Tag: constitutionofindia

Background

The Constitution has been modified multiple times in order to keep up with societal changes. The Constitution was written to build an equitable society in which social, economic, and political justice are preserved, as well as equality of position and opportunity for all. Amendments to the Constitution are also made with the same goal and intent in mind. According to India’s legal history, anytime the Supreme Court issued a ruling on reservations, the Parliament would either reject or restrain the uncomfortable judicial declaration by amending the Constitution. One such example is the ratification of the Constitution (One Hundred and Third Amendment) Act, 2019, which aimed to grant reservations to economically disadvantaged parts of society.

The Constitution Amendment Act of 2019 amended Articles 15 and 16 of the Indian Constitution. These two clauses provide the foundation of reservation in sectors like education and government employment. The legislation enabled the state to grant a maximum of 10% reserve for “economically weaker parts” of society by inserting two additional articles into Articles 15 and 16 of the Constitution. As a consequence, the total number of reservations over and above the existing programme has risen to 59.50 percent.

Need for the 103rd Amendment

1. This specific amendment will deal with a problem that is prevalent in India, which is the upper caste pupils who were unable to attend public employment and further education owing to improper family financial structure.
2. Also, many of the upper caste residents live in poverty and starvation.
3. The higher caste poor will be able to receive the same level of quota as OBC thanks to this adjustment to the reservation policy.
4. The upper caste used to despise people who entered the country through reservations, but this amendment will help to end that practice.

What were the Amendments and the Additions?

1. The Amendment added clauses 15(6) and 16(6) to the corresponding provisions of Articles 15 and 16 of the Constitution, respectively.
2. The amendment gave the state the power to pass legislation aimed at “advancing any economically disadvantaged portion of citizens other than the classes indicated (in the preceding provisions).”
3. Article 15(6)(b) specifically mentions “admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30. Article 15(6)(a) discusses allowing the enactment of special provisions of any kind.
4. EWS reservations are required per Article 16.6 in situations involving “appointments or postings.
5. The Act specifies a 10% cap on this reserve as its maximum.

The requirement for amending Constitutional clauses

For social and economic advancement, the Constitution is modified. In the case of Keshavanada Bharati v. The State of Kerala (1973), it was noted that the people would turn to extra-constitutional tactics, such as a revolution, to modify the Constitution if no provisions were created for its amendment. Politicians have characterized the federal constitution as stiff because of the way amendments are made in federations. The American Constitution’s amending process is exceedingly challenging. The federal Constitution is frequently criticized for being overly conservative and for being too difficult to change.

The Indian Constitution was therefore drafted in a way that would allow it to adjust to the shifting needs and circumstances of an expanding people in order to avoid becoming inflexible. However, the framers did not want to make the Constitution overly pliable since it would have allowed the ruling party to play to its whims and fancies. The Constitution may be changed since it is neither too strict nor too flexible. According to Willis, there would always be a risk of revolution if no provisions for the amendment were made to the United States Constitutional Law. The risk of taking action that is too quickly would always exist if the technique of the modification were too simple. Our political institutions would be at risk of being overthrown in any scenario.

Therefore, the goal behind altering the Constitution under Article 368 was to bring about societal transformation. The Constitution’s amendment process functions as a safety valve designed to maintain the document’s provisions and to allow for amendments if needed. The risk of having a non-amendable Constitution and the risk of a Constitution that is too easily amendable have therefore been balanced by the constitution-makers.

The challenge to the Constitution’s validity

The Constitution’s “Identity” is formed by certain structural concepts, which include federalism, equality, freedom, secularism, independence of the judiciary, power of judicial review, democratic form of government, republican form of government, and others. The basic structural theory established this, thus it cannot be changed without destroying the constitution’s unique character. The Supreme Court ruled in the precedent-setting case of Kesavananda Bharati v. State of Kerala that the Parliament’s ability to amend the Constitution under Article 368 is not absolute and that even a Constitutional amendment can be invalidated if it has the result of destroying or repealing the “basic structure” of the Constitution.

A government office memo from the P.V. Narasimha Rao administration in September 1991 set aside 10% of positions for “other economically deprived categories.” In Indra Sawhney v. Union of India, the Supreme Court overturned this judgment. The court examined the legality of the quotas in Indra Sawhney v. Union of India and Ors., carefully analyzing the idea of backwardness. As per, Dr. BR Ambedkar, the classes of people for whom reservations were to be introduced are those “communities who have not had thus far representation in the State.” Indra Sawhney, where it was believed that the Constitution allowed for “appropriate representation” rather than “proportionate representation,” explains one of the reasons why the quota limit was set at 50%.

