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

  • Sixth Schedule of Indian Constitution

    The revival of the demand for two autonomous councils has made political parties and community-based groups call for bringing the entire Arunachal Pradesh under the ambit of the Sixth Schedule or Article 371 (A) of the Constitution.

    Try this question from CSP 2015:

    Q.The provisions in Fifth Schedule and Sixth Schedule in the Constitution of India are made in order to-

    (a) protect the interests of Scheduled Tribes

    (b) determine the boundaries between States

    (c) determine the powers, authority and responsibilities of Panchayats

    (d) protect the interests of all the border States

    What is the Sixth Schedule?

    • The Sixth Schedule consists of provisions for the administration of tribal areas in Assam, Meghalaya, Tripura and Mizoram, according to Article 244 of the Indian Constitution.
    • Passed by the Constituent Assembly in 1949, it seeks to safeguard the rights of the tribal population through the formation of Autonomous District Councils (ADC).
    • ADCs are bodies representing a district to which the Constitution has given varying degrees of autonomy within the state legislature.
    • The governors of these states are empowered to reorganize boundaries of the tribal areas.
    • In simpler terms, she or he can choose to include or exclude any area, increase or decrease the boundaries and unite two or more autonomous districts into one.
    • They can also alter or change the names of autonomous regions without separate legislation.

    Autonomous districts and regional councils

    • The ADCs are empowered with civil and judicial powers can constitute village courts within their jurisdiction to hear the trial of cases involving the tribes.
    • Governors of states that fall under the Sixth Schedule specify the jurisdiction of high courts for each of these cases.
    • Along with ADCs, the Sixth Schedule also provides for separate Regional Councils for each area constituted as an autonomous region.
    • In all, there are 10 areas in the Northeast that are registered as autonomous districts – three in Assam, Meghalaya and Mizoram and one in Tripura.
    • These regions are named as district council of (name of district) and regional council of (name of region).
    • Each autonomous district and regional council consists of not more than 30 members, of which four are nominated by the governor and the rest via elections. All of them remain in power for a term of five years.

  • The future of Indian secularism

    Secularism in India faces multiple challenges. This article analyses challenge the Indian secularims faces from the party-political secularims.

    Features of constitutional secularism in India

    • Constitutional secularism is marked by at least two features.
    • First, critical respect for all religions.
    • Unlike some secularisms, ours is not blindly anti-religious but respects religion.
    • It respects not one but all religions.
    • Every aspect of religious doctrine or practice cannot be respected but respect for religion must be accompanied by critique.
    • Second, intervene whenever religious groups promote communal disharmony.
    • Thus, it has to constantly decide when to engage or disengage, help or hinder religion depending entirely on which of these enhances our constitutional commitment to freedom, equality and fraternity.

    How populism is harming secularism

    • Secularism has paid a heavy price in our country for being at the centre of public and political discourse.
    • Populism based politics is indifferent to freedom and equality-based religious reform, it has removed critical from the term ‘critical respect’.
    • It has even been complicit in igniting communal violence.
    • This party-political ‘secular’ state, cozying up alternately to the fanatical fringe of the minority and the majority, was readymade for takeover by a majoritarian party.
    • This takeover was accomplished by removing the word ‘all’ and replacing it by ‘majority’.
    • Today, Indian constitutional secularism is swallowed up by this party-political secularism, with not a little help from the Opposition, media and judiciary.

    Way forward

    • 1) There is a need for a shift of focus from a politically-led project to a socially-driven movement for justice.
    • 2) Also, a shift of emphasis from inter-religious to intra-religious issues.
    • Such focus on intra-relisious issues may allow deeper introspection within, multiple dissenting voices to resurface, create conditions to root out intra-religious injustices, and make its members free and equal.
    • 3) Europe’s secularism provided a principle to fight intra-religious oppressions. 
    • In India, secularism was not only a project of civic friendship among religious communities but also of opposition to religion-based caste and gender oppressions.
    • A collective push from young men and women  may help strengthen the social struggle of emancipation from intra-religious injustices.
    • 4) Inter-religious issues also should not be ignored.
    • Distance, freedom from mutual obsession, give communities breathing space.
    • Each can now explore resources within to construct new ways of living together.

    Consider the question “How populism in the politics thretens the idea of secularim in India? Suggest the ways to deal with it.”

