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

A Constitution Bench of the Supreme Court, in a 3:2 majority decision, upheld the validity of the 103rd Constitutional Amendment, which provides 10% reservation in government jobs and educational institutions to the Economically Weaker Sections (EWS) of society.

What else?

• The judgment excludes the “poorest of poor” among Scheduled Castes (SC), Scheduled Tribes (ST), Socially and Educationally Backward Classes (SEBC) and Other Backward Classes (OBC) from its scope.

What was the 103^rd Amendment?

• The 103rd Amendment inserted Articles 15(6) and 16(6) in the Constitution to provide up to 10 per cent reservation to the economically weaker sections (EWS) among non-OBC and non-SC/ST sections .
• In other words, the amendment had changed the Constitution and introduced a quota for the poor among the so-called ‘forward castes’ or ‘general category’.

Quota available to EWS

• The quota is available in:

1. Admissions to higher educational institutions and
2. Initial recruitment in central government jobs

• The amendment also empowered state governments to provide reservation on the basis of economic backwardness.

On what basis was the quota challenged?

Ans. Violation of Basic Structure

• Violation of basic structure: Essentially, the challenge was based on the argument that the 103rd amendment violated the “basic structure” of the Constitution.
• Socially disadvantage: The primary argument in this case stemmed from the view that the special protections guaranteed to socially disadvantaged groups is part of the basic structure.
• Sole economic criterion: The 103rd Amendment departs from this by promising special protections on the sole basis of economic status.

Key arguments by the Judges

[A] Majority Opinion

Three judges, Justices Dinesh Maheshwari, Bela Trivedi, and S B Pardiwala, have upheld the validity of the 103rd amendment.

1. Justice Dinesh Maheshwari: He has ruled that reservation based only on economic criteria does not violate the basic structure of the Constitution, and that the exclusion of classes covered in Article 15(4) and 16(4) — that is OBCs and SC/STs — in the 103rd amendment does not damage the basic structure.
2. Justice Bela Trivedi: She has concurred with Justice Maheshwari. She ruled that treating EWS as a separate class would be a reasonable classification, and that treating unequals equally would violate the principle of equality under the Constitution.
3. Justice Trivedi: He said that 75 years after independence, it was time to revisit the system of reservation in the larger interest of society.
4. Justice S B Pardiwala: He concurred with Justice Maheshwari and Justice Trivedi. He observed that “Reservation is not an end, it is means, it should not be allowed to become a vested interest.

[B] Minority (Dissenting) Opinion

1. Justice Bhat: He has ruled that while reservation on economic criteria is per se not violative of the Constitution, excluding SC/ST/OBC from the purview of EWS is violative of basic structure. He has struck down Articles 15(6) and 16(6) for being discriminatory and violative of the equality code.
2. CJI Lalit: He said he concurs entirely with the judgment of Justice Bhat.

What about the 50% ceiling on quotas?

• The judgment appears to have struck down the ceiling of 50%.
• Justice Maheshwari said that reservations for EWS does not violate basic structure on account of 50% ceiling limit because ceiling limit is not inflexible.

How the judiciary deviated from its earlier judgments?

• However, the dissenting opinion says that permitting breach of 50% would result in compartmentalization, and the rule of right to equality will become right to reservations.
• The apex court has repeatedly underlined the 50% ceiling on reservations imposed by the landmark Indra Sawhney judgment of 1992.
• On that basis, attempts by a number of states have been struck down.
• Several of those issues can now be reopened. Now states can rebel with their populist moves to provide reservations to some communities. Ex. Nomadic Tribes case in Maharashtra.

What is the EWS Quota?

• The EWS criteria for employment and admission was notified on January 31, 2019 by the Department of Personnel and Training (DoPT) based on the 103rd Amendment.
• Under the 2019 notification, a person who was not covered under the scheme of reservation for SCs, STs, and OBCs, and whose family had a gross annual income below Rs 8 lakh, was to be identified as EWS.
• The notification specified what constituted “income”, and excluded some persons from the EWS category if their families possessed certain specified assets.

Broad issues with EWS quota

• Reduction within general category: The EWS quota remains a controversy as its critics say it reduces the size of the open category, besides breaching the 50% limit on the total reservation.
• Arbitrariness over income limit: The court has been intrigued by the income limit being fixed at ₹8 lakh per year. It is the same figure for excluding the ‘creamy layer’ from OBC reservation benefits.
• Socio-economic backwardness: A crucial difference is that those in the general category, to whom the EWS quota is applicable, do not suffer from social or educational backwardness, unlike those classified as the OBC.
• Metropolitan criteria: There are other questions as to whether any exercise was undertaken to derive the exceptions such as why the flat criterion does not differentiate between metropolitan and non-metropolitan areas.
• OBC-like criteria: The question the court has raised is when the OBC category is socially and educationally backward and, therefore, has additional impediments to overcome.
• Not based on relevant data: In line with the Supreme Court’s known position that any reservation or norms for exclusion should be based on relevant data.
• Breaches reservation cap: There is a cap of 50% on reservation as ruled in the Indira Sawhney Case. The principle of balancing equality ordains reservation.