The following is a list of some of the crucial decisions made in the Indra Sawhney case regarding reservations:

• It upheld the 27% OBC reservation with the condition that the “creamy layer” excluded.
• It declared that a backward class of citizens cannot be established solely and exclusively with regard to economic backward criteria and nullified the 10% quota for economically backward portions.
• It was decided that the reservations made for backlog or carried-forward vacancies were valid; should not exceed 50% of the annual appointments
• It was decided that reservations may only be issued for a service or category if the State was satisfied that the representation of people from the underprivileged class was insufficient.

Does the action contradict the Constitution’s basic structure doctrine?

Youth for Equality, a non-profit organization, filed a Public Interest Litigation with the Supreme Court under Article 32 of the Constitution, alleging that the legislation’s decision to grant a ten percent reservation to students from economically disadvantaged groups in public and private educational institutions violates the fundamental principles of the Constitution and supersedes earlier rulings.

The question that emerges initially is that can the basic rights be amended? This can be explained by the 1951 case of Shankari Prasad v. Union of India, in which the constitutionality of the First Amendment Act of 1951, which included Articles 31 A and 31 B, was contested. The argument against the Amendment was that it violates the rights granted by Part III, which is prohibited under Article 13(2) and is therefore invalid. It was argued that because Parliament is included in the definition of “state” in Article 12, the term “Law” in Article 13(2) must also refer to a constitutional amendment.

The next issue is whether the Constitution’s fundamental principles are violated by the Act. The solution may be found by first defining the idea of the fundamental structure before concluding. Although the courts have made various rulings in this regard, they have not defined the idea of the Constitution’s fundamental structure. The idea was debated in the well-known Kesavananda Bharati Case, in which the petitioners actually contested the legitimacy and scope of Article 368, arguing that it lacked any restrictions and so ran counter to the fundamental principles of the constitution.

Critical evaluation

The Indian Constitution establishes an “equality code” to address historical injustices and the obvious inequality in higher education and state jobs. Everyone is guaranteed equal protection under the law and equality before the law under Article 14.

In M.R. Balaji v. State of Mysore, the Supreme Court declared that the reservation should not exceed 50% and overturned the 68% restriction imposed by Article 15 (4) on admissions to medical and engineering institutes in the (then) State of Mysore. According to the rationale behind the “50% ceiling” for reservations in the M.R. Balaji case, the exception cannot supersede the rule. There is nothing to prevent the State from exceeding the “50% ceiling” for reservations if Article 16(4) does not constitute an exception to Article 16(1), provided that the total population of the underrepresented classes is not itself less than 50%. In India, nevertheless, this is not the case.

However, the Supreme Court determined in State of Kerala v. N.M. Thomas that Article 16(1), which is a component of the equality theory, allows for the reasonable classification of all people who are in a comparable situation with regard to a statute identical to Article 14[11]. In other words, even without Article 16(4) of the Indian Constitution, Article 16(1) itself enables reserves and preferential treatment.

In other words, even without Article 16(4) of the Indian Constitution, Article 16(1) itself enables reserves and preferential treatment. Article 16(4) only seeks to make explicit what is already implicit in Article 16 and does not seek to be an exception to Article 16(1). (1). The alternative argument, on the other hand, contends that Articles 15(4) and 16(4), which allow for racial and ethnic minorities in public employment and education, are “exceptions” to Articles 15(1) and 16(1)’s provisions for equality and non-discrimination, and that therefore, exceeding the “50 per ceiling” constitutes reverse discrimination. Indra Sawhney’s decision by the Supreme Court, in essence, constitutes a compromise between M.R. N.M. and Balaji Thomas. It established a compromise between nominal equality and substantive equality by reinstating the “50% ceiling” norm.

Conclusion

The Constitution has been amended and introduced in order to stay up with societal advancements. In order to assure economic upliftment for the populace and to offer benefits to those who experience unemployment and are unable to pay for their school costs, the Constitutional Amendment Act, 2019 has also been proposed and passed. The other fundamental rights and other Constitutional provisions are not in any manner at odds with the Act. It may be said that by revising the Act, the government has given all people equal rights and benefits in terms of economic advancement and has in reality acceded to the Constitution of India’s requirements.

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Citations

1. The Gazette of India.
2. Indian Constitution, art. 15.
3. Indian Constitution, art. 16.
4. Kesavananda Bharati vs State Of Kerala And Anr , 1973.
5. The Constitution of the United States: A Transcription | National Archives. (2015, November 4). National Archives. https://www.archives.gov/founding-docs/constitution-transcript
6. Indian Constitution, art. 368.
7. Indra Sawhney Etc. vs Union Of India And Others, Etc., 1992.
8. Sri Sankari Prasad Singh Deo vs Union Of India And State Of Bihar, 1951.
9. M. R. Balaji And Others vs State Of Mysore, 1962.
10. State Of Kerala & Anr vs N. M. Thomas & Ors, 1975.

This article is written by Puneet Kaur, a second-year student.

