Uniform civil code – prospects and challenges

Dr. H. Abdul Azeez[1]

Abstract

In the light of recent Supreme Court judgment holding triple talaq as unconstitutional, serious deliberations are coming up from various corners for a uniform civil code for India. The framers of the Constitution thoughtfully placed the burden on the future Governments to implement the Uniform Civil Code as they conceived the wounds of partition would heal with the passage of time. However, due to the unethical political situations, the Governments could not promote confidence of minority religious segments of the country for its implementation. This Article analyses about the causes for not implementing the Uniform Civil Code and attempts put forward some measures for the implementation of it. The most vulnerable persons affected by the non-implementation are the women in any religious groups.  Hence, the rights upholding women’s rights equalising with that of men should be made as part of Uniform Civil Code, where as rituals, culture, etc., shall be left open for religious groups follow in their own way without affecting women’s rights. Further, as first step for implementation of the Uniform Civil Code, instead of going for compulsorily implementing in one go, it can be made as an optional in initial stage, i.e., whoever intends to follow it  may choose to follow it.

Introduction

The debate on the Uniform Civil Code is getting momentum in India nowadays. The Uniform Civil Code can be considered as a common code which is applicable to all the communities irrespective of their religion, race, caste, creed, etc. The framers of our constitution included Uniform Civil Code in the directive principles of state policy under the conception that it would be implemented when the wounds created by the partition are healed by the passage on time. Article 44 of the Indian Constitution provides that State shall endeavor to secure for its citizens a Uniform Civil Code throughout the territory of India. For a convenient understanding this article is divided into following heads.

Position in Pre-independence Era

The study of Hindu legal history shows that during Hindu period[2] there was no interference of the State with Hindu law. They enjoyed complete immunity and the whole affairs were regulated by their personal laws. The state was like a welfare organization dealing with social interest and related matters. The social, political and economic life of the society was controlled by the rules and regulations of the sages who dominated the entire Hindu period.[3] During this period there were no other religious communities and so the conflict between personal laws was not material and the uniformity of law was a general rule than an exception.[4] The Muslim period which was based on the divine origin of laws and no individual could alter the law or question the authority of Caliph.[5] When Muslim law also became the law of land, Hindu law was allowed to be reserved for the Hindus and the Mohammedan rulers did not interfere with the system. The result was that the Muslim followed their Muslim law and the Hindus were allowed to stick to their own system of law. Thus, the two separate systems of personal laws on parallel lines remained to be in existence in India. It was when the British controlled India that a complete change in criminal law and a new system to deal with the various matters of civil law came into existence.

Uniform Civil Code and Modern India

The idea of Uniform Civil Code was deliberated in the Constituent Assembly but separate personal laws were retained for separate communities because the makers of constitution were convinced that some more preparation is required in the minds of people before a Uniform Civil Code is introduced. Thus, what resulted was not a secular state in the western sense of the word, rather a ‘secular’ state with religious laws for its religious groups. The problem that aroused as a consequence of the above was the retention of separate personal laws leading to contradictions in rituals and practices in personal matters. The separate personal laws of India are inherently unequal as they are founded on the rules and traditions of completely different religions, and the constitution of India recognized and the continued existence of Personal Laws. There are different personal laws like the Hindu Marriage Act, the Hindu Succession Act, the Hindu Minority and Guardian ship Act, the Hindu Adoption and Maintenance Act, etc, governing the personal matters of Hindus; and the Shariat Act, the Dissolution of Muslim Marriage Act, the Muslim Women (Protection of Rights on Divorce) Act, etc., which are based on the tenets of Holy Quran, govern the personal matters of Muslims. The Indian Christians were governed by the Indian Christian Marriage Act, the Indian Divorce Act and the Cochin Christian Succession Act, etc. Parsi’s are also having a different set of laws of their own. It is a fact that uniformity does not exist in all these personal laws, obviously, as these personal laws bases their origin in religious backings or tenets. It is submitted that the issue not of the uniformity but of the fact that they confer unequal rights depending on the religion and the gender.

Uniform Civil Code and Indian Constitution

Among the other countries in the world, our nation is unique with its composite culture. It is one of the great laboratories of multitudes of religions. To hold the different segments of Indian society accepting, understanding and acknowledging their beliefs and religious practices is a must. For this purpose, the framers of Indian constitution have accepted secularism as one of its basic ideals. Unlike the western secularism, Indian constitution upholds the concept of Sarvamadha samabhavana in its secularism as provided in the preamble. Indian constitution allows persons of different beliefs to follow their personal laws for their personal matters.  Under the Indian Constitution, all aspects of family law are in the concurrent list.[6] But apart some legislative measures, many states have not exercised their power to an appealable extent and family laws are not even codified. At the same time, it cannot be forgotten that the influence of Anglo-Saxon jurisprudence during codification had added much confusion to the indigenous practices.

The Indian Constitution, in its Part IV, Article 44 directs the State to provide a Uniform Civil Code throughout the territory of India.  However, it is only a directive principle of state policy and, therefore, it cannot be enforced in a court of law. It is the prerogative of the state to introduce Uniform Civil Code. The Constituent Assembly debates clearly shows that there was a wide spread opposition to the incorporation of Article 44 (Article 35 in the Draft Constitution), particularly from the Muslim members of the Assembly. Naziruddin Ahamed, Mohd. Ismile Sahib, Pocker Sahib Bahadur and Hussain Sahib, etc., were against the idea of having a Uniform Civil Code in India on the grounds that the right to follow personal law is part of the way of life of the people which is a part of their religion and part of their culture. Its adoption will lead to a considerable amount of misunderstanding and resentment amongst the various sections of the country and that in a country so diverse it is not possible to have uniformity of civil law. However, K.M. Munshi strongly felt that if the personal laws of inheritance, succession, etc., are considered as part of the religion, the equality of women can never be achieved. The Chairman of the Drafting Committee, Dr. B.R. Ambedkar stated that in our country there is practically a Civil Code, uniform in its content and applicable to the whole of the country like Uniform Criminal Law, Transfer of Property, Negotiable Instruments Act, etc., which are applicable to one and all. However, he conceded that the only province, the civil law has not been able to invade so far is marriage and succession. While rejecting the arguments of certain Muslim members that the Muslim law is immutable and uniform throughout India quoting the examples like the North-West Frontier Province which was not subject to the Shariat law prior to 1935 and until then followed the Hindu Law in the matter of succession, the Marumakkatayam law applied in the North Malabar region of Kerala to all, not only to Hindus but also to Muslims. Until 1937, in the rest of India, the various parts, such as the United Provinces, the Central Provinces and Bombay, the Muslims to a large extent were governed by the Hindu law of Succession. Some of the learned members, however, predicted that a stage would come when the Civil Code would be Uniform and stated that power given to the State to make the Civil Code uniform is in advance of the time. Dr. Ambedkar also opined that it is perfectly possible that the future parliament may make a provision by way of making a beginning that the code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage, the application of the code may be purely voluntary. This clearly establishes that the framers of the constitution were aware of the gender injustice and sexual inequality of women and they incorporated Article 44 in the constitution hoping that it would be introduced in future at the appropriate time.

Constitutional Provisions

While, Article 15 of the constitution guarantee to every citizen that consists of  ‘no discrimination on any ground only of religion, race, caste, sex, place of birth or any of these, Article 15 (3) ensures that women and children can have special provision made by the state. But, at the same time, Article 44 promotes Uniform Civil Code whereas Article 14-19 guarantees equal rights. Constitution of India incorporates certain policies also which are to be followed by State.[7] There is provision for ensuring just and humane condition of work and maternity relief.[8]

Along with these, Article 44 also provides that ‘the State shall endeavor to secure for the citizens a Uniform Civil Code throughout the territory of India’. In India, Uniform Criminal Code exists and so Article 44 expects from the State to secure Uniform Civil Code for all citizens of India like the Criminal law is equally applicable to all citizens irrespective of their religious beliefs as there is no uniformity in matters relating to marriage, divorce, maintenance, guardianship, etc., among Hindus, Muslims and Christians.

Personal Laws and Issues Related To Women

In India, the women have been conferred on inferior status in most of the personal matters compared to the men. It must be submitted that there is almost ‘equality’ in all religions and practices in this regard. Till the codification of Hindu Law in 1955 and 1956 the Hindu women did not enjoy equal rights along with the Hindu men. Before 1955 polygamy was prevalent among the Hindus. The Hindu women could not hold any property as its absolute owner except in the case of Stridhana. She had only limited estate which was passed on to the heirs of the last full-male owner called reversionary on her death. In the matter of adoption, a Hindu woman had no right to adopt a child on her own. She could not be the natural guardian of her children during the life her husband. These examples are only illustrative in nature and not exhaustive. Even though the Hindu law has been codified, certain discriminatory provisions still exist even today. For example, a Hindu woman is not a coparcener in Hindu coparceners except in a few states like Andhra Pradesh, Maharashtra, Karnataka and Tamil Nadu. Consequently she is not entitled to claim a share in the coparcenary. Similarly, she has no right to partition of a dwelling house even though she is a legal heir. Thus, it is obvious that the codification of personal law of Hindus has not succeeded completely in eradicating the gender inequality.

