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GS Paper: GS2-01.Indian Constitution-Historical underpinnings & evolution; Features, amendments, significant provisions, basic structure of Constitution

  • In news: Mayor’s Election

    mayor
    PC: Hindustan Times

    Introduction

    • The Supreme Court has nullified the outcome of the mayoral election held on January 30 in Chandigarh.

    Who is a Mayor?

    • In India, the mayor is the head of an urban local body, which is responsible for providing essential services and infrastructure to the residents of a city or town.
    • The mayor is usually elected by the members of the Municipal Corporation or Council.
    • He/She serves as the ceremonial head of the local government.

    History of Mayor’s elections in India

    • Municipal corporation mechanisms in India was introduced during British Rule with formation of municipal corporation in Madras (Chennai) in 1688, later followed by municipal corporations in Bombay (Mumbai) and Calcutta (Kolkata) by 1762.
    • However the process of introduction for an elected President in the municipalities was made in Lord Mayo’s Resolution of 1870.
    • Since then the current form and structure of municipal bodies followed is similar to Lord Ripon’s Resolution adopted in 1882 on local self-governance.
    • The 74th Constitutional Amendment Act of 1992 was introduced providing for the transfer of 18 different powers to urban local bodies, including the election of a mayor and to recognise them which included Municipal Corporations, Nagar Panchayats, and Municipal Councils.

    Elections and tenure

    • The method of electing mayor and their tenure varies for each city in India.
    • In Bengaluru (Karnataka) the election process is indirect with a tenure being for one year.
    • In Mumbai (Maharashtra) it follows indirect elections with tenure for 2.5 years and Bhopal (Madhya Pradesh) follows a directly elected mayor with a term for 5 years.

    Roles and Responsibilities

    • Governs the local civic body.
    • Fixed tenure varying in different towns.
    • First citizen of city.
    • Has two varied roles:
    1. Representation and upholding of the dignity of the city during ceremonial times and
    2. Presiding over discussions of the civic house with elected representatives in functional capacity.
    • The Mayor’s role is confined to the corporation hall of presiding authority at various meetings relating to corporation.
    • The Mayor’s role extends much beyond the local city and country as the presiding authority at corporation meetings during visits of a foreign dignitary to the city as he is invited by the state government to receive and represent the citizens to the guest of honour.
    • At government, civic and other social functions he is given prominence.

  • Call for imposing Financial Emergency in Kerala

    In the news

    • The Supreme Court proceeded with hearing a suit filed by the State of Kerala against the Centre for alleged arbitrary interference in its financial matters, following unsuccessful negotiations between the two parties.
    • Earlier, Kerala Governor sought for the Presidential imposition of a financial emergency in the State under Article 360(1) of the Constitution due to dwindling situation of finances in the State.

    What is Financial Emergency?

    • Enshrined in Article 360: It is a vital provision aimed at addressing severe financial crises threatening India’s economic stability.
    • Declaration and Authority: It can be declared by the President upon satisfaction that the financial stability or credit of India or any part of its territory is under threat.
    • CoM Advice: The declaration is made based on the advice of the Council of Ministers, reflecting the collective responsibility of the executive branch.

    Legislative Approval

    • While the President can proclaim a Financial Emergency, its extension beyond two months needs approval from both Houses of Parliament.
    • Once approved, it remains in effect until revoked by the President, allowing for flexible management of financial crises.

    Effects and Implications

    • The Centre’s executive authority expands significantly during a Financial Emergency, enabling it to issue directives to states on financial matters.
    • Centralization of fiscal policies occurs, with the President empowered to reserve money bills passed by state legislatures for consideration.
    • Austerity measures, including salary and allowance reductions for public officials, can be implemented to address economic challenges.

    Judicial Review and Criticism

    • 38th Amendment Act (1975) made the President’s decision final and immune from judicial review.
    • However, the 44th Amendment Act (1978) allowed for judicial scrutiny.
    • This amendment ensured checks and balances within the constitutional framework, preventing unchecked executive authority.

    Historical Context and Usage

    • Financial Emergencies have been sparingly invoked in India’s history, despite facing significant financial crises such as in 1991.
    • The cautious utilization of this provision underscores the importance of aligning its implementation with democratic principles and federalism.

    Conclusion

    • The Supreme Court’s intervention in the Kerala-Centre financial dispute underscores the importance of cooperative federalism in addressing intergovernmental conflicts.
    • The forthcoming hearings aim to reconcile differences and ensure the equitable distribution of resources, fostering harmonious relations between the Centre and states.