Introduction

The Constitution of the Republic of India is the largest in the world. It describes India as a Sovereign Socialist Secular Democratic Republic, which has a parliamentary system of governance. The Indian Constitution was adopted on the 26^th Day of November 1949 and was officially enforced from 26^th January 1950. It took 2 years, 11 months, and 18 days for the constituent assembly to write the constitution. The Indian Constitution is a living document and is the supreme source and authority of law in India, but since its creation, the Constitution has been amended multiple times. Beginning with 395 Articles and 8 Schedules, it presently remains stands at 450 Articles and 12 Schedules resulting from 105 amendments. The 1^st Amendment to the Constitution was made in 1951, whereas the most recent, 105^th Amendment, was made in 2021.

Both rigid and flexible, the Indian Constitution is virtually amendable but difficult to change. The Indian Constitution stipulates that the government may amend the constitution as per Article 368. There are two distinct kinds of amending procedures: rigid and flexible. It is highly challenging to modify the Constitution under the rigid system. The U.S., Canadian, and Australian Constitutions are listed under the rigid system, whereas, the flexible approach is how the Constitution can be amended. A provision must be made in any of the houses in accordance with Article 368 of the Indian Constitution, and it must later be approved by a simple majority or a substantial majority. The resolution will be sent to the president seeking approval if a vote passes it.

Three unique amendment techniques, which blend flexibility and rigidity, are included in the Indian Constitution.

• Simple majority approval; is required to amend some sections, which is akin to adopting a regular law. For instance, adding new states, changing the boundaries of states, changing citizenship requirements, etc.
• The special majority’s amendment; According to Article 249, a majority of two-thirds of members is necessary for a vote. A special majority is needed to adopt Rajya Sabha resolutions that are intended to become laws for the State list.
• Special majority and ratification by at least half of the State Legislatures; the articles, such as those governing the election of the President, the subjects included in the Seventh Schedule, the relationship between the Centre and the States, etc., may be amended.

The Supreme Court held in the 1973 case of Kesavanand Bharati v. State of Kerala that the Parliament could not alter essential clauses that make up the fundamental structure of the constitution. Ideologies of the constitution that are necessary for its existence. Free and fair elections, the federal form of the country, judicial oversight, separation of powers, and so on. It indicates that the Constitution’s fundamental legal principles and founding principles serve as its cornerstone.

