment of draconian laws (which are usually against the principle of ‘innocent until proven guilty’). Most bizarre and not-so-open way of democratic backsliding lies where when the ‘big media outlets’ are often owned (through holding companies) by those businesses which are dependent on government contracts. Hence, there rises a conundrum for the journalist between freedom of speech and expression (and) a job, basically a Hobbesian choice.

There are certainly other ways in which backsliding is done and the amusing thing about these particular ways is that these issues seem is to be ‘normal’, when seen individually, for any mass protests and any individual or collective dissent. Those who speak against the executive, either any former judge or any opposition party member, is framed as a person having “special interests” or in general anti-national, a common term in India. Those who work for the disadvantaged groups and question the executive for its actions are banned and booked under state-made draconian laws. Many times, there remains a lack of collective action towards the ‘ill-actions’ of the government and the majority of the population is lost in the trance (of government’s short-sighted actions like the building of various religious congregations).

Furthermore, the “democratically” elected executive tends to make laws (which are usually passed without debates and discussions) which goes against the very basic human rights of the individuals, but challenging such laws is “highly risky” as the person who challenges may face many barriers such as, first, she is called a ‘foreign element’ for challenging or raising the voice against the “law”, second, attributing ‘nefarious purpose’ to the law is often difficult (as the intention of the Parliament cannot be brought under Judicial scrutiny) and third, all the changes made by the law has some ambiguous justification ( as the “intention” is to deepen the democracy, instead of destroying it). The “rules” of law are a major setback for those who want to come together and raise their voices against the actions taken by the executive. The laws framed to govern and protect the individuals are used against those very individuals.

All this is worrisome because of the reason that these changes came into force by the democratically elected government with a strong majority in the Parliament and the popular support of the masses. In a Democracy, where the executive doesn’t have any check is more likely to erode the very principles of democracy by taking one piece at a time from the “collage of institutions”.

A way forward?

This aggrandisement happens due to lack of devout action plan, nor any consensus, within the opposition party, media, academia and the citizens, to impart cohesion. The separation of opinion amidst the checkers of the executive lead to the point where democracy stands alone in a lonely corner. There needs to be a collective voice against the actions of the executive to prevent backsliding. As Sunil Khilnani (The Idea of India) says fasts, silences, penances are just techniques of an eccentric parent but are not designed to nourish the accountability of a democratic institution. In the absence of any institutional challenges to the executive, we [as citizens] should take lessons from the pre-independence Congress party wherein the mass organisation of people became the key to establish the democratic constitution. It shall be successful, as we already have seen how mass mobilisation of The People have also helped in reversing the most erroneous decisions of the Supreme Court (For example Mathura Rape Case).

There must be a push for free media and ‘citizens as watchdogs’ to put the elected executives under strict scrutiny. Other institutions which are not tied to the executive through the umbilical cord (political party) can work efficiently to hold the executive accountable for its actions and they must inform citizens about the actions of the executive in an unbiased way. As professor Khaitan says the reason for informing citizens will help the voters, as “they [voters] cannot exercise their function of holding governments to account at the ballot box unless they are properly informed”.

There needs to be scrutiny and review of every action of the government as ‘the very rules of the game are being changed’ now. We the People of India need to come together to “retrieve and build constitutionalism without the courts”, as the Constitution is so much more than just the Courts (as we all see it as). To conclude, as said by professor Khaitan said,

“Democracy is being killed by a thousand cuts—incrementally to avoid the noise and mess of big guns—but systemically. These mortal cuts are being inflicted by democrats themselves, who are justifying their expediency in the name of democracy itself (as surgery, rather than assault)”

[Note: If would like to read more extensive on this topic, then kindly proceed to Constitution Database page (Under the heading: Constitutionalism)]

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

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

This is a series of articles wherein I will be dealing with the heroism and contribution of women in the framing of the Indian Constitution and their honour in the Constituent Assembly. Parlance will be drawn regarding the initiatives and reforms brought about by women in the Constituent Assembly.

Introduction

“Boycott the future legislation of India if it doesn’t comprise of enough women in all levels, for, women are the centre stage of our freedom struggle and I do not wish to accept a legislation without enough Women leaders”

critiqued Mahatma Gandhi in early 1930s.