Way forward

• Preserving the merit: We cannot rule out the sorry state of economic backwardness hampering merit in our country.
• Rational criteria: There has to be collective wisdom to define and measure the economic weakness of certain sections of society in order to shape the concept of economic justice.
• Judicial guidance: Judicial interpretation will pave the wave forward for deciding the criterion for EWS Quota.
• Targetted beneficiaries. The center needs to resort to more rational criteria for deciding the targeted beneficiary of this reservation system. Caste Census data can be useful in this regard.
• Income study: The per capita income or GDP or the difference in purchasing power in the rural and urban areas, should be taken into account while a single income limit was formulated for the whole country.

 

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Bangladesh Information Minister has said that the Citizenship Amendment Act (CAA) framed to grant Indian citizenship to minorities of Bangladesh, Pakistan and Afghanistan was an “internal matter” of India.

What is Citizenship Amendment Act (CAA), 2019?

• The Citizenship (Amendment) Act, 2019 (CAA) is an act that was passed in the Parliament on December 11, 2019.
• The 2019 CAA amended the Citizenship Act of 1955 allowing Indian citizenship for religious minorities who fled from the neighboring Muslim majority countries before December 2014 due to “religious persecution or fear of religious persecution”.
• However, the Act excludes Muslims.
• Under CAA, migrants who entered India by December 31, 2014, and had suffered “religious persecution or fear of religious persecution” in their country of origin, were made eligible for citizenship by the new law.
• These type of migrants will be granted fast track Indian citizenship in six years.
• The amendment also relaxed the residence requirement for naturalization of these migrants from eleven years to five.

Key feature: Defining illegal migrants

• Illegal migrants cannot become Indian citizens in accordance with the present laws.
• Under the CAA, an illegal migrant is a foreigner who: (i) enters the country without valid travel documents like a passport and visa, or (ii) enters with valid documents, but stays beyond the permitted time period.
• Illegal migrants may be put in jail or deported under the Foreigners Act, 1946 and The Passport (Entry into India) Act, 1920.

Exceptions

• The Bill provides that illegal migrants who fulfil four conditions will not be treated as illegal migrants under the Act.  The conditions are:

1. They are Hindus, Sikhs, Buddhists, Jains, Parsis or Christians;
2. They are from Afghanistan, Bangladesh or Pakistan;
3. They entered India on or before December 31, 2014;
4. They are not in certain tribal areas of Assam, Meghalaya, Mizoram, or Tripura included in the Sixth Schedule to the Constitution, or areas under the “Inner Line” permit, i.e., Arunachal Pradesh, Mizoram, and Nagaland.

Controversy with the Act

• Country of Origin: The Act classifies migrants based on their country of origin to include only Afghanistan, Pakistan and Bangladesh.
• Other religious minorities ignored: It is unclear why illegal migrants from only six specified religious minorities have been included in the Act.
• Defiance of purpose: India shares a border with Myanmar, which has had a history of persecution of a religious minority, the Rohingya Muslims.
• Date of Entry: It is also unclear why there is a differential treatment of migrants based on their date of entry into India, i.e., whether they entered India before or after December 31, 2014.

Why discuss this?

• The CAA became a huge cause of concern between India and Bangladesh when it was passed by the Parliament in December 2019, with Dhaka seeking a written assurance from India.
• Dhaka, then was irked by the remarks about religious persecution of minority Hindus in Bangladesh.

 

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The Supreme Court has agreed to examine a PIL challenging changes made to the right to freedom of speech and expression by the first amendment to the Constitution in 1951.

Why in news?

• The fresh petition argues that the 1st Constitutional Amendment damages the basic structure doctrine.

What was the first amendment?

• The Constitution (First Amendment) Act, 1951 made several changes to the Fundamental Rights provisions of the Indian constitution.
• It provided means to:

1. Restrict freedom of speech and expression,
2. Validation of zamindari abolition laws, and
3. Clarified that the right to equality does not bar the enactment of laws which provide “special consideration” for weaker sections of society

• This Amendment set the precedent of amending the Constitution to overcome judicial judgements impeding fulfilment of the government’s perceived responsibilities.

Why in news now?

• In his plea, the petitioner said Section 3(1) of the 1951 Amending Act substituted original Clause (2) of Article 19.
• This clause 19(2) deals with reasonable restrictions on the freedom of speech and expression guaranteed under Article 19(1)(a).