    Conclusion

    Needed today are new forms of socio-religious reciprocity, crucial for the business of everyday life and novel ways of reducing the political alienation of citizens, a democratic deficit whose ramifications go beyond the ambit of secularism.

  • [pib] Appointment of the UPSC Chairman

    The President of India has appointed Pradeep Kumar Joshi as Chairman of Union Public Service Commission (UPSC).

    Try this PYQ:

    Q.Consider the following statements:

    1. The Executive Power of the Union of India is vested in the Prime Minister.
    2. The Prime Minister is the ex-officio Chairman of the Civil Services Board.

    Which of the statements given above is/are correct? (CSP 2015)

    (a) 1 only

    (b) 2 only

    (c) Both 1 and 2

    (d) Neither 1 nor 2

    Backgrounder: UPSC

    • Established on 1 October 1926 as Public Service Commission, it was later reconstituted as Federal Public Service Commission by the GoI Act 1935; only to be renamed as today’s UPSC after the independence.
    • The UPSC is India’s premier central recruiting agency responsible for appointments to and examinations for All India services and group A & group B of Central services.
    • The Department of Personnel and Training is the central personnel agency in India.
    • It is also required to be consulted by the Government in matters relating to the appointment, transfer, promotion and disciplinary matters.

    Appointments to the UPSC

    • As per Article 316 of the constitution, the Chairman and other members of UPSC shall be appointed by the President.
    • In case the office of the Chairman becomes vacant his duties shall be performed by one of the other members of the Commission as the President may appoint for the purpose.
    • Under Art. 318, the President is empowered to determine the number of members of the Commission and their conditions of service.
    • As per Art 319, a person who holds office as Chairman shall, on the expiration of his term of office, be ineligible for re-appointment to that office.
    • But, a member other than the Chairman shall be eligible for appointment as the Chairman of the UPSC.
    • Also, the Chairman of a State PSC shall be eligible for appointment as the Chairman or any other member of the UPSC.

    Removal of members/chairman

    • As per Art. 317, the Chairman or any other member of a UPSC shall only be removed from their office by order of the President on the ground of “misbehaviour” after the Supreme Court inquiry report.
    • The President may suspend the Chairman or other member of the Commission until a report of the Supreme Court is received.

    Distinguishing features

    • The commission reports directly to the President and can advise the Government through him.
    • Although, such advice is not binding on the Government.
    • Being a constitutional authority, UPSC is amongst the few institutions which function with both autonomy and freedom, along with the country’s higher judiciary and lately the Election Commission.
  • Back in news: EWS quota law

    The Supreme Court has referred to a five-judge Constitution Bench a batch of petitions challenging the 103rd Constitution Amendment of 2019 that provides 10% reservation for Economically Backward Section (EWS).

    Try this question for mains:

    Q.What are the various constitutional challenges posed by the 103rd Constitutional Amendment Act?

    What does the reference mean?

    • A reference to a larger Bench means that the legal challenge is an important one.
    • As per Article 145(3) of the Constitution, “the minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution” shall be five.
    • The Supreme Court rules of 2013 also say that writ petitions that allege a violation of fundamental rights will generally be heard by a bench of two judges unless it raises substantial questions of law.
    • In that case, a five-judge bench would hear the case.
    • Laws made by Parliament are presumed to be constitutional until proven otherwise in court.
    • The SC had refused to stay the 103rd Amendment. A reference will make no difference to the operation of the EWS quota.

    What is the 103rd amendment about?

    • It provides for 10% reservation in government jobs and educational institutions for EWS, by amending Articles 15 and 16 that deal with the fundamental right to equality.
    • While Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth, Article 16 guarantees equal opportunity in matters of public employment.
    • An additional clause was added to both provisions, giving Parliament the power to make special laws for EWS as it does for SCs, STs and OBCs.
    • The states are to notify who constitute EWS to be eligible for reservation.

    Issues with the law

    The SC agreed that the case involved at least three substantial questions of law, whether:

    • First, it violates the Basic Structure of the Constitution. This argument stems from the view that the special protections guaranteed to socially disadvantaged groups is part of the Basic Structure and that the 103rd Amendment departs from this by promising special protections on the sole basis of economic status.
    • Second, it violates the SC’s 1992 ruling in Indra Sawhney Case, which upheld the Mandal Report and capped reservations at 50%. In the ruling, the court held that economic backwardness cannot be the sole criterion for identifying backward class.
    • The third challenge has been of private, unaided educational institutions. They have argued that their fundamental right to practise a trade/profession is violated when the state compels them to implement its reservation policy and admit students on any criteria other than merit.

