“A nation may make a Constitution, but a Constitution cannot make a nation”. No Constitution, written or unwritten, is ‘worth more than the political temper of the community allows it to be worth’.
All political theories are united on the question of the principle; against arbitrary Government. When a democratic system is chosen, a nation cannot be impatient with democracy. Democracy has its own defects. It is not the best or the most beneficial form of political organization of human beings. But it is accepted as the least hostile amongst all other systems tried.
All political theories are united on the question of the principle; against arbitrary Government. When a democratic system is chosen, a nation cannot be impatient with democracy. Democracy has its own defects. It is not the best or the most beneficial form of political organization of human beings. But it is accepted as the least hostile amongst all other systems tried.
Making of the Constitution: Nature of the Polity : Federalism
Federalism, as a political choice, was an inevitable necessity in view of the vast size of the country and its diverse regional, linguistic, ethnic, cultural patterns. But the federalism that the wise founders conceived was not the conventional or the ideal concept of federalism. India was to be a ‘union’ of States. The Union was an indissoluble union. The range of problems that confronted India at the time of the making of its Constitution has few parallel in the history of any country. The depth, range, diversity and complexity of its problems could baffle any pre-set political pattern or theoretical solutions or off-the-shelf-solutions as obvious political choices. The pattern was indeed sui-generis.
The Objectives Resolution of the Constituent Assembly dated 22nd January, 1947 had arguably contemplated that, “the territories in India shall possess and retain the status of autonomous units, together with residuary powers, and exercise all powers and functions of Government and administration, save and except such powers and functions are vested in, or assigned to, the Union or as are inherent or implied in the Union or resulting therefrom”.
[1] But later, in the light of the experiences of the Partition, the Union Powers Committee (Second Report, 5th July, 1947) opted for a strong Centre taking the view, “that the soundest framework of our Constitution is a federation with a strong Centre. In the matter of distributing powers between the Centre and the units, we think that the most satisfactory arrangement is to draw up three exhaustive lists on the lines followed in the Government of India Act, 1935, viz. the federal, the provincial and the concurrent. We think that the residuary power should remain with the Centre.”
Dealing with the prominent unitary features of India’s federal set-up, the Supreme Court observed, “that the inference is inevitable that the distribution of powers – both legislative and executive – does not support the theory of full sovereignty in the States”.
[1] “In a sense, therefore, the Indian Union is federal. But, the extent of federalism in it is largely watered down by the needs of progress and development of a country which has to be nationally integrated, politically and economically coordinated, and socially, intellectually, and spiritually uplifted.”
Basic Values of the Constitution: Democracy, Republicanism, Rule of Law, Constitutionalism and Respect for Minority Rights
“A true democracy”, it is said, “is surely one in which the existence of the power of the many is conditional on respect for the rights of the few.”
E. Fundamental Duties
CHAPTER 3
FUNDAMENTAL RIGHTS, DIRECTIVE PRINCIPLES
AND FUNDAMENTAL DUTIES
C. Fundamental Rights
During the last three decades, a vast number of human rights have found place in new constitutions and bills of rights of more than eighty countries and of supra-national entities. Countries which enacted these new constitutions have had the benefit of all the developments in the human rights jurisprudence which have taken place since 1950. Also, our Supreme Court has by judicial interpretation expanded the scope of the fundamental rights, particularly in relation to article 21, and this has included more civil and political rights which were not explicit in Part III.
A new development is that of the principle of ‘basic structure’ of the Constitution enunciated by the Supreme Court in 1973 in Kesavananda Bharati vs. State of Kerala
[1]. As to what are these basic features, the debate still continues. The Supreme Court has also held that the scope of certain fundamental rights could be adjudged by reading into them or reading them not only in the light of the Directive Principles of State Policy but also international covenants or conventions which were in harmony with the Fundamental Rights.
The Commission feels that after fifty years, time is ripe to review and enlarge suitably the contents of some of the Fundamental Rights, particularly those Fundamental Rights which have been judicially deduced.
Heads of discrimination
3.6 In articles 15 and 16, prohibition against discrimination should be extended to “ethnic or social origin; political or other opinion; property or birth”.
