Tag: #IndianConstitution

S.no	Contents
1.	Introduction
2.	Reservation for Economically Weaker Sections (EWS)
3.	Impact on Education and Employment
4.	Disagreements and Criticisms
5.	Transformation of the Socioeconomic System
6.	Implications for the Future and Problems

Introduction to the 105th Amendment Act

The Indian Constitution’s 105th Amendment Act, officially known as the Constitution (One Hundred and Fifth Amendment) Act, 2019¹, is a crucial legislative measure that introduced important changes in the field of reservations in India. This amendment passed on January 12, 2019, and adopted on August 5, 2019, marked a turning point in India’s lengthy history of affirmative action legislation.

The major goal of the 105th Amendment Act was to expand reservations to economically disadvantaged sectors (EWS) of the general population. It intended to provide equitable opportunity for individuals who were economically disadvantaged while not belonging to the Scheduled Castes (SC), Scheduled Tribes (ST), or Other Backward Classes (OBC). This modification sought to address the long-standing complaint that reservation systems disproportionately benefited specific castes, potentially leaving economically disadvantaged individuals out of the general category.

The inclusion of Articles 15(6) and 16(6) to the Indian Constitution was one of the significant measures established by this amendment. These provisions allowed the government to give up to 10% reservation in educational institutions and public employment for the EWS², allowing them to enter the intensely competitive Indian education and job sectors.

The passage of the 105th Amendment Act was a watershed point in India’s quest for social justice and equality. It triggered heated debates and discussions on what constitutes “economic backwardness” and the practical implications of such reservations. It generated both support and criticism, as with every big constitutional amendment, prompting a full assessment of India’s complicated confluence of caste, class, and affirmative action.

Reservation for Economically Weaker Sections (EWS)

The Economically Weaker Sections (EWS) quota policy was implemented in India through the 105th Amendment Act, which signified a substantial break from the traditional framework of caste-based reservations. This programme, which went into force in 2019, intends to reduce economic disparities and provide chances to those from economically disadvantaged backgrounds in general. 

Individuals in the EWS category are entitled to up to 10% of seats in educational institutions and government positions under the EWS reservation policy. Individuals or families must meet certain income and wealth requirements to qualify for EWS. The income restriction often takes into account factors such as family income, property, and agricultural holdings. By giving reservation benefits to people who are struggling financially but do not belong to any reserved category, this tactic aims to level the playing field.

One of its main benefits is that the EWS reservation policy does not conflict with currently held reservations for Scheduled Castes (SC), Scheduled Tribes (ST), or Other Backward Classes (OBC). Instead, it adds a new category within the broader category for economically disadvantaged people.

The implementation of EWS reservations has received both praise and criticism. Proponents say that it tackles the issue of economic inequality, while detractors worry about the potential impact on current quotas and call the criteria of economic backwardness into doubt.

Impact on Education and Employment

The 105th Amendment Act’s inclusion of Economic Weaker Sections (EWS) reservations in education and employment has had a significant impact on access to these critical fields. This programme attempted to increase chances for economically disadvantaged individuals in the general category by allocating up to 10% of seats and posts in educational institutions and public jobs to EWS candidates.

The impact has been substantial in the field of education. EWS reservations have increased access to quality education for pupils who would not otherwise have had such possibilities. This change has enhanced competition and diversity in classroom settings, resulting in a more inclusive educational experience. However, it has raised concerns about the infrastructure and resources needed to accommodate the increasing student intake, which might put institutions under strain.

In terms of employment, EWS reservations have opened up new opportunities for job seekers from economically disadvantaged backgrounds. EWS candidates now have more access to government career possibilities in particular. This has the ability to generate greater social inclusion by creating a more varied and representative workforce. However, difficulties occur when attempting to balance the demands of employment quotas with the necessity for merit-based selections.

The impact of EWS reservations on education and employment is a source of contention, with continuous debates over implementation, effectiveness, and the difficult balance between eliminating economic disparities and maintaining the quality and efficiency of these institutions.

Disagreements and Criticisms

Since its beginnings, the 105th Amendment Act, which introduced reservations for the Economically Weaker Sections (EWS), has been the subject of various disputes and critiques. While supporters say that it reduces economic inequality, detractors have legitimate concerns about its possible consequences.

One major point of contention is the notion of “economic backwardness” used to determine eligibility for EWS reservations. According to critics, the income and asset limitations are arbitrary and do not reflect the genuine amount of economic need. This has raised concerns about whether qualified candidates are being denied, despite the fact that persons who are not genuinely economically disadvantaged may profit from the approach.

Another issue is that the existing reservation quotas for Scheduled Castes (SC), Scheduled Tribes (ST), and Other Backward Classes (OBC) may be diluted. Some are concerned that the 10% EWS reserve may limit possibilities for historically marginalised communities, undercutting the basic purpose of affirmative action policies.

Furthermore, there are issues regarding the viability of efficiently enforcing EWS reservations, particularly in highly competitive industries like as education and public jobs. Critics say that the sudden surge of EWS applicants will strain resources and infrastructure, lowering overall educational and administrative quality.

Critics of the 105th Amendment Act also criticise the timing and intentions for its passage, implying that it was motivated by political considerations rather than a genuine desire to redress economic inequality.

These debates and criticisms underscore the complexities of EWS reservations, as well as the necessity for continual examination and revision to ensure they achieve their intended goals without negatively impacting other marginalised groups.

Transformation of the Socioeconomic System

The 105th Amendment Act’s implementation of the Economically Weaker Sections (EWS) quota policy has the potential to cause enormous socioeconomic upheavals in India. While the entire scope of these changes will become obvious over time, a number of potential consequences can be predicted.

1. Increased Educational Access: EWS reservations give economically disadvantaged people easier access to quality education. As a result, a larger pool of qualified and educated workers from varied origins may emerge, potentially contributing to economic growth and development.
2. Expanded Employment Opportunities: The programme intends to solve unemployment and underemployment among economically disadvantaged groups by reserving government job openings for EWS candidates. This can result in a higher standard of living for EWS households and a decrease in poverty rates.
3. Reduced Income disparity: If implemented correctly, the EWS reservation policy may contribute to lowering income disparity by providing chances to individuals who were previously marginalised owing to economic constraints. EWS reservations can act as a social mobility mechanism, allowing individuals to break the cycle of poverty and access better prospects for themselves and their children.³
4. Diverse Representation: The policy may result in more diverse representation in educational institutions and government bodies in the long run, encouraging a sense of inclusion and equity.
5. Problems and Adjustments: It is crucial to emphasise that the policy offers problems, such as ensuring that infrastructure and resources can meet the increased demand for education and employment possibilities.⁴

The socioeconomic transition brought about by the 105th Amendment Act has a lot of potential, but it also needs to be carefully monitored, evaluated, and adjusted if it is to reduce economic inequities while retaining the effectiveness of institutions and services.

Implications for the Future and Problems

The introduction of EWS reservations in India via the 105th Amendment Act has far-reaching ramifications for the future, as well as a number of obstacles that must be properly addressed.

Future Possibilities:

1. Socioeconomic inclusiveness: EWS reservations have the potential to improve socioeconomic inclusiveness. The strategy attempts to eliminate income disparity and create a more balanced society by offering chances to economically disadvantaged individuals.
2. Diversity in Education and Employment: By including EWS candidates, educational institutions and the workforce can become more diverse. This variety can broaden viewpoints and produce a more welcoming workplace.⁵

Future Obstacles:

1. Effective Implementation: It is a huge problem to ensure that the benefits of EWS reservations reach the intended beneficiaries. Transparent methods and proper implementation mechanisms are critical.
2. Infrastructure and Resources: The unexpected increase in the number of EWS students and job seekers may put educational institutions and government organisations under strain. To handle this transition, adequate infrastructure and resources must be allocated.
3. Balancing current Quotas: Finding the correct balance between EWS reservations and current quotas for SC, ST, and OBC populations is a major difficulty. The strategy should not unintentionally limit chances for historically marginalised communities.
4. Political Manipulation: There is a concern that reserve policies will be manipulated for political advantage. These policies must be safeguarded against abuse.
5. Continuous Evaluation: To assess the long-term impact of EWS reservations, continuous evaluation and policy revisions may be required to guarantee the programme accomplishes its socioeconomic aims.⁶

To summarise, the future of EWS reservations in India is dependent on their efficient implementation, overcoming hurdles, and remaining focused on the larger goal of eliminating economic disparity and promoting a more inclusive society.

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Endnotes:

1.  The Constitution (One Hundred and Fifth Amendment) Act, 2019. “Gazette of India”
2.  The Times of India, “10% quota for poorer sections in general category challenged in Supreme Court,” January 10, 2019.
3. Kumar, S. (2019). “Impact of Reservation Policy in India: A Socio-Economic Analysis.” International Journal of Recent Research Aspects, 6(1), 1-10.
4. Dreze, J., & Khera, R. (2017). “Understanding Leakages in the Public Distribution System.” Economic and Political Weekly, 52(28), 49-55.
5. Kundu, T., & Kanbur, R. (2019). “Economics and Politics of Reservation in India: An Overview of Emerging Issues.” Cornell University ILR School, Ithaca, New York.
6. Thorat, S., & Attewell, P. (2007). “The Legacy of Social Exclusion: A Correspondence Study of Job Discrimination in India.” Economic and Political Weekly, 42(41), 4141-4145.

This article is authored by Srishti Singh, a pass-out student at O P Jindal Global University, Sonipat

S.no	Contents
1.	Introduction
2.	Article 15 of the Indian Constitution
3.	Significance and Challenges of Article 29 in the Indian Constitution
4.	Realm of Educational Autonomy under Article 30
5.	Diverse Perspectives and Common Goals of Articles 15, 29, and 30 in the Indian Constitution
6.	Intersectional Application of Minority Rights in Indian Education
7.	Conclusion

Introduction

The Indian Constitution, adopted in 1950, is a forward-thinking framework that upholds all citizens’ social, political, and economic justice and fundamental rights. The Indian Constitution’s drafters understood how crucial it was to protect individual and community rights, particularly in a nation as varied as India. The Constituent Assembly undertook the enormous task of crafting the Indian Constitution. The Constitution’s drafting committee’s chairman, Dr B.R. Ambedkar, was instrumental in its creation. The French Revolution’s tenets of liberty, equality, and fraternity, the U.S. Constitution’s Bill of Rights, and the experiences of other nations with the constitutional government were among the many inspirations the framers drew from. To address particular issues of non-discrimination, minority rights, and educational autonomy, respectively, Articles 15, 29, and 30 were added to the Constitution.

These items are essential for advancing diversity, safeguarding cultural variety, and maintaining educational autonomy in Indian society. The Constitution’s Articles 15, 29, and 30 were added to address marginalised people’s difficulties, promote inclusivity, safeguard minority rights, and advance educational autonomy. Article 15 forbids discrimination on several grounds, including race, caste, sex, place of birth, and religion. It seeks to establish a society where everyone is treated equally and to do away with prejudice in public places. The right of minorities to maintain their unique language, script, or culture is protected by Article 29. It guarantees that minority populations can use and promote their languages and cultures and acknowledges the value of cultural preservation. Religious and linguistic minorities are free to create and run the educational institutions of their choice, thanks to Article 30. It supports the independence of minority institutions and enables them to maintain their cultural and academic identities. These provisions provide equal opportunities, defend the rights of minorities, and support educational autonomy, all of which are essential for maintaining a pluralistic and diverse society.

