Features and Provisions of the Constitution
Constitutionalism
It is a political doctrine which means the power of leaders and government bodies is limited by provisions that are enforced through established procedures. Constitutionalism guarantees the claims of citizens against the state and ensures powers, rights and obligations of both citizen and state are well defined in a contractual relationship.
Passive Euthanasia
The Supreme Court in Common Cause vs Union of India upheld Passive Euthanasia through the concept of living will whereby a patient makes an advance directive for withdrawal of medical treatment. Any adult with sound mind can express the will in clear and unambiguous terms based on informed consent. A guardian or close relative is to give the go ahead for passive euthanasia in cases circumstances within the living will arrive.
Evolution of the Verdict
In the P. Ratinam vs Union of India case, the Supreme Court recognized the right to die as inherent in right to dignified life. It struck down IPC 309 thus decriminalizing suicide.
In the Gian Kaur vs State of Punjab case, Supreme Court reversed its stand stating that the right to die is not part of the right to life holding both euthanasia and suicide as unlawful. Right to die, the SC then opined was inconsistent with a dignified life
In the famous Aruna Shanbaug vs Union of India case, the Supreme court allowed passive euthanasia in exceptional circumstances under strict monitoring of the apex court.
Why Passive Euthanasia?
- Right to Die with Dignity: The Supreme Court has upheld that passive euthanasia can provide a dignified death to a dying patient who may be forced to undergo pain due to unwarranted medical support. The right to a dignified death is included in right to a dignified life guaranteed by Article 21 of the Indian constitution
- Justice Chandrachud’s Court: “To deprive a person of dignity at the end of his life is to deprive him of meaningful existence”
- Omission Process: As opposed to active euthanasia, passive euthanasia does not wilfully accelerate the process of death. It merely allows the natural course of death to take over suspending any medical assistance to the patient. Thus, the ethical issues arising from it are minimal in comparison to active euthanasia
- Pain relief: A dignified death for terminally ill patients can spare them and their family agony of being in a precarious medical condition
- Savings for the Family: Life support systems and medical assistance comes at great economic cost for families while they simply prolong the inevitable worsening the suffering. Euthanasia can relieve them of the meaningless financial stress that is placed on the family
Scope of Passive Euthanasia on Fundamental Rights
- Dignified Death under Dignified Life: Widening interpretation of Article 21
- Right to Bodily Integrity under Article 21
- Freedom of choice of treatment under right to personal liberty in Article 21
- Right to privacy as identified in Puttuswamy vs Union of India
- Freedom of Religion:
- Passive Euthanasia can be interpreted to be in line with the voluntary practice of human sacrifice in many religions. Thus, it widens the boundaries of Article 25 also that grants freedom to practice any religion.
- Jain practice of Santhara and Sallekhana
- Passive Euthanasia is also in conflict with many religions which are opposed to the idea of suicide or euthanasia
- Passive Euthanasia can be interpreted to be in line with the voluntary practice of human sacrifice in many religions. Thus, it widens the boundaries of Article 25 also that grants freedom to practice any religion.
Issues with Passive Euthanasia
- Alternative Palliative care as an option for relieving pain
- Right to be killed: Technological determinism in the field of healthcare may lead to involuntary and non-voluntary euthanasia giving doctors power to decide on life of a patient. Whether the consent is informed or not needs to be observed
- Duty to Kill on doctors on the directive of the patient
- Duty to Die: Right to die may be misused by some at the expense of vulnerable communities to force them into accepting death
Way Forward
- Assess mental health of patients to ensure consent is informed and without alternatives
- District Level Doctors Panel: The M R Rajagopal Committee recommends a district panel to process the living will that is made of District Medical Officers
Active Euthanasia
Active Euthanasia refers to the practice of ending a life of an individual suffering from an incurable disease. Passive euthanasia only withdraws medical support while active euthanasia includes an active intervention to end the life of individuals
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Supreme Court’s Stand
While Passive Euthanasia remains legal through the concept of living will, active euthanasia is unlawful. Suicide involves overt acts culminating in unnatural death
Issues with Active Euthanasia
- Possibility of Misuse: Active euthanasia performed by an act of commission can be manipulated and misused to end life of those suffering from curable diseases
- Lack of Awareness in Choice: The patients opting for active euthanasia may not be making an informed choice with regard to active euthanasia administering
- Organ Rackets: Active euthanasia might be misused to extract and sell organs of patients for illicit monetary benefits
Right to Convert
The scope within Fundamental Rights
- Article 25: Freedom of conscience to choose one’s own religion, profess and practice it. Right to convert is implicit in freedom of religion. However, the right to propagate one’s own religion does not entail the right to forceful conversion of another into one’s own
- Right to Privacy: The choice of a religion is an individual autonomous decision part of the individual private sphere
- Article 21: Individual exercises his personal liberty in converting or choosing a religion
Issues
- Anti-Conversion laws: Implemented and in force in M.P, Uttarakhand, Jharkhand and Odisha, they have been criticized to abridge freedom choosing one’s own religion
- Religion not defined in the Constitution
- Coercive Conversions: The role of coercion in conversion for terrorism and for numerical gains has been noted. Anti-conversion laws have evolved as an instrument to tackle them.
