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“Shimla Town Hall’s” Dignity Restored as High Court Bars its Conversion into Govt Office

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HP High Cour Order on Shimla Town Hall

Shimla-The issue of utilizing the British-era Town Hall building for ‘public purpose’ and not as a ‘Government Office’ was settled by the Hon’ble High Court today in a public interest writ. The Municipal Corporation building or the Town Hall is located on the Mall Road. Originally this heritage building was designed as ‘New Library and Offices’ by a Scottish Architect, Mr. James Ransome. The original building, designed as a library, was constructed in 1908, but after a few decades, the offices of the Municipal Corporation came to be located in the said building.

Recently, this heritage site was restored under an exhaustive Rs 6 crore conservation project. Asian Development Bank-funded the restoration of the building, stating it to be a “priceless architectural marvel”.

A Division Bench comprising of Chief Justice V Ramasubramanian and Justice Anoop Chitkara on September 6, 2019, passed an order, which stated that the building should be used only for ‘public purposes’ and not to house any ‘Government Office’ other than that of the Mayor and Deputy Mayor.

The Hon’ble Chief Justice V Ramasubramanian stated:

While there can be no objection to the location of the offices of the Mayor and the Deputy Mayor in the Town Hall, the location of the offices of the Commissioner and other allied officers will certainly convert the heritage building into a full-fledged Government office. While the Mayor and the Deputy Mayor may not be required to sit throughout the day in the office, the Commissioner and his Deputies may be required to sit in the office throughout the day for six days a week. They may also have to deal with the public, who may have to seek the services of or the statutory.

Further, the Hon’ble Chief Justice stated:

We are of the considered view that while permitting the Municipal Corporation to locate the offices of the Mayor and the Deputy Mayor in the Town Hall, the Municipal Corporation, in consultation with the Government, should come up with innovative ideas to put the Town Hall to best use (i) from the point of view of preserving the heritage, and (ii) so as to derive income from such activities which will showcase the beauty of the hill station and the culture and traditional arts of the people of the State”

As such, the MC Commissioner, Joint Commissioner, and other officials whose offices were located in this heritage site will now have to be accommodated elsewhere.

The court also directed that the MC in consultation with the state government may put to use the rest of the area for housing a high-end café with reading facilities, Information Centre and boutique of traditional arts and crafts for attracting tourists and enriching the cultural experience. The court also directed that an entry fee can be imposed which will provide handsome revenue to the MC.

There was a long-term demand from civil society and citizens that the iconic building must be put to some good use and be developed as a tourist attraction, considering its location in the heart of the town. Today’s order comes as a welcome step for the people of the town and for those who are visiting it.

This heritage building will no longer be a dwelling place of the “babus”, but rather will be a center of attraction – a place to showcase the heritage, art, and creativity of the locals and a place of recreation and learning for the travelers.

Feature Image: Abhishek Lal

Deven Khanna is a Lawyer, practicing at High Court of Himachal Pradesh, other H.P Courts/Tribunals and the Supreme Court of India, he is an alumnus of a National Law School. For any queries related to the articles, he can be contacted at 7018469792 or at [email protected] The personal blog is at https://lawumbrella.wordpress.com/

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Pandemic – ‘Nationwide Lock-down’ A Tale of Caution & Hope

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Curfew Relaxation in Himachal Pradesh 3

Shimla-It’s for the first time in the history of our planet that the entire Humankind is together and is focused on fighting with one problem.

In India, from many days Doctors have been coming out and demanding a nationwide lockdown fearing the wrath of the virus which has been raging hell all across the world. The State has now responded and has ordered a 21-day lockdown for the entire nation, which is an unprecedented move.

The Lockdown is an extreme step which is demanded by these extraordinary circumstances. And as expected it has and will continue to have a huge impact on the economic health of the country. It has paralysed virtually all commerce and has put millions of people out of work, leaving many struggling with basic requirements like food and medicines. This has caused much debate in the media and elsewhere that whether we are ‘over-reacting’ to the coronavirus outbreak?