Article 15 of the Indian Constitution: A Pathway to Equality and Inclusion

A crucial clause that guarantees the right to equality is Article 15^[1] of the Indian Constitution. It encourages equality among all citizens and forbids discrimination on several grounds. The Constitution’s dedication to establishing a society devoid of discrimination and guaranteeing equal opportunity for all is reflected in Article 15.

While Article 15 mainly forbids discrimination, some safeguards, legal interpretations, and limitations are related to its application. These consist of the following:

• Exceptions: Articles 15(3) and 15(4) allow for exceptions when providing particular provisions for women, children, and economically and socially disadvantaged groups.
• Protections: Article 15.5 guarantees that the State may only make reservations in privately funded educational institutions.
• Legal interpretations: In maintaining the spirit of Article 15 and acknowledging the intersectionality of prejudice, the Supreme Court of India has read it broadly. Over time, the understanding has changed to address different types of prejudice and advance absolute equality.
• State of Kerala v. Kesavananda Bharati^[2]: The fundamental structure concept, which ensures that the fundamental rights, including Article 15, cannot be altered in a way that eliminates the fundamental elements of the Constitution, was established by this seminal decision.
• Indra Sawhney v. Union of India^[3]: In this judgement, the Supreme Court defended reservations as a legitimate strategy for addressing social and academic backwardness. Additionally, it was made clear that reservations should be made at most 50% unless there are exceptional circumstances.
• Vishaka v. State of Rajasthan^[4]: In this case, the Supreme Court recognised sexual harassment as a type of discrimination prohibited by Article 15 and offered recommendations for how to deal with it.

Article 15 has considerably influenced advancing social justice and eradicating discrimination in Indian society, as have its court declarations. Affirmative action programmes have been made easier to implement, discriminatory practices have been exposed, and understanding of the value of equality and inclusivity has increased.

Preserving Diversity: Unveiling the Significance and Challenges of Article 29 in the Indian Constitution

The Indian Constitution’s Article 29^[5] is a crucial clause that protects minorities’ rights. It acknowledges the value of maintaining minority communities’ unique languages, scripts, and cultures. In India, Article 29 significantly contributes to advancing diversity, inclusiveness, and defending minority rights. The preservation of language, script, and culture is one of the central tenets of Article 29. In a heterogeneous country like India, it acknowledges the importance of linguistic and cultural variety. The right to preserve and advance their language, writing, and culture is guaranteed under this clause, which adds to the rich fabric of Indian diversity. In contemporary India, where minority populations struggle to maintain their identities, Article 29 is still very relevant. But several obstacles prevent the practical realisation of minority rights:

• A threat to minority communities’ distinctive language, script, and culture is often posed by pressure to adapt to mainstream culture.
• Language and Educational Rights: It can be difficult to guarantee adequate educational opportunities in minority languages and to defend minorities’ rights to create and run educational institutions.
• Identity Politics: At times, implementing Article 29 in a way that respects the rights of all parties might be complex due to identity politics and the competing interests of various minority groups.
• Maintaining a balance with other constitutional provisions.

Empowering Minority Education: Exploring the Realm of Educational Autonomy under Article 30

The term “educational autonomy” describes the capacity of educational institutions to make decisions about their administration, admissions, curriculum, and other areas without excessive influence from outside parties^[6]. As it enables individuals to customise the educational experience in accordance with their cultural, religious, and linguistic values, Article 30^[7] recognises the importance of academic autonomy for minority communities. The distinctive character and values of minority populations are promoted and preserved in large part thanks to minority educational institutions. In addition to providing educational opportunities, these institutions also support the minority community’s cultural, religious, and linguistic legacy. They foster a climate in which minority students can pursue their education while yet feeling rooted in their communities. Numerous legal rulings and challenges have been made about the meaning of Article 30. Among the crucial elements are the following:

• Minority Status: How minorities are classified has been subject to discussion and legal scrutiny. The courts have emphasised that determining a group’s status as a minority considers factors like language, religion, culture, and numerical composition.
• Reservation rules: There has been debate over the scope of minority institutions’ ability to enact reservation rules. Although there is a dispute over whether reservation regulations should apply to minority colleges, they do have the right to admit students from their specific communities.
• Governmental Intervention: Balancing institutional autonomy and governmental regulation has been challenging.

Unity in Diversity: Exploring the Diverse Perspectives and Common Goals of Articles 15, 29, and 30 in the Indian Constitution

Despite having similar goals, Articles 15, 29, and 30 have several significant discrepancies and reflect various viewpoints:

• Area of Applicability: While Article 29 mainly safeguards the rights of minority communities, Article 15 applies to all citizens and forbids discrimination on several grounds. The rights of linguistic and religious minorities to create and run educational institutions are the only subject of Article 30.
• Individual Rights vs. Collective Rights: Article 15 mainly safeguards citizens’ individual rights by prohibiting discrimination on a personal basis. The collective rights of minority communities are emphasised in Article 29, in contrast, to protecting their cultural and linguistic identity. Article 30 balances individual and social rights by allowing minority institutions educational autonomy.
• Balancing State Regulation: While Articles 29 and 30 acknowledge the State’s responsibility in regulating educational institutions to guarantee standards and quality, Article 15 imposes obligations on the State to prohibit discrimination in contrast to Article 29, Article 30 grants minority institutions greater authority.

In actuality, Articles 15, 29, and 30 are linked to one another and support social fairness, cultural variety, and freedom of education. They establish a compelling foundation for defending the civil rights of marginalised groups and guaranteeing inclusion in society:

• Intersectionality: Articles 29 and 30 are pertinent in addressing intersecting forms of discrimination because discrimination based on the grounds listed in Article 15 can also affect the cultural and educational rights of minority communities.
• Affirmative action: Under Articles 15(4)^[8] and 15(5)^[9], the State can create special accommodations and reservations for Scheduled Castes/Tribes and socially and educationally disadvantaged sections. Articles 29 and 30 recognise that affirmative action is necessary by recognising minority communities’ rights to create educational institutions and maintain their cultural identity.
• Educational Inclusivity: Article 15 encourages inclusivity by prohibiting discrimination in schools, and Articles 29 and 30 go even further by guaranteeing minority communities have the right to establish their educational institutions, giving them a sense of belonging and equal educational opportunities.

Guardians of Autonomy: Intersectional Application of Minority Rights in Indian Education

A case involving the interpretation of Article 30 and the autonomy of minority educational institutions was T.M.A. Pai Foundation v. State of Karnataka^[10]. While admitting the necessity for regulations to maintain standards, the Supreme Court found that minority colleges can accept students of their choosing and set their admission requirements. In the case of Ashok Kumar Thakur v. Union of India^[11], the Supreme Court discussed the question of reservations in for-profit educational institutions. It was decided that minority institutions are immune from having admission reservations because doing so would violate their Article 30 rights.

Examples of Intersectional Application in the Real World-

• Rights of Linguistic Minorities: To protect their language and culture, linguistic minorities have successfully created and run educational institutions in many Indian states, including Tamil Nadu and West Bengal. These organisations are crucial in promoting linguistic variety and offering education in regional languages.
• Gender and Minority Rights: When discussing the rights of minority women, intersectionality is essential. As an illustration, Muslim women in India have struggled for their rights to employment and education while also promoting gender equality and defending their own religious and cultural identities.
• A legal challenge was made against St. Stephen’s College’s admissions policy. St. Stephen’s College is a minority institution in Delhi. Some people claimed the college’s decision to implement a subjective interview procedure was discriminatory. In this scenario, it was essential to balance the institution’s autonomy and the values of equality and non-discrimination.
• Reservation Policies and Minority Institutions: There has been discussion surrounding the issue of reservation policies in minority educational institutions. There have been situations where reservation practises conflict with the rights of minority institutions, making it difficult to strike a balance between the constitutional principle of reservations for historically marginalised communities and their autonomy.

Towards a Just Society: Assessing the Implementation Challenges and Future of Articles 15, 29, and 30 in India

Articles 15, 29, and 30 must be continually assessed for their success in advancing social justice, cultural diversity, and educational autonomy. Although these rules have made a substantial contribution to protecting the rights of minority communities, difficulties with their implementation still exist. Among the principal challenges are:

• Lack of Knowledge: It’s possible that many people, especially those from marginalised areas, need to be made aware of the rights guaranteed by these articles. It is essential to increase awareness through outreach and education initiatives.
• Inadequate execution Mechanisms: To address instances of discrimination and infringement, the effective execution of these rules requires robust mechanisms, such as monitoring bodies and grievance redressal systems.
• Balancing Conflicting Rights: Careful thought and court intervention are necessary to strike a balance between the rights of minority communities and other constitutional provisions, such as reservations and affirmative action.

Recommendations for Policy-

• Strengthening Implementation methods: Creating comprehensive policies and procedures, such as awareness-raising campaigns, oversight committees, and grievance redressal systems, to improve the implementation of Articles 15, 29, and 30.
• Intersectionality and Multiple Identities: More research is required to understand how different identities intersect and what that means for how well these articles’ rights are protected.
• Comparative Analysis: Comparative studies of minority rights and educational autonomy practise in various nations might offer insightful information for policy creation.
• Balancing Conflicting Rights: To ensure equity and fairness, research is required to look at the delicate balance between the rights of minority communities and other constitutional provisions, such as reservations and affirmative action.

Conclusion

In conclusion, the Indian Constitution’s Articles 15, 29, and 30 significantly advance inclusivity, equality, cultural preservation, and autonomy in education. Collectively, these provisions support social fairness, cultural diversity, and universal access to education for all societal groups. Non-discrimination is guaranteed by Article 15, and minority communities’ rights to maintain their cultural and linguistic identities are safeguarded by Article 29. Article 30 promotes educational autonomy by granting linguistic and religious minorities the right to form and run educational institutions. Although these articles share some similarities and goals, they also reflect divergent viewpoints and cover various areas of minority rights. It is critical to address implementation issues, reinforce anti-discrimination laws, resolve ambiguities through judicial interventions, and evaluate reservation procedures to increase the effectiveness of these measures. Promoting inclusive education, bolstering cultural preservation efforts, and encouraging inter-community discussion is necessary to advance social justice and equality in a varied society. Strengthening implementation mechanisms, investigating inter-sectionality and different identities, performing comparison analyses, balancing conflicting rights, and performing impact analyses are some ideas for policy. India may make significant strides towards building a more inclusive, equitable, and culturally varied society by implementing these suggestions and undertaking additional studies.

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Endnotes:

1. Constitution of India,1950, art.15
2. AIR 1973 SC 1461
3. AIR 1993 SC 477
4. AIR 1997 SC 3011
5. Constitution of India,1950, art.29
6. https://unesdoc.unesco.org/
7. Constitution of India,1950, art. 30
8. Constitution of India,1950, art.15(4)
9. Constitution of India,1950, art.15(5)
10. (2002) 8 SCC 481
11. 1972 (1) SCC 660

This article is written by Sreejeeta Das, a law student at Symbiosis Law School, Hyderabad.

S.no	Contents
1.	Right to Suit
2.	Right to Appeal
3.	Scope of Right to Appeal in Statutory Law
4.	Historical Overview
5.	Legal Frameworks
6.	Conclusion

Right to Suit

An individual or organization has a legal entitlement known as the “right to sue” that enables them to initiate a lawsuit against another individual or organization in a court of law. This right is considered fundamental since it allows them to pursue legal action and seek remedy or recourse for any perceived harm or wrongdoing caused by the other party. Typically, the right to sue is granted to individuals or organizations who are capable of demonstrating that they have suffered legal harm or damages resulting from the actions or omissions of another party. Such circumstances may include but are not limited to a breach of contract, personal injury, property damage, or infringement of intellectual property rights, among others. It is essential to note that the right to sue is subject to legal constraints or limitations, and may not be an absolute right. Furthermore, the process of initiating legal proceedings can be intricate, requiring the guidance of legal experts to navigate it effectively.