Court Judgements
- Hadiya vs Union of India: The SC held that the right to marry and choose religion is an intrinsic part of meaningful existence. Neither the state nor patriarchal supremacy can interfere in an individual’s decision
Conclusion
Right to conversion shall be an intrinsic and implicit part of freedom of conscience of religion ensured by Article 25 as long as it is without elements of fraud, allurement or coercion
Citizenship Amendment Bill, 2016
Provisions of the Bill
- Provision of Citizenship to Religious Minorities: Amend the Citizenship Act, 1955 to make undocumented Parsis, Christians, Jains, Hindus, Buddhists and Sikhs who are migrants from Afghanistan, Pakistan and Bangladesh eligible for citizenship
- Reduced Requirement of Domicile Period: The amendment reduces the residency period of migrants from 11 years to 6 years
Issues of the Bill
- Violation of Equality: The provision of citizenship to communities based on religion violates Articles 14 and 15 of the constitution that advocates equality before law and prohibition of discrimination. Only the former is available for foreigners
- Antithetical to Secularism: The SC has identified secularism as basic feature of the Indian constitution. The bill that avoids provision to certain religious communities could thus be unconstitutional
- Undoing the NRC: Provision of citizenship to illegal migrants is at odds with the NRC exercise carried out in Assam that aims to find and deport illegal migrants who are not original residents of Assam
- Law and Order Issues: Citizenship provision that leads to accumulation of social and political capital can lead to law and order issues in North-East that has a sensitive socio-cultural fabric
- Demographic Alteration:
- Many of the North-East states have opposed the amendment citing changes to demography that is divergent to the interest of the indigenous tribes with regard to access to resources, economic and political power
- Article 19 sub-sections advocate that restrictions on movement, residence and settlement are placed in the light of interest of the Scheduled tribes
Special Marriages Act
The Supreme Court observed that a woman retains her religious identity in the event of an inter-religious marriage that takes place under the Special Marriages Act, a woman retains her religious identity unless she herself chooses otherwise. The SC hence upheld the fundamental right to freedom of religion, dignity and life guaranteed by the constitution.
Categorization of OBCs
The Union government is contemplating sub-categories within the OBC community in a bid to equitably distribute benefits of reservation accorded to OBCs. Several Committee reports in the past have suggested that benefits of OBC reservation are cornered by certain sections that are affluent and better social status while the fringe groups remain excluded from benefits.
Sub-categorization would hence ensure equity in reservation benefits while also being compliant with the SC ruling in the Indra Sawhney case where it put forward a ceiling of 50% on reservations allotted to all backward classes.
Privacy as a fundamental right
The SC in the Puttuswamy vs Union of India case identified Right to Privacy as a fundamental right under Article 21 of the constitution.
Why the necessity for the right to privacy?
- Previously the court was engaged in fixed cases of privacy such as phone tapping and police surveillance, however this time it has embarked on a complex jurisprudence process where the court is now liable to define its contours and limitations as any fundamental right has
Aadhar vs Privacy Concerns
The SC is currently hearing a case challenging the constitutional validity of using Aadhar to link mobile phones and bank accounts.
- State Surveillance: Government is capable of monitoring its citizens by interlinking of databases of private information with the Aadhar card being linked to PAN Cards. Hence citizens need safeguards from state’s arbitrary actions or misuse of possessed private information
- Safety of Data: Aadhar is used to provide several government services of various departments and the wider its usage more susceptible it is to misuse, manipulation and data theft. Database linking without the backing of a robust data protection law is hence unwarranted
- Violation of Article 300A: It guarantees every citizen right to his or her personal property. Bank accounts and mobile phones being personal property of users, individuals shall not be deprived of the same
Way Forward
- Streamline Uses: Aadhar card’s usage for various activities have proliferated and the widening spectrum of usages increase chances for it to be used an instrument of surveillance
- Independent Regulator for Data Privacy: An independent regulator backed by a robust law can ensure greater accountability on data privacy and prevent arbitrary usage of data
- Data Privacy Laws: Citizens need to be protected from arbitrary usage of their data from private and public entities via robust data privacy laws that puts accountability of data usage and safety on holders of citizen data
Supreme Court Judgement on Aadhar
The SC upheld the constitutional validity of AADHAR pointing out that it is critical to ensuring basic services and amenities through public governance system. As an ID system, AADHAR was effective in streamlining public resources and benefits eliminating errors of inclusion and exclusion.