In this post, the author argues that the present step of a ‘National Lockdown’ is the most efficient and only available first response which the Government could have taken to tackle the immediate and ongoing existential crisis.

The viability of measures is to be seen through the lens of precaution and what might be the risk to reward outcome of the decision. The ‘precautionary principle’ which has had its evolution through various judgments of our Supreme Court ultimately boils down to an understanding that “if one is bound to err then always err on the side of minimising the risk and the scale of catastrophic harm than to take high-risk measures for immediate gains”.

The question which has arisen for consideration is,  ‘what is at stake by acting too strongly versus what is at stake by acting too weakly?.

The answer, when we think about it with any seriousness, is that too strong action will more quickly reduce wealth and economic activity; whereas too weak action could put crores of lives at stake across the country, and a far greater economic impact will await us down the line.

It is here then that the value judgments behind political decisions about pandemics come into full light. Are we willing to risk economic potency, or are we willing to risk our neighbours, friends, and elders’ lives? The United States and the United Kingdom who have not still imposed a complete nationwide lockdown and are also planning to lift the partial lockdown at the time of Easter (as announced by President Trump) have obviously given a very feeble response and have given considerable weightage to their economy rather than their people. India has chosen to completely focus on its people.

Precautionary Principle 

The Global pandemic and nature of this virus is a powerful reason for aggressively employing the Precautionary Principle to reduce our collective exposure to this deadly virus, an exposure which is grave.

It is hoped that a strong regulatory action which includes measures of forced quarantine, curfew and nation-wide lockdowns, (reduction of public transport/movement/contact) throughout the country would go some way towards lowering contagion even if not completely getting rid of it.

The basic point is that we need to consider the viability of measures through the lens of precaution, and always err on the side of minimising the risk and scale of catastrophic harm. We should be willing to make huge economic sacrifices. So that many of our fellow citizens don’t have their very lives sacrificed at the altar of ‘economic growth’.

The individual choices that we are all facing over the coming months should also be shaped by precaution. We need to be aware that passing this virus to others can create huge contagion cascades that infect thousands of people. It is only by taking pronounced physical distancing steps as early on as possible can we ensure that we are not fueling the wildfire of this pandemic. For many, this may mean a lonely few months, but that is by far a worthwhile price to pay to reduce the scale of this catastrophe.

A Caution- Listen to The Cry of the Poor and Homeless

Though the step by the Government of Lock-down is commendable, there are certain extremely important issues to be kept in mind.

Our country is home to the largest undernourished population in the world. It ranks 102 in the Global Hunger Index, has 1 in 5 people living on less than Rs.150 per day. We have the largest number of street children!

We need an Economic Task Force and a distribution strategy for the supply of essential commodities to the needy.

With the massive outbreak of COVID-19 across the country, there is a *huge and urgent* need of ration and other supplies for daily wage workers, workers in the informal sector as well as masks for doctors and nurses at the frontline.

There have been some announcements which have been made by the State to tackle the above situation such as:

  •  Pradhanmantri Garib Kalyan Yojana – Rs. 1,70,000 crore (Rs. 1.7 trillion) package for poor stuck in lockdown Rs. 50 lakhs insurance cover for health workers in Covid 2019 front.
  •  Pradhanmantri Ann Yojana – 800 Mn people will get additional free 5 kg wheat/Rice and 1 kg, Dal, for 3 months from ration
  • Farmers will get upfront Rs. 2,000 in their account directly
  •  MNREGA – Daily wages increased from Rs. 182 to Rs. 202. Rs 2,000 per worker will be an additional income.
  •  Old Age peoples – Poor senior citizen/widow / handicapped will get additional Rs. 1,000/pm for another 3 months.
  • Mahila Jan Dhan Account – Women will get additional Rs. 500/pm for another 3 months
  • Ujjwala Yojana – Below Poverty Level family will get free LPG cylinder for next 3 months
  •  Up to 20 lakh collateral-free loans for the SHGs from earlier 10 lakh crore cap
  • For organised sector employee and others who earn below Rs. 15,000 salary, Government will pay 12% + 12% provident fund (contribution of employee and employer) under EPF for the next 3 months.
  • EPFO regulations will be amended to allow workers under EPFO to draw up to 75% of their non-refundable advance or 3 months of wages, whichever is lower.
  •  State governments to be directed to utilise an existing Rs 31,000 crore welfare fund for the benefit for 3.5 crore construction workers

Hope & Love

Hope now is that the underprivileged will continue to receive help not only from the Government but also from the super-rich and the various religious institutions that India is so infested by and is proud of. If there was any time for religious institutions to shine this is exactly that time.

