CONSTITUTIONALITY OF MARITAL RAPE IN INDIA: AN ANALYSIS IN THE LIGHT OF ARTICLES 14 & 21 - The Daily Guardian
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Policy & Politics

CONSTITUTIONALITY OF MARITAL RAPE IN INDIA: AN ANALYSIS IN THE LIGHT OF ARTICLES 14 & 21

Raju Kumar

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Recently, Chhattisgarh High court ruled that the sexual intercourse between man and wife is not rape even if it is done by force. In India, primarily Section 375 of Indian Penal Code (herein after referred as IPC) deals with the rape. The codified section of 375 includes all forms of sexual assault which involves all nonconsensual intercourse with a woman. Section 375 of the IPC reads as “Rape.—A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de­scriptions:…….”— However, exception 2 of this section exempts unwilling sexual intercourse between a husband and a wife when it is done with over fifteen years of age and thus the act is protected from prosecution. According to the current prevailing law, it is presumed that a wife has already delivered his perpetual consent to have sex with her husband when she enters into marital relations. Around the globe, almost all countries have criminalized the marital rape. However, India is among the other thirty-six countries that still have not criminalized the marital rape. But, it is also notable that Supreme Court of India in the Judgment of Independent Thought v. Union of India, have criminalized the unwilling sexual contact with a wife between the age of fifteen and eighteen years. In this article, we will see the constitutional validity of Exception 2 of the Section 375.

VIOLATIVE OF ARTICLE 14 OF THE INDIAN CONSTITUTION.

Article 14 of the Indian Constitution states that “the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. In one hand, where the constitution provides equality to all, on the other hand, the criminal law discriminates the female who have been raped by their own husbands.

This law finds its footprint in the colonial era. At that time the women were treated as a cattle and this law is based on the “Doctrine of Coverture”. However, the time has been changed now and women must get their rights which are enshrined under the Constitution of India.

Exception 2 of Section 375, is inconsistent with the provision of Article 14 insofar it is discriminatory in nature. This section creates two different classes of women based on the marriage status. This classification is constitutionally invalid and is inconsistent with the doctrine laid down in the judgment of Budhan Choudhary v State of Bihar and State of West Bengal v. Anwar Ali Sarkar, where it was held that the classification should have some rational nexus to the objective that the act seeks to achieve. However, in the current scenario, exception 2 of section 375 doesn’t qualify the ‘reasonable test’ as it simply exempts husbands from punishment, which is totally contradictory with the objective. Furthermore, this exception also encourages husbands to establish forcefully sexual intercourse with their wives, as the act of husband is neither discouraged nor penalized by the law. Therefore, no rational nexus can be inferred between the classification created by this exception and the underlying objective of act. Thereby, it doesn’t satisfy the ‘reasonableness test’ and therefore it is violative of Article 14 of the Indian Constitution.

VIOLATION OF ARTICLE 21.

Article 21 of the Indian Constitution states that “no person shall be denied of his life and personal liberty except according to the procedure established by law.” Supreme Court while interpreting the clause of Article 21, in the judgment of State of Karnataka v. krishnappa, it was observed that “Sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female”. Furthermore, in the same judgment the court further observed that whenever a non-consensual sexual intercourse takes place, it amounts to physical as well as sexual violence. Later on, Supreme Court in the year 2009, in the judgment of Suchita Srivastava v. Chandigarh Administration, while dealing with Article 21, equated the right to make choices related to sexual activity with rights to personal liberty, privacy, dignity, and bodily integrity.

Recently, Supreme Court in the year 2018, in the landmark judgment of Justice K.S. Puttuswamy (Retd.) v. Union of India, recognized the ‘right to privacy’ as a fundamental right. Furthermore, it was also observed that the right to privacy includes “decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations”. The above decision of the court doesn’t create any difference between married and unmarried women. Therefore, it is applicable universally and a woman doesn’t losses the rights enshrined under article 21 after the marriage.

Moreover, exception 2 is also inconsistent with Article 21’s ‘right to live with a healthy and dignified life’ as held in the judgment of C.E.S.C. Ltd. v. Subhash Chandr.

CONCLUSION

The above discussion clearly shows that exception 2 of section 375 clearly violates Article 14 and 21 of the Indian Constitution. Renowned scholar Dr. Br. Ambedkar once observed that “I measure the progress of a community by the degree of progress women have achieved”. In India, which is always knows for its vast diversity and culture, such laws prevailing is a dark side of it. Women should not be treated merely as an object. They must be stand on equal footage. Now, it is high time when Indian criminal jurisprudence should strike it down.

