Tag: #fundamentalrights

RECENT AMENDMENTS IN THE INDIAN CONSTITUTION AND RELEVANT CASES

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INTRODUCTION

“The Indian constitution is first and foremost a social document, and it is aided by its Parts III and IV (Fundamental Rights and Directive Principles of State Policy, respectively) acting together as its chief instruments and conscience in realizing the goals set by it for all people.” The constitution was purposefully written in broad strokes (rather than ambiguous language) to ensure its flexibility. Constitutions are divided into two types: rigid and flexible. A constitution’s rigidity or flexibility is determined by the nature of the amendment. Anytime the ordinary laws and constitutional laws are amended separately, the constitution is rigid. In a flexible constitution, however, the two of them; ordinary laws and constitutional laws can be amended in an identical manner. The Indian Constitution is neither too rigid nor too flexible; rather, it is a hybrid of the two.

THE INDIAN CONSTITUTION

The Indian Constitution attempts to strike a balance between rigor and flexibility. A special majority of the Parliament, referring to the two-thirds majority of the members of each house i.e.; Rajya Sabha and Lok Sabha present and voting, the majority as well (which should be greater than 50%) of the total membership of each House, can change certain statutes.

Other clauses can be changed with a two-thirds majority in the Parliament and if there is ratification by half of the states. At the same time, there are certain provisions of the Constitution that can be modified in the ordinary legislative process by a simple majority of Parliament. The constitution’s flexibility is enhanced by provisions that allow the parliament to give an addition to the constitution’s provisions with legislation.

The basic structure concept was established in the Kesavananda Bharti case, which has unquestionably strengthened the constitution’s rigor. In fact, if the topic of Basic Structure arises, the Constitution of India is “completely rigorous” according to the Supreme Court. It clarifies that Parliament’s ability to amend the Constitution cannot be used to change, distort, or undermine the Constitution’s core characteristics and principles in any way.

The illustration of India’s constitutional nature has been outlined in this case, which allows for the Parliament to allow changes according to the ever-changing contexts, weighing the importance of such amendments. The Kesavananda case ruling was a thought-provoking, one-of-a-kind, and high-order decision. This 69-day case was meticulously examined, considering every possible outcome of the decision. After a thorough examination of the matter, it was clear that this ruling was required; otherwise, any political party with a two-thirds majority in parliament might propose any alteration that would jeopardize the constitution’s basic structure. Following the implementation of this ruling, the Judiciary, as mandated by the Constitution, is the last arbitrator in determining whether constitutional provisions have been violated. This case overruled Golaknath’s and opened the path for Parliament to fulfill its duty to construct an egalitarian society and welfare state in accordance with the Constitution’s Basic Structure.

This well-known case resulted in the creation of the basic structural theory, which went down in history as saving our constitution and restoring faith in the court, as well as saving the democracy of our country, for which the freedom fighters in the past gave their lives. As a result, the Kesavananda Bharati case has and will continue to have a place in our nation’s constitutional history.

RECENT AMENDMENTS MADE IN THE INDIAN CONSTITUTION

103TH CONSTITUTIONAL AMENDMENT ACT,2019
The Constitution (103rd Amendment) Act made in 2019 has altered two fundamental rights in the Indian Constitution, namely Article 15 and Article 16. These two clauses form the foundation of reservation in the realms of education and government employment. The state now has the power to establish a maximum of 10% quota for “economically vulnerable sectors” of citizens by adding two new paragraphs to Articles 15 and 16 of the Indian constitution. As a result, the total bookings over and above the existing program have increased to 59.50 percent.

Discrimination on the basis of race, caste, sex, religion, or place of birth is prohibited by Article 15 of the Indian Constitution. The amendment attempts to offer reservation to individuals who do not fall under 15(5) and 15 (4) (essentially, SCs, STs, and OBCs), i.e. economically disadvantaged sections so that they can be admitted to educational institutions other than the educational institutions for the minority mentioned in clause (1) of Article 30.

Discrimination in government employment is prohibited by Article 16 of the Indian Constitution. With the amendment, Article 16 (6) is inserted to enable reservations in government positions for people from economically disadvantaged groups. The “economic weakness” will now be determined based on “family income” and other “economic disadvantage factors.”

The Rs. 8 lakh income limit and asset restrictions to determine economic backwardness are the same as the bar set for determining the ‘creamy layer’ for OBC. This effectively eliminates the distinction between the “EWS other than SC, ST, and OBC-NCL” and the OBC-NCL under the 103rd Amendment. This would result in unequal being treated equally.

The Supreme Court has regularly held that overall reservations should not exceed 50% in order to be reasonable and to not jeopardize the basic right to equality. This ’50 percent ceiling’ however, has been effectively violated by the most recent Constitutional change.

Certain structural concepts, such as democratic government, republican government, secularism federalism, judiciary independence, freedom, equality, judicial review power, and so on, form the core or essence of the Constitution and give it a distinct ‘Identity’. This is dictated by the idea of basic structure, and it cannot be changed since it would jeopardize the constitution’s uniqueness.

The Supreme Court ruled in the landmark case of Kesavananda Bharati v. the State of Kerala that the Parliament’s power to amend the Constitution under Article 368 is not absolute and that even a constitutional amendment can be taken down if there are chances of it abrogating or destroying the Constitution’s “basic structure.” In September 1991, the then-P.V. Narasimha Rao government issued an Office Memorandum reserving ten percent of postings for ‘other economically deprived categories.’ The Supreme Court overturned this verdict in Indra Sawhney v. Union of India. The court in Indra Sawhney v. Union Of India and Ors. examined the constitutionality of the quotas in-depth, delving into the idea of backwardness. The reservation was made for a category of citizens who, according to Dr. BR Ambedkar, are those “groups which have not had so far representation in the State.” Indra Sawhney explains one of the reasons behind the 50 percent quota limit, stating that the Constitution allows for “appropriate representation” rather than “proportionate representation.”

The following are some of the key decisions made in the Indra Sawhney case regarding reservation:
• It supported the OBC reserve of 27%, with the exception of the “creamy layer.”
• It overturned the ten percent reservation for economically disadvantaged people, ruling that a backward category of citizens shall not be defined only on the basis of economic factors.
• It ruled that reservations for brought-forward or piled-up reserved vacancies should not exceed 50% of all appointments each year.
• It ruled that reservations can only be made in service or category if the State is satisfied that the representation of the backward class of citizens is insufficient.