We live in a world where infinite money is printed to support corporations and banks and millions are donated to ‘Gods and Godmen’, at the same time nakedly excluding the millions homeless, who are left scrounging for their next meal. India can break this vicious cycle and take steps here out of compassion and empathy. India, the oldest civilization of the world can lead the world and show the light of ‘reason & love’ in its civilized response to the present existential crisis.

There is nothing we can do to change the constraints of our existence. Heartbreak and death await us all one day. As  Albert Camus once said;

 Love is not just a confrontation with the absurdity of the world; it is a refusal to be broken by it.  It is our choice whether we shrink from the slings and arrows of fate, or whether we stand in the full light of the sun while it shines above us.

India! its time to stand at a “physical distance” but stand Together.

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Transfer of Judges – A Tool to Undermine the Institution of Justice

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Justice S. Muralidhar

Shimla- Justice S Murlidhar of Delhi High Court who was hearing a petition on Delhi Riots, had sharply condemned both the government and police on Wednesday. His scathing remarks questioned the working of the police. Following it, orders for his immediate transfer came late at night the same day to the Punjab and Haryana High Court.

Earlier on 12th of Feburary a resolution of the collegium was passed taking a decision on  transfer. Wide spread protests were made by lawyers against the resolution of the collegium as the decision was unreasoned , unconventional, against past practices and had potential to significantly effect the functioning of Courts.

Coincidently the judge on the day of the Center’s notification of transfer was hearing a PIL on DELHI Riots and had asked why there shouldn’t be FIRs against those who had indulged in hate speech before the riots occurred.  He told the Delhi Police chief to “seriously consider the consequences” of not registering the FIR.

The judge has been regarded by the DELHI Bar as one of the ‘citizen friendly judges’ who is known for standing up for individual rights and for passing many orders for checking unconstitutional use of state power. The Judge has delivered several landmark judgments and was known to be impervious to pressure.

The Collegium & Sherlock Holmes

Former Supreme Court Judge Justice Madan Lokur had raised questions on the manner of functioning of the collegium. The Judge observed;

“The mystery behind the change in the appointment of the chief justice from one high court to another will need a Sherlock Holmes to unravel”.

As a rule of practice, It is only when a person is being appointed as a high court judge for the first time that he or she is sent out of his practising court. Once a permanent High Court judge is appointed and posted, he is transferred to another high court only upon elevation as Chief Justice. In the present case there has been a departure from this rule of practice. In such circumstances where the norms are not being followed and an unconventional procedure is followed then it becomes imperative that reasons are recorded in writing stating the cause of such a departure. Not only reasons have to be recorded but even the consent of the judge needs to be taken. These principles flow from the basic structure of the constitution i.e “independence of judiciary”.

However the Notification affecting the transfer doesn’t mention the reasons for the decision, nor does the resolution of the Collegium passed on 12th Feburary state any good reason for the transfer.

The Strike of Lawyers

The hurried manner in which the transfer is effected is troubling so much so that the Delhi High Court Bar Association (DHCBA) has condemned the transfer recommendation and also passed a resolution unanimously regarding this. The Bar Association had expressed dismay at the transfer of one of the finest judges by the collegium of the Supreme Court.

Expressing “shock” at the collegium recommending Justice Muralidhar’s transfer, the high court bar association hoped the decision would be recalled, saying such transfers were “detrimental” to the institution.

The resolution stated;

“Unequivocally and in the strongest possible terms, the Delhi high court bar association condemns the said transfers… Such transfers are not only detrimental to our noble institution but also tend to erode and dislodge the faith of the common litigant in the justice dispensation system. Such transfers also impede free and fair delivery of justice by the bench,” a resolution passed by the association said.
The association requested its members to abstain from work on 20 February 2020, “as a token of protest as the said transfer is a rarest of rare case, the majesty of our revered institution is at stake”.