  • Supreme Court Strikes Down Electoral Bonds Scheme

    electoral bond

    Introduction

    • The Supreme Court delivered a groundbreaking unanimous judgment, deeming the electoral bonds scheme “unconstitutional and manifestly arbitrary.”
    • Led by Chief Justice of India (CJI) DY Chandrachud, a five-judge Constitution Bench unanimously struck down the scheme, citing infringement on voters’ right to information and disproportionate restrictions.

    ebs

    Key Reasons for Striking Down Electoral Bonds Scheme

    [A] Violation of Right to Information (RTI)

    • Petitioners argued that the scheme violates Right to Information under Article 19(1)(a) of the Constitution, emphasizing voters’ right to information regarding political party funding.
    • Despite the government’s stance that citizens lack a “right to know” about political contributions, the court upheld voters’ right to such information, citing the inherent connection between money and politics.
    • The court highlighted the “deep association” between money and politics, stressing the need for transparency to prevent quid pro quo arrangements.

    [B] Disproportionate Restrictions:

    • The scheme’s anonymity for donors, aimed at curbing black money, was deemed disproportionate to its goal.
    • Advocates highlighted potential loopholes allowing for cash donations, undermining its efficacy in combating black money.
    • The court emphasized the availability of alternative, less restrictive measures to achieve the scheme’s objectives, such as Section 29C of the Representation of People Act, 1951.

    [C] Privacy vs. Public Interest:

    • While the government argued for donor anonymity to protect privacy rights, advocates stressed the importance of public scrutiny in political funding.
    • The court clarified that donor privacy extends only to genuine forms of public support, rejecting absolute anonymity facilitated by the scheme.

    [D] Unlimited Corporate Contributions:

    • Advocates underscored the adverse impact of unlimited corporate contributions on free and fair elections.
    • The court reinstated the cap on political contributions from companies, citing the need to prevent undue corporate influence in politics.
    • It noted concerns that unlimited contributions could incentivize quid pro quo arrangements, especially by loss-making companies.

    Impact on Key Legal Amendments

    • Representation of the People Act, 1951: The court struck down amendments exempting political parties from disclosing donations above Rs. 20,000, reinforcing the balance between voters’ right to information and donor privacy. (Section 29C)
    • Companies Act, 2013: Amendments allowing unlimited corporate contributions were overturned, restoring the cap on political donations by companies and preserving electoral integrity. (Section 182)
    • Income-tax Act, 1961: Exemptions for political parties to maintain records of donations received via electoral bonds were annulled, safeguarding voters’ right to information. (Section 13A)

    Application of Proportionality Test

    [A] Definition:

    • The proportionality test assesses the balance between competing fundamental rights or interests and the measures taken by the state to achieve its objectives.
    • It involves four criteria: legality, necessity, proportionality in the strict sense, and balancing of interests.

    [B] Government’s Arguments:

    • The government defended the scheme, citing legitimate aims such as tackling black money and protecting donor anonymity.
    • Solicitor General Tushar Mehta argued that the right to information does not extend to information not in the state’s possession.

    [C] Court’s Analysis:

    • Applying the proportionality test, the court scrutinized the balance between competing fundamental rights, emphasizing the necessity of the “least restrictive” methods.
    • It underscored the importance of less intrusive alternatives, such as the electoral trusts scheme, in achieving the scheme’s objectives.

    Why is this a Landmark case?

    • Burden of Proof: The court held that the state must demonstrate that its measures are the “least restrictive” and that no other “equally effective” methods exist to achieve its objectives.
    • Balancing Competing Rights: Unlike previous approaches prioritizing public interest over individual rights, the court’s focus is on balancing competing fundamental rights.
    • Structured Proportionality Test: The verdict applies a structured proportionality test, requiring the state to demonstrate that its actions restricting fundamental rights are proportional to its objectives.
    • Application of Legal Precedents: While the right-to-privacy ruling laid down the law, subsequent cases like Aadhaar (2018) and Demonetization (2023) applied the structured proportionality test. The electoral bonds verdict represents a significant departure in this regard.

    Conclusion

    • The Supreme Court’s verdict reaffirms its commitment to upholding constitutional principles and safeguarding democratic processes.
    • By striking down the electoral bonds scheme and reinstating key legal provisions, the court emphasizes the primacy of transparency and accountability in electoral financing.

  • British-era Act invoked to Block Internet in Punjab

    Introduction

    • The Union government invoked its authority under a colonial-era Temporary Suspension of Telecom Services Rules, 2017 to suspend mobile Internet in select districts of Punjab during Farm Protests 2.0.