Important Amendments to the Indian Constitution

1. The First Constitutional (Amendment) Act, 1951 – On June 18, 1951, India’s first constitutional amendment came into effect. All subsequent constitutional amendments followed the model set by this one. The ninth schedule Articles 31A and 31B, and numerous other articles were changed or added because of the first amendment Act. The following Articles were modified by it: 15, 19, 85, 87, 174, 176, 341, 342, 372, and 376. The Acts that make up the ninth schedule are shielded from judicial review. This means that neither the acts nor their legality may be said to violate fundamental rights as the judiciary’s review of parliamentary actions was not effective for the acts as per the ninth schedule, this made it simpler and more straightforward for the government to carry out its objectives through the legislative process of the parliament. They did not need to be concerned about the judiciary disagreeing as a result. Indian people are free to engage in any type of trade or company they choose under Article 19(g). The amendment stated that the nationalization of any trade or enterprise by the state is permitted if it complies with the following requirements and is in the interests of public order, friendly relations with other countries, and state security, the provocation to execute an offence, defamation, and court contempt.
2. The Fourth Constitutional (Amendment) Act, 1955 – The first constitutional amendment and the fourth amendment both address issues concerning property, land acquisition, and zamindari eradication laws. The judiciary fairly maintained the Zamindari abolition legislation and accepted them. Article 31 was amended significantly by the Fourth Amendment, which also added Article 31A. Clause (1) of Article 31A was replaced, and Article 31A (2)(b) was changed to include the terms “raiyats” and “under raiyats” in the group of people whose “rights” in an estate were no longer covered by Articles 14, 19(1)(f), and 31. Additionally, the ninth schedule was changed to include additional performances. Trade and commerce are free according to Article 301. Is a law that establishes a governmental monopoly in breach of Article 301. The Supreme Court’s ruling explains that law empowering state monopoly needs to be proven to be established in the public’s best interests and indicates that it comes under the classification of reasonable restrictions under articles 301 and 304(b), respectively. This was raised in the case of Saghir Ahmed v. the State of U.P., but it was not addressed at the time. However, an amendment to Article 305 clarifies it now.
3. The Seventh Constitutional (Amendment) Act, 1956 – The first schedule, which included the geographical area and boundaries of all the states and union territories, underwent alterations because of the reorganization plan. Articles 258A, 290A, 298, 350A, 350B, 371, 372A, and 378A were included as part of India’s seventh constitutional amendment. Additionally, it changed the constitution’s schedules 1, 2, 4, and 7, as well as Section 8. The fourth schedule, which outlines how members in the Council of States are distributed, has undergone a major revision. This was because the seat counts were based on a 1941 census. The population and demographics of India had undergone a major change, necessitating an alteration in the number of seats for each state. The constitution was amended to add a new Article 258A. In contrast to Article 258(1), which grants state governments the authority to delegate union functions, the Article defined the states’ ability to do so. The distribution of seats among the states and their regions has been altered by amending Article 81. Alterations are made after every census. Additionally, after every census, each state would be divided into territorial constituencies. Based on the 13th edition of V.N. Shukla’s Constitution of India, there was a gap that required the application of Article 258A. This gap was discovered when a state’s implementation of some of its developmental projects ran into a practical problem. The addition of Article 258A filled (fixed) this gap. The seventh amendment made significant modifications to the makeup of legislative bodies and councils. The same calculation as before was to be used, i.e., one seat per million for the initial five million; and one extra seat for every additional two million. As a result, the seat count is updated in accordance with the findings of the most recent census, but the calculation method is unchanged. Due to problems in states with a low population, the strength was increased from one-fourth to one-third. The 1/4th rule was effective for states with high populations, like Uttar Pradesh, but not for those with smaller populations.
4. The Thirty-Eight Constitutional (Amendment) Act, 1975 – According to Article 123, the President may issue ordinances when neither chamber of parliament is in session. However, the President may only do this if he or she is convinced that doing so is absolutely required in the specific situation. As a result, the Constitution has granted the following powers: to the Governor under Article 239B, to the administrator. Articles 123, 213, and 239B have readable language. Since satisfaction is an ambiguous concept, it cannot be quantified. It is inherently arbitrary. According to the amendment, since “satisfaction” is a relative concept, an ordinance should pass if the president is satisfied with it. When the parliament’s two houses are not in session and a crisis arises, an ordinance is passed. There is no time to confer with others or consider the problem in such circumstances. The approval of the president ought to be the sole criterion for action, which must be implemented quickly. After the cases A.K. Roy, etc. vs. Union of India and Anr. and T. Venkata Reddy, etc. vs. State of Andhra Pradesh, the following was decided. The president’s satisfaction is not exempt from judicial review, but it also cannot be dismissed as simply political or cast in doubt just because of a political issue. On the grounds of motivation or lack of application of mind, the ordinance cannot be contested. The authority to enact an ordinance is a legislative authority, not an executive power. If the President’s intentions are being questioned, an ordinance may be called into doubt. When the President acts dishonestly, it may be contested.
5. The One Hundred First Constitutional (Amendment) Act, 2016 –Article 256A, was added to the constitution with the 101st amendment. “(1) Notwithstanding anything stated in articles 246 and 254, Parliament, and according to clause (2), the Legislature of each and every State, having jurisdiction to adopt legislation with regard to goods and services tax levied by the Union or by such State,” the constitution reads. Where the provision of products, services, or both occur during interstate trade or commerce, Parliament alone has the authority to enact laws relating to the goods and services tax. All the states and the center have the same authority to enact laws governing goods and services. Trades conducted within a state are subject to both state and federal regulations. According to Section 269A, “(1) The Government of India shall levy and collect the Goods and Services Tax on goods in the course of inter-State trade or commerce, and such tax shall be appropriated between the Union and the States in the manner might well be produced by Parliament by law on the suggestions of the Goods and Services Tax Council.” The following prerequisites must be met for the provision, regarding the clause, the provision of products or services, or both, for interstate trade or commerce is defined as the importation of such goods or services into India. According to the clause, the sum allotted to a state is not included in the Consolidated Fund of India. If a tax amount is imposed under subsection (1) and collected to satisfy a tax obligation imposed by the state, it will not be included in the Consolidated Fund of India. When a tax is collected that was imposed by a state under Article 246A and utilized to fulfill clause (1), the tax amount collected will not be included in the State’s Consolidated Fund. Through the creation of laws, the Parliament is empowered to determine where interstate commerce in the form of the delivery of commodities, services, or both will occur. The purpose of the 101st Amendment was to create a consistent national tax system. It grants the center and the states simultaneous taxing authority. Added to that are the union territories. With the legislature in session, this authority allows for the passage of laws relating to the tax imposed on goods and services. All domestic deals involving the flow of goods and services would be subject to this goods and services tax.

Scope for Improvement in the Constitution

1. Transparency in Appointment of Judges- Judges in India choose other judges. The remaining judges and HC judges are appointed by the SC collegium, which consists of the Chief Justice and the four senior-most judges. The public is unaware of the reasons why one judge was nominated and another was not since this is done in an opaque manner. To ensure accountability and openness, the Judges should be appointed by a completely independent authority. On this point, the judiciary serves as a check on the legislative and executive branches’ powers, but there is minimal to no control over the judiciary itself.
2. Term Limits on Public Offices- Important constitutional positions including the Prime Minister, President, Chief Minister, Governor, and even Members of Parliament, Legislative Assemblies, all the way down to members of panchayats should have a set number of terms or tenures. No one should be permitted to occupy any elected public office for longer than 3 terms if not 2. Staying for longer durations in a position of power can be misused for personal gains, as we have seen in countries like Russia and China where their head of state misused their powers to remain in power for even longer durations.