Hon’ble Judge has been a part of important decisions as, disclosure of assets by judges under RTI, Legalization of Homosexuality and 1984 anti-Sikh riots.

Transfer of Judges – A Threat to The Independence of Judiciary

If the judiciary has to be a bulwark for the protection of the “rights of the individual” and mete out even-handed justice without fear and favour” then it should be independent.

Exercise of the judicial function is one which requires more than any other work a proper balance of mind and an undisturbed and peaceful life. Administration of justice cannot properly be done by a disgruntled judge. If transfer hangs over his head as a Damocles’ sword, the balance of justice slips out of his hand. An immediate and unnoticed transfer may cause so great inconveniences that it may compel him to quit rather than comply with the transfer order.

In the judges’ case, the Supreme Court held that the consent of the judge was not necessary for his transfer from one High Court to another. According to the Court, there are three safeguards against arbitrariness in the use of the President’s power to transfer judges under Article 222. They are:

  1. There must be full and effective consultation with the
    Chief Justice of India.
  2. The power of transfer can be exercised in public interest only and not by way of punishment.
  3. Judicial review of the decision of the President to
    transfer a judge.

However, do these safeguards suffice to preserve the independence of the judiciary, one of the cardinal faith of the Constitution? Judges, unlike government servants, hold an office under the Constitution and there is no master-servant relationship between the government and the judge. A close study of Sankal Chand’s case and the Judges case would reveal that the Supreme Court has miserably failed to bring out the clear distinction between the transfers by punishment and transfers in public interest or in the present matter, as the order put it, “for better administration of justice“. These expressions are not capable of any precise definition and in a given set of circumstances may be applied differently by different people. In many cases, it would not be possible to rule out some elements of a penal character. The present procedure, as it stands, has instead of limiting the scope of transfers only enhanced its scope by giving a very elastic definition of public interest and ‘better administration of justice”.

Object /Reason and purpose of transfer needs to be clearly spelt out in Orders

The great Mr. Palkhiwala, after examining the Judges’ case had rightly pointed out that the dichotomy was not between transfer in public interest and “for better administration of justice” and transfer by punishment, but the dichotomy was between transfer in’ public interest’ and transfers for ‘extraneous considerations’. According to him, the object of the transfer and not the result, or effect, of the transfer is the decisive factor. The object of the purpose needs to be clearly spelled out in such orders and this cannot be done in a slip-shod manner.

Consent OF the Judge must be sought

Justice Bhagwati in Sankal Chand’s case and reiterated in the Judges case that the “transfer is made consensual” was the only effective safeguard for a judge against arbitrary transfer and only if such an interpretation is accepted, the noble concept of independence of the judiciary can be preserved. This view is shared by many eminent jurists, judges, lawyers etc. The Lord Chief Justice of England, Hon. Lord Lane, speaking on “Standards of Judicial Independence” expressed the view that a judge ought not to be liable to be transferred from one High Court to another without necessarily seeking his consent. Justice H. R. Khanna, a former judge of the Supreme Court, regretted that the Law Commission’s recommendation that no judge should be transferred without his consent unless a panel consisting of the Chief Justice of India and his four seniormost colleagues find cause for such a course has fallen into deaf ears.

The Hon’ble judge not only ‘did not give his consent‘ but had also taken a critical view of the functioning of the police and remarks made by the members of the ruling party. The timing of the transfer during the pendency of such a sensitive matter is highly suspicious and can have a chilling effect upon judges and judicial functioning.

Better administration of justice can be achieved by providing detailed reasons to the Hon’ble judge and to the people of India. Transfers without reason can instill fear in the minds of the judges, the first casualty of which would obviously be the justice itself.