    Mechanisms allowing Internet Shut-downs

    Authorities Purpose
    Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 Home Departments in the states, state government review committee, central government (under this law, but rarely used) Enforces shutdowns for public emergency or safety reasons.
    Section 144 of the CrPC Local law enforcement authorities Enables shutdowns, particularly before 2017, to maintain public order and safety.
    The Indian Telegraph Act, 1885, Section 5(2) Home Secretary of the Union or state governments Allows blocking of messaging during a public emergency, safeguarding public safety, or protecting sovereignty and integrity.

     

    Constitutional Provisions for Right to Internet

    Constitutional Provision Explanation
    Anuradha Bhasin vs. Union of India and Ors. (2020) Right to Freedom of Speech and Expression under Article 19(1)(a) Grants the right to freedom of speech and expression, which encompasses access to information and the Internet.
    Faheema Shirin RK vs. State of Kerala and others (2019) Right to Education under Article 21A Guarantees the right to education for children aged 6 to 14;

    Internet access is crucial for modern education.
    K.S. Puttaswamy (Privacy) vs. Union of India (2017) Right to Privacy under Article 21 Protects the fundamental right to privacy, and Internet access is often used for secure communication.
    Anuradha Bhasin vs. Union of India and Ors. Freedom to Practice Any Profession or Carry on Any Trade, Business, or Occupation under Article 19(1)(g) Ensures the freedom to conduct various trades, businesses, and professions, often requiring Internet access.

    Landmark Precedence: Anuradha Bhasin Judgment (2020)

    • Supreme Court’s Ruling: In January 2020, the Supreme Court of India recognized access to the Internet as a fundamental right under the Indian Constitution.
    • Restrictions Guidelines: The Court mandated that any government-imposed Internet restrictions must be temporary, limited, lawful, necessary, and proportionate. It also emphasized judicial review.

  • Governor’s Address: Insights from R. Venkataraman’s Perspective

     Introduction

    • The recent episode in the Tamil Nadu Assembly, where Governor R.N. Ravi declined to deliver the customary address, has reignited debates surrounding the significance of the Governor’s Address.
    • He actually walked out in response to an insult of National Anthem in TN Assembly.

    President’s/Governor’s Address

    • Constitutional mandate: Articles 87 and 176 of the Constitution confer authority upon the President and Governor, respectively, to address the legislature.
    • Occasions for Address: The addresses are reserved for two specific occasions: the commencement of a new legislative session post-election and the inauguration of the annual legislative session.
    • Significance: Termed the President’s or Governor’s Address, these speeches are pivotal for initiating legislative proceedings.

    Governor’s Address to the State Legislature: A Constitutional Obligation

    • Prescribed Duties: Article 176 delineates the Governor’s obligation to address the Legislative Assembly at the onset of each legislative year and post-general elections, with both Houses convened if a Legislative Council exists.
    • Procedural Norms: Established rules govern the time allocated for deliberating the address’s contents, ensuring parliamentary discourse.

    Global Parallels: Similar Practices across Democracies

    • Cross-National Comparison: Analogous provisions are observed in democratic nations worldwide.
    • State of the Union: In the United States, it manifests as the “State of the Union” address (1790), while in the United Kingdom, it is the Queen’s Speech (1536), heralding the parliamentary year’s commencement.
    • Indian Context: India’s Presidential Address mirrors the British model, reflecting the ceremonial role of the President, a sentiment echoed during the Constitution’s framing by Dr. B R Ambedkar.

    Features of the Address Content

    [A] Address Content: Proposals and Achievements

    • Legislative Agenda: The President’s or Governor’s speech encapsulates legislative proposals and government policy initiatives, coupled with a retrospective glance at previous accomplishments.
    • Government Input: Inputs for this address are curated from various government ministries, embodying the administration’s agenda.

    [B] Authorship and Agency: Government Responsibility

    • Constitutional Mandate: Governed by constitutional mandate, both the President and Governor are obligated to adhere to the Cabinet’s advice (1950) in their functions, including address preparation.
    • Policy Reflection: Hence, the address is meticulously crafted by the government, serving as a reflection of its policy stance.

    [C] Flexibility vs. Normative Adherence: Presidential/Governor Discretion

    • Adherence to Protocol: While refusal to deliver the address is impermissible, deviations from the prepared script are permissible.
    • Instances of Departure: Instances of Governors veering off the scripted path have transpired, although such actions remain rare for Presidents.

    Judicial Pronouncement: Upholding Constitutional Framework

    • Legal Precedent: The Supreme Court, in Shamsher Singh v. State of Punjab (1975), underscored the President’s (or Governor’s) adherence to Cabinet advice across functions.
    • Contested Discretion: While discretion to modify the speech is contested, any departure from parliamentary norms may invoke debate.