It is crucial to acknowledge that the right to sue is not an unrestricted right, as there may be legal limitations or restrictions on the individuals or entities who can initiate legal proceedings and the situations in which they can do so. Moreover, the process of commencing a lawsuit can be intricate and costly and may necessitate the guidance of legal experts to navigate it competently.

Right to Appeal

The legal entitlement of a party to challenge a lower court or tribunal’s decision in a higher or appellate court is known as the right to appeal. This right permits parties to contest the factual or legal conclusions reached by a lower court or tribunal and seek a different outcome.

Under Article 21 of the Constitution of India^[1], which guarantees the right to life and personal liberty, the right to appeal is recognized in India. It is a fundamental component of the Indian legal system and is intended to ensure equitable and impartial administration of justice.

The procedure for filing an appeal in India is dependent on the type of case and the court or tribunal involved. Generally, a written petition outlining the grounds for the appeal must be submitted within a specified timeframe after the lower court’s decision. The higher court then assesses the evidence and legal arguments presented by both parties before reaching a decision. The right to appeal is accessible at various levels of the Indian judiciary system, from district courts to the Supreme Court of India. Both civil and criminal cases can be appealed, and the appellate court may either uphold, modify, or reverse the lower court’s decision.

Scope of Right to Appeal in Statutory Law

The right to appeal is not an inherent right and is only granted through specific statutes. It is considered a substantive right, rather than merely procedural. This right is conferred upon the litigant from the beginning of the case, although it is exercised only when an unfavourable judgment is pronounced. Consequently, the law that applies to the right to appeal is the one that was in force at the time the lawsuit was filed, not the law that applies at the time of decision or when the appeal is filed. These vested rights can only be taken away by a subsequent statute if it explicitly provides for it.

It is important to note that as this right is created by statute, the statute can impose conditions for its exercise. The forum of appeal may also be altered by the statute, and the litigant does not have the right to choose the forum for appeal. As Justice Khanna once stated, the right of appeal is a product of statute, and there is no reason why the legislature cannot impose conditions for exercising this right as long as those conditions are not excessively restrictive to the point of rendering the right almost meaningless.

Historical Overview

The Indian legal system has evolved to recognize two fundamental rights, namely the right to sue and the right to appeal. These rights have been shaped by diverse legal traditions and cultures, and their historical development in India is a topic of great significance.

The right to access justice, commonly referred to as the right to sue, has been an integral facet of the Indian legal system since ancient times. In ancient India, justice was founded upon the principle of dharma, which denotes righteousness, and it was the responsibility of the king to ensure that justice was dispensed impartially. During this period, individuals were granted the right to approach the king or local courts to seek redressal.

Subsequently, during British rule in India, a formal legal system was introduced, and the English legal system became prevalent. This system placed great emphasis on the right to sue and the right to a fair trial. Consequently, the Indian Civil Procedure Code (CPC) was enacted in 1908, which laid down the procedural framework for filing a civil suit in India. The code ensured that every individual was entitled to the right to sue, and could approach a court of law to seek justice.

The notion of the right to appeal gradually developed during the period of British governance in India. Under their rule, the appellate system was introduced, permitting litigants to challenge a lower court’s decision by appealing to a higher court. In 1898, the Criminal Procedure Code (CrPC) was passed, recognizing the right to appeal in criminal cases. This legislation allowed accused individuals to appeal their conviction or sentencing from a lower court to a higher court.

Following India’s independence in 1947, significant changes were made to the country’s legal system. In 1950, the Constitution of India was enacted, enshrining the right to access justice as a fundamental right. Furthermore, the Constitution established the Supreme Court as the highest court in the nation, providing the right to appeal to it. Additionally, the Constitution conferred the authority on high courts to hear appeals from subordinate courts.

Throughout the years, the Indian legal system has been subject to diverse influences from various legal traditions and cultures. The ancient Hindu legal system, which was predominant in India, prioritized the fundamental right to access justice and provided for the amicable resolution of conflicts through mediation and arbitration. Meanwhile, the Islamic legal system, which emerged during the Mughal era, accentuated the significance of a just and fair trial process and guaranteed the right to appeal. These legal traditions have left a profound impact on the Indian legal system and continue to shape its development to this day.

Legal Frameworks

1. Right to Suit

In India, individuals have the right to initiate legal action against another person or entity in a court of law, which is commonly known as the right to sue. This right is enshrined in the Indian Constitution, which ensures that every citizen has access to justice as per Article 39A^[2]. The Indian legal system provides for various types of civil suits, including breach of contract, recovery of money, specific performance, and injunctions, among others. The Code of Civil Procedure, 1908^[3] governs the process of initiating a civil suit.

• Initiating a Suit: Parties, Framing, and Institution

The process of initiating a civil case involves two parties, the plaintiff and the defendant, as per Order 1 which deals with Parties to suit. The plaintiff is responsible for bringing the case against the defendant, who is the other party that must provide a defence against the allegations made by the plaintiff in civil court.

Once the parties to the suit are recognized, the next step is to frame the suit as provided under Order 2. This involves the plaintiff approaching the civil court with their suit, which is referred to as the Frame of Suit. Framing of suit indicates that a legal action has been brought by one party against another. According to Rule 2 of Order 2, the plaintiff must include their entire claim in the suit, which serves as the cause of action against the defendant. The framed suit needs to be instituted before the civil court, but the question of who the institution is answered by Order 3 of the Code.

• Agents and Pleaders

Order 3 of the Code of 1908 deals with recognized agents and leaders, who are essential for the plaintiff to institute a suit framed before the civil court. The plaintiff requires the help of a legal professional or pleader who has expertise in the field of law to take the framed suit before the court on their behalf. Rule 2 and Rule 4 of Order 3 respectively provide guidelines for recognizing agents and pleaders. Once a recognized agent or pleader is hired, it becomes their responsibility to institute the suit before the civil court on behalf of the plaintiff. This brings us to Order 4 of the Code, which discusses the proper institution of suits. To institute a suit, the plaintiff needs to present a plaint before the court, the meaning of which is explained under Order 7 of the Code of Civil Procedure, 1908.

It is crucial to note that compliance with sub-rules (1) and (2) of Rule 1 of Order 4 is mandatory for the proper institution of the suit. Sub-rule (1) requires the presentation of a plaint to institute a suit before the court of law. Sub-rule (2) provides that no plaint as provided in the previous rule can escape the rules provided under Orders 6 and 7 of the Code.

2. Right to appeal

As per Section 96 of the CPC, an aggrieved party to any decree passed by a court while exercising its original jurisdiction has the right to appeal to a higher authority designated for this purpose, except in cases where any statute makes an exception. This grants the aggrieved party at least one right of appeal.

However, Sections 97, 98, and 102 of the CPC specify certain conditions under which no further appeal is allowed, therefore limiting the right of appeal to a single opportunity.

It is important to note that no person has the right to appeal against a decision unless they are a party to the suit, unless they have been granted special leave of the court. The question of whether a person is adversely affected by the decision or suit is a factual matter that needs to be determined on a case-by-case basis.

The case of Garikapati Veeraya v. Subbiah Chaudhary^[4] established that the right to appeal to the Federal Court that existed prior to the establishment of the Supreme Court still remained valid. The court recognized the shift in the judicial system from the Federal Court to the Supreme Court but emphasized the preservation of the right to appeal that was created under the old law. It should be noted, however, that the continuation of this right is subject to the provisions of the Constitution.

• Appeals and Conversions under CPC

The Code of Civil Procedure, 1908 provides for various types of appeals and their maintainability. Under Section 96 of the CPC^[5], a regular first appeal may or may not be maintainable against certain adjudications, as indicated by a combined reading of Sections 2(2), 2(9), and 96 of the CPC. A first appeal lies from a decree passed by any court exercising original jurisdiction to the authorized appellate courts, except where expressly prohibited.

Furthermore, Section 100 of the CPC^[6] provides for a second appeal under this code. A decree passed in the first appeal by a subordinate court can be appealed to the High Court unless there are provisions indicating otherwise. However, the scope of exercise of jurisdiction under this section is limited to a substantial question of law framed at the time of admission of appeal or otherwise.

Regarding the conversion of an appeal into a revision, the court’s inherent powers allow it to pass orders that may be required to meet the ends of justice, as held in the case of Bahori v. Vidya Ram^[7]. In the absence of a specific provision in the CPC for converting an appeal to a revision or vice versa, Section 151^[8] governs the court’s exercise of power. The conversion is allowed, as long as the proper procedure was followed during the filing of the original appeal or revision. However, the only precondition to such conversion is that due procedure is adhered to during the filing of the original appeal/revision.

• Who has the right to appeal under Section 96 of the CPC?

Section 96 of the CPC provides that a regular first appeal can be preferred by any party to the suit who has been adversely affected by the decree. This includes the legal representatives of the deceased party under Section 146. Additionally, a transferee of the interest of such a party, whose name is entered on the record of the suit, may also appeal. In the event of an order in execution setting aside the sale on the basis of fraud, the purchaser at auction has the right to file an appeal.

However, no person other than a party to the suit is entitled to appeal under Section 96 unless special leave is granted by the appellate Court. This means that a person who is not a party to the suit can only prefer an appeal from a decree or order if they are bound, aggrieved or prejudicially affected by it and if special leave of the appellate Court is granted.

• Who is barred from appealing?

A party who has waived their right to appeal a judgment is precluded from filing an appeal at a later stage. The principles of estoppel may also apply where a party has accepted the provisions of a judgment and has acknowledged it as final and binding. The doctrine of estoppel prevents such a party from appealing the same judgment in a higher forum. Scrutton L.J. has expressed the view that a party cannot simultaneously accept the benefits of a judgment and then appeal against it as being unfavourable.

• Role and Standards of Review in Indian Appellate Courts

Appellate courts in the Indian legal system are higher courts that review and revise the decisions of lower courts, including district courts and tribunals. These courts include the High Courts, the highest courts in each state or union territory, and the Supreme Court of India, the highest court in the country.

Appellate courts use two standards of review when examining lower court decisions: one for questions of fact and one for questions of law. The standard of review on questions of fact is deferential to the lower court’s decision and will only be overturned if the findings of fact are clearly erroneous or not supported by evidence. The standard of review on questions of law, on the other hand, is less deferential and will closely examine the legal reasoning and interpretation used by the lower court, often applying its own interpretation of the law.

In criminal cases, the standard of review is higher due to the higher stakes and severe consequences of an erroneous decision. The decisions of appellate courts have significant implications for the parties involved and for the development of the law in India. Overall, the role of appellate courts in the Indian legal system is to ensure the fair administration of justice by reviewing and correcting lower court decisions.

Conclusion

To conclude, the right to sue and appeal in India represent fundamental pillars of the legal system, enabling access to justice for all citizens. These rights are duly recognized by the Indian Constitution, and the procedures for initiating legal action are regulated by the relevant statutes and rules. The Supreme Court of India has provided crucial interpretations of these rights, ensuring that they align with the principles of natural justice and the fundamental right to access justice. By having these rights in place, individuals in India can seek legal remedies in cases of disputes or breaches of the law, contributing to the promotion of a just and equitable society.

