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Subject: Fundamental Rights,DPSP

1. History + Evolution
2. Features
3. Amendments
4. Basic Structure

  • [op-ed snap]Secularism’s Brexit moment

     

    Context

    In India, the debate on the issue of secularism needs to be based on a more principled and practical basis.

    Change in public discourse

    • Popular skepticism of secularism has been growing these days.
    • Secularism is being increasingly discounted not only by the hardliners but also by the moderate middle.
    • It is no longer taboo to raise questions that were formerly the preserve of the fringe.
    • Today, democracy is taken for granted by all the Indians. No one raises questions over its utility.
    • Secularism need to be elevated to the same level as is the democracy today, where no one raises the question on its utility.

    What are the issues with the defenders of secularism?

    • Rather than make case for secularism, its champions indulge in name-calling and citing the example from the past to tarnish and shut down critics.
    • They also cite the Constitution in their support-without realising that it is this very document’s secular thrust that has became suspect.
    • They also assume the obvious correctness of their cosmopolitan worldview.

    What changes need to be made?

    • They must make a case for secularism anew-principled and practical.
    • On principled basis-individual equality, freedom of conscience and personal habits.
    • On a practical basis-no country can flourish by degrading their minority.
    • They must stress the India’s plurality and “live and let live” culture, syncretic traditions and long history of respect and accommodation of differences.
    • They also need to show some humility.
    • They also have to show openness to fair-minded criticism.

    Conclusion

    These suggestions are urgently needed to be followed by those arguing in the defence of secularism otherwise there is a very real possibility of a large section of a society losing faith in secularism. In this anxious hours India needs to engage in open and self-critical debate-rather than polarising polemic.

     

     

     

  • [op-ed snap] When defection is a mere detour for an MLA

    Context

    In the recently concluded by-election in Karnataka, most of the disqualified MLA’s were re-elected. This set of the event lay down a well-structured framework to sidestep the law, it even set a dangerous precedent for neutralising the consequences of the Anti-Defection Law altogether.

    Historical background

    • Defection is not new to the Indian political landscape.
    • An independent MLA from Haryana had switched parties three times in two weeks in 1967.
    • The recurrence of this phenomenon led to the 1985 Anti-Defection Law.

    Provisions of the law

    • The law defined three grounds for disqualification-Giving up party membership, violation of whip, and abstaining from voting.
    • Before the amendment, the law allowed for a “split” in the party if at least one-third of the MLAs defect.
    • 91st Constitutional Amendment in 2003 deleted the provision allowing split.
    • Resignation is not the condition for disqualification.
    • This loophole was exploited by the MLAs in Karnataka while they resigned.
    • The resignation was not accepted by the speaker of the house and declared the MLAs disqualified.
    • Law puts no time constraint on the speaker to decide on the resignation of MLAs.

    Speaker as a tribunal under law

    • The law originally protected the Speaker’s decision from judicial review.
    • This safeguard was struck down in Kihoto Hollohan v. Zachillhu and Others (1992).
    • In this case, the SC upheld the Speaker’s discretionary power, it underscored that the Speaker functioned as a tribunal under the law.
    • This made the Speaker’s decision subject to judicial review.
    • The same was said in Shrimanth Balasaheb Patel & Others v. Speaker Karnataka Legislative Assembly & Others (2019).

     

    Neutral role of the SC

    • The SC struck down ban on Karnataka disqualified MLAs from contesting election till 2023.
    • This effectively removed the only possible permanent solution to the problem.

     

    Way forward

    The minimum period limit of six years is needed to ensure that the defectors are not allowed to enter the election fray for at least one election cycle which is five years.

  • Freedom of Speech – Defamation, Sedition, etc.

  • Temple entry for women : Gender Equality v/s Religious Freedom

  • Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.

     

    What is the idea behind a Uniform Civil Code for India?

    Currently, believers of various religions can marry, adopt, inherit property and divorce under their own customs.

    Under a Uniform Civil Code, it is believed, personal laws and sanctioned practices of different religions will be largely harmonised with accepted fair practices for all citizens, under guidelines laid down by Constitution.

    Does the Constitution mention a Uniform Civil Code?

    Article 44 of the Constitution, which is one of the Directive Principles of State Policy, says: “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”

    Directive Principles are not justiciable or mandatory, only a guideline.

     

    Then, what is the debate about?

    Articles 29 and 30 guarantee minorities the right to conserve their culture and script, and run their own educational institutions.

    It was understood that minorities could practise their religion and follow their customs and traditions.

    The Supreme Court asked the central government, whether it was willing to bring a Uniform Civil Code to ride over inconsistent personal laws in different religions.

    There was “total confusion” over the incoherent stipulations about marriage, divorce, adoption, maintenance and inheritance.

    Currently, different laws regulate these aspects for adherents of different religions.

    Is the debate over Uniform Civil Code just a Hindu-Muslim issue?

    Far from it. Parsis, Jains, Sikhs, Christians, apart from of course Hindus and Muslims, have their own civil codes.

    While the Muslim Personal Law is yet to be codified (because of deep divisions within), Christian and Parsi codes were specified before Independence.

    The personal laws of Hindus, Jains, Sikhs and others were codified in the 1950s.

    So, What does our secular Constitution say?

    Article 25, which guarantees the freedom to practise, profess and propagate any religion. By the 42nd Amendment of 1976, India was declared a secular nation.

    The understanding of Article 25, the State and its institutions have not interfered with religious practices, including in relation to various personal laws.

    There is a view that this principle runs contradictory to the idea of secularism which requires the State to be inert to religious considerations, and not tacitly support them by following a practice of non-interference, no matter what.

    Clause (2) of Article 25 empowers the State to frame any law to regulate or restrict “secular activity which may be associated with religious practice”, therefore, it is argued, Article 25 is no bar to having a Uniform Civil Code.