In M. Nagaraj v. Union of India & Ors, the Hon’ble Court upheld the constitutional validity of Article 16 (4A) and the proviso to Article 335 and emphasized that the 50 percent ceiling, the concept of creamy layer, and compelling reasons such as overall administrative efficiency, backwardness, the inadequacy of representation, and are some of the constitutional requirements without which the point of equality for opportunities in Article 16 would be lost. Excessiveness in any form of reservation or evaluation, it has also been suggested, would result in a violation of this constitutional requirement. Because of this, the 50 percent reservation bar has been embedded into the fundamental structure of the Constitution’s code of equality.

The Supreme Court ruled in State of Kerala v. N.M. Thomas that Article 16(1), as a component of the notion of equality, allows justifiable categorization of all citizens who are in a similar situation with respect to the law. In other words, even if Article 16(4) of the Indian constitution is not there, Article 16(1) enables reserves and special treatment. Article 16(4) is not be made an exception to Article 16(1); rather, it aims to express what is already inherent in Article 16. (1).

Indra Sawhney provides a midway ground between N.M. Thomas and M.R. Balaji, according to the Supreme Court’s decision. It found a compromise between substantive equality and nominal equality by retaining the ‘50% ceiling’ criterion.

104th Constitutional Amendment Act, 2020
This Act abolished Anglo-Indian reservations in the Lok Sabha and state legislatures while extending reserves for SCs and STs for up to ten years. On December 9, 2019, Minister of Law and Justice Ravi Shankar Prasad introduced this bill for amendment in the Lok Sabha. The bill intended to modify Article 334 of the Constitution. On December 10, 2019, the Lok Sabha passed the Bill with 355 votes in favor and there were 0 votes against it. On December 12, 2019, the bill was introduced in the Rajya Sabha, where it gained 163 votes in favor and there were 0 votes against it. President Ram Nath Kovind of India gave his assent to the law on January 21, 2020, and it was published in the Indian Gazette the same day. On January 25, 2020, the amendment took effect.

Aside from the fact that the Scheduled Castes and the Scheduled Tribes have shown some significant progress for the last 70 years, the reasons that played a part in the Constituent Assembly’s decision to make provisions for the aforementioned reservation of seats still exist, according to Minister of Law and Justice Ravishankar Prasad. Due to this, an amendment to the Constitution was needed in order to keep the Constitution’s inclusive nature as intended by the founding fathers.

The Ministry of Law and Justice further stated that the issue of the extension of Anglo-Indian reservation in the Legislative Assembly had not yet been raised. However, he stated that the matter of terminating the reservation will be addressed by the center at a later date and that the subject matter has not been completely resolved.

The reservation seats for the Anglo Indians were not extended as it was for Scheduled Castes and Scheduled Tribes, which was one of the main criticisms of the amendment. The objective and reason for such an Amendment, provide justification for such enactment. The 104th Constitutional Amendment’s declaration of goal and reason explains the enlargement of the SC and ST reservations but it does not explain why the Anglo-Indian reservation seats were not extended or increased.

In Prashar v. Vasantsen Dwarkadas (1963), the Supreme Court decided that the statement of purposes and reasons for adopting a piece of law cannot be used to interpret the statute if the language used is plain enough. The declaration of objects and reasons, on the other hand, can be utilized to figure out what led to the law and what the problem was being solved through the legislation.

Parliamentarians have considered the interpretation of extending for SCs and STs with the goal of the founding authors of the Constitution. However, when it came to Anglo-Indians, the approach was not in the spirit of the founding fathers, but rather based on numerical data from the 2011 Census, rather than the report on the Anglo-Indian Community given by the 2013 Ministry of Minority Affairs. Anglo-Indians face challenges such as loss of culture, unemployment, identity crisis, educational backwardness, and a lack of acceptable housing amenities, according to a 2013 Ministry of Minority Affairs fact-finding report.

105th CONSTITUTIONAL AMENDMENT ACT, 2021
On August 9, 2021, the Ministry of Social Justice and Empowerment introduced the 127th Amendment Bill of the Constitution, which was later approved as the 105th Constitution (Amendment) Act. both the Houses of the legislature passed the act unanimously without delay on subsequent days. The major goal of enacting this Act was to bring back the states’ ability to identify their own state’s backward classes.

SEBC and OBC
In India, the Centre creates a separate list that recognizes the Other Backward Classes (OBC). Similarly, each State determines which classes are classified as Socially and Educationally Backward Classes (SEBC) of that state. Articles 15(4), 15(5), and 16 of the Indian Constitution have established these lists which are essential for the framework of reservation and quotas.

The Constitution (102nd Amendment) Act of 2018 was enacted to address the Central List of Socially and Educationally Backward Classes (SEBCs). Independent lists of the backward classes have been maintained by the Central Government and the State Governments since 1993. However, the Constitution (102nd Amendment) Act of 2018 raised the question of whether it mandated a single Central List of SEBCs detailing the SEBCs for each State, removing the State’s ability to establish and maintain its own State List of SEBCs. Furthermore, because authority has already been given to the Central government to issue lists, including Central in the then-amended Article 342A was redundant.

A contentious piece of legislation- which is The Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act, 2018, was considered unconstitutional until the Supreme Court pronounced it illegal in Jaishri Laxmanrao Patil v. Chief Minister (2021).

Several writ petitions challenging the constitutional legality of the reservation act have been filed in the Bombay High Court. The petitioner’s primary points of contention were as follows:

The Act is unlawful because it exceeds the 50% ceiling established on a reservation in any state according to the Indra Sawhney v. Union of India decision (1992).

The Act establishes reservations based on the Justice Gaikwad Commission’s findings, which purportedly lacks trustworthy, scientific, and appropriate facts to prove either Marathas’ backwardness or the extraordinary circumstances that justify raising reservations in Maharashtra.

The Act establishes reservations based on the Justice Gaikwad Commission’s findings, which purportedly lacks trustworthy, scientific, and appropriate facts to prove either Marathas’ backwardness or the extraordinary circumstances that justify raising reservations in Maharashtra.

The state government had passed the Act without complying with the 102nd Constitution (Amendment) Act’s procedural provisions.

The respondent- The Maharashtra State Government, argued that special circumstances, such as an increase in the incidence of suicides among Maratha families due to social and economic issues, justified the Act.

The Bombay High Court upheld the reservation for the Marathas but requested the state administration to cut it to 12-13 percent — the level proposed by the State Backward Class Commission, as opposed to the 16 percent given by the Act. The rationale was that, as the Maharashtrian government demonstrated, the Supreme Court-imposed ceiling on the total percentage of seats might be exceeded in extraordinary situations.