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Endnotes:

1. Article 21 of the Indian Constitution
2. Article 39A of the Indian Constitution
3. Code of Criminal Procedure (India), Act No. 2, 1974
4. Garikapati Veeraya v. Subbiah Chaudhary, (1979) 1 SCC 16.
5. Civil Procedure Code § 96 (India).
6. Code of Civil Procedure, Act No. 5, 1908, §100, India Code (2019)
7. Bahori v. Vidya Ram, (1978) 1 SCC 1.
8. Civil Procedure Code, § 151 (India).
9. Civil Procedure Code, § 146 (India).

This article was authored by Sohini Chakraborty, a first-year law student at RGNUL Patiala.

S.no	Contents
1.	Introduction
2.	What is Suspension?
3.	What is Dismissal?
4.	Decoding the Differences between Suspension and Dismissal in the Indian Parliament
5.	Legal Statutes Involving Suspension and Dismissal
6.	Case Laws
7.	Conclusion

Introduction

To be known as the World’s Largest and Fastest Growing Democracy isn’t as easy as it seems to be on paper. The daily reports and the Analysis would present the Nation to be at the zenith of its Democratic Practices, but deep down, are some rooted issues which are highlighted quite scarcely

The halls of Parliament are often filled with heated debates, passionate arguments, and fiery rhetoric. However, amidst all the chaos, there is one thing that is essential for maintaining order and decorum – the power to suspend or dismiss a member.

The functioning of a parliament or legislative assembly is essential for any democracy. It is the place where representatives of people sit together to discuss and make laws for the welfare of the country. But what happens when the power to suspend or dismiss a member is abused? What happens when the disciplinary mechanism is used as a tool to suppress dissent or opposition? These questions have become increasingly relevant in recent times, as lawmakers around the world grapple with issues of free speech, political correctness, and political correctness gone wrong.

In such cases, the speaker or the presiding officer of the house has the power to take action against the errant members by suspending or dismissing them from the house. This article aims to discuss the difference between suspension and dismissal and their relevance in parliamentary proceedings.

The power to suspend or dismiss a member is derived from the rules and procedures of the house, as well as the Constitution in some cases. The presiding officer of the house, such as the Speaker in the UK or the Lok Sabha in India, is typically responsible for enforcing disciplinary actions.

Recently, in the Indian parliament, several opposition MPs were suspended for their unruly behaviour during the monsoon session. The speaker suspended them for the remaining period of the session, which led to a controversy over the extent of the speaker’s powers to suspend members. This incident once again highlighted the need to understand the difference between suspension and dismissal.

What is Suspension?

Suspension means to bar a member from attending the house proceedings for a specific period. The presiding officer of the house has the power to suspend a member if they violate the rules of the house or indulges in any disruptive behaviour. The power to suspend a member is derived from Article 105(2) of the Indian Constitution^[1], which grants each house of parliament the power to punish its members for contempt or disorderly conduct. The rules and procedures of the house further elaborate on the circumstances under which a member can be suspended.

According to Rule 373 of the Lok Sabha Rules of Procedure and Conduct of Business^[2], a member can be suspended for any of the following reasons:

• Continuous disregard for the authority of the Chair
• Wilful obstruction of the business of the house
• Use of unparliamentary language or making defamatory remarks
• Display placards or shout slogans in the house
• Physical attack or assault on another member or a member of the house staff

Similarly, Rule 256 of the Rajya Sabha Rules of Procedure and Conduct of Business^[3] provides for the suspension of a member for any of the following reasons:

• Gross disorderly conduct
• Wilful obstruction of the business of the house
• Refusal to obey the Chair’s order
• Use of unparliamentary language or making defamatory remarks
• Display placards or shout slogans in the house

Once a member has been suspended, he or she is barred from attending any meetings of the house or any committee of which he or she may be a member. The member is also not allowed to enter the parliamentary premises during the period of suspension.

The period of suspension can vary depending on the severity of the offence and the discretion of the presiding officer of the house. In some cases, a member may be suspended for a few days or weeks, while in other cases, the suspension may last for the entire duration of the session.

It is important to note that a suspended member continues to be a member of the house, and his or her seat is not declared vacant. However, during the period of suspension, the member is not entitled to receive any salary or allowance from the parliament.

What is Dismissal?

In the Indian Parliament, dismissal refers to the expulsion of a member from the house. It is a severe disciplinary action that is taken when a member has committed a serious offence that is considered to be a breach of the privilege of the house.

The power to dismiss a member is derived from Article 105(3) of the Indian Constitution^[4], which grants each house of parliament the power to expel its members for misconduct or breach of privilege. The rules and procedures of the house further elaborate on the circumstances under which a member can be dismissed.

According to Rule 374 of the Lok Sabha Rules of Procedure and Conduct of Business^[5], a member can be dismissed for any of the following reasons:

• Breach of the privileges of the house
• Refusal to obey the Chair’s order
• Wilful disregard of the authority of the Chair
• Use of unparliamentary language or making defamatory remarks
• Physical attack or assault on another member or a member of the house staff

Similarly, Rule 256 of the Rajya Sabha Rules of Procedure and Conduct of Business^[6] provides for the dismissal of a member for any of the following reasons:

• Breach of the privileges of the house
• Refusal to obey the Chair’s order
• Wilful disregard of the authority of the Chair
• Use of unparliamentary language or making defamatory remarks
• Physical attack or assault on another member or a member of the house staff

Once a member has been dismissed, his or her seat is declared vacant, and a by-election is held to fill the vacancy. The member is also not eligible to contest any by-elections for the remainder of the term of the house. It is important to note that the power to dismiss a member is a discretionary power of the house, and is exercised only in the most extreme cases. The decision to dismiss a member is taken by a vote of the house and requires the support of a majority of the members present and voting.

Dismissal stands to be a severe disciplinary action that is used in the Indian Parliament to maintain discipline and uphold the privilege of the house. The power to dismiss a member is derived from the Constitution and the rules and procedures of the house and is exercised only in the most extreme cases. The decision to dismiss a member requires the support of a majority of the members present and voting, and the seat of the dismissed member is declared vacant.

Decoding the Differences between Suspension and Dismissal in the Indian Parliament

Suspension and dismissal are two different disciplinary actions that can be taken against a member of the Indian Parliament for breach of privilege or misconduct. While both actions involve the removal of a member from the house, there are significant differences between the two.

• Meaning and duration: Suspension refers to the temporary removal of a member from the house for a specific period, while dismissal refers to the permanent expulsion of a member from the house.

• Severity: Suspension is a less severe disciplinary action than dismissal. Suspension is used to maintain discipline and order in the house and to deter members from engaging in misconduct. Dismissal, on the other hand, is a more severe disciplinary action that is taken only in the most extreme cases of misconduct or breach of privilege.

• Process: The process for suspension and dismissal is also different. In the case of suspension, the Speaker or the Chairman of the house can order the member to withdraw from the house for a specific period. The decision to suspend a member can also be taken by the house, based on a motion moved by another member. The decision to dismiss a member, on the other hand, can only be taken by the house, and requires the support of a majority of the members present and voting.

• Duration of the process: The process of suspension is usually quicker than that of dismissal. In most cases, the decision to suspend a member is taken on the same day as the incident of misconduct or breach of privilege. The process of dismissal, on the other hand, is more time-consuming and requires a more detailed inquiry into the conduct of the member.

• Consequences: The consequences of suspension and dismissal are also different. In the case of suspension, the member is not allowed to attend the house for a specific period but retains his or her membership in the house. In the case of dismissal, the member loses his or her membership in the house, and the seat is declared vacant. The dismissed member is also not eligible to contest any by-elections for the remainder of the term of the house.

• Effect on the member’s reputation: Suspension and dismissal also have different implications for the reputation of the member. While suspension may be seen as a minor blemish on the member’s record, dismissal is a severe strain on the member’s reputation and can have serious consequences for his or her political career.

• Precedence: Suspension is a more common disciplinary action than dismissal in the Indian Parliament. Dismissal is used only in the most extreme cases of misconduct or breach of privilege, while the suspension is used to maintain discipline and order in the house.

While both suspension and dismissal are disciplinary actions that can be taken against a member of the Indian Parliament, there are significant differences between the two. Suspension is a less severe disciplinary action than dismissal and is used to maintain discipline and order in the house. Dismissal is a more severe disciplinary action that is taken only in the most extreme cases of misconduct or breach of privilege. The process and consequences of suspension and dismissal are also different, and the implications for the reputation of the member are also different.

Their Similarities

Although suspension and dismissal differ in severity and the decision-making process, they share some similarities.

• Both are disciplinary actions taken against members who violate the rules and regulations of the house.
• Both can be used to maintain the decorum and dignity of the house.
• Both affect the rights and privileges of the members concerned.

Legal Statutes Involving Suspension and Dismissal

The power to suspend a member is derived from the rules and procedures of the house. In India, the power to suspend a member of parliament is given to the speaker under Rule 374 of the Rules of Procedure and Conduct of Business in Lok Sabha^[7]. Similarly, in the UK, the power to suspend a member of the House of Commons is given to the speaker under Standing Order No. 44^[8]. The rules and procedures of the house also provide for the procedure of suspension, including the duration of the suspension and the appeal process.

The power to dismiss a member is derived from the constitution and the rules of the house. In India, Article 102 of the Constitution^[9] provides for the grounds for disqualification of a member of parliament.

The Parliament (Prevention of Disqualification) Act, 1959^[10], provides for some exemptions from disqualification, but the power to dismiss a member is subject to the Constitution. Similarly, in the UK, the power to dismiss a member of the House of Commons

There have been several legal judgments and case laws related to the power of suspension and dismissal in parliamentary proceedings. In 2019, the Supreme Court of India upheld the power of the speaker to suspend a member under Rule 374 of the Rules of Procedure and Conduct of Business in Lok Sabha. The court also held that the decision of the speaker to suspend a member cannot be questioned in a court of law, as it falls within the scope of the internal proceedings of the house.

Similarly, in the UK, the House of Commons Standards Committee recommended the suspension of a member of parliament for seven days for using derogatory language towards a fellow member in 2020. The recommendation was accepted by the house, and the member was suspended for the said period.

Case Laws Pertaining to the Provisions of Suspension vs Dismissal in Parliament

Certainly! The power to suspend or dismiss a member of parliament is a crucial aspect of parliamentary proceedings, and several famous case laws have helped to define the scope and limitations of this power. Let us take a closer look at some of these case laws.

Subramanian Swamy v. Raju (2011)^[11]

In this case, Subramanian Swamy, a member of the Rajya Sabha, was suspended for his alleged derogatory remarks against the Prime Minister of India. Swamy challenged his suspension in the Supreme Court, arguing that the power to suspend a member should not be used as a tool to stifle dissenting voices.

The Supreme Court, while upholding Swamy’s suspension, held that the power to suspend a member is an essential component of the disciplinary mechanism of the house. The court also observed that the power to suspend should be exercised judiciously and with caution, and should not be used as a tool to suppress dissent or opposition.

Michael Martin MP (2009)

In the UK, the Speaker of the House of Commons has the power to suspend a member for disorderly conduct. In 2009, Michael Martin, the Speaker at the time, suspended a member of parliament for calling him a “little Hitler.”

The member challenged his suspension, arguing that the Speaker had exceeded his authority. However, the courts upheld the Speaker’s power to suspend a member for disorderly conduct and rejected the member’s challenge

Jeremy Corbyn MP (2020)

In 2020, Jeremy Corbyn, a former leader of the UK Labour Party, was suspended from the party for his response to a report on anti-Semitism within the party. Corbyn had suggested that the issue had been overstated for political reasons. The suspension sparked a controversy, with some members of the party supporting Corbyn and others calling for his expulsion. Eventually, after an internal investigation, Corbyn’s suspension was lifted, and he was readmitted to the party.