The constitutional provision (Article 222) on the transfer of judges has a direct and proximate connection with the independence of the judiciary. This provision, like many other constitutional provisions, can be made use of for achieving many useful purposes as well as evil purposes until a clear and reasonable interpretation is given to the Article keeping in view the principle of “independence of the judiciary”  in mind. Its abuse will have many dangerous effects on the judiciary and its independence. If the judiciary loses its independence and becomes subservient, the net result would be that the Constitution will lose its prominence. Justice Khanna has aptly put it like this:

“Once the independence of the judiciary is undermined and the seats of Justice came to be occupied by men with pliable conscience’ and subservient to the political wing of the State, the first casualty would necessarily be the supremacy of the Constitution, for it, would be open to every branch of the State to ride roughshod over the provisions of the Constitution.”

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CAA and NRC – A Dissent on Grounds of Equality and Fraternity

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CAA and NRC Legal Interpretation by Advocate Deven Khanna 2

Shimla- In the past few days, there has been unrest in the country over two actions of the parliament i.e firstly, due to introduction of a law called Citizen Amendment Act (CAA), which deals with granting of citizenship to refugees, and secondly, due to the declaration that India will soon have a register of citizens (NRC) where all citizens will have to prove their citizenship with documentary evidence.

About 60 petitions already stand filed in the Supreme Court challenging the (CAA) law. This is the first time in the history of the nation that religion has been considered as a determining factor for grant of privileges in a state enactment. The concern of the people is whether there exists a threat to fundamental values of “fraternity”, “equality”, and “secularism” upon which this nation is built upon. The question is “Whether Something which is not allowed to be done directly is being done indirectly i.e exclusion on the basis of religion in the grant of citizenship”.

Another decision of the Government, the “NRC (National Register of Citizen)” is being sought to be imposed nationwide. This exercise has costed public funds from between 1200 Cr to 1600 Cr in Assam already. It has also led to 40 lakh people being declared stateless by the Government in the first instance, just in Assam. This exercise was, however, erroneously done, and on re-checking, the Courts found that the number was actually 19 lakh. There was an error of 20 lakh “Human Beings”, who stood declared stateless.

The number of deportation affected by this entire exercise of NRC in Assam has been found to be negligible. This begs the question, what is the need for conducting such an expensive and unreliable process and whether the present decisions of  parliament are even necessary. Most importantly, if Acts themselves at all are permissible from the perspective of constitutionality, humanity and ethical standards.

Citizen Amendment Act (CAA)

The Law as it Was Before The Amendment:

The law before the amendment essentially said:

If you are in India and you are a non-citizen, without relevant papers, then you are an “illegal immigrant” and, in that case, you have no right be in the country and you are liable to be subjected to be detained and ultimately deported.

Exception to the above rule was;

If one could show that he was a person who was in India, and had come to India due to legitimate fear of being persecuted on any ground in the home country, then he would be eligible for a long term visa. The idea was that if someone is a refugee fearing persecution, then he can stay in India on long term visa basis and the case would be evaluated on ‘case by case basis’.

Notably and rightly so, “religion” had no role to play in the unamended law whatsoever.

The New Law

The 2019 amendment changes the above provision/ position. It creates classes of people who would be entitled to immunity. These classes have been made on the bases of “Religion and Nationality”.

The amendment draws the distinction between persecuted people who have been living in the country from, on or before, December 31, 2014. It puts them into two categories and says that; one category who are of a particular religion and nationality would be entitled to benefit in “grant of Indian citizenship” and other sets of people who belong to certain “Religion and Nationality”, would be ineligible for immunity in “grant of citizenship”.

The Act also reduces the requirement of residence in India for citizenship by naturalisation from 11 years to five years for these particular communities.

Classes of People Who Stand Excluded by Virtue of Section 2 (B) of CAA 2019, are:

1. On the basis of ReligionAnyone who is not a Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians. The exclusion of Muslims, Atheists or any other religion is apparent.

2. On the basis of Nationality – a classification based on country, by restricting the benefit of acquiring citizenship through naturalisation to minority immigrants only from Afghanistan, Pakistan and Bangladesh.

In other words, it says that for certain classes of people there is no immunity from being deemed illegal immigrants, and these classes of people can be denied citizenship and coupled with NRC they can even be put in detention centres or deported to their home country.