    The inconsistency in personal laws has been challenged on the touchstone of Article 14, which ensures the right to equality.

    Historical Judgements

    Litigants have contended that their right to equality is endangered by personal laws that put them at a disadvantage.

    The first prominent case founded on Article 14 was Shah Bano case (1985) in which the apex court ruled that a Muslim woman was entitled to alimony under the general provisions of the CrPC, like anybody else.

    Following protests from Muslim leaders, Rajiv Gandhi’s government in 1986 got the Muslim Women (Protection of Rights on Divorce) Act passed in Parliament, which nullified the ruling.

    In effect, the verdict did a balancing act between the Shah Bano judgment and the 1986 law.

    In Githa Hariharan vs RBI (1999), the top court adjudicated upon the constitutional validity of certain provisions of the Hindu Minority and Guardianship Act, 1956 and the Guardian Constitution and Wards Act, on a petition claiming they violated Articles 14 by treating the father as the natural guardian of a child under all circumstances.

    It ushered in the principle of equality in matters of guardianship for Hindus, making the child’s welfare the prime consideration.

    That’s some history! what is today’s scenario ?

    The BJP, kept the Uniform Civil Code in its 2014 election manifesto. The BJP and RSS have long demanded it, and cited the example of Goa, which has a common law called the Goa Civil Code.

    What the government tells the court next month will be a test of its political will , and mark the next chapter in the evolution of this debate.

    So, do we really want a Uniform Civil Code? Is there a way forward ?

    Yes, you say? Well, there seems only one way to see through this crazy fog.
    Every aspect of the personal laws must be examined in the light of constitutional guarantees to every Indian, equality, justice, right to life.

    Laws that fail to uphold these basics must be thrown away, Isn’t it ?

    Published with inputs from Arun

  • Euthanasia Mercy Killing

  • Jallikattu Debate

    • Jallikattu is a bull taming sport played in Tamil Nadu as a part of Pongal celebrations on Mattu Pongal day.

    • Jallikattu is derived from the words ‘calli’ (coins) and ‘kattu’ (tie), which means a bundle of coins is tied to the bull’s horns. In older times, the tamer sought to remove this bundle from the animal’s head to win gold or silver.

    • The southern parts of Tamil Nadu witness bull-taming the most, with Alanganallur near Madurai hosting the largest and most famous of these events.

    source
    • Background
    • Factors against the ban
    • Arguments favouring the ban
    • View of SC
    • What can government do?
    • International experience
    • Way ahead

    Factors against the ban

    • Jallikattu is an ancient sport which has continued since colonial times. So it is an ancient tradition which should be preserved and not banned.
    • In Jallikattu, the objective is to obtain the ‘Jallikattu’ a pouch which contains the reward coins called ‘Jalli’ tied to the horns of the bulls. While the players are not allowed to carry weapons of any kind or wear protective gears, the bulls on the other hand will not have nose rings or ropes.
    • Plus, they’re equipped with a pair of sharp horns which can gore a human within seconds. So it’s actually the bull which has the upper hand in this match.
    • Jallikattu is what’s keeping the native breed of cows from going extinct, according to some local people which is a huge problem for western cattle industry.

    Arguments favouring the ban

    • During Jallikattu, bulls are purposefully scared and petrified and then made to run across the crowd, destroying anything that would come in their way. Various cruel means are adopted to scare and anger the bull like pinching, nailing, stabbing with sticks that have nails at the edges, twisting their tails and even forcefully making them drink alcohol and other drugs. The ropes around their nose are painfully yanked and then they are dragged into the crowd of people who further anger the bull.
    • According to the documents by PETA, these bulls also break their bones in order to escape from the crowd continuously trying to toture them. Casualty and death of humans are also alarmingly high during this game.
    • What started as a simple act of bravado has become an act of cruelty towards animals.
    • The bulls are kept in the waiting area for hours, subjecting it to the scorching sun. The bulls used in the sport are also denied food and water.
    • Due to this sport, innumerable human lives, both of the participants and the audience, have also been lost, as the bulls try to flee from the pain.

    View of SC

    • Supreme court in 2014 banned the sport jallikattu as it violates provisions of Prevention of Cruelty to Animals Act (PCA) and militates the constitutional duty of treating animals with compassion, Article 51A (g).
    • It also reiterated the expansive reading it had given in the past, to Article 21 (Right to Life), which prohibits any disturbance to the environment, including animals, considered essential for human life.

    What can government do?

    The Government must find alternate methods to continue it without hurting the animal or people. Following are some of the alternatives:

    1. Follow the famous Spanish bullfighting example where measures taken to avoid lethal damage
    2. Put effective protection (barricades, speaker announcements, clear demarcation) so that people are not hurt
    3. Create awareness regarding apathy faced by animals. Sports personalities, film stars, eminent jurists can come forward

    International experience

    • The tradition of bullfighting in Spain is cited to legitimise the conduct of Jallikattu and present it as a viable tourist attraction.
    • It is significant that the Spanish state of Catalonia banned the sport in 2012 after a prolonged ‘culture versus rights’ debate.
    • In 2002, Germany took animal rights to a new level by giving animals constitutional protection.

    Way ahead

    • Those who want the sport to be legalised have called for an amendment to the PCA Act and measures to revoke the 2011 notification of the Ministry of Environment and Forests (MoEF) which barred the use of bulls as performing animals.
    • Trying to allow an event that legitimises cruelty to animals would be a direct insult to the carefully reasoned writ of the Supreme Court, a complete negation of the PCA Act and its objectives, and would take the country back by a few steps in the crucial area of Right to Life.

  • Death Penalty Abolition Debate

  • Right To Privacy