    R. Venkataraman’s Perspective

    • Venkataraman’s Critique: R. Venkataraman, who served as President from 1987 to 1992, vehemently opposed the practice of Presidential and Governor’s addresses, deeming it a “British anachronism” and a “meaningless formality.”
    • Calls for Constitutional Amendment: Venkataraman repeatedly urged PM Rajiv Gandhi and Chandra Shekher to abolish this tradition through a Constitutional amendment, emphasizing its lack of relevance and inherent biases.

    Perceptions of the Address

    • Government’s Voice: Venkataraman viewed the address as a mere reflection of the ruling regime’s perspectives, rendering Presidents and Governors mere “mouthpieces” devoid of independent expression.
    • Controversies and Criticism: He expressed dismay over controversies surrounding Governors’ addresses in states like Maharashtra and West Bengal, condemning the opposition’s heckling of figures like Governor Nurul Hasan.
    • Symbolic Adjustments: Venkataraman, in presenting his maiden Presidential address in 1988, advocated for subtle changes like replacing “My government” with “The government,” aligning with India’s constitutional ethos framed by the people.
    • Legacy of British Colonialism: He underscored the incongruity of retaining British-era conventions in India’s democratic framework, emphasizing the need for symbolic adjustments to reflect the nation’s sovereignty.

    Conclusion

    • Symbol of Governance: The tradition of Presidential and Governor’s addresses, rooted in constitutional mandate, and symbolizes the fusion of ceremonial protocol with legislative functionality.
    • Executive-Legislative Nexus: As integral components of democratic governance, these addresses underscore the synergy between executive authority and parliamentary accountability, while navigating the delicate balance between tradition and evolving norms.

  • Supreme Court’s Inquiry into Amending the Preamble

    preamble

    Introduction

    • A public interest litigation filed by former Rajya Sabha MP Dr. Subramanian Swamy seeks to delete the words “Socialist” & “Secular” from the Preamble to the Constitution of India.
    • The case questions the validity of the insertion of these words via the 42nd Constitution Amendment of 1976 during Prime Minister Indira Gandhi’s tenure.
    • It argues that the amendment was beyond the amending power of the Parliament under Article 368.

    Why discuss Preamble?

    • Original Draft: The Preamble was adopted on November 26, 1949, by the Constituent Assembly of India, setting out the Constitution’s guiding purpose and principles.
    • 1976 Amendment: The 42nd Constitution Amendment introduced the words “Socialist” and “Secular” to the Preamble, altering its initial declaration.
    • Legal Implications: The insertion faces scrutiny over its legality and alignment with the Constitution’s foundational principles.

    Amending the Preamble

    • Judicial Inquiry: During the hearing, Justice Datta remarked on the amendability of the Preamble. He pondered if the Preamble could have been amended earlier (by the 42nd Amendment Act in 1976) to include the words Socialist and Secular while retaining the date of adoption (November 29, 1949).
    • Discussion on Academic Grounds: The judge prompted counsels to consider, academically, the feasibility of amending the Preamble while preserving its original adoption date.
    • Historical Context: Justice Datta noted that the Preamble, unique with its specified adoption date, underwent changes, but the inclusion of “Socialist” and “Secular” was a notable amendment.
    • Legal Challenge: The petition challenges the constitutionality of the insertion, arguing that it contradicts the Constitution’s original intent and undermines the citizens’ right to choose their political ideologies.
    • Kesavananda Bharti Precedent: The inquiry draws upon the landmark Kesavananda Bharti case (1973) where the Supreme Court held that the Preamble was an integral part of the Constitution and subject to amendment, provided it didn’t violate the Constitution’s basic structure.

    Addition of “Socialist” and “Secular”

    • The 42nd Amendment: During the Emergency imposed by Prime Minister Indira Gandhi in 1976, the terms “socialist” and “secular” were added to the Preamble through The Constitution (42nd Amendment) Act, 1976.
    • Indira Gandhi’s Agenda: Indira Gandhi’s government aimed to emphasize a socialist and pro-poor image, aligning with slogans such as “garibi hatao” (Eradicate poverty). The addition of “socialist” highlighted socialism as a fundamental goal of the Indian state.
    • Distinctive Indian Socialism: The Indian version of socialism did not endorse complete nationalization but emphasized selective nationalization of essential sectors.