In the Pre-Islamic Arabia, the women enjoyed a secondary status in all respects when compared to men. The advent of Islam has contributed much for the amelioration of Muslim women and alleviation of their problems. The Holy Quran places women in a respectable position. However, there are certain aspects in Islam that render the position of Muslim women especially the wives insecure and inferior. A Muslim male is permitted conditionally to marry as many as four wives at a time. It is important to note that the polygamy among Muslim men is only permission but not a compulsion. The Shia Muslim male can contract muta marriages for an agreed period of time. There is no ceiling on the number of muta marriages that may be contracted by a Muslim male. In the matter of divorce, the position of the Muslim women is the most inferior and insecure compared to others. Particularly, the method of divorcing the wife by the husband by pronouncing triple ‘talaq’ is highly discriminatory in spite of the clear message of Holy Quran to the contrary. Recently, the Supreme Court has held that the practice of the triple ‘talaq’ is unlawful and void.[9] In the matter of succession also a Muslim woman is discriminated. The legal position is that when residuary of opposite sex but of the same degree inherit the property of the deceased, the Muslim male gets twice the share of the female. It means that while brother and sister inherit the property as successors, the brother gets two shares whereas the sister gets only one share. Moreover, in the matter of maintenance also the divorced Muslim wife is not required to be maintained beyond the ‘iddat’ period. At the same time, the Criminal Procedure Code which is a secular legislation imposes an obligation on a husband to maintain his wife including divorced wife until she maintains herself. The controversy regarding the question whether a Muslim husband can be directed to maintain his divorced wife even beyond the ‘iddat’ period under the provisions of Section 125 of Cr. P.C was discussed in Mohd Ahmed Khan v. Shah Bano Begum[10] and it was held that Section 125 Cr. P.C. is applicable to all including Muslims and that a Muslim husband is also liable to maintain his divorced wife beyond the ‘iddat’ period.

Subsequent to this judgment, the parliament has passed the Muslim Women (Protection of Rights on Divorce) Act in 1986 to overrule the judgment in Shah Bano case. The effect of this Act is that a Muslim husband is not liable to maintain his divorced wife beyond the iddat period, unless both the spouses submit to the court at the appropriate time that they would like to be governed by Cr.P.C. However, in the case of Danial Latif v. Union of India[11]  the Constitution Bench of the Supreme Court held: “where the constitutional validity of the Act of 1986 was challenged, and upheld that a Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well even beyond the iddat period must be made within the iddat period under section 3(1) (a) of the Act”. It was, therefore, categorically, held that the liability of a Muslim husband to his divorced wife arising under section 3(1) (a) of the Act to pay maintenance is not confined to the iddat period. Similarly, among the Christians and Parsi women also, there is disparity in the rights of the women as compared to the men.

Uniform Civil Code and Judiciary

The judiciary in India has taken note of the injustice done to the women in the matters of many personal laws. It has been voicing its concern through a number of judgments indicating the necessity to have uniformity in personal matters of all the citizens. In the case of Shah Bano case[12] pertaining to the liability of a Muslim husband to maintain his divorced wife beyond iddat period, who is not able to maintain herself, the Supreme Court held that Section 125 Cr. P. C which imposes such obligation on all the husbands is secular in character and is applicable to all religions. In Ms. Jordan Deigndeh v. S.S. Chopra, D. Chinappa Reddy, J. speaking for the court referred to the observations of Chandrachud, C.J. in Shah Bano’s case and observed as under: “The present case is yet another event which focuses on the immediate and compulsive need for a Uniform Civil Code. The totally unsatisfactory state of affairs consequent on the lack of Uniform Civil Code is exposed by the facts of the present case”. Again in Sarala Mudgal v. Union of India[13] a division bench of the Supreme Court consisting of Kuldip Singh and R.M. Sahai, JJ, stoutly advocated the introduction of a Uniform Civil Code in India. In this case, the Supreme Court held that conversion of a Hindu male to Islam only for the purpose of contracting bigamous circumvents Section 494 of Indian Penal Code. Such marriages have been declared as bigamous and void by the court. The court after referring to various precedents on the point categorically held that till Uniform Civil Code is achieved for all the Indian citizens, there can be a temptation for a Hindu husband who wishes to enter in to second marriage while the first marriage is subsisting to convert as a Muslim. Here, the Court was pointing out the injustice done to the first wife, legally wedded. It also noted the failure of successive governments till date, to implement the constitutional mandate under Article 44 of the Constitution of India. It was suggested that the personal laws of the minorities should be rationalized to develop religious and cultural amity preferably by entrusting the responsibility to the Law Commission and Minorities Commission. The Bench further directed the Government of India to file an affidavit indicating the steps taken and efforts made to have a fresh look at Article 44 in August, 1996. However, the latter direction was treated as “obiter dicta” by the court subsequently. In a recent judgment, Lily Thomas v. Union of India[14] while dealing with the validity of the second marriage contracted by a Hindu husband after his conversion to Islam, the Supreme Court clarified that the court had not issued any directions for the codification of a common civil code and that the judges constituting the different Benches had only expressed their views in the facts and circumstances under these cases. It appears that the Apex Court in India, which showed great judicial activism initially with regard to Uniform Civil Code, has taken a backward step with this clarification.

In 2003 also the apex court, when it declared S. 118 of the Indian Succession Act as unconstitutional on the ground that it imposed an unreasonable restriction only on Christians in the matter of religious or charitable bequests [15] Justice Khare, observed as under: “it is a matter of great regret that Article 44 of the Constitution has not been given effect to. The Parliament is still to step in for framing a Uniform Civil Code in the country”. At the same time, it must be noted that when a writ petition was filed calling for a direction to mandate the government to introduce a Uniform Civil Code in the country, the same was dismissed on the ground that this was a matter for the legislature and not the judiciary.[16] Court is cautious in bringing Uniform Civil Code which is evident from its observation[17] that although a Uniform Civil Code is highly desirable, it ought not to be enacted in one go, as that would be counter-productive to the unity and integrity of the nation. The stand or the politics of the Supreme Court is seemingly interesting. While it is recommending early legislation for ushering in a Uniform Civil Code on the one hand, it has rejected all attempts to do so through public interest litigation, on the other hand. Although the Uniform Civil Code is not codified yet, it is invisibly embracing Indian society in a gradual and an unconscious way. However, it must be appreciated that the role of judiciary in this development is noteworthy through its cautious interpretation of various personal laws though it is to be admitted that minor changes have been coming into force over a long span of time but it leaves some area as untouched.

The Uniform Civil Code in Goa: A Model

The state of Goa has shown a positive step in this direction which has enacted a set of ‘Family Laws’, which apply to all communities in Goa. Based on the Portuguese Civil Code of 1867, it governs personal matters like marriage, divorce, succession, guardianship, etc., and embraces the concept of gender equality. There is no discrimination in this Code between Hindus or Muslims or Christians or any other community. Every birth, death and marriage is compulsorily to be registered and it provides for an equal division of property between husband and wife (irrespective of gender) and also between children. It enacts the rule of monogamy and the recent debated issue of triple talaq is not even has a place in the Code. The distribution of property at the time of divorce also is designed properly in consonance with gender equality. Each spouse is entitled, in case of divorce, to a half share in the property. As far as succession is concerned, in case of the death of a spouse, it is provided that the ownership of half the property is retained by the surviving spouse, the other half to be equally divided amongst all the children, irrespective of whether they are male or female, or whether they are unmarried or have got married and left the house.

Conclusion

Article 44 was made to promote unity and integrity which is the cherished goal enshrined in the preamble to our constitution. Hindu laws of marriage, succession, etc., have been drastically changed in the first decade of the commencement of the constitution but there has been resistance from Muslim community in this respect and for avoiding any resentment on their part, political parties in power remained reluctant to enforce a Uniform Civil Code. The present situation is open to misuse and is inhuman and unjust for it permits inhuman and undignified treatment to women by providing legal cover to polygamy. Justice Kuldeep Singh, in his leading judgement in Sarala Mudgal v. Union of India[18] rightly observed that Article 44 is based on the concept that there is no necessary connection between religion and personal laws. Marriage, succession and the like matters of a secular character cannot be brought within the guarantee of religious freedom in articles 25-28. Practice of polygamy has been treated as injurious to public morals in USA and many Islamic countries have also abolished polygamy[19]. The Court, therefore, requested the Government of India to secure Uniform Civil Code for all citizens of India. No gender justice could be rendered in its comprehensive sense, unless a Uniform Civil Code containing the best provisions taken from al the religions, with the sole aim of doing gender justice. Unless the women, irrespective of their religious affiliation have been conferred equal rights on par with men in personal matters, the constitutional mandate of right to equality of status and opportunity cannot be implemented. However, adequate care should be taken to see that only the rights are made uniform and not the rituals which are inherent part of the culture and religion as otherwise it would violate the basic structure of the constitution viz., secularism. It is true that Personal laws, regardless of the community, are anti-women and so it is expected that a uniform code provides equal rights to men and women. If the remedy for the subjugation of women in almost all the faiths are available in the Personal laws itself, the proper interpretation of the Personal laws in tune with its source rather than adhering to the varied cultural patterns is also an alternate solution if the implementation of Uniform Civil Code is difficult and leads to social disintegration. This will sound good especially because it is not violating the freedom to adopt and practice any religion in the Constitution also, but at the same time will eradicate unhealthy practices.