References

1. Kesavanand Bharati v. State of Kerala, (1973) 4 SCC 225.
2. Saghir Ahmed v. The State of Uttar Pradesh, 1954 AIR 728.
3. A.K. Roy, etc. v. Union of India, AIR 1982 SC 710.
4. T. Venkata Reddy, etc. v. State of Andhra Pradesh, 1985 AIR 724.

This article is written by Namay Khanna, a 3^rd year BBA LLB (Hons.) student at Symbiosis Law School, Pune.

Introduction

When the British left a violently divided India in 1947, Jammu and Kashmir had the option of joining either India or Pakistan or remaining independent. Even though there was already strong opposition to him in the form of the Quit Kashmir campaign, the then-Hindu king Maharaja Hari Singh preferred to maintain his position of power (the Muslim populace was against Hari Singh and wanted him to secede to Pakistan). Armed tribesmen from Pakistan invaded J&K as revenge and took control of strategic areas, which are now known as Pakistan Occupied Kashmir (POK).

In a desperate attempt to secure military support, the Hindu Maharaja agreed to India’s accession on the condition that the decision would be made with the support of the locals (Ganguly-1994). India brought the matter before the UN Security Council, which approved a cease-fire deal between India and Pakistan known as the “Karachi Agreement,” subject to a referendum once troops had been evacuated from both sides. The notion of a referendum was abandoned because Pakistani troops refused to leave one-third of Kashmir and have remained there ever since, referring to the area as “Azad Kashmir.”

With the accession, India gained control over the defense, foreign policy, and communication of Kashmir. Although Kashmir did legally become a part of India, the territorial disputes between Pakistan and India tore Kashmiri citizens apart.

Research Review

Jammu and Kashmir have been wracked by unrest since August 2019 as a result of Article 370’s repeal. The history of the creation of Article 370 is examined in the article “The Revocation of Kashmir’s Autonomy: High-Risk Hindutva Politics at Play” by Medha Menon (2021). It also examines how its repeal drives the establishment of Hindu Nationalist Politics, which silences the voice of the minority. It also focuses on how women’s rights are evolving in the valley amidst conflict. Sumit Ganguly’s article “India and the Crisis in Kashmir” from 1994 goes into detail about how political mobilization and institutional failure led to the emergence of the insurgency in J&K. The study also focuses on suppressing dissent that manifests as violence as a result of overly harsh treatment of Kashmiris.

The Yale School paper “The Myth of Normalcy: Impunity and the Judiciary in Kashmir” provides an outstanding analysis of Kashmir’s judicial system. The argumentative essay provides strong evidence of the violations of human rights that occurred after repressive laws like the Public Safety Act (PSA) and the Armed Forces Special Protection Act (AFSPA). It also makes observations on how the current legal framework gives military troops complete impunity for criminal activity.

The article from The Wire titled “J&K Internet Shutdown Based on Dubious Legal Framework” describes how communication blockades in the valley under the guise of national security have ended up becoming a type of collective punishment that the government abuses. It draws attention to the unrest that this broad restriction has produced in civil societies.

Discussions And Analysis

Granting Special Autonomy, Article 370

Jammu and Kashmir are given a distinct status within India and unique capabilities under Article 370. According to the Article, the state must have its Constitution, flag, election commission, and president (or “Sadr-i-Riasat”) in place of a governor. Additionally, the Ranbir Penal Code, the state’s criminal code, and discriminatory property rights for women are both present (Medha-2019). By requiring state governments to be consulted on issues that are on the Union and Concurrent lists, it limits the Parliament’s ability to enact laws.

Additionally, this Article supported the execution of only two articles of the Indian Constitution in the state, with the proviso that the President may, at any time, declare Article 370 to be inoperative through a public notification. Hindus and Muslims living in the valley had grown suspicious of one another as a result of the subjugation and compelled integration of a state with a Muslim majority into India. Furthermore, because of the unique privileges given to its residents with regard to property, work, and residency, the state has developed in a setting of exclusivity and separation. Although these laws may have given the state more autonomy, the deployment of armed soldiers in the valley has created an atmosphere of unease and suspicion.

All of these clauses were no longer in effect on August 5th, 2019, when Article 370 was repealed and Jammu and Kashmir were fully incorporated into India. However, because Article 370 was adopted from the beginning as a “temporary measure,” the abrogation was not unlawful (Sharma-2019). However, over the years, poor administrative and bureaucratic decisions have made it difficult to revoke it. The abrogation has made mainstream political parties in J&K, like the PDP, who sought support for the demand for self-rule, hostile. Placing key leaders under house arrest, as is permitted by the Public Safety Act, has further muted dissenting voices (PSA). J&K’s political and social trajectory still veers along uncertain, dangerously stated paths.