This case highlights the importance of the disciplinary mechanisms within political parties and the need to balance the right to free speech with the need to maintain party discipline.

Lok Sabha v. Re. Vijay Kumar Malhotra (2006)^[12]

In this case, the Lok Sabha (the lower house of the Indian parliament) suspended Vijay Kumar Malhotra, a member of parliament, for his alleged involvement in a corruption scandal. Malhotra challenged his suspension in the Delhi High Court, arguing that the power to suspend a member was arbitrary and violated his fundamental rights.

The Delhi High Court rejected Malhotra’s challenge, holding that the power to suspend a member was a necessary component of the disciplinary mechanism of the house. The court also observed that the power to suspend was subject to judicial review but only on limited grounds.

These case laws highlight the importance of the power to suspend or dismiss a member in maintaining discipline and decorum within parliamentary proceedings. However, it is equally important to ensure that the power is exercised judiciously and in accordance with the rules and procedures of the house.

Conclusion

In conclusion, suspension and dismissal are two disciplinary actions that are used in parliamentary proceedings to maintain decorum and discipline. Suspension is a temporary punishment, and the power to suspend a member is derived from the rules and procedures of the house. Dismissal is a permanent punishment, and the power to dismiss a member is derived from the Constitution and the rules of the House. Although the two punishments differ in severity and decision-making process, they share some similarities, and both affect the rights and privileges of the members concerned.

In the UK, for example, the power to suspend a member for disorderly conduct has been used to punish members for everything from shouting in the house to using derogatory language. In some cases, the punishment has been seen as excessive or arbitrary, leading to calls for reform of the disciplinary process.

Similarly, in India, the power to suspend a member has been used to punish members for everything from sleeping in the house to making controversial statements. Some have argued that the power to suspend is being used to stifle dissent and opposition, leading to concerns about the erosion of democratic values.

Of course, not all suspensions and dismissals are controversial or unjustified. In many cases, these disciplinary actions are necessary for maintaining order and decorum within parliamentary proceedings. But it is essential to ensure that the power is not being abused and that the rights and privileges of members are not being unduly curtailed.

In conclusion, the power to suspend or dismiss a member of parliament is a crucial aspect of parliamentary proceedings, but it is equally important to ensure that the power is being exercised judiciously and in accordance with the rules and procedures of the house. As lawmakers continue to grapple with issues of free speech, political correctness, and the role of the disciplinary mechanism in maintaining order and decorum, it is essential to strike a balance between discipline and democracy. Recent legal judgments and case laws have upheld the power of the presiding officer of the house to suspend a member and the power of the house as a whole to dismiss a member in appropriate cases. It is essential to maintain the decorum and dignity of the house, and the power to suspend or dismiss a member should be exercised judiciously and in accordance with the rules and procedures of the house.

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Endnotes:

1. Constitution of India art. 105(2) (as amended by the Constitution (Forty-Fourth Amendment) Act, 1978)
2. Lok Sabha Rules of Procedure and Conduct of Business, Rule 373
3. Rajya Sabha Rules of Procedure and Conduct of Business, Rule 256
4. Constitution of India art. 105(3) (as amended by the Constitution (Forty-Fourth Amendment) Act, 1978)
5. Lok Sabha Rules of Procedure and Conduct of Business, Rule 374
6. Rajya Sabha Rules of Procedure and Conduct of Business, Rule 256
7. Lok Sabha Rules of Procedure and Conduct of Business, Rule 374
8. Standing Orders of the House of Commons, Standing Order No. 44
9. Constitution of India art. 102
10. The Parliament (Prevention of Disqualification) Act, 1959, Act No. 10 of 1959 (India)
11. Subramanian Swamy v. Raju, (2011) 6 SCC 617
12. Lok Sabha Secretariat v. Re Vijay Kumar Malhotra, [2006] Delhi High Court 269

This article is authored by Rishaan Gupta, a 1st year Student at National Law University, Delhi.

Divorce, further referred to here as dissolution of marriage is the process of ending a marriage. The reasons for divorce can vary from irreconcilable differences to infidelity, and the process typically involves legal proceedings to divide assets and determine custody arrangements for any children involved. It pertains to the revocation or restructuring of the constitutionally protected duties and responsibilities of marriage, thereby dissolving this same relationship of matrimony between a married couple under the laws of the specific country or state. Gender justice refers to eliminating the disparities between men and women that are reproduced and produced in the family, market, community, and state.

To address the injustice and discrimination against women and the poor, we must address all of these issues. Gender justice plays a crucial role in divorce proceedings to ensure that both parties are treated fairly and equitably, especially in cases where women and children are often at a disadvantage. It is important to recognise the intersectionality of gender, class, and race in divorce cases to promote a more just and inclusive legal system. Therefore, it is important to consider gender justice when dealing with divorce cases, as women and children are often disproportionately affected by the legal and financial consequences of divorce. Efforts to promote gender equality and address systemic inequalities can help mitigate these negative impacts.

Gender justice is a global movement to achieve equal rights, freedom, and justice, but women still face discrimination, violence, poverty, and limited access to education and healthcare. It is important to continue the fight for gender justice and promote women’s rights worldwide. Achieving gender justice requires a comprehensive approach that involves changing social norms, policies, and institutions to ensure that women and men have equal opportunities and resources. This can be achieved through initiatives such as education and awareness campaigns, legal reforms, and the empowerment of women in leadership positions. By working towards gender justice, we can create a more equitable and just society for all. This requires the active participation of individuals, communities, governments, and international organisations.

Divorce under Muslim law 

Well before the Solubilization of the Muslim Marriage Act of 1939, Muslim women had almost no legitimate right to ask their spouses for separation. This highlights the need for continued efforts towards gender justice, particularly in the context of religious and cultural practices that may perpetuate inequality. Such efforts must be inclusive and involve a range of stakeholders to ensure lasting change. This highlights the need for reform in traditional religious laws and practices that discriminate against women and perpetuate gender inequality. It is crucial to promote legal and social frameworks that protect women’s rights and empower them to make independent decisions about their lives. The Solubilization of the Muslim Marriage Act of 1939 was a significant step towards granting Muslim women the right to seek divorce. However, there is still a long way to go in terms of ensuring gender equality and justice within the Muslim community. Efforts must be made to challenge patriarchal norms and promote education and awareness among both men and women. This will help to create a more inclusive and equitable society where women can fully participate and thrive. In addition, there is a need to address the issue of triple talaq, which allows Muslim men to divorce their wives by simply saying “talaq” three times. Triple talaq is a discriminatory practise that violates women’s rights and leaves them vulnerable to abandonment and destitution. It is crucial for Muslim leaders and policymakers to work towards abolishing this practise and implementing laws that protect women’s rights in marriage and divorce. This practise is not only discriminatory but also violates the fundamental rights of women. Reforms must be made to ensure that Muslim women have equal rights and protection under the law.

The Dissolution of Muslim Marriage Act of 1939 developed nine grounds on which a Muslim woman could seek redress in court, namely:

1. that the husband’s whereabouts were uncertain for a duration of four years;
2. that the husband neglected or did not provide her monitoring for a duration of two years;
3. that the husband must have been incarcerated for a period of seven years or more; but rather
4. that the husband failed to act, without justifiable suspicion.
5. the husband has been mentally ill for two years, or
6. that she, having been given in marriage by her father or other guardians before the age of fifteen, repudiated the marriage before the age of eighteen.

The Act also gave Muslim women the right to divorce their husbands on certain grounds, such as cruelty, impotence, and adultery. However, the Act has been criticised for not going far enough to protect Muslim women’s rights in divorce cases.

 Gender injustice against women

Muslim personal law is seen as having even more gender inequality. As a result, Muslims deserve extraordinary justice. They are not left in charge of deciding how “justice,” “fairness,” and “equity” are attained. In a number of situations, God decrees what is “just” for human society, and humans are compelled to follow these decrees or stipulations from the divine.

This tactic is based on the idea that divine law is superior to laws made by humans and that upholding it will result in a society that is fair and just. This strategic approach, albeit having its detractors, every so often results in the oppression of minority populations within Muslim communities. God commanded humans to uphold justice and fairness on earth and made it a virtue that would ensure their happiness and peace in both this life and the next.

The path of injustice leads to the promised damnation. Justice is required in all aspects of life, including business transactions, politics, domestic relationships, legal administration, and intellectual and educational pursuits. It argues that it is evident that Islam places a high value on justice in all aspects of life. With the promise of reward for those who do and punishment for those who do not, Muslims are encouraged to strive for justice and fairness in their interpersonal and societal interactions.

This emphasis on justice stems from the conviction that all individuals have equal worth in God’s eyes, and it is each person’s duty to uphold this equality. Striving for justice is thus not only a moral obligation but also a means of achieving spiritual fulfilment and closeness to God.

The tense relations between Hindus and Muslims today have their roots in the Shah Bano episode. The Supreme Court’s decision awarding Shah Bano pitiful monthly alimony was overturned by the Rajiv Gandhi administration through an ordinance. 

Intentionally, this was done to protect Muslims’ ability to practise their religion freely. In reality, it amounted to violating the rights of women, who make up half of the Muslim population. It was obvious that the move was made to placate the vocal groups and clerics. This gave the BJP’s accusation of Muslim appeasement momentum and gave the long-dormant Hindutva movement new life. Many Native Americans started to believe the accusation of appeasement. It helped the BJP go from having two MPs in Parliament to having an absolute majority in 2014. The BJP’s strategy of portraying themselves as the protectors of Hindu interests and accusing their opponents of Muslim appeasement proved to be a successful political tactic, as it resonated with a significant portion of the Indian electorate. This allowed them to consolidate their power and implement their agenda, including controversial policies such as the Citizenship Amendment Act. The Citizenship Amendment Act has been criticised for being discriminatory against Muslims and has sparked protests across the country. However, the BJP remains popular among many Hindu nationalists, who see the party as a defender of their interests and values.

Only speaking out when they believed there was a “danger to Islam,” the Muslim leadership has historically been exclusively male and overtly religious. Islam khatre mein is a well-known rant from my generation. In their eyes, women who educate themselves, secure employment, and demand equal treatment pose a clear threat to their authority and status. For them, the equality of women leads to Islam, khatre mein he. They keep saying that Islam granted women’s rights 1400 years ago, but they never give the idea of making those rights a reality. They could not be credited with respect for people of other faiths or tolerance for Muslims who hold dissimilar beliefs. This mindset is not only harmful to women but also to the progress of society as a whole. It is important to challenge these beliefs and promote gender equality for a better future.

In India, a number of laws have been passed with the goal of reducing the gender pay gap and promoting women’s empowerment. Various rights for women in this regard are guaranteed by the Indian constitution. Part III of the Constitution, which deals with fundamental rights, and Part IV, which deals with directives and guiding principles of state policy, provide evidence of this. According to Article 14, everyone shall enjoy equal protection under the law and be treated equally in court. This means that no distinction between men and women should be made by courts or law enforcement organizations. The foundation upon which other laws are created and may be put into effect is the right to equality.

The goal of gender justice cannot be accomplished without the right to equality. The prohibition against discrimination is guaranteed by Article 15. The right to equality and, by extension, the right against discrimination are meant to address the widespread prejudice and bias against women. The special protection for women is discussed in Article 15(3). No matter a person’s sex, they have the right to equal opportunity in terms of public employment under Article 16.

This clause makes it easier for women to start taking part in elections and decision-making. The 74th Amendment, which established a reservation for women in panchayats, is significant to note in this context.