Sandwiched between the Supreme Court’s mixed response and the legislature’s wariness, Uniform Civil Code in India stands as a distant dream for a long time to come. Since the implementation of Uniform Civil Code will certainly bring radical changes in existing personal laws, the move for reform would be better if there is sufficient pressure from within the various communities in India. Care must be taken to the fact that due to historical and other reasons, the demand for a Uniform Civil Code has now acquired communal and political overtones which may lead to serious repercussions in India. Another view is that rather going for implementing a compulsory UCC, it can be made as an optional as an initial step. It is suggested here that a model Uniform Civil Code ought to focus on rights, leaving the rituals within the bounds of constitutional propriety. If it is made optional, it will promote free choice and facilitate harmonization of social relationships across the country in keeping with the changing contours of emerging societal realities. Putting together the best elements from various existing personal codes will be better and it will be better to get it framed by independently through bodies which consist of expert and eminent personalities from among various religious groups.

[1] Associate Professor (Subject to placement), Government Law College, Kozhikode

[2]  1900 BCE to 650

[3] U.C Sarkar, Hindu Law: Its character and Evolution’ (1964) 6 Journal of Indian Law Institute at 214.

[4] Dr. Parminder Kaur, Personal Laws of India vis-a-vis Uniform Civil Code: A Retrospective And Prospective Discussion, Law Mantra Think Beyond Others, Vol. 2, Issue 5 (2015).

[5]  M. Rama Jois, Legal and Constitutional History of India, (Muimbai: N.M Tripathi Pvt. Ltd. Vol. II 1990) at 4.

[6]  INDIAN CONST. Entry 5.

[7] INDIAN CONST. Article 39 (a) (d) and (e) which mandates the State to ensure that men and women citizens shall enjoy equal right to an adequate means of livelihood. There shall be equal pay for equal work for both men and women and that the health and strength of worker’s men and women shall not be abused.

[8] INDIAN CONST. Article 42.

[9] Shayara Bano v. Union of India, Judgment of the Supreme Court dated 22-08-2017

[10] AIR 1985 S.C. 945

[11](2001) 7 SCC 740.

[12] Supra n.9.

[13] AIR, 1995 1531.

[14]AIR 2000 SC 1650.

[15] John Vallamatton v. Union of India, AIR 2003 SC 2902.

[16] Maharishi Avadhesh v. Union of India, 1994 SCC Suppl (1) 713.

[17] Pannalal Bansilal v. State of AP, (AIR 1996 SC 1023).

[18](1995) 3SCC 635.

[19] Turkey, Pakistan, Bangladesh.

Need to protect the third gender from discrimination

Sathyanarayana R[1]

Introduction

The gender discrimination towards transgenders (Hijras) is a clear violation of Article 14 of the Indian Constitution which enforces right to equality. The fact that they are treated as third gender itself can be considered as violative of Article 14 of the Indian Constitution. The state should take serious steps to ensure that they are treated alike in regard to employment, education and access to basic necessities of life. On 15th April, 2014 there was a landmark decision by the Supreme Court of India which declared transgender people to be a ‘third gender’ and held that the fundamental rights granted under the Constitution of India will be equally applicable to the transgender people and gave the right to self identification of their gender as male, female or third gender.

Hijras and transgendered persons were recognized as the third gender by the law in India. India, Nepal, Pakistan and Bangladesh have recognized them as the third gender, and provide an option on all official documents right from the education system and even in the workplace.[2] They have their own lifestyle, livelihoods, origins, customs and traditions, and they have craved a space for theme self in society. Hijras could be born with hermaphrodite genitals, male genitals or female genitals[3], and hijras who are born with male variations because of which they undergo ‘nirwana’[4] which means a ceremony when the penis, scrotum and testicles of hijras who are born with male variations are removed. Hijra Farsi is the secret language developed by them.

It is also called as koti. Nobody besides the Hijra community would understand the language they speak. It was created for the purpose of self-preservation during the British Raj. While literature shows that Hijras occupied a privileged position in ancient India, the British criminalised us and put us behind bars. This language was as a survival mechanism for Hijras.[5]

Definition

A layman’s point of view of a transgender means a person who is a combination of both male and female. Any matter of confusion regarding definition or the meaning of a term which is a subject of legal debate can be sorted out with the help of the apex court’s interpretation of the term in question. This is essentially required in the case of understanding the term ‘transgender’ because there exist various definitions to the term and many more interpretations than the number of definitions it has. One of the most noted meaning of ‘transgender’ is that “transgender people are neither completely female nor wholly male; a combination of female or male and neither female nor male.”[6] Transgender people may identify as heterosexual, homosexual, bisexual, pansexual, poly sexual, or asexual.[7]

According to the Supreme Court of India, “transgender is generally described as an umbrella term for persons whose gender identity, gender expression or behaviour does not conform to their biological sex.”[8] Though at the outset, it was said that any confusion to the term which is a matter of legal debate can be solved by resorting to the Court’s interpretation of the same, it seems like the broader definition of the term ‘transgender’ given by the SC has only resulted in making the term vague and ambiguous.

Synonyms and differences in meaning

The objective of this paper is not to provide with definitions or interpretations of the term ‘transgender’. However, before moving into the details of the legal issues that the third gender face, it is imperative to understand the various groups of persons who come under the broader meaning of transgender. Hijras are group of people in India who constitute a third gender category, considered by themselves and by others to be neither men nor women.[9] It is a South Asian term used for males who have physiological feminine gender identity. Hijras are the males who have physiological feminine gender identity where as in general Hijras are born with male physiology but very few born with inter sex variation.[10] Hijras are neither men nor female by virtue but they are like women with no female reproduction organ and menstruation.

Similarly, Hijras do not have reproductive organs like men or women. Some people are intersex which means they may have both gentilia just like a Hermaphrodite is their sex chromosomes might have an extra chromosome like XXX, XXY, XYX, XYY and numerous other combinations.[11] However the word ‘HIJRA’ in India is used to refer an individual who is transsexual or transgender. Apart from that, they are even called as Aravani, Aruvani,  kinnar, eunuch, kothi, jagappa or chaakka.[12]

Reformative steps

In Karnataka the Government introduced a pension scheme called “mythri” wherein transgenders with annual income less than Rs. 12,000 per annum in rural areas and Rs. 17,000 per annum in urban areas will be eligible for the scheme. They are required to submit relevant documents including a certificate from the Department of Health and Family Welfare to prove their gender. But the applicants are not entitled to any other benefits under the social security scheme.[13]

In Tamil Nadu a pension of RS 1000 is given to the transgender and people who are above 40 years and are living in poverty are eligible for the same. The Government announced yet another scheme for economic empowerment of transgenders wherein bank loans up to 15 lakh with 25% subsidy are provided for income generation activities by transgender self-help groups. Various economic activities such provision stores, rearing of milk animals, canteens, soap production units, napkin, milk products , plying auto rickshaws, and business activities related to cloth, coir, rice have been taken up by these self help groups. Under this scheme, 51 transgender SHGs have benefited with loans for various projects worth 2.20 crore with 25% subsidy of 55 lakh and 1.60 crore as bank loan.[14]

Odisha was the first state to implement and provide food grains, pension, health, education, and housing for transgender community, thus including them in the Below Poverty Line (BPL) category. The step has been taken to empower the transgender community.[15] They will be given a BPL card in which they can access social benefits under various government welfare programs.

Irrespective of the fact that there exist various such schemes as the ones above mentioned, only few transgenders are benefited and these welfare schemes do not address the plight of the rest of them. It is time that the respective governments of every state take up the responsibility to make it a point that these welfare schemes are made applicable to each and every transgender. Few of them are even scared to disclose their identity as a transgender.

Kerala had announced a transgender policy back in 2015, becoming the first state in India to do so. The policy ensures them equal access to social and economic opportunities, resources and services, the right to equal treatment under the law, right to live life without violence and equal right in all decision making bodies.[16] Though there were opportunities given for the transgender people in the Kochi metro, in one week, of the 21 transgenders employed, eight quit their job. This is because of non-availability of adequate lodging and conveyance facilities.[17] Andhra Chief Minister too has announced pension for transgender at an amount of Rs 1000 and a ration card and a house for each member in the community.[18]

NALSA v. Union of India: The reality v. the law

The judgment passed by the Supreme Court ensured that all the transgender people should be considered as a third gender and that they should be provided with all the benefits like the mainstream people. But, irrespective of fact that, they are still facing the same problem as earlier. In reality they are not provided with any jobs and past instances reveal that even though they are offered jobs, they eventually quit the jobs due to social discrimination and lack of social security in various other matters.

Though the welfare schemes are in existence, the reality is that only 4% of the transgender are getting that benefit, that too with the lot of shortcomings. The judgment has not been implemented with full force till date and the objectives behind the ruling of the Supreme Court becomes fulfilled only if transgenders are provided with adequate education facilities and job opportunities. It should be borne in mind that campus bias forces transgenders to drop out[19].

