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Subject: Polity

  • Back in news: Right to Protest

    The Supreme Court has that said farmers have a constitutional right to continue with their “absolutely perfect” protest as long as their dissent against the three controversial agricultural laws did not slip into violence.

    Q.It is the abundant duty of the State to aid and limit the exercise of Right to Protest peacefully. Examine.

    Right to Protest

    • The right to protest is the manifestation of the right to freedom of assembly, the right to freedom of association, and the right to freedom of speech.
    • The Constitution of India provides the right of freedom, given in Article 19 with the view of guaranteeing individual rights that were considered vital by the framers of the constitution.
    • The Right to protest peacefully is enshrined in Article 19(1) (a) guarantees the freedom of speech and expression; Article 19(1) (b) assures citizens the right to assemble peaceably and without arms.
    • Article 19(2) imposes reasonable restrictions on the right to assemble peaceably and without arms.

    Reasonable restrictions do exist in practice

    • Fundamental rights do not live in isolation. The right of the protester has to be balanced with the right of the commuter. They have to co-exist in mutual respect.
    • The court held it was entirely the responsibility of the administration to prevent encroachments in public spaces.
    • Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone.
    • The present case was not even one of the protests taking place in an undesignated area but was a blockage of a public way which caused grave inconvenience to commuters.

  • Law and disorder

    Several inadequacies in the justice delivery system lie hidden as disproportionate attention is given to the Supreme Court.

    Public expects the judiciary to be ideal

    • The citizens of the country expect the Supreme Court and its constituents to be ideal, and the challenge of the Supreme Court is to come to terms with that reality.
    • However, it is not the Supreme Court alone that matters in the justice delivery system. There are other inadequacies of the system that don’t get as much public attention.

    Practice Question: Explain the various inadequacies in the justice delivery system in India which lie hidden. What steps need to be taken to address them?

    Spending on judiciary

    • The issue of spending on judiciary, most often, is equated with increasing the salaries of judges and providing better court infrastructure. Such perceptions are unfortunate.
    • India has one of the most comprehensive legal aid programmes in the world, the Legal Services Authority Act of 1987.
    • Under this law, all women, irrespective of their financial status, are entitled to free legal aid. Scheduled Castes and Scheduled Tribes and children too are entitled to free legal aid.
    • In reality, this law is a dead letter. There has been little effort on the part of successive governments to provide a task force of carefully selected, well-trained and reasonably paid advocates to provide these services.
    • In comparison, the system of legal aid in the U.K. identifies and funds several independent solicitor offices to provide such services. India is yet to put in place anything similar to this.

    Poor judge-population ratio

    • The judge-population ratio provides one of the most important yardsticks to measure the health of the legal system. The U.S. has about 100 judges per million population. Canada has about 75 and the U.K. has about 50.
    • India, on the other hand, has only 19 judges per million population. Of these, at any given point, at least one-fourth is always vacant.
    • Lower courts where the common man first comes into contact (or at least should) with the justice delivery system is also unnoticed and hardly any attention is focused on their gaping inadequacy.
    • These inadequacies are far more important to the common man than the issues relating to the apex court that are frequently highlighted in the public space.
    • In All India Judges Association v. Union of India (2001), the Supreme Court had directed the Government of India to increase the judge-population ratio to at least 50 per million population within five years from the date of the judgment. This has not been implemented.

    Access to justice

    • Though ‘access to justice’ has not been specifically spelt out as a fundamental right in the Constitution, it has always been treated as such by Indian courts.
    • In Anita Kushwaha v. Pushpa Sadan (2016), the Supreme Court held unambiguously that if “life” implies not only live in the physical sense but a bundle of rights that make life worth living, there is no justice or other basis for holding that denial of “access to justice” will not affect the quality of human life.
    • It was for the first time that the Supreme Court had attempted a near-exhaustive definition of what “access to justice” actually means.
    • Further, the court pointed out four important components of access to justice.
    1. The need for adjudicatory mechanisms.
    2. The mechanism must be conveniently accessible in terms of distance.
    3. The process of adjudication must be speedy.
    4. The process of adjudication must be affordable to the disputants.
    • It is of course a paradox that this judgment, which emphasizes the concept of speedy justice, was passed in 2016 in a batch of transfer petitions that were filed between 2008 and 2014.