Article 19 guarantees freedom of speech and expression, the right to peacefully assemble without weapons, the right to form associations and unions, the right to move freely throughout the Indian subcontinent, the right to live and settle anywhere on the subcontinent, and the right to engage in any occupation or business. By granting the freedoms required to function in society, promotes the right to equality. Article 19 guarantees freedom of speech and expression, the right to peacefully assemble without weapons, the right to form associations and unions, the right to move freely throughout the Indian subcontinent, the right to live and establish oneself in any location, and the right to engage in any occupation or business. By granting the essential liberties required to participate in society, promotes the right to equality.

The right to life is guaranteed by Article 21, and this interpretation has been expanded to include the right to live with dignity. The right against exploitation is protected by Article 23. It forbids the trafficking of people. Part IV of the Constitution is made up of the State Policy Directive Principles.

Lacking a comprehensive democratic vision that would enable Muslims to meaningfully participate in our secular multifaith polity, the All-India Muslim Personal Law Board (AIMPLB) and the Babri Masjid Action Committee failed to achieve their goals. Both bodies kept their discussions to questions of identity. The majority of these organisations’ leaders pretended to be “Muslim leaders,” speaking for the religion’s 12 crore or more adherents. The majority of them developed close ties with various political parties and benefited from their patronage. These connections were never more than personal, and worse, they never resulted in any collective benefits like promoting education or preventing riots for the whole community. Muslims’ poor economic and educational status serves as evidence of this.

The last 15 years have seen a historic shift in the way that women have publicly spoken out against patriarchal practices like instant triple talaq, polygamy, and halala. When everyday women joined the democratic fight against instant triple talaq and for justice within marriage and the family, it would hardly be an exaggeration to say that the religious male leadership was rendered irrelevant. Additionally, women spearheaded the fight for social justice, communal harmony, and the repeal of unjust laws like the CAA-NRC. This shows that despite their disadvantaged economic and educational status, Muslim women have been able to mobilise and lead important social and political movements in their communities. Their activism challenges stereotypes about Muslim women and highlights the potential for empowerment even in the face of systemic oppression. 

Conclusion

Divorce is the process of ending a marriage. It involves legal proceedings to divide assets and determine custody arrangements for any children involved. Gender justice plays a crucial role in divorce proceedings to ensure that both parties are treated fairly and equitably, especially in cases where women and children are often at a disadvantage. It is important to recognise the intersectionality of gender, class, and race in divorce cases to promote a more just and inclusive legal system. Gender justice is a global movement to achieve equal rights, freedom, and justice, but women still face discrimination, violence, poverty, and limited access to education and healthcare. To address the injustice and discrimination against women and the poor, we must address all of these issues. Divorce under Muslim law highlights the need for reform in traditional religious laws and practices that discriminate against women and perpetuate gender inequality. The Dissolution of Muslim Marriage Act of 1939 gave Muslim women the right to divorce their husbands on certain grounds, such as cruelty, impotence, and adultery. However, the Act has been criticised for not going far enough to protect Muslim women’s rights in divorce cases. Muslim personal law is seen as having even more gender inequality, and Muslims deserve extraordinary justice. Islam places a high value on justice in all aspects of life and encourages Muslims to strive for justice and fairness in their interpersonal and societal interactions. God commanded humans to uphold justice and fairness on earth and made it a virtue that would ensure their happiness and peace in both this life and the next.

The path of injustice leads to the promised damnation. The emphasis on justice stems from the conviction that all individuals have equal worth in God’s eyes, and it is each person’s duty to uphold this equality. The tense relations between Hindus and Muslims today have their roots in the Shah Bano episode, where the Supreme Court’s decision awarding Shah Bano pitiful monthly alimony was overturned by the Rajiv Gandhi administration. This gave the BJP’s accusation of Muslim appeasement momentum and gave the long-dormant Hindutva movement new life. It helped the BJP go from having two MPs in Parliament to having an absolute majority in 2014, as it resonated with a significant portion of the Indian electorate. The Muslim leadership has historically been exclusively male and overtly religious, leading to the view that women who educate themselves, secure employment, and demand equal treatment pose a threat to their authority and status. This mindset is harmful to women and society as a whole, and it is important to challenge these beliefs and promote equality. Muslim personal law is based on the idea that divine law is superior to laws made by humans and that upholding it will result in a fair and just society. The BJP’s strategy of portraying themselves as the protectors of Hindu interests and accusing their opponents of Muslim appeasement was a successful political tactic, allowing them to consolidate their power and implement controversial policies such as the Citizenship Amendment Act.

The Solubilization of the Muslim Marriage Act of 1939 was a significant step towards granting Muslim women the right to seek a divorce, but there is still a long way to go in ensuring gender equality and justice. Reform in traditional religious laws and practises are needed to protect women’s rights and empower them to make independent decisions. Additionally, there is a need to address the issue of triple talaq, which allows Muslim men to divorce their wives by saying “talaq” three times. Triple talaq is a discriminatory practise that violates women’s rights and leaves them vulnerable to abandonment and destitution. Reforms must be made to ensure Muslim women have equal rights and protection under the law, such as the Dissolution of Muslim Marriage Act of 1939. However, the Act has been criticised for not going far enough to protect Muslim women’s rights in divorce cases.

This article is written by Aehra Tayyaba Hussain, a student in her1st year at Symbiosis Law School Hyderabad, pursuing a B.A. LLB.

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).

Introduction

The term ‘Federalism’ has been originated from the Latin word ‘foedus’ which means ‘Covenant’. Federalism can be defined as “compound mode of government which combines the central government with the regional governments to form a single political system where the powers of the governments are divided among them”. According to the Stanford Encyclopedia of Philosophy, Federalism is defined as “the theory or advocacy of federal principles for dividing powers between member units and common institutions.”

The Constitution of India has opted for federal features into it. However, it has been never claimed by Constituent Assembly whether the Indian Constitution could be said as a federal constitution or not. 

Schedule Seven of the Indian constitution provides 3 lists under Article 246¹, they are: Union List, State List, and Concurrent List. Defense, trade and business, citizenship, insurance, banking, roads, railways, higher education, navigation, shipping, etc., matters are handled by the central government. While public order (excluding military, naval, and air force or any other armed forces under the purview of Central Government), state court fees, police, prisons and reformatories, Local Government, public health and sanitation, pilgrimage, etc., issues are dealt with the State Government. The final list i.e., the concurrent list contains the issues where both the state and Central governments have the jurisdiction. A few such issues are stamp duties, contempt of court, electricity, price control, forests, prevention of animal cruelty, etc.

When there is a conflict between both the state and the central government regarding the issues aforementioned in the concurrent list, the decision of the central government supersedes the state government. 

Features of Indian Federalism

The Indian Constitution has federal elements, yet it does not aspire to form a federation. The members of the Constituent Assembly were divided on whether the Indian Constitution could be labeled a federal constitution.

Written Constitution:

The most crucial aspect of a federation is that its constitution is formulated so that both the Union Government and the states may refer to it as and when required. The Indian Constitution is a written constitution that is the most detailed in the world. It establishes the Constitution’s supremacy since the Constitution empowers both the union and the states to be self-governing in their respective realms of government.

Rigid Constitution:

In a federal government, the method for altering the Constitution is often strict. Some revisions to the Indian Constitution need a special majority. Such an amendment must be approved by a majority of all members of each house of Parliament, as well as a two-thirds majority of those present and voting. In addition to this procedure, certain revisions must be accepted by at least half of the states. Following this process, the President, as the head of state, signs the amendment. Because in India, significant adjustments may be made via this approach. As a result, the Indian Constitution is appropriately referred to as a rigorous constitution.

Power Assignment:

There is a clear separation of powers in our Constitution, such that the States and the Centre are obligated to enact and legislate within their respective spheres of activity, and none violates or attempts to intrude on the duties of the other. Our constitution specifies three lists: the Union List, the State List, and the Concurrent List. The Union List includes 97 issues of national significance like defense, railways, postal service, and so on. The State List includes 66 topics of local relevance such as public health, police, and so on. The Concurrent List includes 47 topics that are vital to both the Union and the State, such as electricity, trade unions, economic and social planning, and so on.

Bicameral Legislature: 

In a federation, a bicameral system is thought crucial since units may only be awarded proportional participation in the Upper House. The Indian Constitution also established a bicameral legislature at the Centre, with the Lok Sabha and the Rajya Sabha. While the Lok Sabha is made up of persons who have been elected, the Rajya Sabha is largely made up of parliamentarians who have been elected by State Legislative Assembly.

Judicial Supremacy:

Another critical characteristic of a federation is an independent court to interpret and uphold the Constitution. To resolve issues between the Union and the States, the Supreme Court of India has original jurisdiction. It has the authority to declare a statute unconstitutional if it violates any provision of the Constitution.

The supreme court also has the power to deal with the disputes between the states and the union. Article 131 states about “the original jurisdiction of the supreme court. The constitution gives express powers to the supreme court to resolve the disputes among: Union and one or more states, Union and any state on one side and one or more states on the other side, Two or more states.”²

Article 262³ discusses “adjudication of conflicts connected to interstate rivers or river valleys. Parliament has the authority to enact legislation pertaining to any dispute over the use, distribution, or control of any interstate river or river valley’s waters. Furthermore, Parliament may pass legislation prohibiting the highest court and any other court from hearing such disputes or complaints.”

Article 263⁴ states about the “Establishment of the Inter-State Council” is discussed in this article. Suo moto, the President may form a council in the public interest and provide it with the following duties:

• Inquire about and advise states if they have disagreements.
• Investigate and debate a topic in which some or all states or the union and one or more states have mutual interests.
• Make suggestions on the issue and proposals for greater policy coordination.

Nature Of Indian Federation

Even though the Indian Constitution has opted for the Federal structure, it is hard to completely classify it as a true federation as the framers of the constitution have also incorporated the non-federal features in it. They are:

• The Constitution describes India in Article 1⁵ as “Union of States”. There can be two things that can be understood from this: Firstly, the states and unions have been bonded together but not with an agreement. Secondly, states can’t be separated or seceded from the union. However, the states and the union share the same constitution which would make it impossible to get out as it is a single framework. The federation is indestructible and this helps to maintain unity of the country. 
•  The Centre appoints state governors and may take over state administration depending on the governor’s recommendations or otherwise. In other terms, the Governor is the Centre’s representative in the States. The operation of the Indian federal system clearly shows that the Governor has served as the Centre’s envoy rather than the State’s leader. The Union government now has authority over the state administration. The Union’s authority over states after the announcement of a national emergency.
• The fairness of components in a federation is best preserved by their fair participation in the Upper House of the federal legislature (Parliament). This, however, doesn’t apply to Indian states. They are not evenly represented in the Rajya Sabha.
• The Chief Election Commissioner, Comptroller, the Auditor General, and a few other powerful appointments are given by the union. Besides, India has single citizenship which makes all the states abide by the constitution. This feature does not give the liberty to the states to propose amendments to the constitution. However, the Union parliament can only make amendments to the constitution.
• When an emergency is declared, our federal polity may be transformed into a highly centralized government under the terms of the Constitution. Power is legitimately centralized during an emergency. Parliament also has the authority to pass legislation on matters within the competence of the states.
• It has been clearly stated in the constitution that the Centre’s power is superior to the state and the state has the obligation to follow the orders of the Centre. According to Article 257 (1)- “The executive power of every State shall be so exercised as not to impede or prejudice the exercise of the executive power of the Union, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose”.⁶
• To achieve administrative system homogeneity and to preserve basic common administrative standards without jeopardizing the federal system. All-India Services, such as the IAS and IPS, has been established and remain under the supervision of the Union. The States rely heavily on the Union in financial concerns as well. States lack sufficient financial resources to satisfy their obligations. During a Financial Emergency, the Center has complete control of the state’s finances.