Our Indian Constitution is one of the lengthiest and well-written Constitutions of the world. It is considered to be an all-inclusive constitution which surfaces itself to the institution of the Constituent Assembly which in turn led to the making of our constitution. While addressing the framework or the committee of our drafting committee, we come across many notable members who were responsible for the ultimatum, however, no significant light has been centred towards the involvement of women and their wit grit which led to a revolutionary and reformatory change in our overall socio-economic and socio-political political system.  

Therefore, this article analyses the distinct importance of women in the framing of the constitution of India and their significant role in the Constituent Assembly. The vital essence and the main purpose of this article are to remember and pay respect to the reforms brought out by women in political and legislative roles in the Post-Independence Era via contemplating the historical background, famous speeches and work, difficulties due to Indian societal structure and an overall theoretical approach to the social issues which stunted the empowerment of women in politics as well as in other legislative roles.

Making of the Constitution: Women’s Contribution and Reforms in Constituent Assembly

Throughout the India’s Freedom Struggle for Independence, the role of women has been shadowed even though their sacrifices amidst the torture, hardships and exploitations carried out a huge impact on the overall movement. In the early 1817’s, that is, 30 years before the First War of Independence, women came forward to fight against the British atrocities when most of the Indian men were thrown in jail for their opposite interest from that of the Britishers. Heroism and acts of rebellion against the wrongful acts is said to be initiated by the infamous Bhima Bai Holkar who fought against Colonel Malcolm and defeated him in Guerilla warfare. Many other women including Rani Channama of Kittur, Rani Begam Hazrat Mahal of Avadh fought against British East India company in the 19th century and had laid an outstanding example of real patriotism. This historical appreciation gives us an insight into the role and position of women in our societal fabric which will help us entail the broad canvas with regard to the contribution of women in the making of the constitution within the sphere of complex social and political boundaries. 

In December 1946, the constituent assembly came together to debate and draft a constitution for an independent India. It took place over 2 years, 11 months and 17 days. Among the 299 members of the assembly, 15 were women who had either been voted or chosen to represent their provinces. The assembly was a platform from which they could assert their equality and craft a politically balanced republic. The under-currents beneath the drafting of constitution and rhetoric reformations brought out by women formulated a new hope for women with regard to the issue of gender roles and has strived women to be voluble in their speech and fight for their rights. The representation of women in the assembly was only 4%, however, it is a reflection of plurality in our historical juncture reinstating the interventions and backdrop of women participation led to a significant reformulation in future for women in politics.

Minority Rights and Abolition of Untouchability

“The working of the Constitution will depend upon how the people will conduct themselves in the future, not on the actual execution of the law. So I hope that in course of time there will not be such a community known as Untouchables and that our delegates abroad will not have to hang their heads in shame if somebody raises such a question in an organization of international nature,” said Smt. Dakshayani Velayudan who was the first Dalit woman to get elected and made the assembly go beyond framing a constitution and to give “people a new framework of life”. She used this opportunity to make untouchability illegal, unlawful and ensure a “moral safeguard that gives real protection to the underdogs” in India. Her discussion included taking down Churchill’s promise to safeguard the scheduled castes in an independent India and argued that the communist party was only exploiting the Harijans. She held strong to the conviction that only an Independent socialist republic can help uplift the Dalits and give them the liberties exercised by every other citizen.

She delivered her speech on the 28th of August 1947 against separate electorates in any form and her censure of the reservation system was in support of a nationalist narrative that sought economic and social upliftment rather than looking to politics as a means to eradicate the system of untouchability. She highlighted in her speech on “As long as the Scheduled Castes, or the Harijans or by whatever name they may be called, are economic slaves of other people, there is no meaning demanding either separate electorates or joint electorates or any other kind of electorates with this kind of percentage.”