Most of the students who are from the transgenders drop out because they find it difficult and insulting to be amidst the people wherever they go. Not only in educational institutions even in the workplace some are forced to drop out and some they themselves drop out because of the problems they face.

Conclusion: Loopholes that need to be rectified

Right from the education system everything should be provided to them. People who want to undergo SRS (sex reassignment surgeries) should be given free or affordable surgeries and stets should be taken care to ensure that most of the hospitals provide facilities for such surgeries. Being a common law country, India should be at par with recognizing the rights of innocent civilians like the United States. Our country should learn from Oregon’s Transportation Commission which was the first institution to allow residents to identify as “non-binary”, a third gender option behind male or female and the Oregonians can select their gender as M, F or X as their gender on licenses and identification cards.[20]

The future challenges that lie in the case of rights of transgenders are the legal recognition in cases of adoption and marriage. Legal issues  related to transgender becoming surrogates, the legal issues connected with the same, legal recognition of marriages between transgenders etc are the future challenges that our legal system will have to face. As regards legal recognition of marriage between transgenders are concerned, a transgender person may be married to a person of the same sex.

That situation arises, for example, when one of the spouses in a heterosexual marriage comes out as transsexual and transitions within the marriage. If the couple chooses to stay together, as many do, the result is a legal marriage in which both spouses are male or female. Alternatively, in states that do not allow a transgender person to change his or her legal sex, some transgender people have been able to marry a person of the same sex. To all outward appearances and to the couple themselves, the marriage is a same-sex union.

In the eyes of the law, however, it is a different-sex marriage because technically speaking; the law continues to view the transgender spouse as a legal member of his or her birth sex even after sex-reassignment. The only way to overcome these issues is by giving transgenders proper freedom and equal liberties in all fields they deserve and there should be no discrimination between the genders as all of them should be treated equally before the law and the same is with the case of opportunities being provided to them.

[1] 5th semester BBALLB student at School of Legal Studies, REVA University, Bangalore

[2] Nikhil Thorat, 17 Things you should know about hijras, another caste in India, TOPYAPA, Sep 30, 2015, (Sep. 15, 2017, 2:23 P.M.), http://topyaps.com/things-to-know-about-hijras

[3] Sathya Narayana, The Scientific Causes behind the Birth of Hijra or Third Gender, SPEAKINGTREE, Aug 11, 2016, (Dec. 1, 2017, 8:19 P.M.), https://www.speakingtree.in/allslides/the-scientific-causes-behind-the-birth-of-hijra-or-third-gender

[4] Nikhil Thorat, 17 Things you should know about hijras, another caste in India, TOPYAPA, Sep 30, 2015, (Dec. 1, 2017, 1:11 P.M.), http://topyaps.com/things-to-know-about-hijras

[5] Anahita Mukherji, Hijra Farsi: Secret language knits community, THE TIMES OF INDIA, Oct 7, 2013, (Sep. 16, 2017, 10:36 P.M,), http://timesofindia.indiatimes.com/india/Hijra-Farsi-Secret-language-knits-community/articleshow/23618092.cms

[6] Jayshree Bajoria, Making Transgender Rights a Reality in India, HUMAN RIGHTS WATCH, July 25, 2017, (Sep. 14, 2017, 10:03 P.M.), https://www.hrw.org/news/2017/07/25/making-transgender-rights-reality-india

[7] Fatima Nuyab, What is the difference between Hijra and Transgender, QUORA, April 16, 2017, (Sep. 14, 2017, 9:19 P.M.), https://www.quora.com/What-is-the-difference-between-Hijra-and-Transgender#MoreAnswers

[8] Para 11 of NALSA v. UOI (2014) 5 SCC 438

[9] Serena Nanda, Neither Man Nor Woman: the Hijras of India, PRENTISS RIDDLE, Dec 19, 1991, (Sep. 25, 2017, 9:57 P.M.), http://prentissriddle.com/play/hijras.html

[10] Nikhil Thorat, 17 Things you should know about hijras, another caste in India, TOPYAPA, Sep 30, 2015, (Sep. 23, 2017, 9:30 A.M.), http://topyaps.com/things-to-know-about-hijras

[11] Safiya, What sexual organ does a transgender have, QUORA, Feb 18, 2016, (Sep. 25, 2017, 9:37 P.M.), https://www.quora.com/What-sexual-organ-does-a-transgender-have

[12] Nikhil Thorat, 17 Things you should know about hijras, another caste in India, TOPYAPA, Sep 30, 2015, (Sep. 14, 2017, 9:38 P.M.), http://topyaps.com/things-to-know-about-hijras

[13] Karnataka Government Launches Pension Scheme ‘Mythri’ For Transgender People, GAYLAXY EMPOWERING EXORESSION, Feb 22, 2014, (Sep. 27, 2017, 11:30 A.M.), http://www.gaylaxymag.com/latest-news/karnataka-government-launches-pension-scheme-mythri-for-transgender-people/#gs.ZsPcIdQ

[14] Transgenders to get Rs 1,000 monthly pension, THE TIMES OF INDIA, Aug 2, 2012, (Sep. 27, 2017, 8:39 P.M.), http://timesofindia.indiatimes.com/city/chennai/Transgenders-to-get-Rs-1000-monthly-pension/articleshow/15322613.cms

[15] This state is first in India to provide pension and food benefits to the transgender community, INDIA TODAY, June 6, 2016, (Sep. 26, 2017, 9:28 P.M.), http://indiatoday.intoday.in/education/story/bpl-status-to-transgenders/1/685370.html

[16] Nagpur Today, Kochi Metro hires transgender/ hijras, can Nagpur metro follow the example?, NAGPUR TODAY, May 13, 2017, (Sep. 17, 2017, 10:27 P.M.), http://www.nagpurtoday.in/kochi-metro-hires-transgender-hijras-can-nagpur-metro-follow-the-example/05131505

[17] Ramesh Babu, In one week, eight transgender employees quit working for kochi metro, HINDUSTAN TIMES, June 25, 2017,(September. 13, 2017, 10:30 P.M.), http://www.hindustantimes.com/india-news/in-one-week-eight-transgender-employees-quit-working-for-kochi-metro/story-XDp6xgnA2Y6dhaAYcs8abP.html

[18] Chief Minister promises pension, housing for transgenders, THE HANS INDIA, Sep 22, 2017,(Sep. 27, 2017, 8:27 P.M.), http://www.thehansindia.com/posts/index/Andhra-Pradesh/2017-09-22/Chief-Minister-promises-pension-housing-for-transgenders/328280

[19] Ambika Pandit, Campus bias forces transgenders to drop out, TIMES OF INDIA, June 8, 2017, (September. 13, 2017, 10:11 P.M.), http://timesofindia.indiatimes.com/city/delhi/campus-bias-forces-transgenders-to-drop-out/articleshow/59045435.cms

[20]Laurel Wamsley, Oregon Adds A New Gender Option To Its Driver’s Licenses: X, THE TWO-WAY, June 16, 2017, (October. 4, 2017, 7:48 P.M.), http://www.npr.org/sections/thetwo-way/2017/06/16/533207483/oregon-adds-a-new-gender-option-to-its-driver-s-licenses-x

Compromising Citizens’ Privacy for National Interest: A Fair Trade-Off?

Aryan Vij ((1st Year Student of B.A.LL.B. (Hons.), National Law Institute University (NLIU) Bhopal, M.P.)).

On December 2, 2015, two terrorists of Pakistani descent brutally killed 14 Americans and seriously injured 22 others in a mass shooting attack in San Bernardino, California. In the ensuing investigations, the FBI recovered an iPhone belonging to one of the terrorists.

Citing national interest, the FBI made a formal request to the phone’s manufacturer, Apple, to unlock the device and give it access to the data stored in it for possible clues about the terrorists’ wider network.

Apple refused to accede to the FBI’s request, and vowed to vigorously fight a California court order directing it to cooperate with the FBI. A few weeks later, the FBI voluntarily withdrew its request to Apple and asked Judge Sheri Pym to drop the case.

Leading technology companies, including Google and Facebook, hailed Apple’s stand against the government to compromise the privacy of millions of iPhone owners by handing over the access codes to the FBI.

The Individual is “Sovereign”

In its recent landmark 547-page judgment page judgment, the nine-judge Supreme Court bench in India declared Right to Privacy as a fundamental right. Justice Chandrachud’s order, as part of the judgment, is most remarkable because it traces the historical roots of the right to privacy. The order quotes Aristotle who recognized over 2,300 years ago that every citizen has a “confidential zone” which only belongs to them (Justice KS Puttaswamy v. Union of India, WP(C) No: 494/2012 decided on August 24, 2017).

Justice Chandrachud recalled the “Commentaries on the Laws of England” (1765) where William Blackstone said that certain “absolute rights are vested in the individual by the immutable laws of nature, which include the right to personal security and reputation.” The order cites from the Treatise on the Law of Torts (1888) where Thomas Cooley notes that “the right of one’s person may be said to be a right of complete immunity; the right to be alone.”