These are a few instances that have been mentioned to state that the central government is given a lot of power when compared to the state governments by the constitution of India. The federal principle envisages dual system of courts but Indian has unified judiciary system with the Apex court as the top most court in India.

By considering the Union list, it can be understood that the central government has been given assignments of all important subjects of the country. The state governments have limited powers and are financially dependent upon the Centre. 

The preceding discussion shows there is a tilt on behalf of the Centre at the expense of the States. The states must collaborate closely with the Centre. This lends credence to the view that the Indian Constitution is federal in form but unitary in essence.

Constitutional analysts describe it as a “semi-federal” or “quasi-federal” system.”

Quasi Federal system in India

A quasi-federal government has an unequal distribution of powers between the center and the states. India is a federation with a unitary bias and is considered a quasi-federal state due to its strong central infrastructure.

India purposely developed a sort of federalism in which the Union and State governments were reliant on each other, therefore violating the basic characteristic of a federal constitution, namely autonomous areas of authority for the Union and State governments. Other similar constitutional features to the Lok Sabha include the Rajya Sabha’s size and composition, which favors larger states; Article 3 of the Indian Constitution, which allows “the Union to alter the boundaries of a State without the latter’s assent, emergency powers, and concurrent list subjects of the Seventh Schedule, where the Union has more control than the State with some exceptions.” Rather than a process of ‘coming together,’ India’s centralized federal framework was the outcome of ‘staying together’ and ‘putting together.’”⁷

Issues and Challenges

India has faced a lot of challenges due to the quasi- federalism and is many challenges that might be faced as the authority of the Centre secedes the state a few reasons are mentioned hereunder:

1. Regionalism:

This is considered to be one of the most significant challenges due to the Indian Federalism. India’s pluralist nature gives birth to a variety of characteristics, including regionalism. As the center concentrates on larger states rather than smaller states, states operate under the democratic system. Then a dispute may occur, and they may want to be split from the union.

When there was the bifurcation of Telangana from Andhra Pradesh, many states’ voices have been raised when the new state was formed in 2014. West Bengal jeopardized India’s Teesta River waters deal with Bangladesh due to the prospective consequences for West Bengal. Growing regional powers may have an impact on successful foreign policy, since the federal government may yield to the wishes of a single state. 

2. Division of Power:

In India, unlike in the United States and Australia, power is allocated via three categories mentioned in the Seventh Schedule of the Constitution. The Central and State Governments’ powers are specifically listed in the Union and State lists, respectively, however, the powers indicated in the Concurrent list are maintained by both sets of governments. Residuary powers are granted to the federal government. Article 200, emergency measures in Articles 352, 356, and 360, and required obedience by the States to the Centre’s executive authority in Articles 256 and 257 all amount to power centralization, which has been a significant cause of worry among the states. As a result, centralization threatens Indian federalism.

3.  Absence Of Financial Freedom:

The division of financial and tax-related authority between the federal and state governments is referred to as fiscal independence. It is required for the nation’s progress. Though the center has the most authority, there is a financial commission whose job it is to determine the state’s part of the center’s earnings.

4. The Governor’s Office

Under Article 155 of the Indian constitution, “the governor is the head of the state and is selected by the president of India. The president’s decision may override the decisions of the governors chosen by the president.”

5. Integrated Services:

Courts, audits, and elections, among other services, are all linked in India. The Supreme Court, state high courts, and district courts compose India’s judicial system. Supreme Court judgments are binding on the high court, and the high court lacks jurisdiction to consider state-to-state disputes. The method for federal and state elections is the same. The election commission is in charge of it at the national level, while the chief electoral officer [CEO] is in charge of it at the state level, albeit both are controlled by the election commission.

6. Religious Differences:

India is an excellent example of religious pluralism, which sometimes causes strife in order to undermine the federation. However, the religious process does not necessarily have to be controversial. Religion may not generate imbalances in a federation as long as there is appropriate tolerance on the side of the people and a true secular policy on the part of the government.

7. Language Conflicts:

It was revealed in this instance that India’s constitution is not really federal in nature. The distribution of power between the center and the states is only concerned with local concerns vested in the states and the rest, which tends to maintain the country’s economic, industrial, and commercial unity. However, this was the first case in which a disagreement between both the state government and the central government was brought to the Supreme Court under Article 131.

8. External factors:

External pressures might also pose difficulties for a federation. The involvement of neighboring countries has caused conflict in India’s North-Eastern states. China’s claim on a portion of Arunachal Pradesh along the LAC jeopardizes India’s territorial integrity. The Tamil crisis in Sri Lanka is upsetting India. In the past, the purported Pak hand in the Khalistan movement has also added to the deterioration of the Indian union.

Case Laws:

The Indian courts have considered a number of cases regarding the subject of the Indian constitution’s federal character. A few case laws have been mentioned to understand the take of judiciary upon the Indian Federalism.

1. State of West Bengal v. Union of India⁸

“It was revealed in this instance that India’s constitution is not really federal in nature. The distribution of power between the center and the states is only concerned with local concerns vested in the states and the rest, which tends to maintain the country’s economic, industrial, and commercial unity. However, this was the first case in which a disagreement between both the state government and the central government was brought to the Supreme Court under Article 131.”

2. Kesavananda Bharati v. the State of Kerala⁹

“It was observed in this case by some of the judges, in this case, that federalism is a basic part of the Constitution of India and it can’t be changed.”

3. S.R. Bommai v. Union of India¹⁰

“Different judges’ opinions on India’s federal constitution varied in this case.

1. Justice Ahmadi- since there is no use of the word “federal,” he considered it Quasi-Federal.
2. Justice Sawant and Kuldip Singh — it is a fundamental tenet of the constitution.
3. Justice Ramaswamy proclaimed “India to be an “Organic Federation” formed to meet the demands of the legislature.”

Conclusion

India is a country where there are numerous traditions, religions, and cultures.  Each state has a different language from one another. All the states despite their differences are united as one by the Constitution of India and the Centre supervises them. However, there might be issues raised due to the upper hand of the central government as the orders given by the Centre shall be followed by the state. In a quasi-federal nation, it is important for the central government to always consider the interests of the state government too.

References:

1. The Constitution of India 1950, art. 246.
2. The Constitution of India 1950, art. 131.
3. The Constitution of India 1950, art. 263.
4. The Constitution of India 1950, art .264.
5. The Constitution of India 1950, art 1.
6. The Constitution of India1950, art 257.
7. Vignesh Karthik K.R, ‘Quasi Federalism’ The Hindu (3 May 2022) < https://www.thehindu.com/specials/text-and-context/quasi-federalism/article65375428.ece > accessed on 17 June 2022.
8. State of West Bengal v Union of India, 1963 AIR 1241.
9. Kesavananda Bharati v State of Kerala, AIR 1973 SC 1461.
10. S.R. Bommai v Union of India, AIR 1994 SC 1918.

This article is written by K. Mihira Chakravarthy, a first-year BA LLB student from Damodaram Sanjivayya National Law University (DSNLU).

INTRODUCTION

India is one of the largest democracies in the world and in this country we follow the concept of the universal adult franchise which means a person above 18 years of age has a right to vote irrespective of their caste, colour, creed, religion, or gender. We elect our representative by giving a vote but what if we have to choose our representative among the persons with severe criminal records. In India, nowadays criminalization of politics becomes very common which means a person participating in an election is having a criminal record. This is the biggest irony out here where the ‘lawbreakers become the lawmakers’. This disrupts the roots of democracy where it is difficult to become even a peon with criminal records. On the other hand, people become ministers and represent the country with criminal records.

The number of politicians with criminal records is increasing day by day, which is a serious concern for the public. The data was provided by the Association of Democratic reform [ADR] reports in which it was stated that the elected Lok Sabha candidates in the year 2019 out of the 43% had criminal charges against them which is a nearly 26% increase concerning the elections of 2014.

The report by the ADR in collaboration with the national eye watch in which it was published that in the year 2009, 543 members were elected for Lok Sabha elections out of which 162 (30%) of them had criminal charges and 76 i.e 14% had severe criminal charges against them like murder, rape, kidnapping, etc. Also, in the 2014 Lok Sabha elections, 539 candidates were elected out of which 233 (43%) had criminal charges against them and 159 i.e 29% had serious criminal charges against them.

LAWS IN INDIA AGAINST THE CRIMINALISATION OF POLITICS

Some articles in our Indian constitution are against the criminalization of politics and those articles are

• ARTICLE 327
  Article 327 of the Indian constitution gives the right to the parliament to make provisions on the subject matter related to elections for either house of the parliament or for the legislature of a state._¹
• ARTICLE 102
  Article 102 of the Indian constitution deals with the disqualification of members from the elections of either house of the parliament on certain grounds which are mentioned under this article.²
• ARTICLE 191
  Article 191 of the Indian constitution also deals with the disqualification of members from the election but from the legislative assembly or legislative council of the state if they fall under the category mentioned under the article.³

EFFECTS OF CRIMINALISATION OF POLITICS

• AGAINST THE FREE AND FAIR ELECTIONS PRINCIPLE
  The candidates often use their muscle and money power which means they have the ability to finance their own elections and largely due to public image they try to gain votes. This demeans the principle of free and fair election as it limits the choice of electing a deserving candidate.
• AFFECTING GOOD GOVERNANCE
  The main issue is that lawbreakers become lawmakers, which undermines the democratic process’ ability to offer decent government. The structure of India’s state institutions and the quality of its elected representatives are reflected in these undesirable democratic tendencies.
• AFFECTING UPRIGHTNESS AMONG PUBLIC SERVANTS
  Corruption caused during elections due to the circulation of money during and after elections causes disruption in the working of public servants and thus, results in increasing corruption.
• CAUSES SOCIAL DISHARMONY
  Electing representatives who have a criminal record creates a bad precedent for the youth and also causes social disharmony and violence in society. This demeans the meaning of democracy in the eyes of the general public.

REASONS FOR CRIMINALISATION OF POLITICS

• LACK OF POLITICAL WILL
  Political parties don’t show any will or interest in curbing the criminalization of politics. Until now, efforts made towards this issue were made by the supreme court and the election commission of India. However, parliament must revise the Representation of the People (RPA) Act 1951⁴, which governs the disqualification of candidates who have been charged with serious crimes and have been found guilty in court.
• LACK OF ENFORCEMENT
  Making strict laws and regulations or passing judgment will not affect much until and unless implemented properly.
• NARROW SELF INTEREST
  Sometimes general public may focus on caste or religion criteria for casting vote and they may not be interested in checking the history or criminal record of the candidate. So, publishing criminal reports of the candidates is not enough to curb the criminalization of politics.
• USE OF MUSCLE AND MONEY POWER
  Candidates gain votes due to their muscle power and money power, despite having serious criminal records they use their identity and finance their election to gain votes. Furthermore, when all contesting candidates have criminal backgrounds, voters are sometimes left with no options.