    Way forward

    • The state in all its glorious manifestations — the executive, judiciary and the legislature — there is a need to draw out a national policy and road map for clearing backlogs and making these concepts real.
    • A disproportionate amount of attention that is given to the functioning of the Supreme Court, it is equally important to have a clear focus on these and similar issues.

  • Issues related to Judicial appointment

    The SC Collegium has recommended the transfer of judges of several HC, including the transfer of a Justice of the Andhra Pradesh High Court.

    Must read:

    [Burning Issue] Uproar over AP CM’s letter to CJI

    What is Collegium?

    • Collegium system of the Supreme Court (SC) and the High Courts (HCs) of India is based on the precedence established by the “Three Judges Cases (1982, 1993, 1998) “.
    • It is a legally valid system of appointment and transfer of judges in the SC and all HCs.
    • It is a system of checks and balance, which ensures the independence of the senior judiciary in India.

    The Collegium System: A detailed backgrounder

    • The Collegium of judges is the Indian SC’s invention.
    • It does not figure in the Constitution, which says judges of the SC and HC are appointed by the President and speaks of a process of consultation.
    • In effect, it is a system under which judges are appointed by an institution comprising judges.
    • After some judges were superseded in the appointment of the CJI in the 1970s and attempts made subsequently to effect a mass transfer of High Court judges across the country.
    • Hence there was a perception that the independence of the judiciary was under threat. This resulted in a series of cases over the years.

    The Judges Cases

    • The First Judges Case (1981) ruled that the “consultation” with the CJI in the matter of appointments must be full and effective.
    • However, it rejected the idea that the CJI’s opinion, albeit carrying great weight, should have primacy.
    • The Second Judges Case (1993) introduced the Collegium system, holding that “consultation” really meant “concurrence”.
    • It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC.
    • On a Presidential Reference in its opinion, the SC, in the Third Judges Case (1998) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

    The procedure followed by the Collegium:

    Appointment of CJI

    • The President of India appoints the CJI and the other SC judges.
    • As far as the CJI is concerned, the outgoing CJI recommends his successor.
    • In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
    • The Union Law Minister forwards the recommendation to the PM who, in turn, advises the President.

    Other SC Judges

    • For other judges of the top court, the proposal is initiated by the CJI.
    • The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
    • The consultees must record their opinions in writing and it should form part of the file.
    • The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.

    For HC

    • The CJs of HC is appointed as per the policy of having Chief Justices from outside the respective States. The Collegium takes the call on the elevation.
    • High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
    • The proposal, however, is initiated by the Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
    • The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.

    Does the Collegium recommend transfers too?

    • Yes, the Collegium also recommends the transfer of Chief Justices and other judges.
    • Article 222 of the Constitution provides for the transfer of a judge from one High Court to another.
    • When a CJ is transferred, a replacement must also be simultaneously found for the High Court concerned. There can be an acting CJ in a High Court for not more than a month.
    • In matters of transfers, the opinion of the CJI “is determinative”, and the consent of the judge concerned is not required.
    • However, the CJI should take into account the views of the CJ of the High Court concerned and the views of one or more SC judges who are in a position to do so.
    • All transfers must be made in the public interest, that is, “for the betterment of the administration of justice”.

    Loopholes in the Collegium system

    • Many have faulted the system, not only for its being seen as something unforeseen by the Constitution makers but also for the way it functions.
    • Opaqueness and a lack of transparency, and the scope for nepotism are cited often.
    • The attempt made to replace it by a ‘National Judicial Appointments Commission’ was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.
    • Some do not believe in full disclosure of reasons for transfers, as it may make lawyers in the destination court chary of the transferred judge.
    • Embroilment in public controversies and having relatives practising in the same High Court could be common reasons for transfers.

    Scope for transparency

    • In respect of appointments, there has been an acknowledgement that the “zone of consideration” must be expanded to avoid criticism that many appointees hail from families of retired judges.
    • The status of a proposed new memorandum of procedure, to infuse greater accountability, is also unclear.
    • Even the majority opinions admitted the need for transparency, now the Collegium’s resolutions are now posted online, but reasons are not given.