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Policy & Politics

IT’S TIME TO REVIEW INDIA’S ANTI-DEFECTION LAW

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INTRODUCTION

When Haryana held its first election in 1967 after the state carved out from Punjab, an independent candidate named Gayalal won the assembly elections. Later he joined the Congress party; in the evening, he joined the United front, and within 9 hrs he joined the Congress again, which ultimately means M.L.A. Gayalal switched his party thrice within 9hrs. This incident gave rise to “Aaya Ram Gaya Ram” politics in our country, and the defection got the new term, “Aaya Ram, Gaya Ram.” Unfortunately, this didn’t end here. Within 15 days, Gayalal again joined the United front. In another notorious event in 1979, Haryana also came into the limelight when Bhajan Lal became CM of the state. The next, year Indira Gandhi came into power in the central government. He joined the Congress party with forty other M.L.A.s. It is worth mentioning here that more than 50 state governments have fallen because of these defections since Independence’s enactment.

These acts of defections had to be curbed to maintain the dignity of the constitutional machinery and assemblies; then, the prime minister of the country, Late Rajeev Gandhi, enacted the 52nd amendment of the Constitution, and the 10th Schedule was added, which defined the word defection and known as Anti-Defection law. Various provisions have been provided by the law, which discusses grounds under which any member of the state legislature or Parliament can be disqualified. In most common forms, defection means jumping from one political party to the other after getting elected.

HISTORICAL EVOLUTION OF LAW

After enacting the Constitution in the year 1950, we had the first general elections in our country in which Congress secured a whopping victory. Still, with time, the political scenario took a turn, and we came across coalition governments in various states. Floor crossing started which led to a vicious cycle of defections and floor crossing. In the late 1960s, most defectors were from Congress. In 1977, the Bhartiya Lok Dal ran 94 turncoat candidates, including 21 from Congress. Many of them migrated back to the Congress once it became clear that Indira Gandhi was set to win the 1980 elections. This period is considered a weak point of Congress in Indian Politics.

With all those defections in this phase, the most dramatic case of the defection in that era was that of Mr. Gaya Lal, who contested state assembly elections as an independent candidate. After results, he switched the parties between Congress and United Front thrice in a day. Ultimately, the president was forced to implement President rule in the state, giving rise to Aaya Ram, Gaya Ram politics in our country.

THE INTERNATIONAL SCENARIO ON ANTI-DEFECTION LAW

Anti-defection law isn’t applicable in India only. It’s rife in various other countries like the People’s Republic of Bangladesh, Kenya, an African country, etc. Article 70th of the People’s Republic of Bangladesh Constitution says a member shall vacate his seat if he resigns from or votes against the directions given by his party. The Speaker refers the dispute to the committee. Section forty of the Kenyan Constitution states that a member United Nations agency that resigns from his party must vacate his seat. The choice is by the Speaker, and therefore the member might consider attractiveness to the state supreme court.

Article forty-six of the Singapore Constitution says a member should vacate his seat if he resigns or is expelled from his party. Article forty-eight states that Parliament decides on any question about the Disqualification of a member. Section forty-seven of the South African Constitution provides that a member loses membership of the Parliament if he ceases to be a member of the party-appointed him.

WHAT IS THE ROLE OF PRESIDING OFFICERS IN THE CONTEXT OF ANTI-DEFECTION LAW?

The tenth Schedule provides presiding officers of legislatures with the power to make your mind up cases of defection. However, it’s been noted that because the Speaker relies upon continuous support of the bulk within the House, he might not satisfy the need of associate freelance adjudicating authority regarding the decision of defection.

In the past, adjudication of the Speakers with relation to disqualifications are challenged before courts for being biased and partial. Many knowledgeable committees and commissions, together with the Dinesh Goswami Committee (1998), Commission to Review the Constitution (2002) so the| and also the} Law Commission (2015) have therefore counseled that defection cases should be set by the President or Governor for the center and states severally, World Health Organization shall act on the recommendation of the committee. This can be an equivalent observe that’s followed for deciding queries associated with the Disqualification of legislators on alternative grounds, like holding an associate workplace of profit or being of unsound mind, beneath the Constitution. However, note that the Supreme Court has upheld the availability granting the leader the ability to require these selections on the bottom that,

“The Speakers/Chairmen hold a polar position within the theme of republic and square measure guardians of the rights and privileges of the House. They’re expected to require way reaching selections within the functioning of the republic. Vestiture of power to adjudicate queries beneath the Tenth Schedule in such constitutional functionaries shouldn’t be thought of objectionable.”