Justice Chandrachud, in his order, goes on to quote from an essay “On Liberty” (1859) by John Stuart Mill, which says that, “Over himself, over his own body and mind, the individual is sovereign.”

The Importance of Individual’s Consent

The Canadian Supreme Court, in the case of “Her Majesty, The Queen vs. Brandon Roy Dyment” (1988), highlighted the critical importance of individual consent even in the matters pertaining to the safety and security of the state. The case involved a physician who collected a patient’s blood sample for medical reasons, and handed it over to the police as part of a criminal investigation.

The Supreme Court held in the case that using the blood sample without consent even for the state’s security purposes was a violation of law.  As Justice LaForest famously said, “The use of a person’s body without his consent to obtain information about him, invades an area of personal privacy essential to the maintenance of his human dignity ((Bailey, Jane, Missing Privacy Through Individuation: The Treatment of Privacy in the Canadian Case Law on Hate, Obscenity, and Child Pornography (2008). Jane Bailey, “Missing Privacy Through Individuation: The Treatment of Privacy in the Canadian Case Law on Hate, Obscenity and Child Pornography”, 31 Dalhousie Law Journal 55, 2008. Available at SSRN: https://ssrn.com/abstract=2279618)).”

Such protection of an individual’s privacy even brings into question the validity of the Indian government collecting biometric information from the citizens without giving them an option of “consent.” The Supreme Court of India is now setting up a five-judge Constitution bench to hear petitions challenging the government’s decision to make Aadhaar mandatory for availing various welfare benefits ((Aadhaar case: Supreme Court to set up five-judge Constitution bench to hear pleas, The Indian Express (October 31, 2017) and available at http://indianexpress.com/article/india/aadhaar-case-supreme-court-to-set-up-constitution-bench-to-hear-pleas-4913605/)).

A Universally Unfair Trade-Off

Technology has universalized the world, and challenges to citizens’ privacy in the name of national security are not confined to one country alone. On September 26, 2017, Microsoft CEO Satya Nadella launched his book, “Hit Refresh,” where he writes that the consumers’ trust in governments around the world is diminishing because of weak data privacy laws, which allow the governments to act unilaterally, while hiding behind the cover of national security ((Hit Refresh: The Quest to Rediscover Microsoft’s Soul and Imagine a Better Future for Everyone. Satya Nadella, Greg Shaw, Jill Tracie Nichols, Harper Collins (2017).)).

In his book, “Nothing to Hide: The False Trade-off between Privacy and Security” (Yale University Press), author Daniel J. Solove comprehensively demolishes the fallacious pro-security argument that continues to allow governments to breach privacy of the citizens. Solove says that while the law seeks to find the elusive balance between security and privacy, systemic problems disrupt that balance. Judges are typically deferential to policy-makers in the matters of security, and the citizens lose in the process ((Nothing to Hide: The False Trade-off between Privacy and Security. Daniel J. Solove, Yale University Press)).

Privacy IS National Interest

The debate on privacy versus national interest should begin with the question: What exactly is national interest? National interest is not interest of the “nation,” which is a notional entity. It is not even the interest of the political class that rules the nation. National interest is the interest of the people who constitute the fabric of the nation.

It brings us to the second question: What is in the best interest of the people of the nation? Who gets to decide that? In a democratic society, only people must decide what is in their best interest. The political class cannot decide that on behalf of the people. They are the elected representatives of the people. Whatever the people will decide, the representative must represent that as national interest in a democracy.

This brings us to the ultimate question: What do the people want? Do people want to be the deciders of their own destiny, or do they want to leave it in the hands of a deeply distrusted political class that has historically worked only with a single-minded goal of perpetuating its seat of power?

A Failed Trade-off

Governments around the world have traditionally held the greatest contempt for citizens’ privacy in the name of national security and national interest. Has this approach led to a decrease in terrorism over the decades? Has this approach led to a decrease in nuclear, chemical, biological and other forms of global threats to the world?

The truth is that citizens’ privacy has the least degree of connection with terrorism, war, climate change and other forms of manmade dangers that have been unleashed on the civilization by those who gain political power and then have a compelling need to perpetuate that power by compromising all the basic human values of integrity and dignity.

Privacy – A Birthright

To borrow the famous phrase from India’s freedom struggle, privacy is not even a fundamental right, it is a birthright. Privacy is the core need of a human being, whom Aristotle called a “social animal.” Human beings, like many other species, by nature live in herds. When you live in a herd or in an evolved social system, your privacy becomes your most intimate possession. In the Bible, even the world’s first citizens, Adam and Eve, had privacy as their first basic need.

Without privacy, you are naked because someone else can peep into your private existence and violate it. What can be a bigger interest of a human being than privacy? To extend this argument, what can be a bigger national interest than the citizens’ privacy? Those who propagate the myth that privacy is dichotomous from national interest, and that there must a balance or a trade-off between the two, either do not understand the deepest human values of personal freedom and dignity, or have a vested interest in compromising the privacy of citizens to perpetuate their own power over them.

Exposing the Propagandist Element of ‘National’ Interest

Any term that begins with the word “national” should first of all be examined with tempered caution and suspicion. This word is the greatest tool of propaganda that has ever been invented since the inception of civilization by men to rule over other men. Hitler used it to great effect by misleading an educated and aware nation like Germany, completely subordinating their will, and making them support the barbarian extermination of millions of Jews, followed by a globally destructive world war – all in the name of ‘national interest’.

Hitler devoted an entire Chapter 6 to propaganda in his autobiography Mein Kampf. He wrote: “All propaganda must be popular and its intellectual level must be adjusted to the most limited intelligence among those it is addressed to. The art of propaganda lies in understanding the emotional ideas of the masses ((Mein Kampf : An Autobiography Of Adolf Hitler 1st Edition. Adolf Hitler, Gbd Books (2010).)).

“The function of propaganda,” Hitler further wrote, “is not to weigh and ponder the rights of different people, but exclusively to emphasize the one right which it has set out to argue for. Its task is not to make an objective study of the truth, and then set it before the masses with academic fairness. On the contrary, its task is to serve our own right, always and unflinchingly.”

Nations have Wronged the Individual

The individual supersedes the nation. Without an individual, there is no nation. However, ‘nationalism’ presents a twisted truth, which suggests that ‘national interest’ supersedes ‘individual interest’ – as if national interest is something different from individual interest.

The advancement of democracy in the world has, ironically, added more strength to the counterfeit concept of nationalism. Democracy, by definition, is a celebration of the individual. Although democracy has brought freedom to the many against the power of an autocrat, but it has also compromised the liberty of the one against the power of the many ((REINHOLD NIEBUHR, The Nation’s Crime Against the Individual, The Atlantic (November 1916 Issue) accessible at https://www.theatlantic.com/magazine/archive/1916/11/the-nations-crime-against-the-individual/306365/)).

Can there be a ‘Fair’ Trade-off of Self-respect?

George Orwell’s Nineteen Eighty-Four described a world marked by a complete absence of citizens’ privacy and an absolute governmental control and surveillance. The citizens in the Orwellian world are told to speak with care because the ‘Big Brother’ is watching. The dark world of Orwell’s 1984 is a world without citizens’ autonomy, dignity and self-respect ((1984, George Orwell and Erich Fromm. Signet Classics (1950))).

Privacy is the foundation of citizens’ freedom, dignity and self-respect. The privacy of Draupadi constituted the self-respect of Pandavas.

Lord Krishna said in the Bhagvad Gita, as the two gigantic armies stood facing each other on the battleground: “Self-respect, O Arjuna, is worth dying for.” Trading self-respect for something as emotionally deceptive and propagandist as ‘national interest’, which has already caused enough bloodshed in history, is truly against the interest of a nation – where ‘I’ am the ‘nation’.

Quadrilateral alliance (Quad) – the next door of opportunity

MV Karthik Narayanaswamy ((MVK Narayanaswamy is an audit and secretarial consultant based at Wayanad District of Kerala State. He is a Company Secretary and possess a Master Degree in Business Administration with specialization in Finance. He also holds Bachelor Degrees in Public Administration as well as Commerce. Author in this article made an attempt to share his thoughts on Quad (the Quadrilateral alliance formed among India, Japan, USA and Australia)).

Government of India demonstrated a very positive approach in building healthy relations with the rest of the world nowadays. Honourable Prime Minister Shri. Narendra Modi’s effort in this regard needs a special mention. It is evident from the policies of the present India Government that, the government is giving an utmost importance in building and maintaining bilateral and multilateral relations with rest of the world. While framing such policies the present government has given due credit those Indians (Pravasi) who are spread across the world. Programs like ‘Pravasi Bharateeya Divas’ are playing a vital role in these context. As a result, Government of India even established relationships with those countries which didn’t have any relationship with India in last 30 – 40 years. Bilateral relationship with Canada is an example. Similarly, India’s participation, membership and recognition in various international organisations, groups and forums indicates the increasing importance of the nation along with other leading countries viz. US, France, Japan etc.