Points of the Verdict
- Constitutionally Valid: The Majority verdict identified Aadhar as tool of good governance that was a reasonable restriction on right of privacy.
- Permitted under Aadhar:
- Linking of PAN
- Filing of IT returns
- Access to government welfare programs and subsidies
- Struck down by Court
- Section 57: The AADHAR Act which provided that private companies shall demand AADHAR as an ID for services of telecom, education, mobile wallet and banking services is to be struck down as there was no rationale to this
- Education: CBSE, UGC, NET cannot demand AADHAR as ID for exam verification purposes
What constitutes the right to privacy
- The court must deal with the amorphous nature of the term as it can include wide ranging rights from protection from state surveillance, publication of private information, and access to personal data, interlinking of databases of private information, bodily integrity, freedom from compelled speech and right to dissent and movement.
Concerns of right to privacy being a fundamental right
- Freedom of Speech vs Privacy: Privacy as a fundamental right may conflict with free speech and dissent being identified as violation of another’s privacy. This may reduce accountability of representatives in Indian democracy
- Criminal Investigations: Excessive Data protections may hamper policing and security agencies from procuring requisite data for smooth investigation
- Marital Rape: Privacy may be used as a guide to justify abusive sexual relationships within household that compromise dignity of women
Virtual Aadhar ID
The UIDAI has introduced the concept of virtual ID that can be used in lieu of Aadhaar number at the time of authentication, thus eliminating the need to divulge the Aadhaar number of the card holder. The Virtual ID can only be generated by the card holder through the UIDAI website.
The move is meant to protect the data of cardholders against arbitrary usage but many fear that it has come too little too late as many have already parted with their Aadhaar numbers. Many of Authentication User Agencies (AUAs) categorised as ‘global AUAs’ are exempt from using virtual ID which negates the purposefulness of Virtual ID.
What DPR must contain? – Justice (Retd) Srikrishna Committee
Introduction: Data is the new oil of economic growth and as the most valuable resource in the digital age, there is an urgent need to regulate access, use and transfer of data to protect public and stakeholder interest.
- Applicability Independent of Location: The committee calls for data localization in certain sensitive sectors alone given the inconveniences the companies may face in the same. Any company which holds the data of Indian citizens irrespective of its location shall be regulated by the DPR laws in the country
- Protected Information: The committee identifies personal data as that which warrants protection. It opines to change the current approach of using identity data as personal information
- Accountability: The committee holds data controllers accountable for any breach of privacy. TRAI has brought out a notification that holds not only controllers of data but also processors and other entities handling data
- User rights
- The committee opines to account for the consent of the user in accessing data, right of the user to access, rectify and object to the processing of data.
- It also seeks to enforce the requirement of notification to the user when the company accesses or processes data.
- TRAI, on the other hand, has recommended that data controllers mandatorily disclose terms and conditions of use before sale of devices and they be seen as mere custodians of data giving full power of data to the user
- Technologically Neutral & Interoperability with international standards
- Co-regulatory enforcement regime
- State Responsibility: Bring the state under its purview to protect citizens from state surveillance. In the context of Aadhar linkages with PAN and sim card, this assumes great significance in enforcing accountability on state utilization of citizen data
- It must maintain a balance between protecting individual interests and legitimate state concerns which include national security, investigating and preventing crimes, dissipation of social security benefits, encouraging innovation and spread of knowledge
Justice Shah Committee
- Consent of User: During the collection of data, the individual’s consent needs to be acquired so that she is able to exercise her right on her personal information on what she is willing to share or not.
- Give users notification of information practices
- Providing them choices
- Data Minimization: Collection of data shall be limited to necessary purposes to reduce the volume of data that will reduce vulnerability to breaches as well as protect citizens from arbitrary usage of personal information
- Access, correction, amendment or deletion of inaccurate information
- Big Data Exceptionalism: Shah committee asserts that while consent of the user is possible and necessary for normal data procurement, the same may not be viable for big data.
Issues with Big Data Exceptionalism
Data Security: Larger the volume of data collected, higher the chances for a security breach of data.