JUDICIAL VIEW ON DISQUALIFICATION BY THE SPEAKER FOR DEFECTION

Dr. Koya defied a celebration whip requiring him to be a gift within the House and vote against the Motion of Confidence for the government. He claimed he was too unwell to be a gift within the House. The Speaker over that Dr. Koya abstained from choice by remaining absent, and therefore the proof of the ‘illnesses isn’t decent to conclude that he was thus unwell that he couldn’t be a gift within the House.

Shri Prasad defied a celebration whip requiring him to be a gift within the House. In his defense, he denied that any whip was issued or served. The Speaker commands that visible of the fact that there’s proof to indicate that the whip had been delivered to Shri Prasad’s House, and had been punctually received, it can’t be aforesaid that Shri Prasad had no information of the whip.

The opposition alleged that Shri Bishnoi usually dissented from and criticized the Congress government in public and demanded the govt’s dismissal. In Haryana. The Speaker command that an individual obtaining elective as a candidate of a party also gets elective thanks to the party’s programs. If the person leaves the party, he ought to return before the citizens.

It was alleged that Shri Akhlaque joined the Samajwadi Party in an exceedingly public meeting. It was alleged that at this meeting, Shri Akhlaque had aforesaid that inside, he had invariably been a member of the S.P. The Speaker reasoned that there’s no reason why news clippings and stories within the media would be lying. The Speaker, so command Shri Akhlaque disqualified for having voluntarily given up membership of the B.S.P. The foremost recent case about anti-defection is from the Mysore State assembly wherever B.J.P. is that the ruling party and fourteen members of B.J.P. and five freelance members sent a letter of discontent against the Chief Minister.

A criticism was created against them, and Speaker disqualified them from their membership. The case is unfinished within S.C.

CHALLENGES TO ANTI-DEFECTION LAW

The Constitution (32nd Amendment) Bill 1973 and thus the Constitution (48th Amendment) Bill 1978 had provisions for decision-making by the president and governors of states in connection queries on Disqualification on the ground of defection.

The Constitution (52nd Amendment) Bill 1985 suddenly introduced the provision that queries of Disqualification on the ground of defection shall be determined by chairmen and speakers of the legislative bodies. The intention was to possess speedier assessment processes at a lower place in the Tenth Schedule. This provision was a problem matter of excellent discussion in Parliament once the bill was being passed.

The 91st amendment to the Constitution was enacted in 2003 to tighten the Tenth Schedule’s anti-defection provisions, passed earlier in 1985. This change obligates all those political modification sides — whether or not on a private basis or in groups — to resign their legislative membership. They presently have to be compelled to search for re-election if they defect and cannot continue work by engineering a “split” of the simple fraction of members, or among the pretense of a “continuing split of a party.” The change jointly bars legislators from holding, post-defection, any work of profit. This amendment has therefore created defections concerning insufferable and may be an important breakthrough in cleansing politics. The irony of matters today is that the events have invalidated the vital intent of the dream of Rajiv Gandhi Their area unit instances whereby once the declaration of election results, winning candidates have resigned from their membership of the House additionally due to the party from that they got elective. Instantly, they have joined the party that has formed the govt and have yet again opposed that party, which looks to be a fraud and goes against the spirit of democracy and 52nd constitutional modification. The ingenious human brain unreal innovative ideas to induce resignations and, in effect, created the anti-defection law as a cover to hide their atrocious crime.

This law excluded the jurisdiction of the judiciary from reviewing the choices of Speakers. This half was controlled to be unconstitutional by the Supreme Court, whereas it upheld the remainder of the law. The Supreme Court was unanimous in holding that paragraph seven of the tenth Schedule utterly excluded all courts’ jurisdiction together with the Supreme Court beneath Article 136 and High Courts beneath Articles 226 and 227 in respect of any matter connected with the Disqualification of the member of a House.

The Constitution doesn’t enable the general assembly to limit the powers of the judiciary. ‘The Speakers/Chairmen, whereas effort powers and discharging functions beneath the Tenth Schedule act as assembly adjudicating rights and obligations beneath the Tenth Schedule and their choices therein capability area unit amenable to judicial review,’ Supreme Court same. Consequently, the Supreme Court reviewed and smitten down the order gone by the Speaker of province Assembly to disable two members in violation of the constitutional mandate in paragraph three of the Tenth Schedule to the Constitution.