India joining hands with Australia, United States of America & Japan forming Quadrilateral alliance (QUAD) drew global attention. The idea of Quad was initially mooted in the year 2006 by then Japanese Prime Minister Shinzo Abe. Under this alliance the member countries of Quad agreed upon a free, open, prosperous and inclusive Indo-Pacific region serves the long-term interests of all countries in the region and of the world at large.

The coalition held their first formal talk in Manila, Philippines and consultations were held on issues of common interest in the Indo-Pacific region with a focus on cooperation based on converging vision and values for the promotion of peace, stability and prosperity in the area. The Quad gained the global attention mainly because of following reasons;

  • China is trying to become the leader of Asia as first step and later leader of world, a position higher than USA; and
  • Significantly, India may use this alliance as a new strategic tool against China and Pakistan in its external affairs.
  • Similarly, Quad has got the potential to build immense pressure against China in their One Belt and One Road (OBOR) initiative, String of Pearls (Group of Ports), Invasion to South China Sea etc.

Though, demonetization (as per reports of Economic Survey 2016-17, Volume II)and GST implementation, has reduced the growth in GDP, Indian economy’s growth prospect is ever increasing.World Bank’s ‘Ease of doing  business’ report  shows that India’s ranking in ease of doing stands less than 100 for 2017-18 whereas in 2016-17 the rank was 131. World Bank reports also shows that India is World’s fastest growing economy. Thus, it is evident that china view India as its competitor due to its growth in economy.

Being a developing country as well as world’s fastest growing economy, India need co-operation from the rest of world. For that economic and social association with rest of the world is indeed, especially with developed economies. From this sense, Quad can be seen as an important strategic relationship even in addressing common challenges of terrorism and proliferation linkages impacting the region as on enhancing connectivity.

India’s Act east policy (Earlier, Look east policy) is the cornerstone of engagement of this region. Act east policy focuses on increased engagements with the regional blocs. The idea of Quad is to promote free trade and defense cooperation across a stretch of ocean from the South China Sea, Indian Ocean and all the way to Africa. Earlier there was a trilateral arrangement between India, USA and Japan. However later according to Japan’s wish Australia was also added and the Quad Group was born.

When we observe from Pakistan, it is a jealousy move of India. As everyone know that, Pakistan is trying to hinder our development process through terrorism and other anti- national elements. The situation of insurgency in Jammu and Kashmir is a very good example of Pakistan’s intervention in India. To certain extend China is also supporting Pakistan in order to hinder India’s growth. China’s objection against India’s membership in Nuclear Supplier Group (NSG) on a baseless ground (that, if India is given membership, Pakistan should also be given membership since they applied in the same time) could be co-related in these lines.

India is enriched with both natural as well as human resources, and it is the responsibility of the State to create necessary opportunity to explore its resources. When an eye-catching opportunity is created the problem of “Brain drain” can also be solved which will indeed boost the overall development of the society. As mentioned earlier, the co-operation and support from developed countries as well as others are very much needed for India during this transition period.In these context, let’s see Quad as a next door of opportunity which could add fuel to India’s overall growth.

CLAT: Way to Legal Education

Common Law Admission Test (CLAT) : Way to Legal Education

The concept of National Law Universities to act as a pace-setter and testing ground for bold experiments in legal education came up because the pattern of legal education at traditional Universities was not found to be satisfactory. In course of time, fourteen National Law Universities were established to achieve excellence in legal education. These Universities are national in the sense that substantial number of seats in all these

Universities are filled-up by students from all over India and the academic staffs are also recruited on all India basis. Till 2007 each National Law University conducted tests separately in different Centers spread all over the country and thousands of students after their 10+2 examinations took those multiple admission tests at considerable expense and with lots of inconvenience. In order to avoid the hardship faced by the candidates in appearing in a number of tests for admission to different individual Universities initiative was taken for conducting a Common Law Admission Test (CLAT) for admission to different National Law Universities. However, only eleven out of the fourteen National Law Universities are part of CLAT. Continue reading “CLAT: Way to Legal Education”

Democracy, government and society: Vision of Dr. B.R Ambedkar

Dr. H. Abdul Azeez ((Associate Professor, Government Law College, Kozhikode)).

Abstract

Dr. Bhimrao Ramji Ambedkar, one of the greatest founding fathers of modern Indian Constitution and an eminent scholar was a great leader and humanist India had ever produced. He fought for minimizing not only the grievances of the untouchables, but to give improvements in every aspect of human life may it be social, political, cultural, anthropological, or religious.  It will be wrong to call him merely a humanist; instead he was a social humanist. Democracy is a form of Government to maintain a better society wherein maximum amount of liberty is ensured for individuals consistent with the attainment of order and security within the State. Truly speaking, democracy takes the form of government wherein the sovereignty vests with the people in general. The vision of Dr. Ambedkar is more significant in countries which witness many deviations from the above basic principle of democracy. With a noble intention to make participation of major citizenry Dr. Ambedkar put forth a broader perspective than the generally perceived idea of political liberty, equality and fraternity. His emphasis was on social and economic dimensions of democracy.

Key Words: Ambedkar, democracy, liberty, society.

Preferred Citation: Dr. H. Abdul Azeez, Democracy, government and society: vision of Dr. B.R Ambedkar, The Lex-Warrier: Online Law Journal (2017) 11, ISSN (O): 2319-8338 OR LW (2017) November 8

Introduction

Dr. Ambedkar, after obtaining a doctorate and barristership from England, returned to India dedicating himself to the task of upliftment of the untouchable community. Standing as a champion of democracy and reformer of society, he is considered as unique in his mission. If he can be described in one word, it would be he as a “humanist” and if in two words, he, then, definitely must be known as social humanist[1].

The word democracy is derived  from the Greek words ‘demos’  and ‘kartos’, the former meaning the people and the later power.[2] Democracy is a form of government in which a substantial proportion of citizenry directly or indirectly participates in ruling the state. There can be direct and indirect democracy. In the first one, citizens vote on laws in an assembly, as they did ancient Greek city states whereas in an indirect democracy citizens elect officials to represent them in Government.

Today, the essential features of democracy as understood in the western world are that the citizens be sufficiently free in speech and assembly, as for example, to form competing political parties in regularly held elections.[3]

History of democracy

It can be traced back to the Greek city states as the first democratic form of Government during the sixth century B.C. These Greek democratic institutions were collapsed during the imperial march of Macedonia and Rome. The democratic ideas were surrendered on a significant scale until the 17th century. The Barbarian invasions and the fall of Rome in the 5th century A.D. resulted in a European society that was primarily concerned with security rather than democratic institutions. In ancient India too, the earliest organization within Indian monasteries was of democratic in nature. One of the reasons for this was the teachings of Budha that there could be no absolute authority vested in one person and the Sangha too developed a certain diversion of labour and hierarchical administration.

Precisely, democracy must be understood ‘as a form of Government, but a form which exists to supply and maintain a better society and to provide the maximum amount of liberty for individuals consistent with the attainment of order and security within the State’. It is admitted that in democracy, sovereignty vests with the people in general. But the world today witnesses many deviations from this very basic principle of democracy. In this scenario, the relevance of the thoughts of a great revolutionary like Dr. Ambedkar is more significant. This paper analyses the vision, concept and ideologies of this visionary regarding democracy in the present day politics of polluted democratic principles.

Ambedkar and Democracy

Dr. Ambedkar was a great political leader, a legal luminary, and a social reformer. He was the champion of human rights and democratic form of government. The idea of democracy he put forth had much broader perspective than the generally perceived idea of political liberty.[4] His concern always was on people, especially the down trodden, in terms of equality and freedom. In order to make ‘democracy’ meaningful at least a substantial proportion of citizenry must be able to participate in ruling the state.

Realizing this fact, Dr. Ambedkar strongly argued for democracy as a mode of administering the country. He walked away from the conventional concepts of democracy and viewed democracy as an instrument of bringing about change peacefully. To him, democracy does not merely mean rule by the majority or government by the representatives of the people. Without accepting the formalistic and limited notion of democracy, he defined it in a better fashion understanding drastic changes in the social and economic spheres of society. He stood for an all-round democracy, not a government in vacuum and a way of life.

Underlining the importance of democracy, Dr. Ambedkar stated that “it seems to me that there lies on us a very important duty to see that democracy does not vanish from the earth as the governing principle of human relationship. If we believe in it, we must both be true and loyal to it. We must not only be staunch in our faith in democracy, but we must resolve to see that whatever we do not help the enemies of democracy to uproot the principles of liberty, equality and fraternity”.[5] He stood for social justice that has got high significance in the context of Indian society which is divided into castes and communities as they create walls and barriers of exclusiveness on the basis of superiority and inferiority that pose serious threat to Indian democracy.[6]

Dr. Ambedkar wanted democracy as an instrument of bringing about change peacefully. For him, democracy does not merely mean rule by the majority or government by the representatives of the people. A better fashion of understanding of democracy is that it must be viewed as a way of realizing drastic changes in the social and economic spheres of society. The formal institutions of democracy like elections, parties and parliaments will not be effective in an undemocratic atmosphere.

Political democracy was explained as the principle of ‘one man one vote’. Democracy means a spirit of fraternity and equality and not merely a political arrangement. Considering the economic aspects, he argued that if economic inequalities are ignored as the western type of parliamentary democracies do cannot bring a holistic development. Democracy, in his opinion should be an attitude of mind, an attitude respect and equality towards their fellows.