    Understanding “Secular”

    • Religious Diversity: India is home to diverse religious beliefs and practices. The term “secular” was added to the Preamble to promote unity and fraternity among people of various faiths.
    • State Neutrality: Secularism in the Indian context implies that the state maintains neutrality and impartiality towards all religions. It does not favor any particular religion as a “state religion.”
    • Secularism as Law: Articles 25-28 of the Constitution secure the secular nature of the Indian state.
    • Inherent in the Constitution: The philosophy of secularism was inherent in the Constitution even before the 42nd Amendment.

    Debates Surrounding “Socialist” and “Secular”

    • Consensus on Secularism: The concept of secularism was already part of the Constitution’s philosophy. The insertion of the word “secular” in the Preamble simply made explicit what was implicit in various provisions.
    • Constituent Assembly Discussions: The Constituent Assembly debated including these words in the Preamble but decided against it.
    • Dr. B. R. Ambedkar’s Perspective: Dr. B. R. Ambedkar argued that issues related to the state’s policy, organization, and economic aspects should be determined by the people, not dictated by the Constitution itself.
    • Ongoing Debates: Over the years, there have been petitions and discussions regarding the removal of “socialist” and “secular” from the Preamble. Some argue that these terms were added arbitrarily during the Emergency.

    Conclusion

    • The Supreme Court’s inquiry into the amendment of the Preamble reflects a critical examination of constitutional principles.
    • The case raises fundamental questions about the scope of parliamentary amending power and the preservation of constitutional integrity.
    • The outcome of this legal challenge will have significant implications for the interpretation of the Constitution’s core values and the balance of power between Parliament and the judiciary.

  • Supreme Court’s Deliberation on Sub-Classification of Scheduled Castes

    Introduction

    • The Supreme Court’s recent deliberation on the sub-classification of Scheduled Castes (SC) within India’s reservation system raises questions about the balance of power between states and the Parliament.
    • This highlights the socio-economic implications of such sub-classification.

    Who are the Scheduled Castes?

     

    • Scheduled Castes (SC) represent an administrative classification that encompasses various castes, including both touchable and untouchable groups, consolidated for preferential treatment purposes.
    • This classification fails to acknowledge the internal distinctions among the castes grouped together under the SC category.
    • Despite reservations, the pre-existing internal differences among the listed Scheduled Castes persist, posing challenges to effective upliftment measures.
    • Constitutional Provisions:
    1. Article 341 of the Indian Constitution empowers the President to designate specific castes and classes as Scheduled Castes within states or union territories.
    2. Article 342 allows Parliament to include or exclude castes or tribes from this list. It elaborates on the term “Scheduled Castes,” encompassing castes, races, or tribes, or their subsets, as specified under Article 341.
    3. Parliament: Inclusion or exclusion of any group from these lists is done through legislation by the Parliament.

    Quest for Sub-Classification: SC Bench’s Examination

    • Questioning Tinkering with the List: Justice B.R. Gavai queries whether state-level preferential allotment to certain sub-castes affects the parliamentary power to manage the Presidential list.
    • Dismissal of “Balkanisation” Argument: The Bench dismisses concerns that sub-classification would lead to fragmentation of the SC list.
    • Argument for Homogeneity: Senior advocate Manoj Swarup argues that SCs form a homogeneous group and preferential treatment would perpetuate inequality.
    • Justice Gavai’s Counter: Justice Gavai challenges this view, highlighting the need for the upliftment of particularly backward groups within SCs.

    Why discuss this?

    [A] Socio-Economic Implications

    • Equality and Empowerment: Justice Vikram Nath underscores the aim of sub-classification as uplifting backward groups within SCs.
    • Ensuring Fairness: Justice Gavai emphasizes that preferential treatment should not exclude other deserving candidates from access to opportunities.

    [B] Political and Societal Considerations

    • Potential for Political Appeasement: Concerns raised about states using sub-classification for political gains and electoral advantage.
    • Judicial Review and Empirical Basis: Justice Gavai highlights the role of High Courts in scrutinizing state decisions based on empirical data.

    Why is the Sub-Classification needed?

    • Addressing Inequalities: Graded inequalities persist among SC communities, with some having limited access to services.
    • Disproportionate Representation: Certain sub-castes lack fair representation in employment and education due to current discrimination policies.
    • Overcoming Hierarchies: SCs vary socio-economically, with some progressing while others still face disadvantages.
    • Facilitating Mobility: Current policies hinder uniform benefits, leading to competition. Sub-categorization can aid in political empowerment and education.
    • Ensuring Justice: Targeted approaches are needed to address specific vulnerabilities within SC sub-groups.
    • Equitable Distribution: Sub-categorization prevents benefits from concentrating in certain groups, promoting fair resource allocation.