  • Delimitation should be based on 2031 Census

    A paper released by the Pranab Mukherjee Foundation (PMF) has suggested that the next delimitation exercise should be a two-step process:

    1. First a Delimitation Commission should be set up to redraw boundaries of constituencies on the basis of the 2031 Census
    2. And then a State Reorganization Act be passed to split States into smaller ones

    Q.With the new Parliament House, the role of the Presiding officers of the Houses is going to be more challenging. Discuss, how.

    Back in news

    • PM recently inaugurated a brand new Parliament Annexe building that will afford our lawmakers more space and enable better functioning.
    • In a few years from now, we might actually need a new building for Parliament altogether due to the likely increase in a number of seats in both Houses after the lifting of the freeze imposed by the 42nd Constitutional Amendment Act, 1976, which is due in 2026.

    What is Delimitation? Why is it needed?

    • Delimitation is the act of redrawing boundaries of Lok Sabha and state Assembly seats to represent changes in population.
    • In this process, the number of seats allocated to different states in Lok Sabha and the total number seats in a Legislative Assembly may also change.
    • The main objective of delimitation is to provide equal representation to equal segments of a population.
    • It also aims at a fair division of geographical areas so that one political party doesn’t have an advantage over others in an election.

    Why such debate?

    • The 84th Amendment to the Constitution in 2002 had put a freeze on the delimitation of Lok Sabha and State Assembly constituencies till the first Census after 2026.
    • While the current boundaries were drawn on the basis of the 2001 Census, the number of Lok Sabha seats and State Assembly seats remained frozen on the basis of the 1971 Census.
    • The population according to the last census preceding the freeze was 50 crore, which in 50 years has grown to 130 crores.
    • This has caused a massive asymmetry in the political representation in the country.

    Why there are fewer delimitations?

    • The Constitution mandates that the number of Lok Sabha seats allotted to a state would be such that the ratio between that number and the population of the state is, as far as practicable, the same for all states.
    • Although unintended, this provision implied that states that took little interest in population control could end up with a greater number of seats in Parliament.
    • The southern states that promoted family planning faced the possibility of having their seats reduced.
    • To allay these fears, the Constitution was amended during Indira Gandhi’s Emergency rule in 1976 to suspend delimitation until 2001.
    • Despite the embargo, there were a few occasions that called for readjustment in the number of Parliament and Assembly seats allocated to a state.

    Background

    • According to Article 81 of the Constitution — as it stood before the 42nd CAA 1976 — the Lok Sabha was to comprise of not more than 550 members.
    • Clause (2) of Article 81 provided that there shall be allotted to each State a number of MPs in such manner that the ratio between that number and the population of the State is the same for all States.
    • Further, clause (3) defined the expression “population” for the purposes of Article 81 to mean the population as ascertained at the last preceding census of which the relevant figures have been published.

    Dilemma over delimitation

    • States which took a lead in population control faced the prospect of their number of seats getting reduced and States which had higher population figures stood to gain by increase in the number of seats in Lok Sabha.
    • As a result of the freezing of the allocation of seats, the allocation done on the basis of the 1971 Census continues to hold good for the present population figures.
    • According to the 2011 Census, the population of our country stands at 121 crores with a registered electorate of 83.41 crores.
    • Basing the 1971 Census figure of 54.81 crores to represent today’s population presents a distorted version of our democratic polity and is contrary to what is mandated under Article 81 of the Constitution.
    • So when the first Census figure will be available after 2026 — that is, in 2031 — a fresh delimitation will have to do which will dramatically alter the present arrangement of seat allocation to the States in Parliament.

    Acquainting more MPs: A big challenge

    • One question that has to be addressed is how the Presiding Officers of the Houses/Legislatures will deal with such a large number of members to capture the attention of the Speaker to raise issues in the House.
    • Even with the current strength of 543 members, the Speaker finds it extremely difficult to conduct the proceedings of the House.
    • Members do not show much heed to the appeals of the Speaker, thereby making smooth conduct of House proceedings a difficult affair.
    • The Speaker’s directions and rulings are not shown proper respect, and disruptions of proceedings aggravate the problem.
    • The sudden increase in numbers will render the task of the Speaker more difficult and onerous.