Freedom of Press and Freedom of Information
3.8.1 Article 19(1)(a) refers to ‘freedom of speech and expression’. It is proposed that the article must expressly include the freedom of the press and other media, the freedom to hold opinion and to seek, receive and impart information and ideas. It is also proposed to amend article 19(2) by adding a further restriction on disclosure of information received in confidence except if required in public interest.
The Commission recommends that article 19(1)(a) and (2) be amended to read as follows:
“Art. 19(1): All citizens shall have the right -
(a) to freedom of speech and expression which shall include the freedom of the press and other media, the freedom to hold opinions and to seek, receive and impart information and ideas;”.
19(2): “Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence, or preventing the disclosure of information received in confidence except when required in public interest.”.
3.8.2 A mere legislation by the Parliament by amending the Contempt of Courts Act, 1971 alone may not suffice because the power of the Supreme Court and the High Courts to punish for contempt is recognized in the Constitution. Therefore, the Commission recommends that an appropriate proviso to article 19(2) of the Constitution may be added as under:-
“Provided that, in matters of contempt, it shall be open to the Court to permit a defence of justification by truth on satisfaction as to the bona fides of the plea and it being in public interest.”.
Rights against torture and inhuman, degrading and cruel treatment and punishment
3.9 Torture and inhuman, degrading and cruel treatment and punishment grossly violate human dignity. The Supreme Court has implied a right against torture, etc. by way of interpretation of article 21 which deals with the right to life and liberty. The Universal Declaration of Human Rights 1948 and the ICCPR prohibit such acts in article 5 and article 7 respectively.
It is, therefore, recommended that the existing article 21 may be re-numbered as clause (1) thereof, and a new clause (2) should be inserted thereafter on the following lines: -
“(2) No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”.
Right to compensation for being illegally deprived of one’s right to life or liberty
3.10 Article 9(5) of the ICCPR states, “any one who has been victim of unlawful arrest or detention shall have an enforceable right to compensation.” In D.K. Basu vs. State of West Bengal
[1], the Supreme Court of India held that the reservation made by India to this clause while acceding to the Convention does not come in the way of the Court’s awarding compensation in the cases of illegal arrest or detention. The High Courts in India have also been awarding compensation.
It is, therefore, recommended as under:-
After clause (2) in article 21 as proposed in para 3.9, a new clause (3) should be added on the following lines :-
“(3) Every person who has been illegally deprived of his right to life or liberty shall have an enforceable right to compensation.”
Right to travel abroad and return to one’s country
3.11 The Supreme Court has spelt out in articles 14 and 21 the right to travel abroad and return to one’s country. Again, this right finds a place in article 13(2) of the Universal Declaration of Human Rights, 1948 as well as in articles 12(2),(3) and (4) of the ICCPR.
It is, therefore, recommended that after article 21, a new article, say article 21A, should be inserted on the following lines:-
“21A. (1) Every person shall have the right to leave the territory of India and every citizen shall have the right to return to India.
(2) Nothing in clause (1) shall prevent the State from making any law imposing reasonable restrictions in the interests of the sovereignty and integrity of India, friendly relations of India with foreign States and interests of the general public.”
Right to Privacy
[1] ‘Right to Privacy’ in the Right to ‘Life’ under article 21.
It is, therefore, proposed that a new article, namely, article 21-B, should be inserted on the following lines:
“21-B. (1) Every person has a right to respect for his private and family life, his home and his correspondence.
(2) Nothing in clause (1) shall prevent the State from making any law imposing reasonable restrictions on the exercise of the right conferred by clause (1), in the interests of security of the State, public safety or for the prevention of disorder or crime, or for the protection of health or morals, or for the protection of the rights and freedoms of others.
Preventive Detention
3.14.1 Article 22 (3)(b) permits ‘preventive detention’ and the rule in clause (2) of article 22 which requires production before the nearest magistrate within 24 hours does not also apply in such cases. No doubt, several preventive detention laws have been upheld by the courts. But, being detention without trial, there is a view that such a detention is a negation of the rule of law and the principles of fair trial. The arrest is supposed to be made on the basis of information that the person is likely to commit some serious offences. There are complaints that this law is misused quite frequently.