    Challenges Associated

    • Inequality: Sub-categorization may not effectively address disparities within Scheduled Castes, per recommendations from the National Commission for Scheduled Tribes (NCST), highlighting the need for existing schemes to reach the most backward communities first.
    • Federalism Issue: While a 2004 Supreme Court ruling barred states from unilaterally sub-categorizing SC lists, a 2020 judgment indicated states could decide benefit allocations within these lists, pending review by a larger Bench.
    • Identification Criteria Complexity: Determining sub-categorization criteria, as highlighted in judgments like State of Kerala v N M Thomas (1976) and E V Chinnaiah (2005), presents challenges in defining SCs due to socio-economic complexities.
    • Data Accuracy Challenge: Obtaining accurate socio-economic data for SC communities is difficult, hindering decision-making on caste categorizations and allocations.
    • Intra-group Disputes Risk: Sub-categorization may create internal divisions within SC communities, potentially exacerbating tensions as groups compete for affirmative action.
    • Fragmentation Risk: Sub-categorization could fragment the SC community, diluting their political and social identity, and weakening their collective advocacy for rights, as per concerns raised.

    Chief Justice’s Perspective

    • Artificial Backward Class Creation: Chief Justice Chandrachud emphasizes the need for states to demonstrate objective criteria, like lack of representation, for sub-classification.
    • High Court Review: Asserts that High Courts can review state decisions to ensure fairness and adherence to constitutional principles.

    Way Forward

    • Legal Options: Explore legal avenues like a constitutional amendment for sub-categorization, leveraging existing provisions like Article 16(4).
    • Data Collection: Enhance data collection on socio-economic status through a caste-based census to inform policy formulation.
    • Creamy Layer Concept: Apply the “creamy layer” concept within SCs to ensure fair allocation of benefits based on income eligibility.
    • Transparent Criteria: Develop transparent criteria for sub-categorization, considering socio-economic status, education, and regional disparities.
    • Balanced Approach: Strike a balance between recognizing diversity within SCs and maintaining unity, ensuring policies address specific needs without fragmenting the community.

    Conclusion

    • As the case awaits judgment, the need for a nuanced approach that balances legal principles with social justice imperatives remains paramount.

  • Uttarakhand UCC dares Right to Form ‘Intimate Associations’

    Introduction

    • The recent enactment of the Uniform Civil Code (UCC) in Uttarakhand, specifically addressing live-in relationships, has sparked debates concerning individual freedom and state intervention.

    What are Intimate Associations?

    • It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.
    • This includes family relationships and other deep, personal connections that are important to individuals.

    Uttarakhand UCC on Intimate Associations

    • State Oversight: Section 381 of Uttarakhand’s common civil code mandates individuals intending to enter a live-in relationship to submit a “joint statement” before a Registrar, subjecting their intimate associations to state monitoring.
    • Regulatory Measures: The Registrar is empowered to conduct an “enquiry” to determine the legitimacy of the relationship, infringing on the privacy of consenting adults.
    • Registration Requirement: Couples must obtain a “registration certificate” from the State authority, imposing bureaucratic hurdles on the exercise of personal choice.
    • Scope of Freedom: The freedom to choose a partner and enjoy their society is integral to personal autonomy and individual liberty, safeguarded under Article 19(c) of the Constitution.

    Major Judgments upholding Intimate Associations

    Key Takeaway
    Lata Singh vs. State of UP (2006) Directed protection for inter-caste and inter-religious couples from harassment and violence.
    S. Khushboo vs. Kanniammal & Anr. (2010) Declared sexual relations between consenting adults outside marriage as legal and within the right to privacy.
    Naz Foundation vs. Government of NCT of Delhi (2009) Decriminalized consensual homosexual acts between adults, declaring Section 377 of the Indian Penal Code as a violation of rights.
    Joseph Shine vs. Union of India (2018) Decriminalized adultery and declared it a violation of the rights to equality, dignity, privacy, and autonomy.
    Navtej Singh Johar vs. Union of India (2018) Affirmed the rights of LGBTQ+ individuals to express their sexual orientation and identity with dignity.
    Shafin Jahan vs. Asokan K.M. (2018) Upheld the right to marry a person of one’s choice regardless of religion or caste, nullifying the annulment of a Hindu-Muslim marriage.
    Shakti Vahini vs. Union of India (2018) Condemned honour killings and violence against inter-caste and inter-religious couples, issuing guidelines for prevention and protection.
    Supriyo versus Union of India (2023) Refers to how State should not interfere with the freedom of consenting adults to form legitimate “intimate associations”.