CASE LAWS

UNION OF INDIA VS ASSOCIATION FOR DEMOCRATIC REFORMS AND ANR.
The association for democratic reforms filed a petition in the Delhi high court for the recommendations on how to make elections fairer, and transparent. The law commission produced some recommendations which are that the candidates should disclose their criminal history, educational qualifications, financial details, and other personal information on their websites. After this, the union of India challenged the petition in the supreme court of India that the high court voters did not have a right to such information. The court held that the right to know is a derived right from the right to freedom of expression and speech. Because such rights include the right to have opinions and collect information in order to be appropriately educated in formulating and distributing those opinions throughout the election process, the public has a right to know about candidates running for election. The Court elaborated on this argument by stating that a good democracy strives for an “aware citizenry,” and that any kind of misinformation or lack of information will result in a “uniformed citizenry,” rendering democracy a charade.⁵

PEOPLE’S UNION OF CIVIL LIBERTIES [PUCL] V. UNION OF INDIA
The people’s union of civil liberties [PUCL] challenged the validity of section 338 of the representation of people’s act, 1951 which says that a candidate is not allowed to disclose any personal information. The PUCL contended that it was a violation of Article 19(1)(a). the apex court held that the candidates should provide information about themselves to the voters. The basic information provided by the candidates can affect the decision of the voters. Furthermore, freedom of expression encompasses not just verbal and written communication but also voting. The expression of opinion through the final act of casting a ballot is part of the fundamental right of freedom of speech and expression under Article 19(1), even though the right to vote is not a fundamental right in and of itself. The apex court concluded that section 33B of the representation of people act, 1951 was unconstitutional.⁶

LILY THOMAS VS UNION OF INDIA
In this case, a writ petition was filed by the Lily Thomas and an advocate Satya Narain Shukla before the apex court for the purpose of challenging section 8(4) of the Representation of the people’s act which safeguards the convicted politicians from any kind of election disqualification based on pending appeals against their conviction in the appellate court. This petition was not allowed for 9 years and later, in July 2013 the supreme court finally passed a verdict in which it was held that the MP and MLA whether they are elected or not elected would be disqualified if they have criminal allegations against them by the trial court and the saving clause under section 8(4) will not be applicable.⁷

PUBLIC INTEREST FOUNDATION V. UNION OF INDIA
In this case, in the year 2011, the petition was filed by the BJP leader Ashwini Upadhyay and the NGO public interest foundation before the apex court to seek directions regarding the criminalization of politics and debarring them to contesting elections. The issue was whether the court can put any restriction on membership of parliament beyond article 102(a) to (d) and parliament’s legislation under Article 102(e). the court held that the debarring candidate to contest the election solely on the basis that they have a criminal record is wrong. The court directed them to fill out the form circulated by the election commission and the form must contain all the information. The candidate has to notify the party regarding criminal proceedings if he or she has against them while buying a ticket of a specific party. The political party has to update their website and to put regarding any criminal proceedings are pending against them and also make them publish in the newspapers and also to make huge publicity on electronic media.⁸

RECENT DECISION

The supreme court of India passed a judgment related to the criminalization of politics recently in February 2020 in which it was held that the political party has to update their websites regarding criminal history against the candidates and such information has to be published in even local and national newspaper. In October 2020, Bihar was the first election that followed the supreme court guidelines. This was done to preserve the purity of elections in the country and to provide voters with a fair choice to choose.

CONCLUSION

Till today what has been done regarding curbing the criminalization of politics has been done by the supreme court and the election commission. The parliament has to show some interest to make changes in the representation of people’s acts. The alone judiciary will not be enough effective in dealing with this issue.

In conclusion, the information regarding criminal history, financial authority, and educational qualifications of the candidates should be made available to the voters. So, that they can make the right choice and the elections conducted could be fair and transparent and the voters were given fair choice to choose candidates from them. Though information should be provided to the voters and it is important also but there should be a thin line between information provided to the voters and the rights of the candidates.

References:

1. The Indian constitution, 1950, art.327
2. The Indian constitution, 1950, art. 102
3. The Indian constitution, 1950, art. 191
4. The Representation of people act, 1951.
5. Union of India v. Association for democratic reforms and anr, (2002) 5 SCC 294.
6. People’s union of civil liberties V. Union of India, [WP (C) NO. 196/2001]
7. Lily Thomas v. Union of India, [WP (C) NO. 231/2005]
8. Public interest foundation V. Union of India, [WP (C) NO. 536 OF 2011]

This article is written by Prerna Pahwa, a student of Vivekananda Institute of Professional Studies, New Delhi.

INTRODUCTION

Human trafficking is the type of modern-day slavery in which a person is sold or used forcefully for the point of labor or commercial sex act. This is all that happens to intend to earn money. Human trafficking is not just a heinous crime against society but is a sin for our society. It has no boundaries for anyone irrespective of sex, gender, caste, or race anyone can be a victim of human trafficking but the most vulnerable ones are women and children. Children being innocent and getting easily influenced by others became victims of sexual acts. Due to the overpopulation and lack of job opportunities, many women from poor families are forced to get indulged in this profession and in some cases, a close family member becomes the hoes and sells them for such work.

According to the survey of the United Nations Office for drugs and crime [UNODC], it was found that the victim of human trafficking were 51% women, 28% children, and 21% men. Majorly women were abused by sexual violence which is 51%, 28% for children, and 21% for men. There are 43% of victims who are domestically within the national borders have been trafficked, it is shocking to know that the traffickers are not only men but it also constitutes 37% of women and 63% of men.

Some articles in the constitution are related to human trafficking.

ARTICLE 23
Article 23 talks about the prohibition of human trafficking and forced labor. Forced labor means less than minimum wage is paid. Any trafficking in human beings and beggars is prohibited and punishable in accordance with the law. In this article, the state is not prevented from commanding compulsory services for public purposes. The state shall not discriminate based on sex, color, caste, race, or any other. This article not only protects the state but also private citizens.¹

ARTICLE 21
Article 21 is a fundamental right under part 3 of the Indian constitution, which talks about the right to life and personal liberties. It is one of the most essential articles in the Indian constitution. The supreme court of India mentioned it as the ‘heart of fundamental rights ‘. It states that no person shall be deprived of life and liberty except as per the procedure established by law. Everyone is entitled to live with full dignity by birth.²

ARTICLE 51 A [E]
Article 51 A [e] is a fundamental duty to promote Peace, Harmony, and a sense of unity amongst the people of India cut across linguistic, religious, and regional basis, to repudiate practices that can be insulting to women.³

LAWS RELATED TO HUMAN TRAFFICKING

INDIAN PENAL CODE, 1860

• SECTION 366A
  If any person induces any minor to go with him to any other place with the intention of seducing her or doing illicit activities he or she will be punishable with the imprisonment of 10 years or fine or both.⁴

• SECTION 366B
  Whoever imports a girl from any other country under the age twenty one with the intent to force or seduce her for intercourse with another person then, a person can be liable for imprisonment of 10 years and a fine can also be imposed.⁵

• SECTION 374
  This section deals with unlawfully forcing someone to labor against their will or desire. Such a person can be punished with imprisonment which can be extended to 1 year or fine or both.⁶

• SECTION 370
  Whomever imports, exports, removes, buys, sells, or disposes of any person as a slave, or accepts, receives, or detains any person as a slave against his will, will be punished by imprisonment of either kind for a duration up to seven years, as well as a fine.⁷

THE IMMORAL TRAFFIC [PREVENTION] ACT, 1956

This act was passed by the parliament of India in 1956 and the main objective or purpose of this act is to prevent commercial sex or immoral traffic among women and girls. This act covers the entire country. This act defines a brothel as a “house or any portion of the house, room or any portion of any room, conveyance or portion of any conveyance, and place or portion of any place.” And prostitution is “the sexual exploitation or abuse of persons for commercial purposes or consideration in money or any other kind.” In this act, if any person runs a brothel or aid in such activities then he or she will be punishable with imprisonment for one year which can be extended to 3 years, and a fine of rupees 2000 can also be imposed. If any tenant knowing allows them to use the property for such use then he or she can be imprisoned for two years and a fine of rupees 2000 can also be imposed on them.

THE ANTI TRAFFICKING BILL, 2021

This bill focuses on the prevention of human trafficking, providing rehabilitation cure compensation to the victims, and providing stringent punishments for the traffickers. The early bill of 2018 was never introduced in the Lok Sabha. The 2021 bill is different from the previous bill as it also extends outside India. In this bill, the national investigation agency will also be set up. This will also include transgenders along with women and children in the definition of a victim. The central government will also set up a national anti-trafficking committee and many committees will be set up at state and district levels for the better implementation of rules and regulations.

CASE LAWS

PEOPLE’S UNION FOR DEMOCRATIC RIGHTS VS UNION OF INDIA
In this case, the people’s union of democratic rights filed a writ petition before the supreme court of India under Article 32 of the Indian constitution for the violation of fundamental rights and certain rights for laborers.⁸ People union of democratic rights is an organization set up to make a report on the exploitation of living conditions of laborers under contractors. In this case, the court defined forced labor under article 23, forced labor basically means employing labor and providing them wages which is less than the minimum wage rate. In this case, the court held that forced labor is a violation of the fundamental right of article 23 and the person can file a writ petition under Article 32 for the violation of their fundamental rights.⁹

LAXMI KANT PANDEY VS UNION OF INDIA
In this case, a writ petition was filed by Laxmi Kant Pandey regarding the malpractices in adopting children from foreign parents. This case brings to highlight the need for having rules and regulations regarding intercountry adoptions. The children go to another country and get neglected by their adopted parents, making a toxic and unhealthy environment for the children and resulting in sexual exploitation. To proving protection to the intercountry adopted children a comprehensive framework was formed. In this it was decided that the international adoptions would follow the regulations of the guardians and wards act, 1860 and the provisions of articles 15[3], 24, and 39 along with the united nations declaration on the rights of the child. It was made mandatory for foreigners to be sponsored by the licensed agencies of their country.¹⁰

GAURAV JAIN VS UNION OF INDIA
In this case, the public interest litigation was filed before the supreme court by the advocate to set up a distinct education system for the children of prostitutes and get them educated so that they didn’t have to live undesirable and the life full of misery. The court held that having separate schools for the children of prostitutes will isolate them and will be against the well-being of the children and society in general. The supreme court set up a committee consisting of advocates and social workers to look into the matter and find solutions. The court held that the prostitutes are not offenders but they are the victim of unfavorable socio-economic conditions and to set up juvenile homes for the rehabilitation and the safety of children.¹¹

CONCLUSION

There are many provisions related to human trafficking which are both domestically and globally recognized but still, there are numerous cases of human trafficking in our country. Human trafficking violated fundamental rights and constitutional rights and human rights of the people just for the sake of earning monetary benefits. Women and children are the victims of human trafficking people take advantage of the innocent behavior of the children and get them involved in sexual exploitation. In a country where there are fewer jobs for more people applying they are left unemployed and for the need for money women are forced to take up prostitution. Making laws and provisions is not enough this is an issue of great concern and it is needed to be seen from a socio-economic perspective also. The government should provide them with jobs so that they can live with dignity and comfort. Awareness related to human trafficking should be spread in schools among students. High-quality education should be promoted in government schools and colleges. This is a grave crime and needed to be lookup at in creating a safe and healthy environment for children and women to live in.

References:

1. The Indian constitution, 1950, art.23
2. The Indian constitution,1950, Art 21
3. Indian constitution, 1950,Art 51A[E]
4. Indian Penal Code, 1860, section 366 A
5. Indian penal code, 1860, Section 366B
6. Indian penal code, 1860 section 374
7. Indian penal code, 1860 section 370
8. Indian constitution,1950,Art.32
9. People union of democratic rights vs union of India, [1982 AIR 1473]
10. Laxmi Kant Pandey vs Union of India, [[1984 AIR 469]
11. Gaurav Jain vs Union of India, [{1997} 8 SCC 114]

This article is written by Prerna Pahwa, a student of Vivekananda Institute of Professional Studies, New Delhi.