    What are the government’s arguments?

    • The Ministry of Social Justice and Empowerment filed counter-affidavits to defend the amendment.
    • When a law is challenged, the burden of proving it unconstitutional lies on the petitioners.
    • The government argued that under Article 46 of the Constitution, part of DPSP, it has a duty to protect the interests of economically weaker sections.

    1) The very identity of the Constitution has not been altered.

    2) Countering the claims about Indra Sawhney principle, the government relied on a 2008 ruling— Ashok Kumar Thakur v Union of India, in which the SC upheld the 27% quota for OBCs. Here, the court accepted that the definition of OBCs was not made on the sole criterion of caste but a mix of caste and economic factors, to prove that there need not a sole criterion for according reservation.

    3) For the unaided institutions, the government argued that the Constitution allows the Parliament to place “reasonable restrictions” on the right to carry on trade.

    B2BASICS

    What are the significances of the EWS quota?

    • Address economic inequality: Currently, the economically weaker sections of citizens have remained excluded from attending higher educational institutions and public employment due to their financial incapacity. Therefore, the 10% quota is progressive and could address the issues of educational and income inequality in India.
    • Constitutional recognition:The proposed reservation through a constitutional amendment would give constitutional recognition to the poor from the upper castes.
    • Remove stigma associated with Reservation: It will gradually remove the stigma associated with reservation because reservation has historically been related with caste and most often the upper caste look down upon those who come through the reservation.

    What are the challenges before the EWS quota?

    1.Eligibility criteria:

    • Critics claim that the 8 lakh income threshold is very high and will practically cover nearly all population not already covered by reservations.
    • Notably, NSSO and IT department data shows that at least 95% of Indian families will fall within this limit.
    • Other eligibility criteria have also claimed to be flawed.

    2.Sole economic criteria:

    • The Supreme Court in Indra Sawhney judgement has maintained that a backward class cannot be determined mainly with respect to the economic criterion.
    • Hence introducing reservation based on economic criteria would invite judicial scrutiny.

    3.50 percent limit:

    The SC has put a cap for reservations at 50% – the current proposal will exceed the limit and hence could be legally challenged.

    4.Determining economic backwardness:

    This is a  major challenge as there are concerns regarding the inclusion and exclusion of persons under the criteria.

    5.Enforcement:

    The implementation of the legislation would also be a great challenge since the states do not have the finances to enforce even the present and constitutionally mandated reservations.

    Shrinking jobs:

    When the government is trying to restrict its public services through the advancement of technology in the government system, providing quota in jobs will be a useless move.

    6.Encouraging reservations: 

    The intent of constitutional makers as originally manifested via Article 15 and 16 was to be reviewed after 10 years. However, instead of restricting the policy of positive discrimination, the government is pushing it in some or other forms.

    7.Populist initiative:

    When elections are near, many populists’ measures are put forward by political parties such as loan waiver, reservations, etc. Considering the low levels of political literacy and awareness among masses, political parties take leverage of the same thus impacting the socio-economic and political structure at large.

    8.Lack of proofs to back the outcomes:

    Even after years of reservation policy, there are no considerable pieces of evidence to support the achievements of the original intent of affirmative action. For instance, only about 4 percent each of rural Scheduled Tribe and Scheduled Caste households have a member in a government job.

    9.Lack of Level Playing Field:

    It has to be noted that the Upper ladder in the reserved category are mainly benefitted from the policy whereas the benefits do not reach the marginalized. It may also happen with respect to reservation based on economic criteria as well.

    What is the way forward?

    • One-time usage: Make sure that beneficiaries use their reserved category status only once in their lifetime. For example, a person shall not be allowed to use the reservation for jobs if he/she has already used it for college admissions. Aadhaar can be utilized for this purpose in order to prohibit the second usage.
    • Quality of education: The government should focus on quality in addition to access. For instance, it is no use to give reservation to the poor people in college admission if the quality of the education is low = they get no job. Hence, the quality of education should be given due attention from the primary school stage itself.
    • Vocational education: should be promoted with the necessary skills and knowledge to make them industry ready.
    • Entrepreneurship: Create a spirit of entrepreneurship and make them job giver instead of a job seeker.
    • Social upliftment measures: Alternative as well as effective social upliftment measures should be adopted instead of just focussing on reservation aspect.