(a) Objectionable insertions

• It which contained two objectionable insertions allowing restrictions also:

1. In the interest of public order and
2. In relation to incitement to an offence

(b) Crucial omissions

• The new Clause (2) also omitted the expression “tends to overthrow the State” as appearing in the original Clause (2).
• Section 3 (2) of the amending Act effected validation of certain laws even if they took away or abridged the right to freedom of speech and expression, the petitioner said.

Issues created by Clause (2) of Article 19

Ans. It protects certain arbitrary sections of IPC from constitutionality check

• The petition contended that these two insertions protect certain IPC sections such as from the vice of unconstitutionality –

1. Sections 124A: Sedition
2. Section 153A: Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc. prejudicial to maintenance of harmony
3. Section 295A: Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs and
4. Section 505: Statements conducing to public mischief

• The questionable expressions inserted unduly abridge the fundamental right under Article 19 (1)(a) { freedom of speech and expression}.

How it sought to trivialize national security?

• The amendment also neglects national security by dropping the expression ‘tends to overthrow the State’.
• The omission of this expression raises grave concern in the context of the dangers posed to the concept of secular democratic republic by radicalism, terrorism and religious fundamentalism.
• This could either be radicalism or right-wing extremism.

How did the petition invoke basic structure doctrine here?

• The petition argued that undue abridgement does not advance or sub serve any constitutional objectives.
• They appear more to damages inter alia democracy and republicanism and supremacy of the Constitution.

 

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The Gujarat government has moved a proposal to constitute a committee to evaluate all aspects of implementing the Uniform Civil Code (UCC).

What is a Uniform Civil Code (UCC)?

• A UCC is one that would provide for one personal civil law for the entire country.
• This would be applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption etc.

Basis for UCC

• Article 44, one of the Directive Principles of the Constitution lays down that the state shall endeavour to secure a UCC for the citizens throughout the territory of India.
• These, as defined in Article 37, are not justiciable (not enforceable by any court) but the principles laid down therein are fundamental in governance.

Personal Laws And Uniform Civil Code: Timeline

# British period
During the British Raj, Personal laws were first framed mainly for Hindu and Muslims citizens.

# Start of 20th Century
In the beginning of the twentieth century, the demand for a uniform civil code was first put forward by the women activists. The objective behind this demand was the women’s rights, equality and secularism.

# 1940 – The Idea of Uniform Civil Code is born
The idea of Uniform Civil Code was tabled by the National Planning Commission (NPC) appointed by the Congress. There was a subcommittee who was to examine women’s status and recommends reforms of personal law for gender equality.

# 1947 – Question of UCC as a Fundamental Right
UCC was sought to be enshrined in the Constitution of India as a fundamental right by Minoo Masani, Hansa Mehta, Amrit Kaur and Dr. B.R Ambedkar.

# 1948 – Constitution Assembly debated UCC
Article 44 of the Indian Constitution i.e. Directive Principles of State Policy sets implementation of uniform civil laws which is the duty of the state under Part IV.

# 1950 – Reformist Bill passed
Reformist bills were passed which gave the Hindu women the right to divorce and inherit property. Bigamy and child marriages are outlawed. Such reforms were resisted by Dr. Rajendra Prasad.

# 1951 – Dr. Ambedkar Resigns
Dr. Ambedkar resigned from the cabinet in 1951 when his draft of the Hindu Code Bill was stalled by the Parliament.

# 1985 – Shah Bano Case
In this case, a divorced Muslim woman was brought within the ambit of Section 125 of Code of Criminal Procedure, 1973 by the Supreme Court in which it was declared by the Apex court that she was entitled for maintenance even after the completion ofiddatperiod.

# 1995- Sarla Mudgal v. Union of India
In this case, Justice Kuldip Singh reiterated the need for the Parliament to frame a Uniform Civil Code, which would help the cause of national integration by removing contradictions based on ideologies. Therefore, the responsibility entrusted on the State under Article 44 of the Constitution whereby a Uniform Civil Code must be secured has been urged by the Supreme Court repeatedly as a matter of urgency.

# 2000 – Supreme Court advocates UCC
The case of Lily Thomas v. Union of India (2000),where the Supreme Court said it could not direct the centre to introduce a UCC.

# 2015 – The Debate lives through
The apex court refused to direct the government to take a decision on having a UCC.

# 2016 – Triple Talaq Debate
When PM asked the Law Commission to examine the issue.

# 2017 – Ruling of the Triple Talaq case
Triple Talaq (Talaq -e- biddat) was declared unconstitutional on August 22, 2017.