Eg: Equifax in the U.S
Surveillance: Big data collection enables individual behaviour pattern recognition that companies use to decide what to sell, how to sell and where to sell etc compromising individual privacy of choices. It also opens doors for state surveillance on individuals through bank accounts and telecommunications
Eg: AAdhaar-PAN + SIM card
Section 377 of IPC: Section 377 of the Indian Penal Code recognizes sexual intercourse in the LGBT community as a criminal offence as it a sexual act against the order of nature
Issues with Fundamental Rights
- Right to Privacy: The sexual orientation of an individual is one’s private choice. In the Puttuswamy vs Union of India case, the court had held that sexual orientation should be part of one’s privacy under Article 21 and must be restricted arguing to lift Section 377
- Right to Bodily Integrity: An individual is a sole authority vested with the discretion of what can be done with his body. Section 377 violates the same as it puts a restriction on an individual’s choice regarding his body
- Marital Rape and Abortion
- Right to Equality: The criminalization of sex among the LGBT community is discriminatory as it restricts privileges of sexual activity available to rest of the population to the LGBT community. Section 377 thus violates Article 14 that provides equality before law for all genders in society
- Right to Dignified Life: Section 377 continues to reflect and compound the social stigma and discrimination these communities face. They are legally deprived of sexual activity that are essentially part of their identity in society denying them a dignified life guaranteed under Article 21 of the constitution
Cases associated with it
- Naz Foundation vs Union of India: The court held Section 377 violative of Articles 14, 15 and 21 citing equality, the prohibition of discrimination and dignified life as fundamental rights denied to the LGBT community owing to the criminalization of sex
- Keshav Suri vs Union of India: SC decriminalizes consensual sex between members of the LGBT community. It comments that Section 377 is irrational, arbitrary and unconstitutional. LGBT community as any citizens are to be granted equal rights as per article 14.
Directive Principles of State Policy: Challenges and Conflict with Fundamental Rights
Uniform Civil Code
The Directive Principles of State Policy, in Article 44 of the constitution directs the state to endeavour adoption of a Uniform Civil Code for all citizens in the country.
India being a country of religious plurality the social institutions in the country including marriage and inheritance are governed by personal laws unique to different religions.
The Constitution aspires that in due course of time as the society becomes progressive, the state shall endeavour to adopt uniform laws for all civil matters for all sections of society to give greater effect to Article 14 granting equality before the law and equal protection before law for all citizens.
Elements in the Debate
No
- Freedom of Religion: Article 25 and 26 grant freedom of religion and the right to manage its own affairs. Further, Article 26 is not subject to any other fundamental right. UCC may be inconsistent with these freedoms granted by the constitution
- Religious Minority Safeguards: Drafting a uniform civil code may deprive religious minorities of their unique culture that Article 29 of the constitution guarantees
- Unity in Diversity: India’s rich cultural diversity entails that enforcing a uniform civil code may alienate different sections. India is yet to be a fully secular society given the public prominence religion continues to hold. Thus, the society needs to evolve to accept the UCC rather than it being enforced upon them
- Difference and Not Discrimination: A UCC that kills difference thwarts India’s diverse society rather than discrimination within religion. Plurality of the country needs to be in built in positive secularism of our country rather than be subverted by negative secularism of west
Yes
- Equality Before Law: UCC ensures that in letter and spirit Article 14 is implemented which enables equality before law and equal protection of the law regardless of one’s religious community
- Gender Equality: UCC can be a step way to removing patriarchal practices that manifest in secular events of marriage, inheritance and education. It can thus enforce Article 14 and 15 of the constitution with regard to gender
- Polygamy and Nikkahalala among Muslims
- Uniform Administration: A coherent civil society is easier to administer for the governance machinery than a personal law-driven society
- Secular Society: Providing a set of uniform civil laws can be a stepping stone to separating religion from mainstream society. UCC can thus help in creating a secular Indian society on the lines of western democracies
Way Forward
Codification of Personal Laws: The personal laws of different religions need to be codified so that they can be put to the test of various fundamental rights. This can help to arrive at universal principles of equity and equality that can help realise the morals of the constitution yet not subvert the diversity of our country
Conclusion
The debate of the UCC is a debate for the society at crossheads in choosing between the individual and the collective. UCC cannot be imposed by the state on a non-secular society with rich sensitive diversity. It shall with the passing of time be a manifestation of the homogeneity that evolves owing to modernity transcending across sections. It is thus very idea that led our founding fathers to enshrine it in Directive Principles rather than fundamental rights.
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Freedom of Speech and Expression
The concept of freedom of speech and expression entail that individuals would have the right to speak and express freely through any medium of communication in a society subject to certain listed restrictions. Article 19(a) of the Indian constitution guarantees a citizen the same for every Indian citizen.