     

  • Protesting is a fundamental right: UN

    As authorities worldwide grapple with demonstrations over issues like political rights and racial justice, a UN committee has reaffirmed that protesting peacefully, online or in person, is a fundamental human right.

    Practice question for mains:

    Q.There is an urgent need for reforming the criminal justice system in India in light of rising cases of custodial torture and killings. Comment.

    What is the news?

    • The independent experts on the Human Rights Committee published a fresh interpretation of the right of peaceful assembly.
    • It offered comprehensive legal guidance about where and how it applies and also outlining governments’ obligations.
    • The committee is tasked with monitoring how countries implement the International Covenant on Civil and Political Rights (ICCPR), which under Article 21 guarantees the right to peaceful assembly.

    About ICCPR

    • The ICCPR is a multilateral treaty adopted by UN General Assembly Resolution on 16 December 1966, and in force from 23 March 1976.
    • The covenant commits its parties to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial.
    • As of September 2019, the Covenant has 173 parties and six more signatories without ratification.
    • It is part of the International Bill of Human Rights, along with the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Universal Declaration of Human Rights (UDHR).
    • It is monitored by the UN Human Rights Committee (a separate body to the UN Human Rights Council).

    Back2Basics: Article 21

    • Article 21 is the protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to the procedure established by law.
    • The Article prohibits the deprivation of the above rights except according to a procedure established by law.
    • Article 21 applies to natural persons. The right is available to every person, citizen or alien. Thus, even a foreigner can claim this right.
    • It, however, does not entitle a foreigner the right to reside and settle in India, as mentioned in Article 19 (1) (e).
  • Governor’s Discretionary Powers in Assembly Deadlock

    A Constitution Bench judgment of the Supreme Court has held that a Governor is bound to convene a meeting of the Assembly for a floor test on the recommendation of the Cabinet.

    Try this question for mains:

    Q. “Time and again, the courts have spoken out against the Governor acting in the capacity of an all-pervading super-constitutional authority.” Analyse.

    Resolving the deadlock

    • The judgment is significant in the present deadlock between the CM and the Governor over the summoning of an Assembly session for a floor test.
    • The Governor can summon, prorogue and dissolve the House only on the aid and advice of the Council of Ministers with the Chief Minister as the head.

    The Nabam Rebia Case

    • The five-judge Constitution Bench judgment of the Supreme Court cited the Nabam Rebia versus Deputy Speaker on July 13, 2016.
    • It held that a Governor cannot employ his ‘discretion’, and should strictly abide by the “aid and advice” of the Cabinet to summon the House.
    • It held that the discretionary power of the Governor is extremely limited and entirely liable to judicial review.
    • The judgment was a consequence of then Arunachal Pradesh Governor J.P. Rajkhowa’s decision to advance the Assembly session, a move which led to unrest in the State and resulted in the President’s rule.
    • The Constitution Bench held Mr. Rajkhowa’s decision to be a violation of the Constitution.

    Governor’s discretion: Limited to specified areas

    • The Supreme Court highlighted that Article 163 of the Constitution does not give the Governor a “general discretionary power to act against or without the advice of his Council of Ministers.
    • The court said the Governor’s discretionary powers are limited to specified areas like giving assent or withholding/referring a Bill to the President or appointment of a CM or dismissal of a government which has lost of confidence but refuses to quit, etc.

    Back2Basics: Governor’s Discretionary Powers

    The governor can use his/her discretionary powers:

    • When no party gets a clear majority, the governor has the discretion to choose a candidate for the chief minister who will put together a majority coalition as soon as possible.
    • He can impose president’s rule.
    • He submits reports on his own to the president or on the direction of the president regarding the affairs of the state.
    • He can withhold his assent to a bill and send it to the president for his approval.
    • During emergency rule per Article 353, he can override the advice of the council of ministers if specifically permitted by the president.
  • Judicial intervention in Anti-defection Proceedings

    A Supreme Court Bench is scheduled to hear an appeal filed by the Rajasthan Assembly Speaker’s office challenging the State High Court order to defer anti-defection proceedings against former Deputy CM.