Dr. Ambedkar emphasized the social and economic dimensions of democracy and forcefully argued that political democracy cannot succeed where there is no social and economic democracy. To him democracy is “a form and a method of Government whereby revolutionary changes in the economic and social life of the people are brought about without bloodshed”.[7] Here we can see the difference from Marxism that advocates bloodshed against State and he is supporting peaceful means though it is slow but far more enduring, stable and permanent.[8]

He opted peace against violence and bloodshed. The solution of every problem shall be adopted, in his view, through constitutional means of nonviolence. In his opinion “democracy is a mode of associated living”.[9] Political democracy, in his opinion rests on four premises which are absolutely important in Democracy to conclude that main objective of Democratic Government should be the welfare of individuals. They are listed below.[10]

  1. The individual is an end in himself.
  2. The individual has certain inalienable rights which must be guaranteed to him by the Constitution.
  3. The individual shall not be required to relinquish any of his constitutional rights as a price of any privilege.
  4. The state shall not delegate power to private persons to govern others.

He demanded for equality and demanded to take effective steps to drive away glaring inequalities in the society. So that oppressed or suppressed class of people can get over in order to reach perfect democracy. In his opinion ‘caste has killed public spirit, destroyed the sense of public charity and made public opinion impossible.[11] Wide inequalities are the most dangerous aspect of our democracy that when elections come the political parties promise rice, wheat and other essential things on cheaper rates which are the basic needs of people that should have been fulfilled earlier and in fact the political parties are using the poverty of people.

He argued for the existence of strong opposition in order to avoid dictatorship, for which it is necessary in democracy to have two political party systems in order to have the successful working of democracy.[12] He believed that only equality before law cannot bring justice without equality of treatment in administration and the administration must understand that they are men in power who have to show undivided allegiance to the best interest of the country.[13]A veto of long term of five years at the hands of people, a better option will be an immediate veto in the parliament, he opined.

The wisdom in his words is visible today as is witnessed in an ineffective opposition. In spite of a strong constitutional guarantee before law and in administration, political parties are playing religion and caste role everywhere, shifting the destiny of administration in favor of their caste or party fellows. Though democracy is against the hereditary system of ruling, leaders of many political parties have been sticking to the seats and are taking their sons, wives and other relatives. Moreover, the trend of Members of Parliament involved in crimes is increasing continuously. Money becomes the prime player in the politics and it is degrading our democracy.

Dr. Ambedkar was one of the admirers of freedom and self-government of India.[14] He urged for constitutional morality calling Constitution as only a skeleton, the flesh being what we call as constitutional morality.[15] The most relevant observation of Dr. Ambedkar is that the minority must be confident in the hands of the majority.[16] His intellect can be understood in his emphasizing on generating public conscience which can be defined as ‘conscience’ which becomes agitated at every wrong, no matter who is the sufferer; and it means that everybody whether he suffers that particular wrong or not is prepared to join him in order to get him relieved.[17] Public conscience is an essential condition for successful working of democracy because without public conscience democracy cannot be successful.

He added the relevance of changing political democracy to social democracy for developing State socialism. It is to be noted that he was greatly influenced by liberal thought, but at the same time aware of the limitations of liberalism. He greatly appreciated parliamentary democracy. At the same time critically examined it and argued that parliamentary democracy was based on liberalism. It emphasized only liberty whereas true democracy implies both liberty and equality. This analysis becomes very important in the Indian context.

Dr. Ambedkar understood the need for the existence of an open democratic form of society. Isolation and exclusiveness will not go hand in hand with democracy. He opines that, “It may not be necessary for a democratic society to be marked by unity, by community of purpose, by loyalty to public ends and by mutuality of sympathy. But it does mean unmistakably two things. The first is an attitude of mind, an attitude, respect and equality towards their fellows. The second is a social organization free from rigid social barriers.”[18] Democracy is incompatible and inconsistent with anything that result in the distinction between the privileged and the unprivileged. He identified the economic structure adopted in India responsible for widening the gap between the haves and have-nots and observed that because of this form of democracy India cannot function with merits. He further stated that, “Democracy is not a form of government, but a form of social organization.”[19] The coexistence of all three democracies is imperative to achieve the goals of equality and fraternity as enshrined in our Constitution in the Preamble.[20]

Democracy in Indian Constitution

Indian Constitution, says Granville Austin, is first and foremost a social document.[21] The preamble of Indian Constitution recognizes India as a democratic nation endeavoring to secure to the citizens of India Justice, liberty, equality and fraternity. The Constitution of India with long parliamentary debates drafted by the committee of wise people headed by Dr. B.R. Ambedkar borrowed from various Constitutions of the world over and Government of India Act, 1935. Rule of law is one of the important parts of the basic structure of the Indian Constitution.[22] In Kihoto Hollohan v. Zachillhu[23] it was held by the Supreme Court of India that the democracy is a part of the basic structure of our Constitution; and rule of law and free and fair elections are basic features of democracy.

Democratic State

The word ‘State’ has been defined in the same manner in Parts III and IV of the Indian Constitution which indicates that the founding fathers of the Constitution wanted the nation’s ideals of national unity and integrity, and a democratic and equitable society, to be achieved through a socio-economic revolution pursued with a democratic spirit using constitutional, democratic institutions.[24] In Union of India v. Major S.P. Sharma[25] it was observed by the Supreme Court that in a democracy governed by rule of law, no Government or authority has the right to do what it pleases.

Conclusion

B.R. Ambedkar’s idea on democracy and to show that the roots of democracy lie not in the form of Government but in the social relationships. The intellectual contribution of Dr. Ambedkar to the growth of democracy as a means of emancipation is noteworthy. Successful functioning of democracy necessitates an ideal society for conveying a change taking place from one part to other parts. It is even after the six decade of independence, the Indian society as well as political democracy has been unable to generate the ideal conditions essential for the smooth functioning of democracy as per Dr. Ambedkar’s perspective.

He envisioned that the society must be based on the principles of liberty, equality and fraternity. But the journey of Indian democracy has not been smooth and easy and larger part of Indian population has not enjoyed the fruits of democracy. Proper implementation and observance of rule of law and constitutional principles is the only solution to address this challenge. The future of Indian democracy depends a great deal on a revival of Dr. Ambedkar’s visionary conception of democracy.

Dr. Ambedkar’s vision of democracy was closely related to his ideal of a “good society”.[26] For him, democracy was both the means and the end of this ideal. Democracy meant much more to him than democratic government, instead essentially an attitude of respect and reverence towards fellowmen and an instrument for social transformation and human progress. He urged for inclusion of social ethics to acquire a central role in democratic politics so that a new world may come into view.

His warning on 26th January 1950 when Indian Constitution was adopted that we are going to enter into a life of contradictions of equality in politics and inequality in social and economic life and if we continue to deny it for long our political democracy will be in peril seems to be true in the current social scenario. The future of Indian democracy needs vision of Dr. Ambedkar about democracy and socialism. The political democracy though survived is not in a good condition.

Indian democracy is confronting new challenges, like Terrorist groups, economic inequality, the rise of militarism, etc. At the same time new areas boosting democratic spirit is also developing like the right to information, the panchayati raj amendments, modern communication technology, transnational cooperation, representation of women in politics, etc.

If the Directive Principles of the Constitution[27]are implemented and revived, hopefully the democracy can be regained in its full spirit and in this regard concepts of Dr. Ambedkar will contribute much. It is a time that we must strive hard to save democracy, the most valued political term in the modern world. It is sad to notice that though, all free societies are democratic, and democracies fail to protect individual freedom. We must consider ourselves as architects of democracy to beautify the constitutional structure.

[1] Ashok Kumar, Dr. Ambedkar’s Thoughts On Democracy And Its Relevance in Existing Indian Thoughts Scenario, Indian Streams Research Journal (Oct. ; 2012) .

[2] KSHIRSAGAR RAMCHANDRA KAMAJI, POLITICAL THOUGHT OF DR. BABASAHEB AMBEDKAR, 53 (Intellectual publishing house, New Delhi, 1992).

[3] Ashok Kumar, Supra note 1.

[4] Ibid.

[5] http://www.mainstreamweekly.net/article467.html (accessed on 30th Mar. 2016).

[6] Dr. Ambedkar’s vision- social justice” for the women, scheduled castes and scheduled tribes, accessible at http://shodhganga.inflibnet.ac.in/bitstream/10603/10806/10/10_chapter%203.pdf (accessed on 27 Jan. 2016).

[7] KSHIRSAGAR RAMCHANDRA   KAMAJI, Supra note 2 at 54.

[8] Thorat Sukhdeo, Ambedkar in Retrospect; Essays on Economics, Politics and Society 8, Indian Institute of Dalit studies (2007).

[9] JATAVA D.R, POLITICAL PHILOSOPHY OF B.R. AMBEDKAR 77(National publishing House, New Delhi, 2001).

[10] KSHIRSAGAR RAMCHANDRA   KAMAJI, Supra note 2 at 55.