Furthermore, Smt. Purnima Banerji and Smt. Renuka Ray played a significant role in putting forward minority issues and possible legal changes in the laws pertaining to women. Ray debated and discussed that “It is they who are the backward sections of the community and who are the majority at the same time. It is their problem that we have to take up. If we want to make the Objectives Resolution that this House has passed and the Fundamental Rights that have been laid down, a living reality, it is this problem that we have got to tackle.” They both fought for equal rights for minority groups and their development through all means and power imbibed in the constitution and their activism and arguments encircled India’s paramount interest and debated that Hindus as a religious community shall not override others interest with the main focus that no special group shall stand in the way of equality and harmonious development.

Socio, economic and Political Justice for Women

“There are thousands of women today who are denied ordinary human rights. They are put behind the purdah, secluded within the four walls of their homes, unable to move freely”, argued Smt. Hansa Mehta while emphasizing upon the vitality of social justice, economic justice, political justice and equality which can alone be the basis of mutual respect and without which real co-operation is not possible between men and women. She was the president of All India Women’s Conference, member of UN sub-committee on the status of women, and vice-chair with Eleanor Roosevelt on the committee which drafted the Universal Declaration of Human Rights. Mehta was an educationist, feminist and reformist and along with  Rajkumari Amrit Kaur framed the Indian Women’s Charter of Rights and Duties and fought for the uniform civil code (UCC). She joined hands with Vijayalakshmi Pandit and worked on women’s equality and human rights in the UN as well.

“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”, pointed out Shrimati Ammu Swaminathan in her speeches and argued widely for the inclusion of women in various aspects of equal fittings in the Constitution and recognition of women in the framing of India’s Constitution. 

Concluding remarks

Thus, to conclude, we can draw parlance regarding the subordinate position of women since the pre-independence era in furtherance of the role and attributes of women in society. It is essential to ponder over the fact that the making of the constitution would be bereft if women were not included, even though the figure remained less than half of men. However, the voluble women leaders and participants in the Assembly has led to a drastic reformatory approach in terms of the minority rights, the abolition of the untouchability and the over-all attribute of women in the society. These reforms as mentioned above help us to honour and remember the position and vitality of women in leadership roles and in the overall equal diaspora.  

Stay tuned for more of this series.

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Indian Constitution and Constitutionalism: Transformative Application

[This is a post by Minnah Abraham, Contributing Editor]

Often, the questions, with regard to the formation of the State, persists in the mind of the man right from the beginning, since the emergence of civilization:

“What is the best form of Government”

The answer to the above question brought the emergence of the idea to the origin of constitutionalism and constitutional law, which paved the road to structure and organizing the State, in the form of rules and regulations, requiring the need of law and governance. It was best described by Robert M MacIver,  “When we speak of the estate, we mean the organization of which government is the administrative organ. Even an organization must have a focus of the administration, an agency by which its policies are given specific character and translated into action. But the organization is greater than the organ. In this sense, the state is greater and more inclusive than its government. A state has a constitution, a code of laws, a way of setting up its government, a body of citizens…when we think of this whole structure, we think of the state… Under these endlessly varied circumstances the habits pertaining to government, which at first were centred in the family and kin-circle, found a locus in the inclusive community”

Contrastingly the two terms, constitutional law and constitutionalism differ where the former enshrines the coded form of rules and regulation, determining the principle functions, accepted as binding by all concerned in the Government, while latter explicitly accord specific limitations on general administrational powers to keep a check on the exercise of arbitrary decision-making or powers in the hands of the few. ‘Limited Governance’ is what is presupposed of Constitutionalism, incorporating the element of checks and balance within the constitutional law. From this, arose the fundamental rights and guaranteed remedies, Judiciary acting as the impartial arbiter with independent powers apart from legislative check on the executive. Within these fundamental systems, emerged the concept of judicial review, separation of powers, rule of law, the fundamental right to equality and quality of life, universal franchise transparent executive, ensuring the responsibility to keep an eye on anarchy and the wide possibility of misuse and exploitation of freedom guaranteed by means of reasonable restrictions inserted.

Constitutionalism has become as important an issue which deals with intricacies of good governance, constituting a supreme document that governs the legitimacy of the government’s state actions, implying something beyond the idea of legality requiring official conduct to be in conformity with pre-fixed legal rules. Constitutionalism as the concept that drives through the constitutional law ensures, to effectively check whether the act of a government is in accordance with the laws of the State. This further seeks to effectively regulate the State actions and ensure to adopt the changes in the societal evolution, promising to protect the citizens from the very restrictions and rigidity of the law and order.