    Try these questions:

    Q. “The anti-defection law works best as an insurance against violation of the people’s mandate for a party, but it cannot be made a tool to stifle all dissent.” Discuss.

    —–

    Q.Which one of the following Schedules of the Constitution of India contains provisions regarding anti-defection? (CSP 2014)

    (a) Second Schedule

    (b) Fifth Schedule

    (c) Eighth Schedule

    (d) Tenth Schedule

    What is the issue?

    • The petition said the HC has crossed its jurisdiction by asking the Speaker to put off his decision on the disqualification notices issued to dissident MLAs.
    • The HC order was an affront to the powers of the Speaker.
    • The High Court’s interim order granting extended time to rebel MLAs to file their replies to anti-defection notices amounted to a violation of Article 212 (courts not to inquire into the proceedings of the legislature).

    Backed by Tenth Schedule

    • The petition said that judicial review of ongoing anti-defection proceedings was limited.
    • Notice is much prior to any final determination or decision on disqualification.
    • The proceedings, including the notice, are in the realm of the legislative proceedings under Paragraph 6(2) of the Tenth Schedule, the Speaker’s office argued.

    Citing the Kihoto Hollohan case

    • The petition referred to the Constitution Bench judgment of the top court in the Kihoto Hollohan case in 1992 in this context.
    • Judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a prior action would not be permissible.
    • Nor would interference be permissible at an interlocutory stage of the proceedings, the verdict says.

    Must read:

    https://www.civilsdaily.com/news/kihoto-hollohan-order-1992/

    What does the dissident MLAs have to say?

    • The dissident MLAs had challenged the constitutionality of Paragraph 2(1)(a) of the Tenth Schedule which makes “voluntarily giving up membership of a political party” liable for disqualification.
    • The MLAs had argued that the provision infringed their right to dissent.
    • But the Speaker’s office countered that Paragraph 2 (1)(a) of the Tenth Schedule was the law of the land.
    • A mere challenge to its constitutionality cannot efface it from the statute book.

     


    Back2Basics

    https://www.civilsdaily.com/news/explained-anti-defection-law-and-its-evolution/

  • No medical examination for Trans Persons

    After facing flak from the transgender community, the Centre has done away with the requirement of a medical examination for trans persons applying for a certificate of identity in its latest draft rules framed under the Transgender Persons (Protection of Rights) Act, 2019.

    Practice question for mains:

    Q.What are the salient features of the Transgender Persons (Protection of Rights) Act, 2019? Also, discuss the loopholes.

    What are the new rules?

    • The draft of the Transgender Persons (Protection of Rights) Rules, 2020, published stated that a District Magistrate would issue a transgender identity certificate and card based on an affidavit by the applicant, but without any medical examination.

    Issue with the earlier draft

    • An earlier draft of the rules had mandated a report from a psychologist along with the affidavit for the application.
    • The transgender rights movement had opposed this, as it was seen as going against a trans person’s right to self-identification, which was upheld by the Supreme Court in 2014.

    Change of gender is permissible

    • In case of change of gender, the application for new identification would require a certificate from the medical superintendent or chief medical officer of the medical institution where the applicant the surgery.
    • For this, the Centre has proposed a series of welfare schemes, including making at least one hospital in each State equipped to provide safe and free gender-affirming surgery and counselling and hormone replacement therapy among others.

    Back2Basics: The 2014 Judgement on Trans-persons Rights

    • The Supreme Court in 2014 recognized transgenders as the third gender in a landmark ruling, saying it was addressing a “human rights issue”.
    • The ruling came after it heard a PIL filed by National Legal Services Authority (Nalsa) demanding equal rights.
    • The judgements said that non-recognition of gender identity amounts to discrimination under Article 15, which prohibits discrimination on the basis of sex.
    • The spirit of the constitution is to provide equal opportunity to every citizen to grow and attain their potential, irrespective of caste, religion or gender said justices K.S. Radhakrishnan and A.K. Sikri in their ruling.
    • Self-identification as man or woman, irrespective of sexual reassignment surgery, was now protected by law.
    • The judges said rights such as the right to vote, own property, marry and to “claim a formal identity” would be made available “more meaningfully” to the transgender community as a result of the ruling.