Internet shutdown

After Article 370 was repealed, a wave of protests and stone-throwing broke out in the valley, forcing the authorities to shut down all communication channels. People in the valley are in a dangerous state of anxiety because they are worried that Pakistan may try to influence this contentious subject in response to India’s cautious and conciliatory stance. In August 2019, India was utilizing the cutting-edge spaces made possible by internet services, while Kashmir was forced to experience a blackout. The BJP government defended the action on the grounds of security, violence prevention, and halting the spread of untrue rumors. To monitor money laundering and the funding of terrorism, the government eventually gained access to trace all types of digital transactions.

Since that time, the state’s citizens have been cut off from the outside world and living in darkness. When there were lockdowns and no remaining means of communication, trade, and business suffered. Travel restrictions brought the tourism industry to a standstill, leaving many employed in ancillary businesses without a job or another source of income. The residents of Kashmir struggled with meager financial aid and low employment rates. Due to the government’s lack of concern for the regular people, they struggled to make ends meet.

The closure of educational institutions and the suspension of internet access have effectively closed off all avenues of knowledge for pupils, which is a clear violation of their constitutional right to an education. The options that would have normally provided them with fresh horizons have been taken away from them.  When Article 370 was repealed, the government promised to open prestigious institutions of higher learning, but these assurances have not yet materialized. Kashmiri kids have been forced into a pit of unfair possibilities by the broken educational system, infringing on their right to equality.

Because of the communication blockage, Kashmiris are completely cut off from the outside world. For the past year, Kashmiris have been unable to reach their family, and they continue to worry about their welfare. The situation has caused more unease and worry, which frequently manifests itself in violent fights with the troops. Public gathering bans and widespread arrests of those the draconian PSA refers to as “miscreants” have been used to quell these unrests. After the abrogation, the Unlawful Activities Prevention Act was put into effect in J&K, which resulted in the additional arrest of 255 non-violent activists (Duschinski, Bhan-2017).

Although J&K has struggled to speak out thanks to the recently provided right to expression under the Indian Constitution, it has been muted by the imposing of the longest internet blackout. Despite the Supreme Court’s ruling in Faheema Shirin RK v the State of Kerala saying that the right to the internet is a basic right, Kashmiris continue to struggle with these communication difficulties.

Since Article 370 has been repealed, Kashmiris are now entitled to several fundamental rights guaranteed by the Indian Constitution, yet these rights are often abused. The question of whether Kashmiris would be true legal Indian citizens in the truest sense or merely stay a part of India through legislation and coercion is raised in their thoughts by this circumstance. The central government went too far and ignored the SC ruling in Bhasin v. Union of India regarding the proportionality of internet shutdowns. The judgment is compared to weak wi-fi signals, which are present but have no influence, in the context of zero implementation. Although Kashmiri nationals may have been included under the scope of the Indian constitution as a result of the removal of Article 370, it is still unclear whether this action has given them rights.

The future of women’s rights: freedom or limitations

Every Kashmiri citizen, especially Kashmiri women, has been harmed by the repeal of Article 370, which has also oppressed the lower classes. Gross human rights breaches, which are also reflected in discriminatory laws, have already been caused by the terrorism and military occupation of the region. One of the fundamental elements used to justify the abrogation by the Central government was the uniformity and equality of women’s rights. They saw it as a sign of freedom and self-determination for Kashmiri women. According to the centre, the revocation will provide women more authority by allowing them to transfer and purchase property even if they are married to someone who does not reside in Jammu and Kashmir. Now, the identical may also be inherited. The same can now be passed down to their offspring, giving them the same property rights as men, which was previously not feasible. This discriminatory clause in Article 35A is no longer valid as a result of the repeal of Article 370.

Activists, female sarpanches, and Kashmiri Pandit women who were married in other areas of the nation applauded the abrogation because they had lucrative stakes in the valley. The situation of Kashmiri women living in the valley, however, has not improved, and they continue to endure terrible repression. The political culture and the government have traditionally worked to limit women’s active engagement in society. Military forces posted in the valley have further suppressed women, and they frequently experience physical and sexual abuse. Despite having the right to express themselves freely, women nonetheless have to constantly worry about arbitrary government actions and being treated like second-class citizens.

Draconian military measures like AFSPA (Armed Forces Special Protection Act) have silenced women’s voices and made them vulnerable to sexual assault and other forms of violence. The AFSPA gives the military the authority to maintain public order in “disturbed areas,” detain someone without a warrant and employ reasonable force. Military troops commit horrible crimes with complete impunity under the guise of these deeds. According to these women, the entire gruesome process was “widowed by conflict, isolated by arrest” (Zahra, Muzamil-2020).