The Supreme Court accepted an appeal from the Bombay High Court’s verdict for the Maharashtra state government on July 12, 2019. The bench overturned the High Court verdict and declared the SEBC Act unconstitutional since there were no special circumstances that allowed for the violation of the 50% reservation mark. This was the unanimous decision of the Bench.

Meanwhile, the majority of the Bench, with two exceptions, believes that the 102nd Amendment deprives the state of the ability to identify backward classes. According to the ruling, only the President can issue a list that points out the economically disadvantaged, which Parliament can then change. In this regard, states merely have a recommending power. On this point, Justices Bhushan and Nazeer dissented, believing that Parliament did not have any intention to withdraw the States’ identification authority.

CONCLUSION

The Indian Constitution is a fusion of the United States’ basic law doctrine and the United Kingdom’s unwritten constitution’s theory of Parliamentary sovereignty. In other words, the Constitution is very stiff that Parliament, the supreme law-making body, cannot modify it. India picked a medium ground between the formality of the United States Constitution and the flexibility of the United Kingdom’s unwritten customs in order to allow the new nation to grow smoothly.

These Constitutional Amendments are significant because it reflects our society’s growing need for development and advancement, particularly among those who need it the most due to their backwardness. The fact that many communities require the presentation of the OBC category for reasons other than political power is linked to the belief that many of them have a lot of room for development in India. The severe caste system has yet to be dismantled, and this bleak reality requires further reflection and policy creativity. Another problem raised by this Amendment is how will the responsibilities be carried out by the states, as states will now be driven by local politics to include newer communities in their OBC lists.

As a result of the Constitution Amendment Bill, the standard operating procedures of the OBC, the scheduled castes, and tribes reserve have been clarified, ensuring empowerment and representation for communities that are frequently left out of inclusive development debate. Its goal is to empower people from underdeveloped communities by improving their social status via quality education and job opportunities, paving the road for inclusive development.

Written by Tingjin Marak, a student at Ajeenkya DY Patil University, Pune.

Right To Property – Journey from Fundamental Right to Constitutional Right

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Abstract – The historical foundations of Indian experiences and conceptions of property and wealth are considerably different from those of Western countries. The current property system, as we know it, sprang from unique events in Europe throughout the 17th and 18th centuries, and hence its lessons were not generally applicable. The concept of property rights is another economic sector where the solution is both complex and crucial. The author attempts to determine the motivation behind this unfortunate move.

INTRODUCTION

Property rights are not recognized as basic rights in the Indian Constitution. The 44th amendment, passed in 1977, made the right to acquire, keep, and dispose of property no longer a basic right. However, Article 300 (A) was added to another section of the Constitution to state that no one’s property may be taken away unless by law. As a result, the basic right to property has been replaced with a statutory right to property.

Article 19 (1) (f)
By providing an absolute basic right to property, the Indian constitution endeavored to reconcile the right to property with the right to recompense for its acquisition, balancing it with reasonable restrictions, and adding a further fundamental right of compensation if the properties are acquired by the state. Article 19(1) (f), which was balanced by Article 19(5) and the compensation article in Article 31, demonstrated this. When the state discovered that an absolute right to property and people’s ambitions were not the same, the legislature was obliged to change the constitution to make the aforementioned right to property subject to social welfare.

DOCTRINE OF EMINENT DOMAIN

This theory allows a sovereign to purchase private land for public use if the utility of the land can be shown beyond a reasonable doubt. In the current setting, this concept resurrects the age-old conflict over state authority vs. individual rights. Here comes the DID (Growth Induced Displacement), which refers to the forcible removal of communities from their homes, often from their ancestral lands, for the sake of economic development, and is considered a violation
of human rights on an international level.

Essential elements of this Doctrine:

  • A piece of property is seized for public use.
  • The seized property has been compensated.

As indicated above, the deleted Article 31 imposed two constraints on Eminent Domain power.

SUPREME COURT’S APPROACH TO THE RIGHT TO PROPERTY

The approach of the Supreme Court regarding the right to property may be separated into two phases:-

  1. The time till the right to property was a fundamental right (pre-1978)
  2. The time after the conversion of the right to property as a constitutional right (post-1978)

Right to Property as Fundamental Right
During this time, the Supreme Court went out of its way to oppose the right to property and the right to accumulate wealth, as well as to hold that, concerning Article 39, the distribution of material resources to better serve the common good and the restriction on wealth concentration, the right to property and the right to accumulate wealth were unconstitutional. The judiciary, on the other hand, is in charge of taming the socialist state’s abuses of the right to property and wealth. During the Liberalisation period, the Supreme Court endeavored to reinterpret the rules
that safeguard the right to property to make the protection genuine rather than illusory and to reduce the claim of wealth distribution.

However, this has been a piecemeal approach, and much more has to be done to restore the constitution’s original balance. This indicates that property acquisition is not just temporal but must also adhere to spiritual rules. Indian ideas understand that while the property can be enjoyed that has not been gained exactly according to the law, it cannot be termed the person’s true property.

Right to Property as Constitutional Right
The backlash against Articles 19 (1) (f) and Article 31 of the Constitution as Fundamental Rights began almost immediately after it was enacted in 1950. Thus, times have changed drastically in recent years. India is no longer viewed solely from the perspective of socialist politicians. It’s India Shining as viewed through the eyes of financial behemoths like the Tatas, Ambanis, and Mahindras, who have an inexplicable passion for capitalism, money, and markets. There’s another point of view. Industrialists and developers are vying for land across the country to establish Special Economic Zones.

Previously, the Supreme Court had defined some basic and unchangeable parameters and features of the Indian state and constitution, such as the country’s democratic form of government, as its basic structure, which could not be changed even by constitutional amendment, in the famous Kesavanand Bharti case of 1973. However, in his decision, Justice H.R. Khanna made a brief remark to the effect that citizens’ fundamental rights may not constitute a fundamental component of the Constitution.

Flaws in the 44th Amendment Act
The amendment was passed without considering the following disadvantages:
a. The close relationship between property and other fundamental rights, which the Janata Party promised to restore;
b. The impact of this change on the legislative power to acquire and requisition property;
and
c. The relationship between state policy directive principles and fundamental rights.

Implications
a. The Right to Property would no longer be a Fundamental Right, but rather a Constitutional Right. Only the High Courts, not the Supreme Court, can now question the legislation that infringes the fundamental right to property.
b. With the repeal of Article 31, the government was no longer obligated to recompense anyone whose land had been taken under the authority of a statute enacted by Parliament.