    Transgender Persons (Protection of Rights) Bill, 2019

    The Parliament passed the Transgender Persons (Protection of Rights) Bill, 2019.

    Key Features

    • Definition of a transgender person: The Bill defines a transgender person as one whose gender does not match the gender assigned at birth. It includes transmen and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar and hijra.
    • Certificate of identity: A transgender person may make an application to the District Magistrate for a certificate of identity, indicating the gender as ‘transgender’.
    • Prohibition against discrimination: The Bill prohibits discrimination against a transgender person, including denial of service or unfair treatment in relation to:
      • Education, employment, healthcare.
      • Access to or enjoyment of goods, facilities, opportunities available to the public.
      • Right to movement, right to reside, rent, or otherwise occupy property.
      • Opportunity to hold public or private office.
      • Access to a government or private establishment in whose care or custody a transgender person is.
    • Health care
      • The Bill also seeks to provide rights of health facilities to transgender persons including separate HIV surveillance centres, and sex reassignment surgeries.
      • It also states that the government shall review medical curriculum to address health issues of transgender persons, and provide comprehensive medical insurance schemes for them.
    • It calls for establishing a National Council for Transgender persons (NCT).
    • Punishment: It states that the offences against transgender persons will attract imprisonment between six months and two years, in addition to a fine.

  • Parliamentary Committees and their Significance

    Amid the on-going India-China border tension, a Parliamentary Standing Committee report on Sino-India relations post the Doklam standoff has been released. It assumes significance as it is the only detailed report on the border issue that has been made available to the public.

    Try this question from our AWE initiative:

    Q.2) What are parliamentary committees? How do they ensure legislature’s and executive’s efficiency and accountability? (250 Words)

    Report on Sino-Indian relations post Doklam

    • Submitted by the Shashi Tharoor-led Standing Committee on External Affairs, the report on Sino-India relations including Doklam throws light on border situation and cooperation in international organisations,
    • This Standing Committee report – a bipartisan one as the committee has members from ruling and opposition parties – is one of the very few documents available in which the defence and foreign secretaries.
    • It clarified the government’s official position on India-China border issues including the reported transgressions by the Chinese in the region.
    • It had cautioned the government that it needed to have “healthy scepticism” while dealing with China.
    • The Committee has urged the Government not to let its vigil down in order to prevent any untoward incident in future.

    What are the Parliamentary Committees?

    • A good deal of Parliamentary business is transacted in the committees. Both Houses of Parliament have a similar committee structure, with a few exceptions.
    • Their appointment, terms of office, functions and procedure of conducting business are also more or less similar and are regulated as per rules made by the two Houses under Article 118(1) of the Constitution.
    • Broadly, Parliamentary Committees are of two kinds – Standing Committees and ad hoc Committees.
    • The former are elected or appointed every year or periodically and their work goes on, more or less, on a continuous basis.
    • The latter are appointed on an ad hoc basis as the need arises and they cease to exist as soon as they complete the task assigned to them.

    Their significances

    • Apart from debates on bills and issues discussed and debated on the floor of the House, more detailed and in-depth discussions take place on issues as well as legislation in the parliamentary standing committees.
    • Here, MPs belonging to all major parties put forward their views without much consideration to the political differences they have.
    • A considerable amount of legislative work gets done in these smaller units of MPs from both Houses, across political parties.
    • Their reports are tabled in both Rajya Sabha and Lok Sabha. The Houses do not hold a specific debate on the report, but it is often referred to during the discussions on the bills and the key issues.
    • Committee meetings also provide a forum where members can engage with domain experts as well as senior-most officials of the concerned ministries.

    Additional readings: https://knowindia.gov.in/profile/the-union/parliamentary-committees.php

  • The need for an anti-discrimination law

    India has a unique distinction of being a democracy without comprehensive legislation to back the constitutional right of equality. This lack of legislation gives rise to certain issues. Every time the case of discrimination is brought the discriminating party claims that he is at liberty to do so. Not only this, in a certain case, the Supreme Court also endorsed such restrictive interpretation. All this points to the need for the comprehensive legislation.