Due to such grave consequences, a closer examination of this classification made by the State warrants scrupulous scrutiny.

Violation of Equality

In the new law, the distinction is drawn between “persecuted people living within India” as refugees from before 2014. Amongst these persecuted people, one set is given benefit by the state and the other set is not. The distinction between persecuted people has been drawn just on the basis of religion and nationality. In a secular country, religion cannot become the basis of granting or denying privileges to any person, be it citizen or a non-citizen. This idea goes against the mandate of “Fraternity”, “Equality” and “ Secularism” hence violates the basic structure along with various other constitutional provisions.

It is a settled position/principle of law that whenever there is an exclusion on the basis of classification then;

a. There must be a yardstick to differentiate between those included in and excluded from the group, and
b. That yardstick must itself be reasonable.

Where a legislation discriminates on the basis of an “intrinsic and core trait” of an individual, which in the present case is religion, it violates the “Right to Equal Protection from Laws”. This protection is available to non-citizens settled in India also. Classification based on religion does not form a reasonable classification based on an intelligible differentia.

Therefore, the yardstick is reasonable only if it is not based on an “intrinsic and core trait” of an individual such as religion or sex, this is a constitutional limitation placed on the power of the State.

The determining principle for granting citizenship can never be religion, the only relevant factor was ‘persecution’, as it was in the unamended law.

Citizenship can be granted on the grounds of birth, descent, persecution, and naturalisation alone. Bringing religion as a criterion for granting citizenship cuts through the guarantees of Fraternity, Equality, and Secularism which form the basic structure of our constitution.

For example, if you have 10 people living in India as refugees from the past 40 years, all of them have been persecuted. Now you want to save them; you can choose to save all of them or none. However, if you chose to save few and not save the others, then those few who are excluded cannot be excluded purely on grounds of their religion, there has to be some other basis of making this choice. In the old law, it was just persecution. A secular state is bound by principles of secularism and cannot make decisions based on the identity of religion.

It is a capricious and unconstitutional law supported by impermissible sense of purpose. Few important legal positions are;

1. It is incorrect to say that the Act only applies to non-citizens and that Indians need not worry about it. Even though CAA  does not at present impact Indian citizens, it impacts human beings who are living in India, who are being treated unequally and the State is acting against the fundamental fabrics of our constitution in handing out such treatment.

If you are a Hindu who came from Pakistan 50 years ago, you get immunity from being an illegal immigrant but if you are a similarly situated Ahamadia or Sufi or Atheist from Pakistan/ Afghanistan/Bangladesh, you don’t get immunity. Such a law cannot be passed by a secular nation.

2. It is incorrect to say that law is inclusive and seeks to benefit immigrants. On the contrary, the irrationality of exclusion is apparent from the fact that now, if a person is suffering from the wrong type of persecution, he won’t get immunity. Persecution in itself is not enough as it earlier was when the old law was in force. Now a determination of citizenship grant is made dependent upon a fact-finding probe into an individual’s religious beliefs.

A human being who has been persecuted have been divided unreasonably, arbitrarily into impermissible categories (religion), hence benefit is being denied in violation of Article 14.

3. The amendment arbitrarily pics up the three nations without any rationale. If you are a persecuted person living in India and you belong to the privileged group of countries, only then you get this immunity and if you don’t belong to these three countries, then you don’t get this immunity. These three countries are not the only neighbouring countries where people have been subjected to violence and religious persecution, for example, Tamils And Rohingyas, or Buddhists from Tibet. There is a ‘pick and choose’ method without having any determining basis or underlying rationale in selecting these three countries. Religious persecution has happened in other countries around us and there are people settled in India, from other countries, who are being excluded from this benefit. This action of exclusion on the basis of nationality is manifestly arbitrary as there is no basis for choosing these three particular countries.

4. The inclusion of a few religions and nationalities is a welfare measure, but the problem is that persons who are equally entitled to get this immunity are being denied of this protection. This offends the equality principle and is discriminatory.