3.14.2 While the Commission does not propose to recommend deletion of clauses dealing with preventive detention under article 22, it recommends the following changes :-
(i) The first and second provisos and Explanation to article 22(4) as contained in section 3 of the Constitution (44th Amendment) Act, 1978 should be substituted by the following provisos and the said section 3 of the 1978 Act as amended by the proposed legislation should be brought into force within a period of not exceeding three months :-
“Provided that an Advisory Board shall consist of a Chairman and not less than two other members, and the Chairman and the other members of the Board shall be serving judges of any High Court :
Provided further that nothing in this clause shall authorize the detention of any person beyond a maximum period of six months as may be prescribed by any law made by Parliament under sub-clause(a) of clause (7)”.
(ii) In clause (7) of article 22 of the Constitution, in sub-clause (b), for the words “the maximum period”, the words “the maximum period not exceeding six months” shall be substituted.
Right to justice and legal aid
3.15.1 The Commission recommends that after article 30, the following article should be added as article 30A:
“30A: Access to Courts and Tribunals and speedy justice
(1) Everyone has a right to have any dispute that can be resolved by the application of law decided in a fair public hearing before an independent court or, where appropriate, another independent and impartial tribunal or forum.
(2) The right to access to courts shall be deemed to include the right to reasonably speedy and effective justice in all matters before the courts, tribunals or other fora and the State shall take all reasonable steps to achieve the said object.”
3.15.2 Legal aid is essential for effective implementation of the various rights included in Part III to help the needy and the indigent. The Commission recommends that article 39A in Part IV be shifted to Part III as a new article 30B to read as under:-
“39B. Equal justice and free legal aid: The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.”
Article 31B and Ninth Schedule
3.17 A number of enactments unrelated to the rationale underlying articles 31B have come to be included in the Ninth Schedule with a view to keep them secure from attack on the ground that such enactment or a provision thereof is inconsistent with any provision of Part III of the Constitution. In the Consultation Paper
[1] on ‘Enlargement of Fundamental Rights’, it was proposed that article 31B be suitably amended to provide that the laws to be included in the Ninth Schedule must, in pith and substance, relate to agrarian reforms or land reforms or laws to give effect to the directive principles in article 39(b) and 39(c). After further discussion, the Commission recommends that in article 31-B, the following proviso should be added at the end, namely :-
“Provided that the protection afforded by this article to Acts and Regulations which may be hereafter specified in the Ninth Schedule or any of the provisions thereof, shall not apply unless such Acts or Regulations relate –
(a) in pith and substance to agrarian reforms or land reforms;
(b) to reasonable quantum of reservation under articles 15 and 16;
(c) to provisions for giving effect to the policy of the State towards securing all or any of the principles specified in clause (b) or clause (c) of article 39.”
Suspension of articles 17, 23, 24, 25 and 32 during emergency
3.18.1 Article 359 deals with “Suspension of the enforcement of the rights conferred by Part III during emergencies”. Clause (1) permits suspension of the right to move court but excludes article 20 (retrospectivity of law relating to offences, double jeopardy and self-incrimination) and article 21 (Life and liberty not to be deprived except according to procedure established by law which after Maneka Gandhi’s case
[1] means fair, reasonable and just procedure).
3.18.2 The Commission recommends that clauses (1) and (1A) of article 359 should be amended by substituting for “(except articles 20 and 21)”, the following-
“(except articles 17,20,21,23,24,25 and 32)”
Capital Punishment
3.19 Section 121 of the Indian Penal Code permits death sentence or life imprisonment to be imposed for the offences of waging war against the Government of India, or attempts to wage such a war or abetment of such a war. The Commission, after due deliberations, has not thought it appropriate to recommend, at this stage, any change in the existing law relating to imposition of death penalty.
Rights of Children
3.21.1 Article 39(e) in the Directive Principles in Part IV refers to the duty of the State to direct its policy to see that children of tender age are not abused. Article 39 (f) refers to a similar duty on the State to give opportunities and facilities to children to develop in a healthy manner and with dignity and in conditions which are free and where childhood and youth are protected against exploitation and moral and material abandonment.
3.21.2 The Commission recommends that the following article should be added -
“Art. 24A. Every child shall have the right to care and assistance in basic needs and protection from all forms of neglect, harm and exploitation.”
Right to safe drinking water, clean environment, etc.
3.22.1 Gandhiji had once said that freedom for him would mean the availability of safe drinking water to every person in every village of India. This has still not become a reality.