    Indirect and unintended discrimination

    • More than 70 years after Independence, our society remains rife with structural discrimination.
    • These prejudices, which pervade every aspect of life, from access to basic goods, to education and employment, are sometimes manifest.
    • But, on other occasions, the discrimination is indirect and even unintended. 
    • The forms that it takes were perhaps best explained by the U.S. Supreme Court’s ruling in Griggs vs. Duke Power Co. (1971).
    • There, the court held that an energy company had fallen foul of the U.S. Civil Rights Act of 1964 — which made racial discrimination in private workplaces illegal.
    • The company had insisted on a superfluous written test by applicants for its better entry-level jobs.
    • Although, on the face of it, this requirement was race-neutral, in practice it allowed the company to victimise African-Americans.
    • In a memorable judgment, invoking an Aesop fable, Chief Justice Burger wrote that “tests or criteria for employment or promotion may not provide equality of opportunity merely in the sense of the fabled offer of milk to the stork and the fox.”
    • On the contrary, the law, he said, resorting again to the fable, “provided that the vessel in which the milk is proffered be one all seekers can use.”
    • That is, that it wasn’t merely “overt discrimination” that was illegal but also “practices that are fair in form, but discriminatory in operation”.

    Let’s look into 2 cases in India

    1. Madhu vs. Northern Railway

    • The verdict in Griggs was notably applied in the Delhi High Court’s 2018 judgment in Madhu vs. Northern Railway.
    • There, the Railways had denied free medical treatment to the wife and daughter of an employee which they would otherwise have been entitled to under the rules.
    • The Railways contended that the employee had “disowned” his family and had had their names struck off his medical card.
    • The court held that to make essential benefits such as medical services subject to a declaration by an employee might be “facially neutral”, but it produced a disparate impact, particularly on women and children.
    • But while this case concerned discrimination by the state, entry barriers to goods such as housing, schools and employment tend to function in the realm of private contracts.

    Is Article 15 applicable in private contracts?

    •  The Constitution is markedly vocal on this too.
    • Article 15(2) stipulates that citizens shall not on grounds only of religion, race, caste, sex, or place of birth be denied access to shops, public restaurants, hotels and places of public entertainment.
    • Yet, on occasion, this right, which applies horizontally, inter se individuals, comes into conflict with the rights of persons to associate with others, often to the exclusion of certain groups.

    2. Zoroastrian Cooperative Housing Society vs District Registrar Co-operative Societies (Urban) and Others

    • This is why every time a case of discrimination is brought, the party that discriminates claims that he possesses a liberty to do so, that he must be free to act according to his own sense of conscience.
    • The Supreme Court in 2005 endorsed one such restrictive bond, when it ruled in favour of a bye-law of a Parsi housing society that prohibited the sale of the property to non-Parsis.
    • This right to forbid such a sale, the Court ruled, was intrinsic in the Parsis’ fundamental right to associate with each other.
    • But in holding thus, the judgment, as Gautam Bhatia points out in his book, The Transformative Constitution, not only conflated the freedom to contract with the constitutional freedom to associate but also overlooked altogether Article 15(2).

    Let’s look into the scope of Article 15(2)

    • At first blush, Article 15(2) might appear to be somewhat limited in scope.
    • But the word “shops” used in it is meant to be read widely.
    • A study of the Constituent Assembly’s debates on the clause’s framing shows us that the founders explicitly intended to place restrictions on any economic activity that sought to exclude specific groups.
    • For example, when a person refuses to lease her property to another based on the customer’s faith, such a refusal would run directly counter to the guarantee of equality.

    India: A country with no legislative backing to the fundamental right to equality

    • India is unique among democracies in that a constitutional right to equality is not supported by comprehensive legislation.
    • In South Africa, for example, a constitutional guarantee is augmented by an all-encompassing law which prohibits unfair discrimination not only by the government but also by private organisations and individuals.

    Consider the question “Discrimination partakes different forms. And due to lack of any legislation backing the Right to Equality, this right is just as capable of being threatened by acts of private individuals as they are by the state.” In light of this, discuss the need for an act backing the Right to Equality and right against discrimination.”

    Conclusion

    Any reasonable conception of justice would demand that we look beyond the intentions of our actions, and at the engrained structures of society.  To that end, the idea of enacting a law that will help ameliorate our ways of life, that will help reverse our deep-rooted culture of discrimination, is worth thinking about.