As of now, it is beyond the scope of my research and understanding to determine whether Proposition (ii), i.e. property deprivation without compensation, is still legally tenable, especially in light of the Supreme Court’s ruling in the Maneka Gandhi case, which stated that every provision of the Constitution must be explained in a fair, just, and reasonable manner. As a result, any law that deprives a person of his property must do so in an explainable manner. It may be claimed that the only legitimate way to deprive someone of their property is to provide them with appropriate recompense. This debate, however, is not entirely relevant to the topic of this article.

CONCLUSION

Personal rights such as the ability to vote, freedom of expression, and personal liberty were once regarded to have a greater position in the hierarchy of values than the right to property. As an outcome, judges are expected to strike down legislation that infringes fundamental rights than those that infringed property rights. However, courts of law have determined that the distinction between the two is illusory and that no one appears to have given any consideration to why property rights are not personal rights. In 1972, the Supreme Court of the United States, which had priorly provided a warm welcome to the difference between property and personal rights and accorded the former a preferred status, laid to rest both the difference and the preferred status of so-called personal liberties or rights by announcing that the dichotomy between property liberties and personal rights is a false one.

Whether the property in conflict is a home, a welfare check, or a savings account, the right to enjoy property without illegal deprivation is an aspect of a personal right, just like the right to travel or the freedom to speak. In reality, the human right to liberty and the personal right to property are fundamentally intertwined. Without the other, neither could have significance.

Written by Hemant Bohra student at School of Law, Lovely Professional University, Punjab.

RIGHT TO FOOD AND SHELTER ON THE TOUCHSTONE OF ARTICLE 21

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ABSTRACT

Interpretation of Article 21 has been given the widest amplitude post the judgment of Maneka Gandhi and since then it has included rights such as the right to food, the right to shelter, and a host of other rights.

INTRODUCTION

Article 21 is one of the most vital and indispensable fundamental rights that is enshrined in part III of the Indian constitution. It guarantees the right to life and personal liberty to each and every individual irrespective of his citizenship and states that no individual would be deprived of the above-mentioned rights except according to the procedure established by law.

The interpretation of article 21 was initially given a very restrictive and narrow meaning soon after the commencement of our constitution. It was after the landmark judgment of Maneka Gandhi v UOI1 that the scope of article 21 was drastically widened. Prior to Maneka Gandhi’s judgment, Article 21 guaranteed the right to life and personal liberty only against arbitrary and unreasonable executive actions and not from legislative actions. The arbitrary and unfair state actions that interfered with the life and personal liberty of the individuals could be protected and upheld if it was validated by the law. However, after the judgment of the Maneka Gandhi case, it was held that Article 21 protects an individual’s fundamental right of life and personal liberty from the arbitrary, unjust and unreasonable actions of both the executive and the legislature. To deprive a person of his rights under Article 21, there has to be a valid law and the procedure prescribed by the law has to be just, fair and reasonable.

RESTRICTIVE INTERPRETATION OF ARTICLE 21

  1. A K Gopalan v. UOI 2
    The petitioner contended that Article 21 must be read together with the rights encompassed in Article 19 (1) and 19 (5) as Article 19 dealt with substantive laws and Article 21 dealt with procedural laws. Moreover, the phrase “procedure established by law” meant the due process of law and included the principles of Natural Justice. The court, rejecting the above contentions gave a narrow and restrictive interpretation of Article 21 and held that Article 21 protected an individual only from those arrests and detentions that are made without the due authority of law or in other words Article 21 protected the physical liberty of a person and did not include any other rights. Moreover, the state-made laws did not include within its sweep the principles of natural justice.
  2. Kharak Singh v. State of UP 3
    The court, in this case, held the domiciliary visits by the UP police that led to surveillance of the petitioner as illegal because the police action was not validated by any law and it led to an invasion of personal liberty as the term personal liberty was not only limited to prison confinement but also other forms of restrictive bodily restraint.
  3. Govind v. State of M.P 4
    The court in this case upheld the whimsical and unreasonable domiciliary visits by the MP police which was violative of the fundamental right of life and personal liberty under Article 21 as the same was validated by Section 46 of the Police Act. Since the regulations had the force of law and were duly prescribed by the law, hence they were deemed as valid.

LIBERAL INTERPRETATION

Maneka Gandhi v. Union of India 5
This landmark case examined the amplitude of the phrase “personal liberty” used in Article 21. The passport of the petitioner in the given case was impounded by the government under the Passport Act 1967 in the interest of the general public. The majority judge bench, in this case, construed the term ‘personal liberty in the widest possible manner and thereby, exercising the rules of natural justice held the act of impounding of the passport as illegal. The court overruled AK Goplan and held that Article 21 was inclusive of Articles 19 and 14. The court held that in order to deprive an individual of his personal liberty, there must be valid law, prescribing a procedure and the procedure so prescribed should be fair, just, and reasonable.

The judgment of Maneka Gandhi paved way for the liberal interpretation of Article 21, thereby leading to the inclusion of a host of rights as fundamental to life and personal liberty under Article 21. These included the right to livelihood, right to clean air, right to privacy, right to gender expression, right to food, right to shelter, right to health, right to education, right to sleep, right to die, and a bunch of other derived rights.

RIGHT TO FOOD AND SHELTER

Food is one of the most crucial compelling necessities of human life after air and water. All the activities of mankind are directed towards satiation of this very need. It provides the much-needed nutrition to the human body which is vital for survival, growth, and bodily development. It is needless to further underscore its importance further given its prima facie absolute importance for the continuation of life on earth. Juxtaposed to this very importance of food for survival, there exist several lakh people in self-sufficient and food secure countries like India who die every day out of hunger and starvation. The vicious circle of the twin evils of poverty and unemployment often leads to hunger, prolonged malnutrition, and distress. Even if the direct cause of many such deaths may not appear to be from starvation prima facie, the somber reality remains unchanged that lack of food and avenues of employment often leads to prolonged periods of malnutrition, making them more vulnerable to diseases and distress, thereby, ultimately resulting in their deaths. On one hand, where the poor dies of hunger, it is even more appalling to note that the granaries of the FCI abound in food grains and often rot over there. Policy changes for appropriate nutrition requirements and distribution of food grains free of cost to the needy and destitute have to be executed with due diligence in order to correct this perpetuating wrong and ensure justice.

There is an imperative need for a paradigm shift from viewing the policy changes inequitable food distribution as acts of benevolence to that of it as the right of citizens. Various judicial pronouncements have been rendered in order to correct this perspective and ensure equity. Given the centerpiece importance of the right to food, the right to shelter also forms one of the very vital subsidiary human rights. A permanent roof on the head has traditionally been a sign of social security. It provides the much-needed material support and security for the realization of our avenues. It is an important indicator and buttress for the necessary progress and growth of the human being. The right to shelter, thus, forms an intrinsic part and parcel of the right to live with dignity.