Restrictions
The fundamental right is however not absolute and must be enjoyed with certain limitations. These are listed as national security, sovereignty and integrity of the nation, decency, peaceful relations with a foreign nation, morality, defamation, contempt of court, incitement of violence or hatred.
Defamation
In India, defamation is a criminal offence that may warrant imprisonment. There has been a discussion in civil society if the clause of defamation is, in reality, a desirable one. The anti-defamation group argues that it restricts the freedom of speech and expression and discourages the right to dissent and criticize which is the life-breath of a democracy.
Why it should be retained?
- Right to Dignified Life vs Freedom of Speech: Defamation inflicts damage on the reputation of an individual in society and denies him the right to dignified life guaranteed by Article 21 which is as important a right as observed by the Supreme Court.
- Reasonable Restriction: The defamation clause is a reasonable restriction on the freedom of expression so that individuals cannot say or publish according to their whims and fancies.
- Inspires Ethical Conduct: The defamation clause ensures that individuals remain responsible for what they say or publish. It can be a strong deterrence to media trials and sensationalism that harbours the media houses of today.
Why it should be discarded?
- Discouraging Criticism: The defamation clause may deter righteous citizens or media from criticizing or dissenting against an individual or a company. When used in the excessive, it curbs the life-breath of democracy
- Encouraging Corruption: Most of the allegations made today centre around corrupt activities of those who hold positions of privilege. A strong defamation law discourages whistleblowing and expose of corrupt activities
- Biased towards Privileged Elite: Defamation law is oft misused to suppress opposing voices by the privileged elite.
- Criminal à Civil: Considering the question of proportions, the defamation law may be amended to involve monetary punishment instead of imprisonment as it seems too harsh a punishment for the committed offence.
- Recommendation of the UNHRC: The UN has called upon nations through its covenant on human rights to decriminalize defamation
Conclusion
The judgment of the Supreme Court elucidates that citizens must not ignorantly exercise their fundamental rights but exercise them correlative to the duty of not to interfere with the liberty of others.
My Opinion
Defamation impinges on the dignity of individual and such tendencies must be strongly resisted in a society. However, its criminalization amounts to excessive and harsh punishment that curbs dissent and criticism which are life breath of the modern democracy. Considering this, a strong civil remedy may be put in place of the criminal law for defamation.
Hate Speech: Law Commission of India defines Hate Speech as an incitement to hatred primarily against a group of persons defined in terms of ethnicity, gender, sexual orientation or religious belief.
Hate speeches cannot be a part of the freedom of speech granted by the constitution. They are a threat to public order, harmony and the security of the state. Reasonable restrictions on speeches are in the best interests of the security of the people of India.
Why the restriction on Hate Speech?
- Communal Polarization: Hate speeches can divide people on ethnic, linguistic or religious lines that in the extreme forms can take the violent form. India being a multi-cultural society needs to take extra safeguard in preserving its plural unity and ensure secular spirit of Article 25, 14 and 15 are preserved
- The Muzaffarnagar and Godhra riots were fueled by hate speeches creating communal chasms in the society
- Encouraging Separatist Tendencies: Hate speeches may also focus on creating an anti-national identity fueling centrifugal tendencies among people in a state. Such speeches threaten the sovereignty, unity and integrity of the country
- Separatist speeches in Kashmir by the Hurriyat and demand for Khalistan in Punjab
- A culture of violence: Hate speeches invariably focusing on creating a culture of intolerance, violence and hatred for other. This poses a threat to law and order and threatens the spirit of democracy and civil society.
- Rising instances of cow vigilantism and mob lynchings
- Safety of Minorities: Article 29 places special safeguards for minorities in the country. Hate speeches threaten to alienate minorities and bring a threat perception to minorities undermining the implicit assurance of equal footing to all citizens
- Dignity of Women: Hate speeches in public, private and cyber spaces threaten to outrage dignity of women by passing derogatory remarks the fundamental duties (Article 51(a)(e)) of the constitution asks to give up
Present Restrictions
- Section 153(a) of IPC providing punishment for inciting enmity between different groups
- Section 295(a) of IPC providing punishment for malicious intention of outraging religious feelings of any class of citizens
Difficult in Hate Speech Regulation
- Reach and Use of Social Media
- Establishing Need for Intent due to inherent subjectivity and need for discretion
- Balancing with Freedom of Speech and Expression granted by Article 19(a)
- Balancing with Right to Privacy identified in Puttuswamy vs Union of India case by SC
- Political Interference in security agencies preventing expeditious action
Committee Recommendations
Bezbaruah Committee: Hate speech offences targeted against North-East groups should be cognizable and non-bailable
T.K. Vishwanathan Committee:
- Institutional Capacity: Each state to have a Cyber Crime Coordinator and District Cyber Crime Cell
- Deterrence through Law
- Section 153C: Prohibit incitement of hatred through online speeches on grounds of religion, tribe, caste, gender and sexual orientation
- Section 505A: Prevent causing of alarm, fear or provocation of violence on grounds of identity
- Safeguard from Abuse: The offensive speech should be highly disparaging, abusive or inflammatory with need for intent from the perpetrator. This clause would protect innocent users of social media from arbitrary action.