    Conclusion

    • While 2026 is still a few years away. But we need to be clear on how to deal with the problems that are likely to arise, we will be forced to postpone the lifting of the freeze to a future date as was done in 2001.
    • This will only postpone the problem for which we must find a solution sooner or later.
    • Even the various proposals for electoral reforms which have been recommended by various Commissions over the past decade do not address these issues.
    • These are challenges which our political leaders have to address in the immediate future.

  • N.K. Singh calls for a fresh look at the Seventh Schedule

    Fifteenth Finance Commission chairman N.K. Singh has called for a fresh look at the Constitution’s Seventh Schedule, which forms the basis for allocating subjects to the Centre and States.

    Try this PYQ:

    Q.Which of the following provisions of the Constitution of India have a bearing on Education?

    1. Directive Principles of State Policy
    2. Rural and Urban Local Bodies
    3. Fifth Schedule
    4. Sixth Schedule
    5. Seventh Schedule

    Select the correct answer using the codes given below:

    (a) 1 and 2 only

    (b) 3, 4 and 5 only

    (c) 1, 2 and 5 only

    (d) 1, 2, 3 4 and 5

    Why such calls by Mr NKS?

    • Singh said these issues needed urgent consideration to reinforce trust in fiscal federalism.
    • He urged a review of both the Seventh Schedule and Article 282 of the Constitution so as to give more flexibility to States in implementing centrally sponsored schemes.
    • Many have argued that the trust between various forms of government is waning.
    • Since the farmers’ agitation, these are seen through the prism of suspicion and mistrust.

    Q. The federal organisation of powers under the Constitution’s Seventh Schedule needs review. In light of this, examine the problems faced by the distribution and suggest the challenge the review would face.

    What is the Seventh Schedule?

    • This Schedule of the Indian Constitution deals with the division of powers between the Union government and State governments.
    • It defines and specifies the allocation of powers and functions between Union & States. It contains three lists; i.e. 1) Union List, 2) State List and 3) Concurrent List.

    The Union List

    • It is a list of 98 (Originally 97) numbered items as provided in the Seventh Schedule.
    • The Union Government or Parliament of India has exclusive power to legislate on matters relating to these items.

    The State List

    • It is a list of 59 (Originally 66) items.
    • The respective state governments have exclusive power to legislate on matters relating to these items.

    The Concurrent List

    • There are 52 (Originally 47) items currently in the list.
    • This includes items which are under the joint domain of the Union as well as the respective States.

  • Digital Voter ID Card and its benefits

    The Election Commission (EC) is keen to make the Elector’s Photo Identity Card or EPIC available in electronic form.

    Try this PYQ:

    Q.Regarding DigiLocker, sometimes seen in the news, which of the following statements is/are correct?

    1. It is a digital locker system offered by the Government under Digital India Programme.
    2. It allows you to access your e-documents irrespective of your physical location.

    Select the correct answer using the code given below.

    (a) 1 only

    (b) 2 only

    (c) Both 1 and 2

    (d) Neither 1 nor 2

    Digital Voter ID Card

    • The digital voter card is not expected to look too different from its physical form.
    • It will be available as a PDF file and can be downloaded on one’s phone or computer.
    • The soft copy may also have a QR code that will carry the voter’s enrolment details such as name and date of birth and address.
    • This is still just a proposal and needs to be approved by the Election Commission.

    How to avail it?

    • To avail this facility, an eligible voter will have to provide her mobile number or email address to the EC machinery at the time of applying for enrolment in the voters’ list.
    • Once her name is included in the electoral roll, she will be intimated through an SMS or email.
    • The new voter can then download the Voter Card through OTP (One Time Password) authentication.
    • Existing voters may have to re-verify their details with the EC (similar to the Bank KYC process) and provide their email or mobile phone number to get their cards in the electronic form.