The right to food and shelter, thus, form an indispensable and rudimentary need of human life. They are the bare necessities of life that go into everyday survival and ensure a dignified life. Given the expanding scope of Article 21, which has been given the widest possible interpretation through the various bold judicial enactments and decisions in recent times, Article 21 has included within its sweep an array of rights that have been deemed fundamental for a reasonable survival and realization of the worth of human lives.

The fundamental right under Article 21 that guarantees the right to life includes the right to live with human dignity with such basic amenities of life such as food, clothing, shelter, education, livelihood, medical care, decent environment, etc. that provide a reasonable standard of living, thereby providing scope for the development of human resources as a whole. Besides Article 21, Constitution, through the instrumentality of DPSP under Article 39 A and 47 mentioned in part IV of the constitution have also cast a positive obligation on the state to take affirmative steps, so as to meet the ends of equity and justice. Article 39A requires the State to direct its policies so as to secure all its citizen’s adequate means of employment and Article 47 directs the state to raise the level of nutrition and standard of living of its citizens by providing them avenues of shelter, clothing, education, health, and other amenities for integrated development.

The right to food and shelter can thus be enforced under article 32 of the constitution. The Supreme Court, through its various pronouncements, has rightly held these rights as fundamental to survival and has thereby kept it under the ambit of Article 21 of the Indian constitution.

  1. Chameli Singh v. State of UP 6
    The SC held the right to shelter as a fundamental right under Art. 21 of the constitution. The court held that in given civilized societies, human living did not imply a mere animal existence, but included all those facilities that go into making the human life worthful and dignified. The right to live implied the basic human rights of food, shelter, water, medical care, education, clean environment, sanitation, and other amenities. The right to shelter not only includes the mere facility of a roof over one’s head but includes the right to have all those necessary infrastructures that enable one to live off a meaningful life and develop as a human being.
  2. Francis Coralie v. union Territory of Delhi 7
    The Supreme Court in this case interpreted the Right to Life enshrined under Article 21 and held that the right to life included more than mere animal existence and physical survival. The right to ‘life’ was not confined to those physical faculties or limbs through which we interact with the outside world but includes the right to live with human dignity which includes all those necessities that go into survival such as food, clothing, shelter, and facilities for education and expression.
  3. PUCL v. Union of India 8
    In this case, the Supreme Court held the right to food as a fundamental right of the people under Article 21 that guarantees the right to life. Court held that State ought to provide food grains free of cost from the surplus reserve lying with the States to the starving people such as destitute children /men/ women, aged, infirm, disabled who were unable to purchase food grains. They have the right to get fed under Article 21.
  4. P.G. Gupta v. Slate of Gujarat and Ors 9
    The court held that the basic needs of man in any civilized society traditionally include the trinity of food, clothing, and shelter. The Right to life under Article 21 includes within its sweep right to food, right to reasonable accommodation, and right to a decent environment.
  5. Kapila Hingorani vs State Of Bihar 10
    The court held that the employees of the public sector undertaking have a fundamental right under article 21 to get the salaries paid by the government as the denial of the same may lead to hunger which is a gross violation of human rights. The State cannot claim lack of resource and abdicate from its duty to pay its employees as the same would amount to a denial of basic and indispensable fundamental rights under Article 21.

Conclusion

Article 21 rightly seeks to serve the interests of all individuals irrespective of their by validating their right to life and personal liberty. By including the sets of rights that are crucial and imperative for the survival of human beings with dignity and that form an indispensable part of the basic human rights, it serves the purpose of equity, justice, fairness, and principles of natural justice.

Citations

  1. AIR 1978 SC 597
  2. AIR 1950 SC 27
  3. AIR 1963 SC 1295
  4. AIR 1975 SC 1378
  5. AIR 1978 SC 597
  6. (1996) 2 SCC 549
  7. AIR 1981 SC 746
  8. 2000 (5) SCALE 30
  9. [1995] Supp. 2 SCC 182
  10. 2003 Supp(1) SCR 175

Written by Riya Ganguly student at Bharati Vidyapeeth New Law College, Pune.

NAVTEJ SINGH JOHAR V/s UNION OF INDIA

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Citation of the case

AIR 2018 SC 4321; W. P. (Crl.) No. 76 of 2016; D. No. 14961/2016.

Date of the case

6 September 2018

Petitioner

Navtej Singh Johar & Ors.

Respondent(s)

Union of India & Ors.

Bench/Judges

Dipak Misra, R. F. Nariman, D. Y. Chandrachud, and Indu Malhotra.

Statutes Involved

The Constitution of India, The Indian Penal Code.

Important Sections/Articles

Art. 14, 15, 19, 21, 25 of the Constitution of India, Right to Privacy under Fundamental Rights, S. 377 of the Indian Penal Code.

INTRODUCTION

Navtej Singh Johar V/s Union of India1 was one of the most critical cases, which changed our Indian laws and conveyed us with a superior understanding of those laws. Right to Life under Art. 21 of The Indian Constitution isn’t just with regards to allowing an individual to live, yet permitting everybody to live they need to live, in any means not harming those of others. Neither The Indian Constitution discusses the Right to Equality on a separate premise. Each living being is to partake in those freedoms with practically no segregation or imbalance.

An individual’s Natural Identity is to be treated as fundamental. What an individual is brought into the world with is normal, the same way the character an individual is brought into the world with is regular and is to be regarded and acknowledged as opposed to being scorned or peered downward on. Crumbling or deterring an individual’s character and personality would be something like pounding the upsides of Privacy, Choice, Freedom of Speech, and different Expressions. For long, the transsexual local area has been peered downward on, to which once Radhakrishnan, J. expressed, Gender character alludes to every individual’s profoundly felt inside and individual experience of orientation, which could compare with the sex relegated upon entering the world, including the individual feeling of the body which might include an openly picked, adjustment of real appearance or capacities by clinical, careful, or different means and different articulations of orientation, including dress, discourse, and peculiarities. Orientation personality, along these lines, alludes to a singular’s self-distinguishing proof as a man, lady, transsexual, or other recognized class. Numerous strict bodies have gone against the Carnal intercourse against the Order of nature and some remember it as a demonstration disparaging the protected idea of Dignity. The Navtej Singh Johar V/s Union of India was the milestone case which prompted the struck down of S. 377 of The Indian Penal Code, as it expressed – Whoever deliberately has licentious inter­course against the request for nature with any man, lady or creature, will be rebuffed with 1[imprisonment for life], or with impris­onment of one or the other depiction for a term which might stretch out to a decade, and will likewise be responsible to fine.