3.22.2 Right to healthy environment and its protection and the right to development are group-rights and are loosely described as ‘third generation rights’. The right to sustainable development has been declared by the UN General Assembly as an inalienable human right
[1]. The Declaration recognizes that ‘human being is the central subject of the development process and that the development policy shall make the human being the main participant and beneficiary of development’. “Development” is defined as a ‘comprehensive economic, social, cultural and political process, which aims at the constant improvement of the well being of the entire population in development and in the fair distribution of benefits therefrom[1]. The Rio Conference of 1992 declared human beings as centres of concern for sustainable development. Human beings are, it is said, entitled to a healthy and protective life in harmony with nature (Principle 1). “In order to achieve ‘sustainable development’ environmental protection shall constitute an integral part of the development process and cannot be considered in isolation of it”. The 1997 Earth Summit meeting of 100 nations in New York affirmed these principles[2].
3.22.3 The Commission recommends that after the proposed article 30-C, the following article may be added as article 30-D :-
“Art. 30-D. Right to safe drinking water, prevention of pollution, conservation of ecology and sustainable development. -
Every person shall have the right –
(a) to safe drinking water;
(b) to an environment that is not harmful to one’s health or well-being; and
(c) to have the environment protected, for the benefit of present and future generations so as to –
(i) prevent pollution and ecological degradation;
(ii) promote conservation; and
(iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.”.
Right to Freedom of Religion
3.23.1 A number of institutions of Sikhs and Buddhists suggested certain changes in article 25(2). Explanation II to article 25 provides that reference to Hindus in sub-clause (b) of clause (2) should be construed as including a reference to Sikhs etc.
3.23.2 The Commission, without going into the larger issue on which the contention is based, is of the opinion that the purpose of the representations would be served if Explanation II to article 25 is omitted and sub-clause (b) of clause (2) of that article is reworded as follows:-
“(b) providing for social welfare and reform or the throwing open of Hindu, Sikh, Jaina or Buddhist religious institutions of a public character to all classes and sections of these religions.”
Special provision relating to language spoken by a section of population of a State
3.24 In order to make the rights available to minorities under articles 29 and 30 meaningful, the Commission feels that the provisions contained under article 347 need some modification. Before the President directs that use of any language spoken by a section of the population of a State be recognized in a State for such purposes as he may specify, he has to ensure that a substantial proportion of the population of that State so desires. The explanation “substantial proportion of the population” had been a subject matter of controversy and different constructions have been placed up on it. It shall be desirable that some optimum level of population with a view to take necessary action under this constitutional provision is prescribed. In article 347 of the Constitution, for the words “a substantial proportion of the population”, the words “not less than ten per cent of the population” should be substituted.
D. Directive Principles
Right to Health
3.28.1 The right to health has been treated by the Supreme Court as part of the right to ‘life’ in article 21
[1]. But, the right to health is not a right to be ‘healthy’. It means a right both to certain ‘freedoms’ and ‘entitlements’. The freedoms include the right to control ones’ health and body, including sexual and reproductive freedom and the right to be free from interference, such as by non-consensual medical treatment and experimentation. Entitlements include a right to a system of health protection with equality of opportunity to enjoy the highest attainable level of health – a right to the enjoyment and availability of facilities, good services and conditions such as physical accessibility, economic accessibility and information accessibility. It must be qualitative and should include the right to healthy working conditions and preventive medicine.
3.28.2 The State has to “respect, protect and fulfill" its obligations in these areas for children, adults and those in old age
[1]. As of today, free medical treatment in government hospitals is totally inadequate. Nor is it available always in close neighbourhood. It is not possible to deal extensively with the pathetic conditions of medical care provided by government hospitals in our country. It is a fact of life that the poorer and weaker sections of society are unable to afford the extraordinary expense involved in the medical care provided by private hospitals. There is, therefore, an urgent need to see that, progressively, the State allocates adequate funds in this behalf[3].
Right to Food and Freedom from Hunger, Clothing and Housing or Shelter
3.29.1 The State must recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing and to the continuous improvement of living conditions; the State shall also have to recognize the right of everyone to be free from hunger. It shall then have to initiate programmes to improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian system in such a way as to achieve the most efficient development and utilization of natural resources; and to take into account, the problem of both food-importing and food-exporting countries and to ensure an equitable distribution of world food supplies in relation to need.
