RSTV-Constitutionally Yours- Demystifying the Indian Constitution

Daily News-5th August 2017
August 5, 2017
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August 6, 2017

RSTV-Constitutionally Yours- Demystifying the Indian Constitution

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RSTV-Constitutionally Yours- Demystifying the Indian Constitution

Summary

In the Indian Constitution’s fundamental rights chapter, three articles have been singled out for special attention by the Supreme Court:

  1. Article 14, which guarantees equality before law and equal protection of laws;
  2. Article 19(1), which guarantees the freedoms of speech and expression, association, assembly and movement, and occupation, trade or business; and
  3. Article 21, which guarantees life and personal liberty.

The Supreme Court has cited that these three articles constitute a “golden triangle”, standing between the heaven of freedom into which Tagore wanted his country to awake and the abyss of unrestrained power. In the finest tradition of liberal philosophy, the rights to equality, to freedom, and to life, constitute a bulwark for the individual against the tyranny of the majority, exercised through the coercive arms of the State. They ensure that the great disparity in power between individual and State does not translate into oppression, domination, and erasure. They preserve every person’s bodily integrity and basic dignity against the arbitrary or vengeful actions of the State.

Article 14 as it reads , state shall not deny to any person equality before the law or the equal protection of law within the territory of India. 

The scope of the article has been expanded by the Supreme Court. The biggest issue that is occupying the centre stage, is the rights of the minority women. We are still to achieve that parameter where we can achieve gender equality in all castes. This is what the constitution also says. For Hindus we have a Hindu code bill, but other women are at the receiving end of inequality, in a patriarchal mindset. Gender equality in all caste and religion has to be achieved. We should not confine our thoughts to primitive perceptions. Religious teachings must undergo gradual changes as society progresses. We can no longer persist with rigid norms that harbor inequality.

Is the government being unfair towards Muslim women? 

The Speaker, Madhya Pradesh Legislative Assembly says that common civil code was kept in  Part IV of the constitution because the framers of the constitution knew that it would be very difficult of enact such a law at that time.

The minority communities are also not united on the issue. They have been raising voice against a common civil code that applies to the entire country.

Justice D M Dharmadhikari says that the reason for such inequality is also historic. When Pakistan was formed on the basis of religion, a lot of Muslims remained in India, outnumbering those who went to Pakistan. They were worried whether their traditional and religious rights would be protected or not? Therefore, in order to provide them with security, it was decided to not interfere in the matter of their religion. The Muslim community became more orthodox after the formation of Pakistan. Supreme Court is moving towards human rights. The Muslim community per se has to be ready to accept the changes, like there has been a Hindu succession act , where in the daughter has the rights on her father’s property even after marriage. Supreme Court maintains that all the religions and their practices should be based on account of human rights.

Why do we have so  many personal laws ? Why couldn’t we manage a UCC? 

Justice D M Dharmadhikari again says that people from all sections of the society, and their rights, should be respected. It is not possible to confine the whole population in one culture, it will kill the diversity and multi-culturalism in India. All customs must be made keeping in mind the human rights. Muslim women should also raise their voice for their rights. It cannot be imposed on people. We would never protect wrong culture on part of any community.

Mr Rawat( leader, Congress) says that the right kind of environment has to be created before a uniform civil code can come into existence. For example, when the rights of Hindu women to enter temples was in question, Muslim women leaders in Haji Ali Dargah, Mumbai, condemned the issue, and showed their discontent.

The MP Speaker , says that education is the most important factor to establish equality.

Moreover, a woman named Shayara Banu challenged the constitutionality of triple talaq. She is using her case as a plank to challenge the triad of instantaneous triple talaq (talaq-e-bidat), polygamy and halala (a practice where divorced women, in case they want to go back to their husbands, have to gl through a second marriage). Her petition in the Supreme Court makes no mention of the contentious Uniform Civil Code, neither does it ask for codification of the Muslim personal law. She has sought equality before law and protection against discrimination on the basis of her gender and religion. Shayara’s is the first such case where a Muslim woman has challenged a personal practice citing fundamental rights guaranteed by the Indian Constitution. 

The Muslim Personal Law (Shariat) Application Act, 1937, allows Indian Muslims to be governed by the Shariat. The absence of codification has legally allowed community leaders to hold the practices as sacrosanct. The Dissolution of Muslim Marriages Act, 1939, however, codifies a woman’s right to seek divorce by approaching the court.

People with more than two children cannot qualify for Panchayat elections. Is it against Article 14? 

It can be modified for certain sections of the society. Again, the speaker from MP Legislative Assembly,says that controlling population is one of the main intention behind such move. Population control is a big problem. If it is not controlled, we cannot afford to protect human rights for people. It is written in the Panchayati rules of many states, but it is not constitutional. Even the minimum criteria in education, for PRIs  is not a compromise of Fundamental Rights.

Article 21  clearly states that, no person shall be life,personal liberty, except according to procedure established  by law

The Supreme Court has expanded hugely on this right. Even clean environment has been added as a part of right to life. The biggest problem is where do you stop development and ensure that clean environment is provided to people. 

There should be a right balance between environment and development. Green belt should be kept in mind while developing. There has to be a balance in give and take from the nature. Development should not put human life at risk. The laws that have been made for environment should be implemented with political will.  There is a need to make people aware about the environment. Till the time we control our population, achieving all these goals may be difficult. Development, Environment and population have to be dealt together.

If euthanasia is unconstitutional, should be not include santhara under the same purview? 

Justice Dharmadhikari says that killing oneself is suicide. If the body is not functioning properly, then eliminating it day by day is accepted in almost all regions. If quality  of life has deteriorated too much, then this can be considered.

 

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