- This provision suffers from the ambiguity of concrete determination of what constitutes a hate speech
Law Commission
- Section 509A: Word, gesture or act intended to insult member of a particular race
- Grass-Root Level Efforts
- Promote religious harmony through popular TV dramas
- Involvement of religious heads to build empathy (Imam in Asansol)
- Strategic interventions to monitor dissemination of hate speech and mob mobilization by social media (NETRA)
Way Forward
- Determination of Hate Speech: The context in which a speech is made is vital to understanding the dangerousness of the speech.
- Social Media Platforms’ Accountability: Social media platforms can be pro-active in removing hateful content using methods of artificial intelligence. A legislation to enforce their accountability can be brought in so that social media does not become an instrument of hate
Conclusion
As identified by the Supreme Court in Pravasi Bhalai Sangathan vs Union of India, hate speech must be viewed through the lens of Right to Equality.
Freedom of Press and Media
Media as an institution is known as the fourth pillar of democracy. It is an institution that creates a rights conscious citizenry and enforces the accountability of the people on the government.
A free press and media nurtures a vibrant democracy that is inclusive and responsible to its citizens. The constitution of India guarantees freedom of press implicitly under Article 19(a) of the constitution.
Question on rising restrictions on Media/ Attack on Media Persons
Introduction
India’s abysmally low ranking of 136/180 on the World Press Freedom Index Report is reflective of the lack of freedom the country’s press enjoys. The killing of Gauri Lankesh and arrest of Prashant Kanojia raise grave concerns regarding freedom of press from both the state and non-state actors.
Regulation on the Press and Media
Press Council of India: It is a statutory body formed by members of the press itself that looks into ethical issues involving the media.
News Broadcasting Standards Authority: Most of the private channels have set up NBSA that issues guidelines and is empowered to warn, admonish and punish channels for non-propriety.
Issues in Regulation and Way Forward
No Independent Regulator: The news climate of India has transitioned substantially into broadcasting from print. In such a climate given the rapid growth of digital technology, there needs to be an independent regulator on the lines of the PCI to regulate the conduct of broadcast media.
State Restrictions: The government has at times overstepped and censored the press from publishing details on sensitive matters.
Eg: Restriction of news related to National Socialist Council of Nagaland-Khaplang
Censorship
Justifications for Censorship
- Religious Sensitivity: Creative works including films and literature has a wide audience and has the ability to influence them on a large scale. In a religiously sensitive society like India, an absolute freedom for the creator may be misused to spread intolerance, hatred
- Section 295A criminalizes creative work that deliberately intends to malign and outrage religious sensitivities
- Separatism: Literature and films if given a free hand may result in fueling separatist tendencies.
- Morality: Creative works have often been controversial for its depiction of immoral norms and values.
Why Censorship should be done away with?
- Freedom of Speech and Expression: Censorship impinges on a constitutionally guaranteed fundamental right which provides a writer, a painter or a filmmaker the right to creatively express his opinions and depiction of the society or history
- The excessive censorship imposed on the film Padmavat
- Adequate Law and Order Machinery: The state is mandated to safeguard the fundamental right of the artist and possess the adequate resources to quell any intolerances or violence emanating from fringe groups
- Sensitize Society: It is the duty of the state to sensitize society to accept and accommodate differing views and dissent in a democracy
- Alienation: Censorship may alienate citizens from democratic forms of expression. This dilutes their political consciousness leading to loss of accountability.
- Right to be Informed: Censorship on media, literature and films also take away the right of an individual to be informed and empowered with knowledge. Excessive censorship creates a narrow view of the society, history and polity that is inadequate for a holistic understanding
Intolerance on Creative Works- Why?
Lack of Political Will: The state governments in many cases seem to be uninterested to protect the rights of the artists despite possessing adequate machinery for diffusing the tension and intolerance created by fringe groups
A cultural problem: Religion, Region and caste continue to be mainstream sensitive topics in India. When manipulated politically, a culture of intolerance is bred that seeps into various layers of our multi-ethnic society.