[11] DR.SHASHIS.S, AMBEDKAR AND SOCIAL JUSTICE, VOL.I, Publications Division, Ministry   Of Information and Broadcasting, 162 (Government of India, New India,   1992).

[12] KSHIRSAGAR RAMCHANDRA   KAMAJI, Supra note 2 at 57.

[13] Das Bhagwan (ed.), Thus Spoke Ambedkar, Vol. I, 22 (Buddhist Publishing House, 1969).

[14] Ishita Aditya Ray, B.R.Ambedkar And His Philosophy On Indian Democracy: An Appraisal, Journal of Education and Practice, 2,5 (2011).

[15] KSHIRSAGAR RAMCHANDRA   KAMAJI, Supra note 2 at 59.

[16] Id. at 60, See also https://ambedkarism.wordpress.com/2011/03/30/ambedkar-thoughts/ (accessed on 29th Mar.   2016).

[17] Dr. Sandesh m. wagh, Ambedkar’s Thoughts on Democracy, 1 Indian Streams Research Journal, Issue IX, (2011), srj.org/UploadedData/3318.pdf (accessed on 31st Dec. 2016).

[18] Das Bhagwan, Thus Spoke Ambedkar, Vol.II, 146(Buddhist Publishing House, 1969).

[19] Shyam Chand, DrAmbedkar on Democracy, http://www.mainstreamweekly.net/article467.html (accessed on 14th  Feb. 2016).

[20] Vikrant Sopan Yadav, Dr. B. R. Ambedkar’s views on Democracy and Indian Constitution: An Analytical Appraisal ,International Journal of Applied Research, 2(4), 308-310, (2016). http://www.allresearchjournal.com/  archives/2016/vol2issue4/PartE/2-3-181.pdf (accessed on 14th Feb. 2017).

[21] GRANVILLE AUSTIN, INDIAN CONSTITUTION- THE CORNERSTONE OF A NATION 50 (New Delhi, Oxford University Press, 2007).

[22] Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1.

[23] (1992) Supp (2) SCC.

[24] See Minerva Mills v. Union of India, AIR 1980 SC 1789.

[25] (2014) 6 SCC 351.

[26] Jean Dreze, Dr. Ambedkar and the Future of Indian Democracy, http://econdse.org/wpcontent/uploads/2012/09/ JD-Ambedkar-and-future-of-democracy2005.pdf (accessed on 23rd Feb 2017).

[27] INDIAN CONST, Part IV, Articles 36-51.

Resume Writing Tips: How to write a resume for law student?

Resumes are the first and foremost tool for a law student to market himself in the job market. Recruiters often spend hardly 30 seconds time on each resume, when they receive it for the first time. Therefore, the point is a resume of a law student or a legal professional have only 30 seconds to impress the recruiter.

Further, considering the less opportunities and comparatively large number of law students OR legal professionals, it is always important to have an eye-catching resume so, that the possibility of getting shortlisted for the interview is high. In this article, let us try to understand, How to write a resume for Law student OR How to write a resume for legal professional.

While writing a resume for law student, do consider following points.

Text, Font and Formatting

The very first thing every recruiter look into a law student’s resume is the font and formatting of the resume. Law student shall always choose a professional font while writing a resume for either law firm internship or law firm interview. Times New Roman OR Helvetica are the most recommended font for writing a resume for law student. Font size shall be 11 or 12. However, a law student is free to choose any font as he like, so that, the resume shall look beautiful.

Margin

Every law student resume shall have proper margin spaces and they shall leave reasonable line space so that, it will be easy for the reader to read the contents of a law student’s resume.

Headings

Each resume for a law student shall contain certain heading. Most probably this is the section which is always mentioned at the top of the law student’s resume, where he write his name and contact details such as his postal address, email id and contact number.

Layout and Resume Template

Law student shall decide and finalise a suitable resume template and a design layout for his resume. If a law student cannot decide it himself, he may choose from various templates available with MS Word/Microsoft Office or other custom-made templates available online.

Resume Writing Tips: How to write a covering letter

Covering letter or cover letter are the very first opportunity for you to impress an employer. Covering letter is the very first page of your Curriculum Vitae (CV). Hence, it got a vital role to play in every job application. Following are the essential elements to be covered in a covering letter;

Salutation

You start your cover letter with a salutation, and the salutation you chose will depend upon the information you have about the organisation.

  • If you know the name of the employer to whom your covering letter is addressed, then it is always appreciated that, your salutation shall commence as Dear Mr. /Mrs. /Dr. [Name of the Hiring Manager] followed by a coma or a colon. Further, you should ensure that, you use proper title such as Mr./Mrs./Dr.
  • In case you are not sure about the name of the hiring manager, then you may use either “To Whomsoever it may concern” or other most common salutations such as “Dear Recruiting Team” OR “Dear [Company Name] Team” OR “Dear HR Team” etc.

Writing First paragraph of covering letter

First paragraph of your covering letter shall always referring to the job opportunity against which your are applying and you may also refer as to how you came to know about said job opportunity. Further, it is essential to note that; first paragraph of your covering letter shall not exceed two sentences.

Writing body paragraph of covering letter

This part of your covering letter shall be specific and shall be designed to gain the attention of the hiring manager in the very first reading. Ideal covering letters generally contain 1 – 2 body paragraphs only. Following are the major points to be covered in the body paragraph of the covering letter;

  • Why I am the suitable candidate for the job opening?
  • How my work experience and academic qualification makes fit to the job opening? and
  • Be specific, on how you want to work for the organisation; OR how best you can contribute to the company’s growth?

Concluding remarks of covering letter

This is the last part of your covering letter where you wrap up and conclude how you will be proceeding with the application. In this regard, you may consider including following points;

  • Describe in one sentence that, why you are the best candidate for said position
  • Mention your action plan for follow up. For example, if you prefer to follow up after two weeks do specify the same. Else, you may just say that, “looking forward to a positive reply”.
  • Do not forget to mention your contact details, including email address and phone number (mobile number). In most of the case, where proper contact details are not provided, the possibility of rejection is very high.
  • Do not forget to mention that, if you are attaching your Resume or CV along with the covering letter.
  • Finally, feel free to thank the hiring manager for their valuable time in considering your application. For eg. “thank you for your time and consent

Section 493, IPC not attracted, if an ex-parte divorce decree is set aside

Bench of JAGDISH SINGH KHEHAR, S.A.BOBDE JJ., of the Supreme Court of India, while considering the question as to whether the respondent husband has committed an offence under Section 493 and 494 of the Indian Penal Code, 1860, held that, Section 493 of Indian Penal Code will not be attracted, if an ex-parte divorce decree is set aside.

In the instant case, where an ex-parte divorce decree was obtained, and in spite of the fact that, both the parties to the present case continued to live together. However, on a subsequent order, theex-parte divorce decree was set aside.

However, in the present case of the appellant, it was contented by the appellant that, the respondent, husband did not inform her about the divorce decree and continued the conjugal relationship. Subsequently, the respondent married to another person, therefore, it is contented that, the respondent committed the offence under Section 493 and 494 of the Indian Penal Code.

Then she came to know about the ex-parte divorce decree and subsequently the appellant of the present case filed an application for setting aside said ex-parte divorce decree, and the same was allowed. Hence, the court in this case observed that, in sum and substance, therefore, thematrimonial ties between the appellant and the respondent came to be restored, as if the marital relationship had never ceased.

On the ground of above mentioned findings the apex court opined that, the respondent husband could not have deceived the appellant of the existence of a “lawful marriage”, when a lawful marriage indeed existed between the parties, during the period under reference, and held that the charge against the respondent of the present case is not made out, under Section 493 and 494 of the Indian Penal Code.

Read full judgement on Ravinder Kaur v. Anil Kumar (09-04-2015, Supreme Court)

Tips and strategies for CLAT exam

Not only in Common Law Admission Test (CLAT), but also in any other competitive examination, it is essential to have a specific tips and strategies to be adopted, to secure a top rank in the entrance exam. Here are some tips and strategies, which you may adopt for clearing CLAT exam.

Though, each coaching centres adopt and recommend different kinds of strategies for CLAT preparation, we would like to place following tips and strategies before you, for your preparing CLAT examination.

Being a 12th standard student, we recommend you to read newspaper regularly. If time permits, we recommend you to read at least two – three leading newspapers every day. Check the must read newspapers list here.

Reading newspaper regularly will help you to improve your general knowledge and current affairs. In addition, reading English newspapers like Hindu will help you to improve your English. Therefore, reading newspapers will help you to prepare yourself in two major sections of CLAT examination. See the pattern of CLAT examination here. Moreover, since most of the newspapers are available online, there will not be much expense towards the newspaper subscription.

Besides, attending coaching classes, we recommend you to workout previous question papers of Common Law Admission Test, so that, you can evaluate yourself that, where you stand in the competitions. Not only that; solving previous CLAT question papers will also help you to familiarise with the exam pattern and more importantly, it will assist you in time management. In this regard, we recommend you to take as many as mock tests you can.

We strongly believe that, above-mentioned tips and strategies for CLAT preparation will be helping you to prepare yourself for the Common Law Admission Test. We wish you all the very best.