The J&K-based Valmikis were permitted to enter the valley under the condition that they exclusively act as scavengers (Sareen-2020). The Valmiki community is forced to scavenge regardless of their level of education in this egregious violation of their human rights. Similar to this, Gorkhas living in J&K were also refused citizenship while being harassed with financial demands by administrative authorities in the absence of the Right to Information Act and the Comptroller and Auditor General, who might have stopped these wrongdoings.

Increased female and working-class representation in public spaces is being offered as a carrot by the centre, which also promises a pot of gold at the end of the rainbow. But keeping women out of the decision-making process is a colonial, top-down strategy that has no advantages. By imposing judgments on them and pretending to know what is best for their welfare, the Hindu hard-line BJP administration has established itself as a patriarch. A campaign for women’s rights seems to be taking different forms in reality than it did in theory.

Change in the Government’s Authority and the Demographic Paradigm

The only Muslim-majority state in India was granted sovereignty and special status under Article 370. Under Article 370, the state defined and prescribed its legal and policy framework. Only permanent residents of Kashmir were permitted to own property in the valley, which also implemented a stringent settlement policy. All of these clauses are no longer in effect as a result of the repeal of Article 370, and J&K is now subject to directives from the federal government.

The opening up of the valley and the anticipated influx of Hindu people instilled in the minds of the Muslim majority population, the dread of being oppressed and enslaved. The residents of the region worry that historical religious violence’s scars may reappear. The general public views the revocation as a complete military takeover of Kashmir through the use of the legal system. Kashmiris view it as contradictory to be referred to as legal citizens of India while still being treated as subjects of governance without their permission.

The locals worry that the settlement of “outsiders” will cause the outcomes of any referendum or plebiscite to change dramatically over time, should it be held. The military will operate in complete anarchy, according to human rights groups, as a result of the centre’s overreaching support (Hussain, 2009). The abrogation, according to pro-Pakistan Kashmiri groups, is a plan by the Indian government to further tighten the noose around Kashmir and make disruptive violence the new standard in the valley.

Conclusion

Jammu & Kashmir’s fame has usually been contested on each both internal and outdoor. Three countries—India, Pakistan, and China—make claims to their land, which results in a steady movement of unrest and border conflicts. India’s valley is ripped aside with the aid of using warfare for dominance among the nation and federal administrations. The valley is presently experiencing unrest and anxiety due to these kinds of reasons. The nation has been reducing off from the outdoor global and without getting admission to the net for greater than a year.

Although the closely armed army has efficiently maintained peace and order, they have got additionally made Kashmiris sense remoted and not so good as Indian nationals. Jammu and Kashmir are nevertheless ready to be free of the verbal exchange blackout and to lose their fame as “disturbed areas.” The majority of Muslims in J&K are keen to study the outcomes of their minority fame.

This article is written by Kanika Arora, from Delhi Metropolitan Education (Affiliated to GGSIPU).

Civil Appellate Jurisdiction

Cases Nos. 270 and 271 of 1951

Equivalent citations

1951 AIR 226, 1951 SCR 525.

Petitioner

State of Madras

Respondent

Champakam Dorairajan

Date of Judgment

09/04/1951.

Bench

• DAS, SUDHI RANJAN
• KANIA, HIRALAL J. (CJ)
• FAZAL ALI, SAIYID
• SASTRI, M. PATANJALI
• MAHAJAN, MEHR CHAND
• BOSE, VIVIAN
• MUKHERJEA, B.K.

Subsequent Action(s)

Enactment of the First Amendment to the Constitution of India.

Facts of the Case

In the 1950s, there prevailed a quota/reservation policy for admission to academic institutions in Madras. There were around 4 engineering and medical colleges each that were upheld by the State. In the engineering colleges and medical colleges, which were financed and upheld by the state where the entire number of seats was 330 spots and 395 spots, respectively 17 spots were preoccupied/reserved for those pupils who were from other domains, and 12 spots were secured for voluntary assignment by the State, and the remaining place for 4 groups of communities in the State in which 6 spots were booked for non-Brahmins, 2 spots allotted for backward classes, 2 seats allotted for Brahmins, 2 seats assigned for Harijans, 1 assigned for Anglo-Indians and Indian Christians, 1 allotted for Muslims, and 20% assigned for women. The assignment was designed on different schemes which were based on educational qualifications and marks secured by the applicants who were from specific communities of the state. The quota system was pursued even after the introduction of the Constitution.

Srimathi Champakam Dorairajan, a Brahmin, was not able to acquire admission into the Medical College in spite of her proficient marks because she belongs to a Brahmin. So, she appealed to the Madras High Court under Article 226 referring to the contravention of her fundamental right of not getting into the medical college. And she also claimed a breach of her fundamental rights under Article 15 (1) and Article 29 (2) and asked the court to repeal the Communal Government Order, by a mandamus writ. C. R. Srinivasan also appealed a petition in the Madras High Court which includes her not getting into an Engineering College in spite of her eligibility. She secured 369 marks out of 450 marks. She also alleged for the matter of the Writ of Mandamus to repeal the Communal G.O.