Vote Bank Politics: These fringe groups are at times supported by political parties on the pretext of vote bank politics despite them blatantly violating the freedoms of speech and expression
Poor Enforcement of Law and Orderà Impunity to the fringe groups that attack creative works
Eg: Karni Sena felt emboldened in their protest rallies against Padmavat due to inaction on part of the state machinery to arrest the perpetrators and enforce law and order
Conclusion
Many creative works especially films have evolved as soft targets for fringe groups invoking a demand for a ban based on regional, religious and moral sensitivities. The lack of political will on the part of the state to use the law and order machinery has eroded the vibrancy of our democracy that accepts different voices and opinions. The state must do more to protect these voices, after all, it is just a fringe.
Sedition Law:
Section 124-A of the IPC criminalizes act of sedition defined as words written or spoken or visible representation that brings into hatred/ contempt/ disaffection towards the government established by law
Issues with Law
- Curbs Right to Dissent: Dissent is life-breath of democracy and the sedition law restricts constructive criticism of actions of the government. It can be seen as violative of Article 19 that ensures freedom of speech and expression of the citizens
- Arbitrary Abuse: Multiple governments post-independence have abused Section 124-A to silence civil society activists by using the law as a process punishment rather than meaningful persecution
- As per NCRB, in 47 cases of arrest, only 1 person is convicted of sedition
SC Observations
- Kedarnath Singh Case: Sedition charges can be invoked only when there is incitement to disorder or violence
- IndraDas vs the State of Assam: Sedition law is built on the delicate balance of national integrity and freedom of speech
Reforms Required
- Non-Cognizable offence to sever political interference in police
- The burden of Proof to rest on a prosecutor
Section 66-A of IT Act: It defines punishment for sending offensive messages through a computer or any other communication device where a conviction can fetch a jail term of 3 years
SC striking down Section 66A Reasons: The Supreme Court struck down Section 66 A as unconstitutional in the Shreya Singhal vs Union of India
- Impinges Freedom of Speech: Supreme court opined that the section excessively, disproportionately invades free speech under Article 19(1)(a) of constitution upsetting balance between such rights and reasonable restrictions
- Subjectivity of Law: SC advocated that what may be annoying or offensive to one may not be so to the other.
Right to Choose: It guarantees the right of personal autonomy regarding decisions one takes in her personal life as long as it is not a nuisance to society. In civil society, discussion on right to choose centres around dietary habits, choice of clothing, residence, religion and right of abortion
Prohibition vs Right to Choose
Right to Business Violation: Article 19(g) provides citizens the right to carry on trade or business. A prohibition of any product by the state infringes on the fundamental right of the citizens. It rekindles the debate on the conflict of DPSP and fundamental rights
Right of Choice: The consumers of a product or service that is banned in the state is deprived of her fundamental right to choose. The Patna High court has termed the prohibition of liquor in Bihar as unconstitutional as it deprives individual liberty enshrined in Article 21 of the Indian constitution
The same can be said of the cattle meat ban in Maharashtra. Despite it being a part of the dietary habits of many in the State, the state passed a legislation banning the trade of cattle meat. The Supreme Court verdict in the Puttuswamy vs Union of India case had highlighted how dietary choices constituted apart of individual’s right to privacy guaranteed in Article 21 of the constitution.
Individual vs State: Prohibition of intoxicants comes from the logic that the consumption of such components are adverse on the health and morality of the individual and the society. However, a blanket prohibition curbs the individual’s right to determine what good life itself is.
Cattle Trade Notifications
The Centre recently brought out notification banning the trade of cattle for slaughter. Lets look at the issues at hand:
- Federal Framework in Jeopardy: Agriculture and Livestock are state subjects as mandated by the Constitution. The center’s notification can be considered to be an infringement into the domain of state.
- Right to Personal Liberty: India’s states have diverse populations with diverse dietary habits. A one-size fits all rule does not fit the bill for such a diverse demography. The restriction of cattle for sale affects the choice or liberty of a consumer enshrined by Article 21 of the constitution
- Right to Privacy includes the choice of diet as observed in Puttuswamy case.
- Freedom to carry on trade enshrined in Article 19(g) of the Indian constitution is deprived
Why such rules?
- Prevention of Cruelty to Animals: Practices like cutting ears, inappropriate slaughter and beating of animals are prohibited through the notification.
- Trafficking of Animals: The notification regulates trade near international borders with an aim to reduce instances of cattle smuggling
Right to Internet Access
Issues at Play
Freedom Speech and Expression: It involves the facets of an individual to express himself and also of another to receive information. When a government bans access to internet both of these individual liberties are compensated
Right to Privacy: The usage of the internet is a part of privacy of an individual and her personal liberty. The state cannot arbitrarily take away such an inalienable part of a dignified life.