Suppose we tend to run into the impact of this law. In that case, it curbs the legislators’ freedom of opposing the incorrect policies, dangerous leaders, and anti-people bills projected by the ‘High Command’ in a whimsical and monarchical manner. This law has given extra dictatorial power to the organization to stay the flock along for a complete term.

“Section 2(b) of the Tenth Schedule puts the Member of Parliament into the straight jacket of obedience to the despotic dictates of the party whips that undermines the democratic spirit. It conjointly violates the principle of representative democracy by empowering the party and undermining nonappointive representatives and constituents’ connection.

The anti-defection law makes a mockery of the republic by marginalizing debates because the legislators aren’t allowed to dissent while not disqualified by the House. Disruptions, instead of substantive dialogue, become the sole style of opposition attainable. The parliamentary discussion has thereby become, for the most part, redundant”.

The Tenth Schedule has set down bound norms for keeping the flock of legislators of every party along. Therefore, the ‘whips’ within the hands of legislative party leaders, reducing the Hon’ble leaders and people’s representatives into shepherds and sheep. Because of the political parties’ unreal mechanisms to fail this constitutional legislation, the judiciary competes for a vital role in upholding the lawfulness and morality of the law besides increasing its horizons to curb the most treacherous observation unforeseen political infidelity.

This Tenth Schedule whenever used to enhance the burden of courts. Instead of maintaining standards within the party with effective leadership, the political parties are resorting to litigation, begging the courts to decide the political issues they failed to settle. It is not fair to blame the judiciary for taking the time to determine this tricky question within the framework of the Constitution. Neither the Governor nor the Speaker is bona fide. Their moves are not fair. They desperately try to use Constitutional power to settle political scores and wreak political vengeance. In the process, they do not care about the people’s will in electing a party to power, for whatever reasons that might be.

MERITS AND DEMERITS OF ANTI-DEFECTION LAW

Like every law, anti-defection laws accompany their own deserves and demerits. Looking at the positive aspect, the law aims at providing stability to the government by significant members-only just in case of any party shifts on their parts. Also, anti-defection laws try to induce some way of the members’ loyalty towards their party. This it tries to realize by guaranteeing that the members selected among the party’s name and its support conjointly as a result of the party tell to remain loyal to the party of that he is a member and its policies.

Turning to the downsides, anti-defection laws limit the freedom of speech and expression of the members by preventing them from expressing any opinion in relevant party policies. However, it has been managed in varied judgments that the freedom of speech provided below Article one zero 5 and 194 is not absolute. It’s subject to the provisions of the Constitution, the Tenth Schedule being one in all them. Another demerit of the law is that it reduces the irresponsibility of the government. To the Parliament and the parents by preventing the members of the political parties from changing their parties.

CONCLUSION

The introduction of the Tenth Schedule to the Indian Constitution was in gear toward edge political defections. Though the law has succeeded in associate degree extremely low-cost suggests that but because of the variety of its loopholes, it hasn’t been able to reach the foremost effectiveness it’ll. Through their dishonesty, corrupt politicians have noticed the defects among the law to suit their wishes among absolutely the best suggests that. The following changes among the law might facilitate it to develop to the utmost adequate possible extent:

The power to the lawgiver needs to be reduced so that only those members’ administrative body vote against the party declaration is subject to disqualification associate agreed, not those who vote against the party in an extremely not-so-important matter or a matter that may not core to the party declaration. This might, in an associate degree, extremely suggest that facilitate the members to possess some individual viewpoint on varied issues.

The law ought to expressly launch what it means by the words’ voluntarily jettisoning Membership’, thus avoiding any confusion. The provision with relevancy mergers whereby it exempts members from Disqualification if they defect in large numbers, i.e., two-thirds, ought to be amended to form the reason for defection due to the idea of exemption from Disqualification rather than mere numbers.

Turning to the downsides, anti-defection laws limit the freedom of speech and expression of the members by preventing them from expressing any opinion in relevant party policies. However, it has been managed in varied judgments that the freedom of speech provided below Article one zero 5 and 194 is not absolute. It’s subject to the provisions of the Constitution, the Tenth Schedule being one in all them. Another demerit of the law is that it reduces the irresponsibility of the government. To the Parliament and the parents by preventing the members of the political parties from changing their parties.

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Policy & Politics

Where did the farm laws go wrong?

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The three new agriculture laws implemented by India in September 2020 with little public or legislative debate have piqued the world’s curiosity. The initiatives were portrayed as a gift to farmers by Prime Minister Narendra Modi’s government, but farmers in various Indian states, headed by smallholders in Punjab and Haryana, have refused to accept them.The three laws are:

• The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act,

• The Essential Commodities (Amendment) Act and

• The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act.