Issue(s) of the Case

1. If the Communal Government Order 1921 provided by the State of Madras Constitutionally licit or not?
2. If the State can create quotas or reservations for seats in the academic institutions hinged on caste or religion?

Arguments raised by Appellant

The appellant focused on the point of the proviso of Article 46 which states that a state has to promote the academic and economic interests of fragile sections, generally the SCs and STs, and secure them from any type of social prejudice. Therefore, Article 46 provides the privilege to the state to sustain the Communal Government Order by reserving a place for various communities that are affiliated to the state. Consequently, the Communal G.O. is legitimate and permissible in law. So, there is no infringement of the Constitution for which the candidates failed to get into the colleges according to their proficiency and their fundamental rights are not infringed at the same time. In this instance, the proviso of Article 46 revokes the provisos of Article 29(2). It was expressed that Article 46 comprised Part IV of the Indian Constitution concerned with the Directive Principles (DPSP) where Article 37 simply speaks that “The provisos carried in Part IV shall not be implemented by any court, but the principles therein placed down are notwithstanding fundamental in the administration of the country and it shall be the obligation of the State to execute these principles in making laws.”

Arguments raised by Respondent

The defendant asserted that the Communal Government Order under the proviso of Article 46 is an understandable infringement of the Fundamental Rights. The respondent also attached that Caste need not be a hindrance for qualifying students to persuade into a college upheld by a state. Reservation according to the Caste-based is an infringement of Article 16(1). It was stated that Article 29 was not objected at admission to academic institutions rooted in religion, caste, or race. Article 15(1) and Article 29(2) got infringed as the state was biased against and contradicted admission into a college on the footing of caste.

Judgment

The High Court of Madras flattened the Communal G.O. since the quota system which is rooted in caste and opposed the Constitution of India. Both the petitions were concerned with Article 226 of the Constitution which is the grounds behind the infringement of the fundamental right to persuade into a college. After that, the state of Madras filed a petition in the Supreme Court against the decision of the Madras High Court’s where the Supreme Court supported that the grading in the Communal G.O. furnished by the Madras government hinged on religion, caste, and race understandable infringement of the Constitution of India and also an infraction of Article 29(2) in Part III of the constitution which secured the fundamental rights to the Indian citizens. The Court deemed that the State cannot acquire a particular place to allow admission to the applicants rooted in their religion, caste, and race which is infringing the proviso of Article 16 (2). Refusing admission on the bases of caste is a violation of Article 15(1). The provisos of Communal G.O. were introduced by the court which was declared invalid under Article 13 of the Constitution. The court gave a decision in support of Champakam Dorairajan. But an issue appeared “Do Fundamental Rights are superseding DPSP?” Therefore, the court held that in this case which is in an essential dispute between Fundamental Rights and DPSPs, “It will always on every occasion the Fundamental Rights that will triumph”.

Analysis

The case not only secured and safeguarded the Fundamental Rights of the Indian citizens but also the Indian Parliament responded to the verdict of the case at the same time with the idea of amending and altering the laws which were imminent in dispute with DPSPs. This case guided the First Amendment to the Constitution of India. The First Constitutional Amendment Act, 1951 was sanctioned to affix Clause 4 to Article 15. Article 15(4) was executed by the constitution. So, to authorize the state to create any specific provisos for the enhancement of backward classes.

Also, under Article 15(4), The Government can allot seats for the candidates of backward classes in government institutions or the institutions which are accruing help from the state. But it doesn’t permit the state the privilege to assign quotas to private institutions. Further, reforms were linked to the freedom of trade and business, the land reform measures, and freedom of speech which were granted by Article 19(1)(g). Article 19(1)(g) is a theme of sensible restrictions that the state may levy in matters of the general public. Thus, it is legitimate in nature. Prior to this case, there was an inherent dispute between Fundamental Rights and DPSPs since there was no transparency as to which would be more prevailing – Fundamental Rights or DPSPs in the instance of a dispute. But after this case, there is an explanation that “Fundamental Rights are prevailing over the DPSPs”.

Conclusion

It was a milestone case in which the Supreme court of India presented a chronicle judgment. It steered to the First
Amendment. This case revealed the eminence of Fundamental Rights and in what manner Fundamental Rights and
DPSPs are covered. If there is any violation in the fundamental right of a person owing to any direction at that time
the specific order will be examined as null and void like the present case where the Communal Government Order which was infringing the Fundamental Rights of Champakam Dorairajan who repudiated admission to an academic institute on basis of reservation was flattened by the court. This case also spotlighted the need for evolving different laws in the constitution which are infringing the Fundamental Rights of the people of India. Fundamental Rights are eternally superior and eminence for the citizens of the country as it grants them basic privileges which aid them to live with peace and freedom.

This article is written by Ashmita Dhumas, who has completed BA LLB from Agra College and is doing a diploma in
Corporate Law from Enhelion.