5. It is an incorrect argument to say that Policy matter cannot be tested upon the constitution and cannot be struck down on being arbitrary. The most fundamental principle of equality is that every person in India is entitled to equal protection of laws. Equal protection of law allows the govt to draw certain classifications, which must be reasonable, non-arbitrary and with a defined purpose.

If the purpose of this act is to save people from persecution then it cannot draw these distinctions. And if the purpose of the act is to save only certain religions from persecution, then the purpose itself becomes discriminatory, being only on grounds of religion. On this ground alone, the policy can be struck down.

FRATERNITY

Is a Law/Policy Undermining Fraternity Constitutionally Permissible?

A law can be struck down if it violates the basic structure of the constitution. One of the basic features of the Constitution along with “Equality” is “Fraternity” which is mentioned in its preamble. Fraternity is a prime value from where other principles like secularism take root. It is the first time in the history of the country that a law has been passed where the “determining principle” of classification of human beings is on the basis of their “religion” alone. This has naturally caused unrest in the country, but among the protests, the voices of “unity of religions” and “brotherhood” are being raised. The voices counter a “Law” which on the face of it, is being perceived to be against the unity of the nation and drawn on communal grounds. As mentioned earlier, law cannot solely be based on religion, as that would violate the equality principle and Article 14. In addition, this law also offends the principle of fraternity.

In a country such as India, with several disruptive forces, such as religion, caste and language, the idea of fraternity is imperative for ensuring “unity of the nation”, through a shared feeling of a common brotherhood.

According to various decisions of the courts this value has been understood to be of prime importance, though not many precedents exist. None the less, there are few which have given the meaning of this principle and have applied it for circumventing State’s power.

Looking at the issue raised in the present case, this principle can be expounded by the Apex court, as the heart of this problem lies in the values of “fraternity and brotherhood” amongst human beings.

According to the jurisprudential understanding, a fraternal bond is one that does not relate to the shared use of goods but rather a shared feeling that is intrinsic to the existence and functioning of the agents themselves. Any law which undermines or poses a threat to fraternity should outrightly be struck down as the other two great values of “liberty and equality” become illusory in the absence of the fundamental value of fraternity.

Drawing the relation between these three fundamental values, it is said that;

a) Liberty without fraternity, for instance, would bestow upon individuals unlimited powers to pursue individual aspirations, without regard to community sentiments and considerations.
b) Equality without fraternity is characterised as a ‘barbaric’ equality, as individuals would have no consideration for the standing of other disadvantaged persons.

In light of this, it becomes imperative to ask that;

a)  How have the courts interpreted the rights granted on the basis of fraternity?
b) Can a law be struck down as it offends the “guaranteed commitment to fraternity” in our Constitution?
c) Have the Courts directed the State to frame policies keeping these principles and constitutional limitations in mind?

The answers to the above questions can be found in the decisions of the Hon’ble Supreme Court. A Couple of important ones are discussed below;

In S.R. Bommai v. Union of India, amongst several conclusions the Court arrived at, it declared that the principle of secularism was an essential feature of the basic structure of the Constitution. In arriving at that conclusion, the Court employed the principle of fraternity in a variety of contexts to assert that the idea of fraternity is a precursor to the attainment of secularism. The Court explained that the inclusion of secular ideals in constitutional provisions was not a product of mere chance but was consciously deliberated upon by the framers in response to the religious foundations of Pakistan. In substantiating this claim, the Court stated that India was historically a country where religious tolerance and a culture of fraternity existed, and the inclusion of secular provisions was accordingly a natural one.

The Court also established that “secularism is the bastion to build fraternity”, and therefore asserted that secular practice and thinking between diverse religious groups, would aid in the fraternal relations between those communities. The outcome of such religious tolerance would have a double impact on fraternity: it would ensure both the unity of the nation through peaceful interaction and the dignity of each citizen.

The Court held that the Constitution strives towards the promotion of secular ideals that would ensure fraternal relations which is the ultimate goal of the framers.

In the Nandini Sundar Case the Courts employed the idea of fraternity in three distinct fashions:
a. As a buffer to unchecked state power;
b. As a mechanism to promote more inclusive policy by the State and finally
c. To reinforce the Centre’s responsibility of upholding human rights in a federal structure.