    Critique of State Intervention

    • Infringement on Privacy: The UCC’s intrusive provisions undermine the autonomy and privacy of individuals by subjecting their relationships to state scrutiny.
    • Restriction on Freedom: Imposing regulatory requirements on live-in relationships contradicts established principles of personal liberty and restricts the exercise of fundamental rights.
    • Potential Discrimination: State interference in intimate matters risks perpetuating discrimination and infringing on the rights of consenting adults to form relationships of their choice.

    Arguments in Favor of such Associations

    • Fundamental Rights: Denying individuals the right to choose their partners violates fundamental rights and equality.
    • Union Recognition: Diverse couples lack legal recognition and access to marital rights and protections.
    • Promotion of Equality: Legalizing diverse relationships reduces discrimination and fosters inclusivity.
    • Positive Impact: Recognizing diverse unions positively impacts mental health and societal acceptance.
    • Secularism: Recognizing diverse relationships aligns with democratic principles and equality.

    Arguments Against

    • Preservation of Norms: Altering traditional marriage norms challenges societal expectations.
    • Cultural Preservation: Diverse relationships may conflict with cultural or religious beliefs.
    • Social Impact: Concerns exist regarding family structures and societal cohesion.
    • Legal Complexity: Legalizing diverse unions may introduce legal uncertainties and disputes.
    • Social Stigma: Societal stigma and discrimination persist against diverse relationships.

    Way Forward

    • Advocacy: Continued advocacy for rights and societal acceptance of diverse relationships.
    • Policy Reforms: Push for policy reforms to recognize and protect the rights of individuals.
    • Support Services: Offer counseling and support services to address stigma and legal challenges.
    • Community Building: Create safe spaces and support networks for individuals in diverse relationships.

    Conclusion

    • As debates continue, it is essential to strike a balance between regulatory measures and the protection of constitutional freedoms, fostering a society that values diversity and respects individual autonomy.

    Try this PYQ:

    Which Article of the Constitution of India safeguards one’s right to marry the person of one’s choice? (CSP 2019)

    (a) Article 19

    (b) Article 21

    (c) Article 25

    (d) Article 29

     

    [wpdiscuz-feedback id=”evnjpjihpe” question=”Please leave a feedback on this” opened=”1″]Post your answers here.[/wpdiscuz-feedback]

  • Understanding the Delimitation Exercise

    Delimitation

    Introduction

    • The impending delimitation exercise for Lok Sabha and State Legislative Assemblies, based on the first Census after 2026, has sparked discussions and raised pertinent questions.

    Understanding Delimitation

    • Definition: Delimitation entails fixing the number of seats and boundaries of territorial constituencies, including the reservation of seats for Scheduled Castes (SC) and Scheduled Tribes (ST), based on census data.
    • Constitutional Mandate: Article 82 (Lok Sabha) and Article 170 (State Legislative Assemblies) mandate readjustment of seats after each Census, performed by the Delimitation Commission.
    • Historical Precedent: Delimitation exercises were conducted post the 1951, 1961, and 1971 Censuses, highlighting its periodic nature.

    About Delimitation Commission

    • The Delimitation Commission is a high-powered committee entrusted with the task of drawing and redrawing of boundaries of different constituencies for state assembly and Lok Sabha election.
    • It is appointed by the President and works in collaboration with the Election Commission.
    • The Commission consists of –
    1. A retired or working Supreme Court Judge (chairperson)
    2. Election Commissioner
    3. Concerned State Election Commissioners
    • DC’s orders have the force of law and CANNOT be called in question before any court.
    • The orders are laid before the Lok Sabha and the legislative assemblies concerned, but they cannot effect any modifications in the orders.

    Need for Delimitation

    • Democracy and Representation: The essence of democracy mandates ‘one citizen-one vote-one value,’ necessitating periodic readjustment of seats to reflect population changes.
    • Freezing of Seats: Seats have been frozen since 1971 to encourage population control, with the freeze extended until 2026 through the 84th Amendment Act.

    Why is this exercise problematic?

    • Uneven Population Growth: Population disparities among states pose challenges, with some states experiencing rapid growth while others stagnate.
    • Options Discussed: Options include redistributing existing seats among states or increasing the total seats to reflect population changes.
    • Constituency Shrinkage: Electorates often lose their representation due to the merger of constituencies.

    International Perspectives

    • United States: The U.S. redistributes seats among states after each Census to maintain proportionality, ensuring minimal disruption.
    • European Union: EU Parliament uses a principle of ‘degressive proportionality,’ where seats are allocated based on population ratios.