3.29.2 It is well-known that while the godowns of the Food Corporation of India are overflowing and even rotting with excess food grains, there are reports of starvation deaths across the country. Further, quite a good percentage of food grains are lost due to inadequate conservation and also during distribution. This must be avoided by introducing proper systems.
3.29.3 The State must ensure right to housing or shelter. The Government of India formulated the National Housing Policy 1988, 1994, and the National Housing and Habitat Policy, 1998. There are various schemes for weaker sections, slum developments, etc.
[1]. As already stated, this right has been recognized by the Supreme Court of India as part of the right to life under article 21[4].
3.29.4 The Commission is convinced that the realization of the right to food, clothing and housing requires the State to prepare long range and short range plans for proper allocation of necessary funds.
Right to Education
3.30.1 Article 45 under the Directive Principles had envisaged free and compulsory education within ten years for all children till the age of 14. The national goal of universalisation of elementary education has still not been reached. Education for all remains an objective with the target date being pushed forward after every review. Increase in literacy rates to 72 per cent by 2007 and to 80 per cent by 2012, and universal access to primary education by 2007, have been set as goals in the approach paper to the Tenth Plan.
3.30.2 It should also be laid down in article 45 that the State shall make provision for education beyond the age of fourteen years within the limits of its economic capacity and stage of development.
Mechanism for realisation of Directive Principles
3.35.1 The State should devise appropriate mechanisms for realisation of Directive Principles. The Commission does not propose to recommend a complaints procedure inasmuch as it is more concerned with a procedure which will ensure proper allocation of resources for the realization of the right to work, health, food, clothing, housing, education and culture. Domestic bodies in various countries have different composition, membership and powers.
3.35.2 In the view of the Commission, there must be a body of high status which first reviews the state of the level of implementation of the Directive Principles and Economic, Social and Cultural Rights and in particular (i) the right to work, (ii) the right to health, (iii) the right to food, clothing and shelter, (iv) Right to Education upto and beyond the 14th year, and (v) the Right to Culture. The said body must estimate the extent of resources required in each State under each of these heads and make recommendations for allocation of adequate resources, from time to time. For ensuring that the Directive Principles of State Policy are realized more effectively, the following procedure is suggested:-
(i) The Planning Commission shall ensure that there is special mention/emphasis in all the plans and schemes formulated by it, on the effectuation/realization of the Directive Principles of State Policy.
(ii) Every Ministry/Department of the Government of India shall make a special annual report indicating the extent of effectuation/realization of the Directive Principles of State Policy, the shortfall in the targets, the reasons for the shortfall, if any, and the remedial measures taken to ensure their full realization, during the year under report.
(iii) The report under item (ii) shall be considered and discussed by the Department Related Parliamentary Standing Committee, which shall submit its report on the working of the Department indicating the achievements/failures of the Ministry/Department along with its recommendations thereto.
(iv) Both the above Reports i.e. (ii) and (iii) above shall be discussed by the Planning Commission in an interactive seminar with the representatives of various NGOs, Civil Society Groups, etc. in which the representatives of the Ministry/Department and the Departmental Related Parliamentary Standing Committee would also participate. The report of this interaction shall be submitted to the Parliament within a time bound manner.
(v) The Parliament shall discuss the report at (iv) above within a period of three months and pass a resolution about the action required to be taken by the Ministry/Department.
3.35.3 A similar mechanism as mentioned above may be adopted for the States.
E. Fundamental Duties
The Background
3.37.1 Ten Fundamental Duties of the citizen are incorporated in article 51A, Part IVA of the Constitution. Inserted by the Constitution (Forty-second Amendment) Act, 1976 it was part of a large number of changes brought about during the Emergency. But after the end of the Emergency, when the new Parliament reviewed the whole position and in most cases restored the pre-emergency position, article 51A was one that emerged unscathed because it was considered by all parties to be an unexceptionable charter of principles which citizens could usefully absorb and practice.
3.37.2 Constitutions of some countries of the world contain provisions for Fundamental Duties. The inclusion of Fundamental Duties in our Constitution also brings it in line with Article 29(1) of the Universal Declaration of Human Rights which says: “Everyone has the duties to the community in which alone the free and full development of the personality is possible.” Exercise of fundamental rights entails duties to the community which ensures the free and full development of human personality.