    Benefits offered

    • An electronic card will help the EC save costs on printing and distributing a hard copy of EPIC.
    • The EC feels that voters too will find it useful to have the PDF file of her voter card on her phone.
    • This will do away with the necessity of first producing a voter’s slip on the day of voting.

  • Factors sustaining federalism in India

    The article analyses the various factor that helped in sustaining the federal structure in India.

    Flexible federalism

    • The Indian Constitution was designed to be opportunistic about federalism.
    • As BR Ambedkar had put it, “India’s Draft Constitution can be both unitary as well as federal according to the requirements of time and circumstances.”
    • This flexible federalism is still the default common sense of Indian politics.
    • The concerns about security, state-building, and economic development are always given preference over the idea of federalism.

    4 factors sustaining federalism in India

    1) Linguistic and cultural diversity in India

    • The first was a genuine concern about whether a centralised state could accommodate India’s linguistic and cultural diversity.
    • The States Reorganisation Act and the compromises on the issue of languages was a victory for federalism.
    • It allowed India to use federalism to accommodate linguistic diversity.
    • So long as regional linguistic identities are not threatened there is no natural source of resistance to centralisation.

    2) Distribution of political power

    • The rise of coalition governments, economic liberalisation, regional parties, seemed to provide a basis for political federalism.
    • Political federalism is quite compatible with financial, and administrative centralisation.
    • Fragmentation of power effectively meant was that each state could bargain for certain things, or very strong leaders could veto central proposals.
    • However, it is striking that the period of fragmented power, strong chief ministers, didn’t act to strengthen the institutions of federalism.

    3) Political and institutional culture

    • The third thing that sustains federalism is the political and institutional culture.
    • But the culture of political parties ruling at the Centre was committed to the most extreme interpretation of flexible federalism, including procedural impropriety to oust opponents.
    • Because of the increasing presidentialisation of national politics, the attribution of policy successes or failures might change, diminishing the stature of chief ministers considerably.
    • The other source of institutional culture might be the Supreme Court.
    • There was mostly a bi-partisan consensus on honouring the technical recommendations of institutions like the Finance Commission.

    4) Asymmetrical federalism

    • The fourth thing that sustained federalism was “asymmetrical federalism” — special exemptions given to various states.
    • But asymmetrical federalism has always been subject to three pressures.
    • For Kashmir, asymmetrical federalism came to be seen as the source, not the resolution, of the security threat.
    • Even in the North-east, local conflicts within the scheme of asymmetrical federalism and discourse of security allowed the Centre to step in.
    • And increasingly, there will be pressure on the question: Which laws under asymmetrical federalism are compatible with Article 14 of the Indian Constitution?

    GST and Decentralisation in states

    • The most far-reaching change in the Indian Constitution on federalism was GST.
    • It does increase centralisation in the system.
    • But it is a product of the cooperation of the states, who still have a significant role in shaping it.
    • The states did push back against the possibility of the Centre reneging on its commitment on payments.
    • Most states are reluctant to honour more decentralisation within, to rural and urban bodies.
    • The Centre disproportionately controls resources in India; but very few states have shown a zeal to increase their own financial headroom by utilising whatever powers they might have on taxation.

    Consider the question “How federalism in India is different from the U.S.? What are the factors responsible for its sustenance in India?”

    Conclusion

    The flexible federalism will be bent in all kinds of ways. But it is important to remember that this mess is not a product of Centre versus states. It has been co-produced by a political culture in both Centre and the states.

  • New Parliament Building

    PM would on December 10 lay the foundation stone for the new Parliament building, which would be a symbol of “Atmanirbhar Bharat” and a “temple of democracy” for Independent India.

    Try this MCQ first:

    Q.The architecture of the present Parliament House of India is inspired from:

    a) Ekattarso Mahadeva Temple

    b) Virupaksa Temple

    c) Dilwara Temples

    d) Brihaddeswara Temple

    The new Parliament Building

    • The building, to be constructed by Tata Projects Ltd. would have a built-up area of 64,500 square metres over four floors and would be built adjacent to the existing building over 22 months.
    • Artisans and sculptors from across the country would contribute to the new building, showcasing the diversity and making it a symbol of “Atmanirbhar Bharat”.
    • The building would have modern equipment, be earthquake-safe and accommodate up to 1,224 MPs during joint sessions in the Lok Sabha chamber.
    • The Lok Sabha and the Rajya Sabha chambers themselves would accommodate 888 and 384 MPs respectively.