BACKGROUND OF THE CASE

Writ Petition (Crl) No. 76 of 2016 was petitioned for proclaiming the right to sexuality, right to sexual independence, and right to the decision of a sexual accomplice to be essential for the right to life ensured under A. 21 of the Constitution of India and to pronounce S. 377 of the Indian Penal Code to be unlawful. Mr. Arvind Datar learned senior guidance showing up for the writ applicants presented that the two-Judge Bench in Suresh Kumar Koushal and another v. Naz Foundation had been directed by friendly ethical quality in light of majoritarian discernment while the issue, in reality, should have been bantered upon in the setting of sacred ethical quality. Likewise in a Nine-Judge Bench choice in K.S. Puttaswamy and another v. Association of India and Ors., have thought that sexual direction is a fundamental part of freedoms ensured under the Constitution which are not formed on majoritarian discernment. Mr. Arvind Datar expressed that he doesn’t expect to challenge the piece of S. 377 that connects with licentious intercourse with creatures, he limits consenting demonstrations between two grown-ups. The assent between two grown-ups must be the essential pre-condition. If not, the kids would become prey, and insurance of the youngsters in all circles must be monitored and ensured.

FACTS OF THE CASE

Navtej Singh Johar, an artist alongside Sunil Mehra a columnist, a culinary specialist Ritu Dalmia, hoteliers Keshav, Aman Nath, and a Businesswoman Ayesha Kapur, all in all, documented a writ request in the Supreme Court looking for a presentation of the right to sexuality, right to sexual independence and right to the decision of a sexual accomplice to be important for the right to life ensured under A. 21 of the Constitution of India and to pronounce S. 377 of the Indian Penal Code to be unlawful, as it was impeding the privileges of the LGBT people group. It was expressed that this segment not just abused A. 21 yet in addition A. 15, 19 alongside the Right to Privacy under the Fundamental Rights in The Indian Constitution. There had likewise been a few cases in the past like the Naz Foundation v. Govt. of N.C.T. of Delhi2 and Suresh Kumar Koushal v. Naz Foundation3, which were likewise kept in thought during this case.

ISSUES RAISED

  1. Whether the rationale adopted in the Suresh Kaushal judgment was proper or not?
  2. Whether S. 377 violates A. 14 and 15 of the constitution?
  3. Whether S. 377 infringes the right to privacy under A. 21?
  4. Whether S. 377 has a ‘chilling effect’ on A. 19 (1) (a) by criminalizing gender expression by the LGBT community?

CONTENTIONS OF THE PETITIONER

  • The Petitioner had lamented that the individuals from the LGBT people group were denied the right to life ensured by Art. 21 of the Constitution of India.
  • The S. 377 of The Indian Penal Code conflicted with the A. 14, 15 of the Indian Constitution as they, as an individual were dealt with inconsistent to other people and segregated on the premise of sex of an individual’s sexual accomplice, and they, had to not to pick an accomplice of their enjoying.
  • 19 of The Indian Constitution out of totally was the most cut off, as the local area was denied to communicate their sexual personality through discourse and decision of an accomplice of their enjoying.
  • Right to protection under the Fundamental Duties was being impacted as they were evaded by society on finding their specific decision of living.
  • It was encouraged to the statement of the S. 377 of The Indian Penal Code, illegal and perceiving the right to sexuality, right to sexual independence, and right to the decision of the sexual accomplice to be essential for A. 21 of the Indian Constitution.

CONTENTIONS BY THE RESPONDENTS

  • The Union of India, taking a nonpartisan side passed on the make a difference to the Hon’ble Court by commenting “It left the topic of the sacred legitimacy of Section 377 to the insight of the Court”. Furthermore, found out if the law set down in Suresh Kumar Koushal v. Naz Foundation, is right or not.
  • Shri K. Radhakrishnan, senior guidance, for the benefit of intervenor-NGO, Trust God Ministries contended, there is no private freedom to mishandle one’s organs and that the hostile demonstrations prohibited by S. 377 are submitted by manhandling the organs. Such demonstrations, according to the intervenor, are undignified and overly critical to the protected idea of nobility and on the off chance that any infraction is caused to the idea of poise, it would add up to established off-base and sacred shamelessness.
  • The people enjoying unnatural sexual demonstrations which have been made culpable under S. 377 are more helpless and defenseless against contracting HIV/AIDS, additionally, the level of commonness of AIDS in gay people is a lot more prominent than heteros, and the right to protection may not be stretched out to empower individuals to enjoy unnatural offenses and in this way contact AIDS.
  • Mr. Suresh Kumar Koushal, intervenor, by a composed accommodation contended in that that the contention of the candidates that consensual demonstrations of grown-ups in private have been decriminalized in many regions of the planet and, hence, it should be decriminalized in India.
  • On the occasion consenting demonstrations between two same-sex grown-ups are barred from the ambit of S. 377, then, at that point, a wedded lady would be delivered remediless under the IPC against her bi-sexual spouse and his consenting male accomplice enjoying any sexual demonstrations.
  • For the benefit of Raza Academy, the intervenor, through its learned direction Mr. R.R Kishore, it was contended that homosexuality is against the nature request and S. 377 properly precludes it.

JUDGMENT

  1. S. 377 of The Indian Penal Code, to the extent that it applied to the consensual sexual direct between the grown-ups in private was announced Unconstitutional.
  2. The choice in the Suresh Kumar Koushal v. Naz Foundation (1) was overruled.
  3. Basic privileges are accessible to the LGBT people group even though they comprise a minority.
  4. S. 377 is violative of A. 14 being entirely discretionary, unclear, and has an unlawful goal.
  5. S. 377 punishes an individual in light of their sexual direction and is consequently oppressive under A. 15.
  6. S. 377 ignores the right to life and freedom provided by A. 21 which includes all parts of the option to live with poise, the right to protection, and the right to independence and self-assurance concerning the coziest choices of an individual.

CONCLUSION

The judgment for the situation was notable as it struck down the S. 377 of The Indian Penal Code and it allowed them to the Homosexuals and every one of the individuals from the LGBT people group to unreservedly put themselves out there and to stroll with a head high in the general public. They don’t need to fear being evaded by society and their right to security being pulverized and pronounced as hoodlums because they communicated their friendship and affections for their sexual accomplice.

This judgment was an overjoy for each individual from the LGBT people group and different Heterosexuals. The choice was valued even abroad by different NGOs and gatherings named The Human Rights Watch, in this manner acquiring global acknowledgment. Different translations were made to clarify what laws said and that they are to cling to and everybody in the general public is to be dealt with similarly.