3.37.3 In the last quarter-century since the Amendment, several judgments of High Courts and the Supreme Court have quoted these Fundamental Duties, where applicable, to lend further support to their decisions.
3.37.4 A consultation paper on the subject of “Effectuation of Fundamental Duties” prepared for the Commission by the Citizenship Development Society was circulated for eliciting public opinion. Responses received were carefully examined by the Commission along with the report of the Justice Verma Committee on Fundamental Duties.
3.37.5 The Government of India appointed the committee “to operationalise the suggestions to teach Fundamental Duties to the citizens of India” in the year 1998 under the chairmanship of Justice J.S. Verma. The Committee submitted its report in October 1999. The Commission feels that it is, therefore, not necessary for it to cover the same ground again. It finds itself in full agreement with the report of the Verma Committee. The salient recommendations of the Committee are at Annexure 1
[1] to the Consultation Paper on “Effectuation of Fundamental Duties of Citizens”.
Usefulness of Duties
3.38.1 Fundamental Duties of citizens serve a useful purpose. In particular, no democratic polity can ever succeed where the citizens are not willing to be active participants in the process of governance by assuming responsibilities and discharging citizenship duties and coming forward to give their best to the country. Some of the fundamental duties enshrined in article 51A have been incorporated in separate laws. For instance, the first duty includes respect for the National Flag and the National Anthem. Disrespect is punishable by law. To value and preserve the rich heritage of the mosaic that is India should help to weld our people into one nation but much more than article 51A will be needed to treat all human beings equally, to respect each religion and to confine it to the private sphere and not make it a bone of contention between different communities of this land. In sum, the Commission believes that article 51A has travelled a great distance since it was introduced in the Forty-second Amendment and further consideration should be given to ways and means to popularise the knowledge and content of the Fundamental Duties and effectuate them.
3.38.2 The most important task before us is to reconcile the claims of the individual citizen and those of the civic society. To achieve this, it is important to orient the individual citizen to be conscious of his social and citizenship responsibilities and so shape the society that we all become solicitous and considerate of the inalienable rights of our fellow citizens. Therefore, awareness of our citizenship duties is as important as awareness of our rights. Every right implies a corresponding duty but every duty does not imply a corresponding right. Man does not live for himself alone. He lives for the good of others as well as of himself. It is this knowledge of what is right and wrong that makes a man responsible to himself and to the society and this knowledge is inculcated by imbibing and clearly understanding one’s citizenship duties. The fundamental duties are the foundations of human dignity and national character. If every citizen performs his duties irrespective of considerations of caste, creed, colour and language, most of the malaise of the present day polity could be contained, if not eradicated, and the society as a whole uplifted. Rich or poor, in power or out of power, obedience to citizenship duty, at all costs and risks, is the essence of civilized life.
Spirit of Harmony and Dignity of Women
3.39.1 Some further thought needs to be given to clauses (e) and (f) of article 51A. Article 51A(e) desires the promotion of harmony and the spirit of common brotherhood among all the people of India transcending religious, linguistic and regional or sectional diversities and renunciation of practices derogatory to the dignity of women. It is couched in broad terms but it should be clear that attacks on minority communities or minority opinions are frowned upon. Respect for both are essential and the wording lends support to a broad humanism to cover such differences as may exist or better still, co-exist. Two thoughts can be distilled. The first is that the objective will not be reached unless there is a determined effort to restrict religious practices to the home on the justified premise that one’s religion is a personal matter and is not conducive to mass assertiveness. The other is the status of women.
3.39.2 Lip service is being paid to the doctrine of gender equality. The fact remains that generally women are still regarded as inferior both at home and workplace although the Commission has noticed an improvement, however dissatisfied it may be with the degree of the improvement.
3.39.3 It is necessary to separate religious precepts from civil law. Civil law as the name implies is a matter for society not for religious leaders and it would seem to us to be axiomatic that in matters of civil rights, laws of property and inheritance and marriage and divorce, although practices may differ, legal rights that accrue must be the same. For example, a marriage may be solemnised according to religious or social custom but the rights of a woman in the case of divorce must be the same no matter what her religion is. As the Supreme Court held in the Shahbanoo case, an abandoned wife is an abandoned wife and it does not matter whether she professes one religion or another. She is entitled to alimony. Progress in these directions will be slow but it is necessary that progress is seen to be made. The key lies in education.