    Issues with the old building

    • The existing British-built Parliament building, built in the 1920s, was designed for the Imperial Legislative Council and not for a bicameral Parliament.
    • The building has been modified over the years, including in 1956 when two floors were added.
    • While the number of Lok Sabha seats has remained 545 based on delimitation carried out on the basis of the 1971 Census, it is likely to increase after 2026 as the number of seats has been frozen till then.
    • The sources said the Lok Sabha and the Rajya Sabha halls are packed and would not be able to accommodate additional seats when the number of seats goes up.

    Back2Basics: Parliament House (Sansad Bhavan)

    • The Sansad Bhavan is the seat of the Parliament of India. It houses the Lok Sabha and the Rajya Sabha which represent lower and upper houses respectively in India’s bicameral parliament.
    • The existing building draws inspiration from Ekattarso Mahadeva Temple (in M.P.) and was built under the British empire for its Imperial Legislative Council in 1927.
    • The opening ceremony, which then housed the Imperial Legislative Council, was performed on 18 January 1927 by Lord Irwin, Viceroy of India.
    • Following the end of British rule in India, it was taken over by Constituent Assembly of India which was succeeded by the parliament of India once Constitution of India came into force in 1950.
    • In the 2010s, a proposal was introduced to revamp Central Vista and re-build or relocate a number of administrative buildings which initiated a program expecting completion in 2024.

    Architectural details:

    • Originally called the House of Parliament, it was designed by the British architects’ Edwin Lutyens and Herbert Baker in 1912-1913.
    • It was held as part of their wider mandate to construct a new administrative capital city for British India.
    • The perimeter of the building is circular, with 144 columns on the outside.
    • The building is surrounded by large gardens and the perimeter is fenced off by sandstone railings (jali).
    • Construction of the House began in 1921 and it was completed in 1927.

  • Personal choices, the Constitution’s endurance

    The order delivered by the Allahabad High Court underlines the most cherished values of our Constitution. The order examines the scope of individual choice and personal liberty on the touchstone of constitutional values.

    Background

    • The Allahabad High Court declared last month that religious conversions, even when made solely for the purposes of marriage, constituted a valid exercise of a person’s liberties.
    • The petitioners had approached the High Court seeking orders to quash a First Information Report (FIR) that was lodged against them.
    • The petitioners claimed that they were both adults competent to contract a marriage, and had, in fact, wedded in August 2019, as per Muslim rites and ceremonies, only after the girl had converted to Islam.
    • The State argued that petitioner’s partnership had no sanctity in the law, because a conversion with a singular aim of getting married was illegitimate.
    • In making this argument, the government relied on a pair of judgments of the Allahabad High Court, in particular on the judgment in Noor Jahan v. State of U.P. (2014).
    • There, the High Court had held that a conversion by an individual to Islam was valid only when it was predicated on a “change of heart” and on an “honest conviction” in the tenets of the newly adopted religion.
    • Additionally, the High Court had ruled that the burden to prove the validity of a conversion was on the party professing the act.

    Major takeaways from the High Court order

    • The Allahabad High Courtruled that the freedom to live with a person of one’s choice is intrinsic to the fundamental right to life and personal liberty.
    • It order recognises that a person’s freedom is not conditional on the caste, creed or religion that her partner might claim to profess.
    • And also that every person had an equal dominion over their own senses of conscience.
    • The High Court’s order makes it clear that it is neither the province of the state nor any other individual to interfere with a person’s choice of partner or faith.
    • By invoking the Supreme Court’s judgment in Puttaswamy, the High Court held that an individual’s ability to control vital aspects of her life inheres in her right to privacy.
    • Term privacy includes the preservation of decisional autonomy, on matters, among other things, of “personal intimacies, the sanctity of family life, marriage, procreation, the home, and sexual orientation”.
    •  It Court that the judgment in Noor Jahan was incorrectly delivered.
    • Marriage, the High Court said, is a matter of choice, and every adult woman has a fundamental right to choose her own partner. 

