Subject: Fundamental Rights,DPSP

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.

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: Article 341 of the Indian Constitution empowers the President to designate specific castes and classes as Scheduled Castes within states or union territories. 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. 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.

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.

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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]

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.

Introduction

• The Internet serves as a vital source of information, entertainment, healthcare, education, and livelihood.
• However, the rampant instances of Internet suspension in India, often without public disclosure, raise concerns about constitutional rights and economic losses.

Constitutional Provisions for Right to Internet

Landmark Case	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.

 

Mechanisms allowing Internet Shut-downs

Mechanism	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.

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.

Unfulfilled Promises and Ongoing Restrictions

• Broken Promises: Despite the Anuradha Bhasin judgment, Internet shutdowns increased in India, making it the leader in global Internet suspensions.
• Recent Examples: The Union Territory of Jammu and Kashmir (J&K) and Haryana have imposed Internet restrictions without timely publication of orders.
• Compliance Issues: Lack of publication erodes public trust and limits the ability to challenge the legality of restrictions.

Need for Transparency

• Publication’s Significance: Non-disclosure of orders hinders legal challenges and perpetuates illegal restrictions.
• Statutory Recognition: The government’s failure to give statutory recognition to the Supreme Court’s directions creates awareness issues.
• Economic Impact: In 2020, India suffered $2.8 billion in losses due to 129 Internet shutdowns affecting 10.3 million individuals.

Widespread Impact

• Economic, Psychological, and Social Harm: Internet suspensions harm the economy and disrupt daily life, education, healthcare, and communication.
• Democratic Right to Protest: Restrictions on Internet access hinder the democratic exercise of the right to protest.
• Verifying Information: The Internet helps verify rumors and disseminate the truth during emergencies.

Socio-economic Disparities

• Mobile-Dependent Users: The majority of Internet users rely on mobile data services, making Internet restrictions detrimental to lower socio-economic groups.
• Broadband Accessibility: Limited access to broadband Internet exacerbates the impact of shutdowns.

Conclusion

• To uphold constitutional rights and unlock the full potential of Digital India, the government must adhere to the Supreme Court’s guidelines, ensuring transparency and legality in Internet shutdowns.
• Addressing compliance issues and minimizing restrictions can benefit the nation’s economic and social well-being.