The governmental policies that disempower humans on the basis of religion are against the constitutional vision. The constitution mandates that power must vest in the State for the welfare of all and not few. The constitutional vision of welfare must be achieved, according to the promotion of fraternity.

The judges in Nandani Sunder case further added that when state power is not exercised in a responsible manner, then there is an inevitable breach of Articles 14 and 21. In using fraternity in such a manner, the Court has elevated the idea of fraternity to a constitutional principle and not merely a noble declaration. In drawing a clear link between unchecked state power and Articles 14 and 21, the Court has created a nexus between the threat to fraternity and a consequent breach of fundamental rights.

The Court also employed the principle of fraternity to judicially review the policy of the State, it stated that it was the responsibility of the Government to ensure the security and integrity of the nation by means which were within the four corners of the Constitution.

The Court in the issue at hand can certainly adjudicate on the basis of the principles mentioned in the above two cases and further expound it. The Courts have the duty to preserve constitutional morality which here is an idea of a “unified nation”, where a culture of fraternity flourishes. Hence any policy of the Government which gives rise to “disaffection and dissatisfaction” from its citizens and is a threat to the unity and secular ethos is liable to be struck down on this ground alone.

NRC National Register of Citizens

Assam is a border state and is suffering from the problem of immigration. In the 70s and 80s, the immigration problem led to a strong movement in Assam, which ended with “Assam Accord”. The part of the agreement between Assam and Indian union was the preparation of NRC, which essentially was an exercise of identifying “citizen of India in Assam” and rest who were “non-citizens”.

What we have seen in the last five years is that this NRC process has led to widespread exclusion and disenfranchisement. This is because the NRC procedure relies on documents, the documentary evidence showing that you are a citizen of India.

In a country like India with widespread illiteracy and poverty, this is a very difficult task. The most vulnerable people will be up for exploitation and harassment.
In Assam, the experience shows that 19 lakh people have been left stranded as ‘stateless non-citizens,’ as they have no documents. Amount of more than 1200 crores have been spent on this exercise with negligible deportation. More worrisome is the fact that 20 lakh people in Assam were found to be wrongly excluded by the Supreme Court in this exercise.

Can NRC go National as the Home Minister Has Suggested?

Data collected till now highlights three major issues which have come in the implementation of NRC in Assam, these are;

1. The most marginalised suffer the most and
2. The women suffer more than men due to insufficient documentation
3. A negligible amount of people are actually deported, and the law does not even serve its purpose efficiently even after consuming lots of time and public money.

Hence, if data shows that these two oppressed groups are the most affected by such an exercise and there has been no good benefit achieved, then implementing the same in the rest of the country is totally illogical.

If you combine CAA and NRC, what you get is that if you are a non-Muslim, who has been left out of NRC, then you still have a possible path of citizenship from CAA. A class of people gets automatic immunity based on religion and nationality. If you are a Muslim, atheist, etc., you are completely ruled out even if you belong to these countries. Ultimately, you are subjected to deportation, or you are put in detention camps. It’s relevant to point out here that the condition of detention camps is terrible and inhumane and is a separate issue in itself.

Conclusion

CAA read alone is discriminatory as it discriminates between persecuted people and divides them in an impermissible category on arbitrary grounds.

The amendment to citizenship Act has brought about disaffection, dissatisfaction and fear in a class of people and has caused unrest in the country. There is internet shutdown (which amounts to the curtailment of the right to speech and expression) in various parts of the country and Section 144 stands imposed in few states. We have an exercise like NRC which wrongly excluded 20 lakh, people, from being a citizen. Now, this is being proposed for the whole country, in the coming days. Worryingly, this might lead to the biggest statelessness crisis of the world causing immense human suffering.

A class is being discriminated on the basis of religion, by state action. The law is arbitrarily neglecting certain communities which is against the Fraternal and Secular values of our country.

The role of the courts as the bastion of fundamental values of the nation is about to be tested. In such times, our commitment to “fundamental duty” and the true values of our country i.e brotherhood and unity and non-violent protests are also under test.

 

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