UCC vs. Right to Freedom of Religion

1. Article 25 lays down an individual’s fundamental right to religion
2. Article 26(b) upholds the right of each religious denomination or any section thereof to “manage its own affairs in matters of religion”
3. Article 29 defines the right to conserve distinctive culture

Reasonable restrictions on the Freedom of Religion

• An individual’s freedom of religion under Article 25 is subject to “public order, health, morality” and other provisions relating to FRs, but a group’s freedom under Article 26 has not been subjected to other FRs.
• In the Constituent Assembly, there was division on the issue of putting UCC in the fundamental rights chapter. The matter was settled by a vote.
• By a 5:4 majority, the fundamental rights sub-committee headed by Sardar Patel held that the provision was outside the scope of FRs and therefore the UCC was made less important.

Minority Opinion in the Constituent Assembly

• Some members sought to immunize Muslim Personal Law from state regulation.
• Mohammed Ismail, who thrice tried unsuccessfully to get Muslim Personal Law exempted from Article 44, said a secular state should not interfere with the personal law of people.
• B Pocker Saheb said he had received representations against a common civil code from various organizations, including Hindu organizations.
• Hussain Imam questioned whether there could ever be uniformity of personal laws in a diverse country like India.
• B R Ambedkar said “no government can use its provisions in a way that would force the Muslims to revolt”.
• Alladi Krishnaswami, who was in favour of a UCC, conceded that it would be unwise to enact UCC ignoring strong opposition from any community.
• Gender justice was never discussed in these debates.

Enacting and Enforcing UCC

• Fundamental rights are enforceable in a court of law.
• While Article 44 uses the words “state shall endeavour”, other Articles in the ‘Directive Principles’ chapter use words such as “in particular strive”; “shall in particular direct its policy”; “shall be obligation of the state” etc.
• Article 43 mentions “state shall endeavour by suitable legislation” while the phrase “by suitable legislation” is absent in Article 44.
• All this implies that the duty of the state is greater in other directive principles than in Article 44.

What are more important — fundamental rights or directive principles?

• There is no doubt that fundamental rights are more important.
• The Supreme Court held in Minerva Mills (1980): Indian Constitution is founded on the bed-rock of the balance between Parts III (Fundamental Rights) and IV (Directive Principles).
• To give absolute primacy to one over the other is to disturb the harmony of the Constitution.
• Article 31C inserted by the 42nd Amendment in 1976, however, lays down that if a law is made to implement any directive principle, it cannot be challenged on the ground of being violative of the FRs under Articles 14 and 19.

What about Personal Laws?

• Citizens belonging to different religions and denominations follow different property and matrimonial laws which are an affront to the nation’s unity.
• If the framers of the Constitution had intended to have a UCC, they would have given exclusive jurisdiction to Parliament in respect of personal laws, by including this subject in the Union List.
• “Personal Laws” are mentioned in the Concurrent List.

Various customary laws

• All Hindus of the country are not governed by one law, nor are all Muslims or all Christians.
• Muslims of Kashmir were governed by a customary law, which in many ways was at variance with Muslim Personal Law in the rest of the country and was, in fact, closer to Hindu law.
• Even on registration of marriage among Muslims, laws differ from place to place.
• In the Northeast, there are more than 200 tribes with their own varied customary laws.
• The Constitution itself protects local customs in Nagaland. Similar protections are enjoyed by Meghalaya and Mizoram.
• Even reformed Hindu law, in spite of codification, protects customary practices.

 Why need UCC?

• UCC would provide equal status to all citizens
• It would promote gender parity in Indian society.
• UCC would accommodate the aspirations of the young population who imbibe liberal ideology.
• Its implementation would thus support the national integration.

Hurdles to UCC implementation

• There are practical difficulties due to religious and cultural diversity in India.
• The UCC is often perceived by the minorities as an encroachment of religious freedom.
• It is often regarded as interference of the state in personal matters of the minorities.
• Experts often argue that the time is not ripe for Indian society to embrace such UCC.

These questions need to be addressed which are being completely ignored in the present din around UCC.

1. Firstly, how can uniformity in personal laws are brought without disturbing the distinct essence of each and every component of the society.
2. Secondly, what makes us believe that practices of one community are backward and unjust?
3. Thirdly, has other uniformities been able to eradicate inequalities which diminish the status of our society as a whole?

Way forward

• It should be the duty of the religious intelligentia to educate the community about its rights and obligations based on modern liberal interpretations.
• A good environment for the UCC must be prepared by the government by explaining the contents and significance of Article 44 taking all into confidence.
• Social reforms are not overnight but gradual phenomenon. They are often vulnerable to media evils such as fake news and disinformation.
• Social harmony and cultural fabric of our nation must be the priority.

Conclusion

• The purpose behind UCC is to strengthen the object of “Secular Democratic Republic” as enshrined in the Preamble of the Constitution.
• This provision is provided to effect the integration of India by bringing communities on a common platform on matters which are at present governed by diverse personal laws.
• Hence UCC should be enforced taking into confidence all the sections of Indian society.

 

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