3.39.4 Clause (e) of article 51A also seems to cover the need to regard all human beings equally. In this connection, it is necessary to consider the question of the upliftment of the Scheduled Castes and other disadvantaged sections of our society. The scourge must be eradicated. The Constitution gave us ten years to do the job; the provision has been extended to fifty years and we are in our sixth ten-year period but we are no nearer the goal. The discrimination is two-fold. It is economic-condemning whole sections of our society numbering millions to menial jobs as part of the evil of treating them as sub-human. We have provided for reservation of jobs to these people, we have even given them separate constituencies to represent them. It has created a vested interest in backwardness. The other adverse result is that it has had no effect on their status in society, which continues to be determined by birth and not human worth and human personality. It is this social stigma which still plagues our people and the struggle to restore to them basic human dignity has made no significant progress. While the Commission appreciates the context in which affirmative action became necessary, it feels that reservation of jobs and seats in the legislatures will not help this aspect of the matter.
3.39.5 It is quite clear to the Commission that the disease of considering human beings as high or low based on the accident of birth is a disease rooted in the mind and it is in the mind that the defences of a society based on human dignity and equality must be constructed. Logically this leads directly to the conclusion that the key lies in education. The time to begin training our young people to respect the National flag and sing the National anthem, to respect women, to hold all religions equal and deserving of as much respect as one’s own, to accept that all human beings are born equal and are entitled to equal treatment are among principles best taught by examples when the child is too young to understand but not too young to obey. The focus must, therefore, shift to education which has suffered from serious neglect. Schools restrict admissions on unacceptable criteria, teachers themselves are untrained and often politicised, as is the curriculum. Despite these hardships, many of our young people have done well.
Composite culture
3.40.1 Clause (f) of article 51A requires us to value and preserve the rich heritage of our composite culture. It follows that we may not break each other’s places of worship, set fire to religious texts, or beat up one another’s priests or obstruct those who exercise their Fundamental Right under article 25 to profess, practice and propagate religion. Composite culture means culture drawn from many strands. Here again education in its broadest and best sense can provide the corrective to the aberrations that have occurred.
3.40.2 Education is not confined only to the time spent in schools and colleges. Education begins at birth in the subconscious and continues till death. Anyone who says that he has nothing more to learn is already brain-dead. It follows that the influences that play on a child at home are of great importance. Parents should understand that education begins at home, the examples they set, the environment of enlightenment and tolerance that is necessary to produce good citizens cannot be sub-contracted to formal schooling important though this is. Schemes should, therefore, be framed that include parents in social activities that have as their objective the country’s age-old traditions, its welcome to the persecuted of every faith, its virtues of tolerance of and respect for all religions and a certain pride in belonging to this land and in being considered as Indian. The highest office in our democracy is the office of citizen; this is not only a platitude, it must translate into reality. The distinction is not illusory. This country has given far too much indulgence to an attitude of mind that acts on the question - what is there in it for me? Education and the process of inculcating unselfishness and a sense of obligation to one’s fellowmen should inspire the question – where does my duty lie? The transformation has the potential to make our nation strong, invincible and able to command the respect of the world.
3.40.3 (i) The Commission recommends that the first and foremost step required by the Union and State Governments is to sensitise the people and to create a general awareness of the provisions of fundamental duties amongst the citizens on the lines recommended by the Justice Verma Committee
18 on the subject. Consideration should be given to the ways and means by which Fundamental Duties could be popularized and made effective; (ii) right to freedom of religion and other freedoms must be jealously guarded and rights of minorities and fellow citizens respected; (iii) reform of the whole process of education is an immediate but immense need, as is the need to free it from governmental or political control; it is only through education that will power to adhere to our Fundamental Duties as citizens can be inculcated; and (iv) duty to vote at elections, actively participate in the democratic process of governance and to pay taxes should be included in article 51A. The Commission fully endorses the other recommendations of the Justice Verma Committee on operationalisation of Fundamental Duties of Citizens and strongly suggests their early implementation.
3.40.4 The Commission also recommends that the following should be incorporated as fundamental duties in article 51A of the Constitution -
(i) To foster a spirit of family values and responsible parenthood in the matter of education, physical and moral well-being of children.
(ii) Duty of industrial organizations to provide education to children of their employees
No comments:
Post a Comment