Why restriction?
Communal Sensitivities: Such an extreme step is taken by the state in defense of communal harmony in multi-ethnic societies. Social media has been the harbinger of fake news and rumors stoking communal hatred and violence
Separatist Tendencies: The state also imposes such restrictions at times of secessionist movements to safeguard the unity and integrity of the nation.
Curb Illegal Activities: There are several websites that provide a fillip to illegal activities viz. organ trafficking, pre-natal abortion. The access of these sites can be curbed by reasonable restrictions on access to internet
The debate of Parliamentary Government vs Presidential Form of Government
Introduction
The Parliamentary form of government was adopted from the Government of India Act, 1935 and thus far has been the cornerstone of India’s representative democracy. India’s political climate has progressed substantially where power centralization within political parties has kindled the debate of parliamentary vs presidential forms of government.
Why Parliamentary over Presidential for India?
| Parliamentary | Presidential |
| Responsibility: It ensures an executive accountable to elected representatives who represent the people | Non-responsible: The President is not accountable to the Senate for his actions. There is no institution of control on the executive |
| Familiarity: Parliamentary democracy has been inherited from colonial era and has held the country united for long. It thus makes little sense to change it | No familiarity: India has never experimented with the Presidential system |
| Wide Representation: Parliamentary system provides wide representation for different sections in the multi-cultural Indian society | Limited Representation: Presidential system offers a centralization of power in the hands of one individual |
| Harmony between Organs: The double membership to executive and legislature ensures there is harmony and coordination | Discord between Organs: The presidential system due to the complete separation of powers risks chances of disharmony between organs of government |
| Parliamentary | Presidential |
| Instability: The executive rests on the confidence of legislature that can abruptly come to an endà no continuity in policies or certainty of governance | Stability: There is a security of tenure for the governmentà continuity in policies |
| Politics> Policy?: The numbers game in parliament lead to focus on politics depriving public welfare and policy | Policy Focus: The certainty of tenure gives the government respite and time to focus on framing and implementing policies |
| Prime Ministerial = Presidential?: Modern day parliamentary democracies including India have evolved into governments where the PM has a huge role to play. This virtually makes it a presidential government |
Accountability on President for his actions
|
| No Expertise: The parliamentary government consists of ministers who are not experts in their own fields
Coalition governments may lead to slow decision making
Double Membership may lead to dictatorship of the cabinet | Domain Expertise: The President drafts in experts for handling important portfolios of administration
Fast and Efficient Decision making
Separation of Powers |
Conclusion
The Parliamentary Form of government is part of the basic structure of the Constitution as identified by the Supreme Court. Indian democracy has survived for more than 70 years on the edifice of it. It would be thus a grave mistake to hurriedly switch to a Presidential form of government. In future, if the suitability reverses, India may adopt the same
Economically Weaker Sections Affirmative Action Debate
The Union Government has introduced the provision for reservation of the economically weaker sections through amendment of Article 16 of the Indian constitution.
Issues
- Representation to Socially Backward: Ambedkar, the father of the Indian constitution had elaborated that the mandate of affirmative action should be of politico-economic empowerment of socially backward sections only
- Indra Sawhney Case: Regarding the Mandal case, the supreme court had capped reservation of seats at 50% and also termed economic reservation as unconstitutional
- Ghost Beneficiary Danger: India’s poor land records, non-taxed earnings and corrupt governance machinery elicit the danger of undeserving beneficiaries
- Adequate Representation: The said economic bracket as well as social classes included in the provision already have more than their share of representation unlike the scheduled and backward classes that are provided with reservation
- Improper Terms: The ceilings placed on income and land ownership are way too high for it to have a meaningful impact on the actual poor of the country
Benefits
- Help the Poor: The reservation policy can help provide representation to the weaker sections in jobs and educational institutions
- Composite Reality: The EWS reservation further acknowledges the composite reality of class and caste that is characteristic of the Indian society
Autonomous Council Strengthening: Constitution (125th Amendment) Bill
The amendment has been introduced to empower the financial and executive powers of the 10 autonomous council that exists in the states of Assam, Meghalaya, Tripura and Mizoram
Provisions of the Amendment
- Elected Village Municipal Councils ensuring grass-root level democracy
- Authority of Village Councils: VCs to have a mandate to prepare plans for socio-economic justice and economic development including those relating to agriculture, land, irrigation, animal husbandry, rural electrification
- Devolution of Funds: Finance Commission shall be mandated to recommend devolution of funds to them. Central and State Governments give grants for these councils to implement projects