References

  1. Navtej Singh Johar vs Union Of India Ministry Of Law And … on 8 January, 2018. indiankanoon.org.[Online] https://indiankanoon.org/doc/119980704/.
  2. Naz Foundation v. Govt. of NCT of Delhi. en.wikipedia.org. [Online] https://en.wikipedia.org/wiki/Naz_Foundation_v._Govt._of_NCT_of_Delhi#:~:text=Naz%20Foundatio
    n%20v.%20Govt.%20of%20NCT%20of%20Delhi,violation%20of%20fundamental%20rights%20protected%20by%20India%27s%20Constitution    ..
  3. Suresh Kumar Koushal and another v. Naz Foundation and Others. www.desikanoon.co.in. [Online] https://www.desikanoon.co.in/2014/02/suresh-kumar-koushal-anr-v-naz.html.

Written by Sara Agrawal student at Sinhgad Law College, Pune.

Right to choose Partner in Matrimonial Relationship

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INTRODUCTION

India Is a country with a population of over 130 crores people spanning through varied culture and heritage. It is home to many religions and gives due respects to a person’s choice to propagate the religion of his/her choice.

People hailing from all religions and cultures have different perspective, Ideas and feelings hence there are various Social Institutions that are guided by the views of different groups in the Society.

Marriage is one of the social institutions that is given abundant prominence, there are various laws governing marriages, some of them are codified such as the Hindu marriage act while the other such as the Muslim marriage law are not codified.

However a major dilemma that ought to be considered is the still prevalent perception of the people against people of different groups, caste and wealth, due to which a persons’ decision in a marital situation is often altered.

LAWS GOVERNING MARIAGE

While considering the Hindu marriage act[i], It only states that in order to solemnize a marriage under the act neither party must have a spouse at the time of marriage, both the parties must not be if unsound mind while giving a consent and  must be of the age of majority

A Muslim marriage however under the Muslim marriage laws[ii] is a contract unlike a sacrament in Hindu, and the essentials required for a valid marriage are similar and includes the need for a proposal made by or on behalf of one of the parties to the marriage, and an acceptance of the proposal by or on behalf of the other party provided that the consent thus provided is a free consent. It also requires the parties to be competent and does not require for any writing or formal ceremony.

There are other laws such as the Christian Marriage act and the Parsi marriage and Divorce act which governs the institution marriage in their respective religions

INTER CASTE OR INTERFAITH MARRIAGES

While all these laws highlight the need for a free choice on behalf of the parties it is often found to be contradicted when it comes to being practiced and is more prominent in the case of Inter Caste or Interfaith marriage, Although no religion states to be against Inter-caste marriages, there are endless cases regarding acts of violence and harassment against such couples.

KHAP PANCHAYATS

“Khap Panchayat”[iii] as it is known in north India and “Katta Panchayat” as it is known in Tamil Nadu, is a group of people of a community who acts as a quasi-judicial system to take decisions on acts that take place at a particular region which are deemed offensive and It is often found to impose harsh punishments based on old customary practices.

HONOR KILLING

Honor Killing in simple terms refers to the killing of a male or female for the reason, that their act in some way has brought shame either to their family or to the caste or towards their religion, such acts often include inter caste or interfaith marriages, illicit relationship with other men, loss of a women’s virginity before marriage, etc.

Although Honor killing does not have a separate section in any of the acts criminalizing it, however the acts of the IPC are sufficient enough to punish such offenders.

They can be booked under Section 300 of murder and will be punished accordingly

In the case of Bhagwan Dass vs State (NCT) Of Delhi[iv] where a man was convicted for murdering his own daughter for leaving her husband’s and staying with her Uncle stating that she had brought shame to the house, The Supreme Court upheld the decision of the High Court convicting the girl’s father and stated that the act of Honor Killing is nothing but barbaric.

FUNDAMENTAL RIGHTS OF PEOPLE TO CHOOSE THEIR PARTNER

Article 21 in The Constitution Of India 1949 refers to the “Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law”[v].

The same has been held by the court in the case of Shakti Vahini vs Union Of India and states that a person has the right to choose their partner[vi]

CASE LAWS REGARDING RIGHT TO CHOOSE PARTNER

In the case of Lata Singh vs. State of U.P[vii] where a girl filed a petition against her brothers for violence against her husband and his family on the grounds of Inter caste marriage, the Court held that when a boy/girl attains majority he/she has the right to make choices and thus have the right to choose to marry whomsoever he/she likes even though the family is not satisfied by it and the most that the family can do is to cut any connection with their son or daughter. The court also directed the police to protection to such couples.

Further in the case of Salamat Ansari and others. Vs. State of U.P. [viii]. the court while considering a petition to quash an FIR filed against a man alleging him of various offences under IPC including section 366 for Abduction, The court in this case considering the submissions of the girl that it was with her will that she went to stay with the petitioner and considering the age of the girl. The Court upheld her liberty of the decision and acquitted the boy of all charges.

In a recent Judgement by the Allahabad High Court, the court while deciding a case concerned with interfaith marriage, reiterated that It cannot be disputed that two adults have right of choice of their matrimonial partner irrespective of their religion and nobody and even their Parents cannot object their relationship.

CONCLUSION

India as a country has come a long way in terms of ensuring equal and fair rights to its people, and creating good laws to govern the people. This is one step closer to this allowing people to choose their partner denotes the liberty and freedom of expression in the society.

[i] Hindu Marriage Act, 1955, s. 5.

[ii] Muslim Marriage laws;  https://www.indiafilings.com/learn/muslim-marriage-act/#:~:text=The%20Muslim%20Marriage%20Act%20was,marriage%20of%20their%20free%20wills.

[iii] “Supreme Court declares it illegal for khap panchayats to stall marriage between consenting adults”, Times of India, available at (https://timesofindia.indiatimes.com/india/supreme-court-declares-it-illegal-for-khap-panchayats-to-stall-marriage-between-consenting-adults/articleshow/63476839.cms).

[iv] Bhagwan Dass vs State (Nct) Of Delhi, (2011)  6 SCC 396.

[v] The Constitution of India, art. 21.

[vi] Shakti Vahini v Union of India, (2018) 7 SCC 192.

[vii] Lata Singh vs. State of U.P (2006) 5 SCC 475

[viii] Salamat Ansari and others. Vs. State of U.P  (2020) SCC OnLine All 1382.