As Justice H.R Khanna stated,

“The framing of a Constitution calls for the highest statecraft. Those entrusted with it have to realize the practical needs of the government and have, at the same time, to keep in view the ideals, which have inspired the nation. They have to be men of vision, yet they cannot forget the grassroots.”

Notwithstanding the constant changes in the global trend, the modern application of constitutionalism is increasingly under strain, where more recent turns of events seem to provoke profound changes, forcing a transition towards modern constitutionalism. In what was considered to be most celebrated of the judgements, Navtej Singh Johar vs. Union of India, was the one where the real purpose of the constitution was defined in modern terms, to guide the Nation to a transformation from medieval and hierarchical strata to an egalitarian democracy to enclasp the ideals embedded in the Preamble of the Constitution. It was the modern constitutional interpretation, which chose to protect its very own people from the humiliation and discrimination, rather than follow the static interpretation of the rights of liberty and equality, which were applicable in the yesteryears.

The laws are constantly changing, recall the 73rd and 74th amendments of the Indian Constitution in 1992, which create a fortified third tier of the governance i.e. Panchayats and Municipalities, thereby creating a stronger federal decentralisation within the country. Besides these, the dynamic politics and pressure groups, which reflect the diversity of interests so much so that brought to the point where the power centre has to take heed to the opinion emerging from a relatively small community, which had the power to pull down the government. Triple talaq, the case of Sabarimala, Aadhaar project, LGBTIQ+ Rights, judicial activism forcing to fathom deeper into constitutional interpretation to deliver right justice in order to address the broader societal implications and much more witnessed since the last decade. Shifting the focus to a generation of millennials in this decade, causing issues of collective identity, cultural plurality and multi-cultural society in constitutional democracies and the inherent struggle for recognition and demand for sub-national government. The major hindrance is that the strong accord of modern constitutionalism with an idea of ‘national identity’ has become challenging, to sustain/uphold in an increasingly diverse democratic society. It goes to say, “human experience must be decontextualized, and diverse identities extirpated in order to create a single national identity for each State.” In the unstable cultural-sociological, the rushing of the liberal idea of State neutrality forces the explicit recognition of common cultural identity, which seems impossible for the modern laws to be integrative. Thus, a need ensued for the rethinking of modern constitutionalism and uniform laws, in the current scenario, in which demands for recognition of cultural plurality and sub-state demands, are ever more prominent.

Antonio Negri believed, the ‘ethic’ of constitutional insurgencies is also ‘ethics of transformation’, signifying the power, strength, and movement of the multitude toward contradictions of constitutionalism’s, characterizing life under constitutional code. Constitutionalism needs to stress on,

“the freedom of the members of an open society to change the constitutional rules of mutual recognition and association from time to time as their identities change.”

Justice evolves around the language of communication through constitutional morality, the ‘morality’ as seen as the justification in the eyes of Lord Macaulay for the enactment of Section 377, which changed when read down by the judges, by turning the, then morality upside down, stating that constitutional morality calls for the values that the right to form intimate relationships to be protected as equal and freedom from persecution and humiliation by the law.

The founding fathers of India, BR Ambedkar and Jawaharlal Nehru, explicitly focused on the notion towards aiming for inclusivity in the post-independent India, the profound concept that discrimination against any minority community/population is antithetical to the ethics of constitution and disrespectful to the very people, who have already suffered/oppressed enough.

Although the concept of modern constitutionalism is a long way from the transformation, citing the ambiguous interpretations of the Constitutional law in the daily lives of a common man, eradication the age-old casteism, discriminatory treatment of a large number of diverse sections of Indian society, be it indigenous, women, disabled or on religious sect and building the culture of unity and inclusivity still remains a continuing challenge in India. However, with the recent event of developments on widening the scope of freedom of speech and expression, 2019 being the year of piercing the age-old concepts, for gender recognition and equality, recognition of women promise a change toward India refocusing towards political advocacy and possible reformed legislative amendments.