    Way forward

    • Harmonizing Principles: Balancing democratic representation and federal principles is crucial. Capping Lok Sabha seats at the current 543 ensures continuity, while increasing State Legislative Assembly seats aligns with democratic representation.
    • Empowering Local Bodies: Strengthening democracy involves empowering grassroots institutions like panchayats and municipalities, enhancing citizen engagement and governance.

    Conclusion

    • The delimitation exercise presents a delicate balance between democratic representation and federal principles.
    • By adopting a nuanced approach that respects constitutional mandates while empowering local governance, India can navigate the complexities of delimitation, ensuring inclusive and effective representation for its diverse populace.

  • The path towards a pluralist civil society

    Op-ed: India – A vibrant democracy and a pluralistic society | SunOnline International

    Central Idea:

    The article explores the importance of the phrase “We the People” in the Indian Constitution’s Preamble, emphasizing the need to understand popular sovereignty as a dynamic force rather than a static concept. It delves into the role of different spheres within civil society, highlighting the contrast between the elite public sphere and the non-elite counter-sphere. The article draws on the perspectives of constitutional scholar Sarbani Sen, B.R. Ambedkar, and Mahatma Gandhi to underscore the significance of inclusive dialogue, empathy, and a pluralist civil society for the true realization of constitutional principles.

    Key Highlights:

    • Controversy over the omission of ‘Socialist’ and ‘Secular’ in copies of the Indian Constitution during Parliament’s inaugural session.
    • Emphasis on the revolutionary potential of the Constitution rooted in the spirit of “We the People.”
    • The distinction between the elite public sphere and the non-elite counter-sphere in civil society.
    • Recognition of the powerful democratic assertions from movements and groups outside the traditional elite sphere.
    • B.R. Ambedkar’s framing of the Preamble and his emphasis on morality as a governing principle.
    • Gandhi’s concept of ‘Swaraj’ as a creative process of self-realization and the importance of dialogue and empathy.

    Key Challenges:

    • Inertia of the elite public sphere in addressing challenges to constitutional governance.
    • The tendency to marginalize non-elite counter-sphere movements as “sectional” or emotional.
    • Potential loss of liberatory potential if the counter-sphere is not given equal standing in civil society.
    • The need to move beyond chauvinistic pride and engage in honest, introspective dialogue.

    Key Terms:

    • Popular Sovereignty
    • Elite Public Sphere
    • Non-elite Counter-sphere
    • Swaraj
    • Satyagraha
    • Deliberative Democracy

    Key Phrases:

    • “We the People”
    • “Counterbalancing the state”
    • “Radically democratic forms of popular assertions”
    • “Sovereignty of the political community”
    • “Liberty, equality, and fraternity”
    • “Empathetic engagement with the concerns of others”
    • “Inclusive dialogue”
    • “Plural civil society”

    Key Quotes:

    • “Without equality, liberty would produce the supremacy of the few over the many.” – B.R. Ambedkar
    • “Swaraj… a creative process of self-realization through which one might reach out towards a more secure and substantive plane of freedom and equality.” – Ajay Skaria
    • “Every self is deeply fissured, and sovereignty is ubiquitous, always exercised everyday by the self.” – Ajay Skaria

    Key Statements:

    • The Constitution’s revolutionary potential lies in the spirit of popular sovereignty.
    • Inclusivity and equal standing of all communities are crucial for a plural civil society.
    • The liberal public sphere has been inert in the face of challenges to constitutional governance.

    Key Examples and References:

    • Una agitation by Dalits
    • Pathalgadi movement of tribals in Jharkhand
    • Farmers’ movements in Punjab and Haryana
    • Nationwide protests by Muslims against the Citizenship (Amendment) Act

    Key Facts and Data:

    • Controversy during the inaugural session of the new Parliament over the omission of ‘Socialist’ and ‘Secular’ in the Constitution copies.
    • Reference to the book “The Constitution of India: Popular Sovereignty and Democratic Transformations” by Sarbani Sen.

    Critical Analysis:

    • The article critiques the inertia of the elite public sphere in addressing constitutional challenges.
    • It highlights the potential danger of marginalizing non-elite counter-sphere movements as emotional or sectional.
    • Emphasis on the need for honest and introspective dialogue for a pluralist civil society.

    Way Forward:

    • Advocate for an inclusive and plural civil society that recognizes the equal standing of all communities.
    • Promote empathetic engagement and dialogue to foster mutual understanding.
    • Encourage active participation in civil society, especially from non-elite counter-sphere movements.
    • Stress the importance of moral principles in governance and societal interactions.