This article is written by Govind S Nair, a 2nd year BBA LL. B student at VIT School of Law, Chennai. This article expresses the right of a person either boy/girl to choose their partner for marriage and the present situation regarding the same in the Country.

“Protective Discrimination” A Boon Or Bane for Eternity?

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Introduction:

Considering the history of racial and caste discrimination in the world, the two most prominent names pop in our minds, i.e., United States and India. Unfortunately, India leads ahead of the US in this particular issue. To abolish such discrimination, the government of India, since its independence has been putting efforts through protective discrimination for the welfare of the languishing units of society. 

Since the inception of the Constitution of India, certain provisions have been primarily enshrined under Part III (Fundamental Rights) and Part IV (Fundamental Duties) for empowering the concept of protective discrimination to fill the societal voids. 

Protective discrimination has been adopted as a tool for granting special privileges to the downtrodden and the underprivileged sections of society. These are the affirmative action programs, and also known as positive discrimination. The term “protective discrimination” implies that a certain right or privilege is provided to those who have been oppressed and discriminated against for ages. Discrimination against discrimination is based on the widely known quote “iron cuts iron”.  There’s no ambiguity as history conveys that one type of discrimination is curative and protective in nature whereas the other type is negative and destructive. The society’s most susceptible section includes-

  • Scheduled Caste
  • Scheduled Tribe
  • Women
  • Children
  • Old age people
  • Transgender

Origin:

The first instance of appreciating the need for such discrimination in Indian history, in favor of the underprivileged, could be seen during the Nationalist Movement. Mahatma Gandhi, a devout Hindu and a staunch believer in the caste system was himself the first leader to recognize the significance of this subject and to invoke the sense of right and wrong of the higher castes to this age-old social malady of relegating whole communities and labeling them as “untouchables”. He renamed these untouchables as “Harijans” (people of God). He strived to provide this policy a religious sanction. He was well aware of the political motive of inaugurating this large body of people into the political mainstream to make the freedom movement more broad-based. 

The Indian Constitution largely followed the pattern of the Government of India Act, 1935, and made provisions for positive discrimination in favor of the Scheduled Castes and Scheduled Tribes (SCs & STs) which constituted approximately 23% of the divided Indian population. Besides reservation in parliamentary seats for them, they were also given advantages through jobs in the public sector, admission in schools and colleges, various pecuniary benefits for their overall development, and so on. Besides assuring the fundamental right of equality of all citizens before the law, the Constitution of India categorically laid down that “nothing in the constitution shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or the SCs and STs”.

Statutory Provisions:

The following articles of the Constitution of India provide laws in favor of the concept of positive discrimination:

  • Art. 15(5): The aforementioned sub-section was enunciated by the 93rd Constitution Amendment Act, 2006. It provides that nothing in Art. 15 or in sub-clause (g) of Art. 19 shall prevent the State from making any special provision, through regulation, for the advancement of any socially and educationally backward classes of citizens or SC and ST. Such unique provisions relating to admission to an educational institution and are inclusive of non-public educational establishments, whether aided or not by using the state, other than the minority educational establishments referred to in clause (1) of Art. 30
  • Art. 30(1): All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
  • Art. 16(4): The aforementioned article authorizes the State to make provisions for the reservation of posts in government jobs and training in favor of any backward class, which, in the opinion of the State , is not always adequately represented within the State’s services.
  • Art. 16(4-A): The said article was introduced through the 77th Amendment, enabling the State to make any reservation provision in matters of promotions for SC and ST, which, in the State’s opinion, are not competently represented within the State’s services.
  • Art. 330- Said article permits reservation of certain seats in the autonomous district of Assam for the SC and ST.
  • Art. 332- The aforesaid article provides the reservation of seats for the SC and ST in legislative assemblies of all the states except the scheduled tribes that are within the autonomous district of Assam.

Current Scenario:

The issue of reservation has been an all-time favorite issue in India. However, a PIL has been filed recently in the Hon’ble Supreme Court of India by an advocate who is also an MBBS doctor. The petitioner has posed the following questions before the apex court:

  • Are caste-based reservations in education for eternity in this country or is there a time beyond which they would be rolled back or at least to start rollback?
  • Isn’t there any other affirmative action than to provide reservations in education like giving the weaker sections special education, coaching, financial aid, etc. to enable them to compete in the open?
  • Shouldn’t we empower the weaker sections by making them more competitive rather than depowering them by eternal crutches of reservation?
  • Would eternal reservations in education not divide and fracture the society permanently, promote inequality, and ignite hatred, ill-will, and resentment not only against the reserved class but also against the system?
  • Being the protector of fundamental rights, is it not the bounden duty of the Supreme Court under Art. 14, to put a halt to the reserve discrimination being met to the unreserved class by the eternal reservations?

As of now, a division bench of Justice Nageshwara Rao and Justice Hemant Gupta on June 28th had adjourned the plea for a week, after a letter seeking adjournment was circulated by the petitioner in person.

Petitioner failed to acknowledge that the communities which have been treated as slaves in our history for ages can’t be revived in a snap. The damage done in centuries cannot be restored in a few decades. The objective of reservation seems nowhere near as instances of atrocities and societal exclusion of a person belonging to a lower caste in the society are not unfamiliar yet. A few from weaker sections might have grown financially strong with independence but people often, relying on half information, tend to hate the element of reservation, and fail to appreciate that our constitution provides reservation to those sections of society who are “socially” and “educationally” backward. The ground reality is itself illustrated by the petitioner’s second issue that the weaker sections still need affirmative actions for enabling them to compete naturally. Even after 74 years of independence and reservation provisions, there’s a long way ahead to achieve a non- discriminate nation for global development.

However, my conscience tends to partially agree with the petitioner here. Reservation in jobs, educational institutions, etc. cannot go till eternity. It will divide and fracture society if followed for an indefinite period. As excess of anything causes harm. Therefore, for eradicating both discrimination and reservation, all of us primarily need to end discrimination from our minds and help society to grow unitedly thereby leading to no requirement of reservation.

Conclusion:

Competition must be fair by all means and all the competitors must be treated equally, but only if they come from a similar social and educational background. A country must aim to progress within itself before competing in the world and that is exactly what our constitution aims to do. Coronavirus sees no caste and creed before attacking and has been haunting the whole world for the last one-n-half year. All it needs for its development are human beings, though ill. Similarly, we too need to unearth these fallacies as soon as possible for the overall development of our nation. Appropriate actions must be taken for a steady improvement. Lastly, protective discrimination is a boon, but a bane if followed till eternity.

The article has been written by Shikha Sagar, a third-year BA LLB student of Vivekananda Institute of Professional Studies, Delhi.

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