    Freedom of conscience under Article 25

    • Article 25 of the Constitution expressly protects the choices that individuals make.
    • In addition to the right freely to profess, practise and propagate religion, it guarantees to every person the freedom of conscience.
    • The idea of protecting one’s freedom of conscience goes beyond mere considerations of religious faith.

    Conclusion

    When we fail to acknowledge and respect the most intimate and personal choices that people make — choices of faith and belief, choices of partners — we undermine the most basic principles of dignity. Our Constitution’s endurance depends on our ability to respect these decisions, to grant to every person an equal freedom of conscience.

  • Implications of UP’s ‘love jihad’ ordinance for freedom of conscience

    The U.P. government’s ordinance seeking the prevention of illegal conversion has several provisions that go against the Constitution and restricts the freedom of conscience. 

    Objective of the ordinance

    • The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 seeks to prevent “love jihad” in the state
    • The ordinance makes it a criminal offence for a person to convert another by coercion, misrepresentation, fraud etc, which is unobjectionable.
    • A marriage solemnised for the “sole purpose” of unlawfully converting the bride or the groom is required to be declared void by the competent court.
    • There can be no objection to ordinance’s premise that converting somebody by fraud or misrepresentation is wrong.
    • In fact, though the members of the Constituent Assembly included the right to “propagate” one’s religion they considered it a “rather obvious doctrine” that this would not include forcible conversions.
    • However, the UP ordinance goes beyond this principle and does something quite strange.

    Unconstitutional provisions and issues with the ordinance

    1) Lack of clarity

    • The ordinance makes it a criminal offence to convert a person by offering her an “allurement”.
    • The term “allurement” is defined very broadly, to include even providing a gift to the person who is sought to be converted.
    • The use of the words “or otherwise” in the definition of allurement is puzzling.
    • The essential prerequisite of a criminal law is that it has to be precise.
    • A person cannot be put behind bars for doing something that a penal law does not clearly and unequivocally prohibit.
    • On this touchstone, the definition of “allurement” leaves much to be desired.

    2) Reconversion to a person’s previous religion is not illegal

    • It says that “reconversion” to a person’s previous religion is not illegal, even if it is vitiated by fraud, force, allurement, misrepresentation and so on.
    • In other words, if a person converts from Religion A to Religion B of her own volition, and is then forced to reconvert back to Religion A against her will, this will not constitute “conversion” under the ordinance at all.

    3) Unfairly treating all women in the same way

    • Illegal conversion under the ordinance attracts a punishment of 1-5 years in prison.
    • However, if the victim of the illegal conversion is a minor, a member of the Scheduled Castes or Scheduled Tribes or, strangely, a woman, the punishment is doubled — at 2-10 years behind bars.
    • In other words, it does not matter who the woman is, if somebody converts her against her will, the punishment can go up to 10 years in prison.
    • The ordinance unfairly paints all women with the same brush — assuming that all women are gullible, vulnerable and especially susceptible to illegal conversion.

    4) Buden of proof

    • The burden of proof in criminal cases is on the prosecution, and the presumption is that a person accused of committing an offence is innocent until proven guilty.
    • The Uttar Pradesh ordinance turns this rule on its head.
    • Every religious conversion is presumed to be illegal.
    • The burden is on the person carrying out the conversion to prove that it is not illegal.
    • The offence of illegal conversion is also “cognisable” and “non-bailable”, meaning that a police officer can arrest an accused without a warrant, and the accused may or may not be released on bail, at the discretion of the court.

    Time to revisit the past judgement

    • In Rev Stainislaus v State of Madhya Pradesh (1977), the Supreme Court held that the fundamental right to “propagate” religion does not include the right to convert a person to another religion.
    • In that case, the court had upheld anti-conversion statutes enacted by the states of Orissa and Madhya Pradesh.

    Conclusion

    The ordinance puts an incredible chilling effect on the freedom of conscience and state must reconsider it.