The court stated that dozens of rounds of negotiation between the Centre and farmers had yielded no breakthroughs, despite the fact that senior individuals, women, and children among the protestors were exposed to major health risks caused by the cold and COVID-19. It was stated that deaths had already happened, not as a result of violence, but as a result of illness or suicide. The court praised the protesters’ nonviolent character and indicated that it did not intend to stop them.Essentially, in the midst of a pandemic, with a critical vaccination drive underway, the government appears to be employing a two-pronged strategy to break the impasse: reaching out to farmers to bridge the trust deficit in farm laws, and combating disruptive forces that are attempting to take advantage of the situation.

Farmers are concerned that agriculture sector changes would result in the abolition of the minimum support price (MSP) system and the abolition of APMC markets. The government buys farm commodities at a fixed price under the MSP framework. The MSP guarantees that farmers are guaranteed a set price, regardless of supply and demand limits. Farmers have been calling for legislation to ensure that agricultural food is purchased at the MSP. They also urge the government to repeal the Electricity Act modifications.Farmers are concerned that it would lead to the corporatization of agriculture, which will eventually force them out of the industry. They contend that the sale of agricultural produce would be governed by contracts, rendering the MSP regime ineffectual. The law permitted farmers to engage into a direct arrangement with the buyer before to the sowing season and sell their goods at the agreed-upon price at the time of contract signing.

What were the main issues in THE FARMER’S PRODUCE TRADE AND COMMERCE (PROMOTION AND FACILITATION) ACT, 2020 OR THE FPTC ACT as regarded by the farmers?

Though farmers objected to all three agricultural laws, the main issue was this Act, commonly known as the ‘APMC Bypass Bill.’ Cultivators were concerned that its provisions would undermine the APMC mandis.

Sections 3 and 4 of the Act permitted farmers to sell their goods in regions beyond the APMC mandis to purchasers from inside or outside the state. Section 6 barred the collection of any market charge or cess under any state APMC Act or other state law in connection with trading outside the APMC market. Section 14 overruled the contradictory sections of the state APMC laws, while Section 17 enabled the Centre to make regulations for enforcing the law’s provisions.

Farmers were concerned that the new laws would result in insufficient demand for their goods in local marketplaces. They said that moving the produce outside of mandis would be impossible due to a lack of resources. This is why they sell their goods at prices lower than MSP in local marketplaces.

Farmers were also upset with the provisions in Section 8 of the law that stated that a farmer or merchant might approach the Sub-Divisional Magistrate (SDM) to reach an agreement through conciliation procedures. While farmers claim they lack the right to enter SDM offices for conflict resolution, others say this amounts to seizure of judicial authorities.

POSSIBLE ISSUES WITH FARMERS (EMPOWERMENT AND PROTECTION) AGREEMENT OF PRICE ASSURANCE AND FARM SERVICES ACT, 2020

Sections 3-12 of the statute attempted to provide a legal framework for contract farming. Before the planting season, farmers might get into a direct arrangement with a buyer to sell their products at predetermined pricing. It enabled farmers and sponsors to enter into agricultural partnerships. The law, however, made no mention of the MSP that purchasers must provide to farmers.

Though the Centre claimed that the law was intended to liberate farmers by allowing them to sell anywhere, farmers were concerned that it would lead to the corporatisation of agriculture. They were also concerned that the MSP will be eliminated. Critics also claimed that the contract system would expose small and marginal farmers to exploitation by large corporations unless selling prices were continued to be regulated as they were before to the new law’s implementation.

HOW DID THE FARMERS REACT TO THE FARM BILL?

Despite the potential benefits, both parties were unable to reach an agreement on the farm laws, which resulted in their repeal. Farmers who have been protesting at Delhi’s borders and in their states since last year have rejected the Central government’s offers to alter the contentious new agriculture rules. They said that the plan was insufficient and accused the administration of being “insincere,” while also warning the Parliament to step up their protests. Parliament approved these Acts during the monsoon session in 2020. Farmers have long feared that the Centre’s farm reforms will pave the way for the demise of the MSP system, leaving them at the whim of large corporations. However, no resolution was reached, and no date for the next round of discussions was set for the first time. Following the failure of these discussions, the Supreme Court suspended the execution of these farm legislation. Farmers were overjoyed when these rules were removed on November 19, 2021.

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Declaring vaccination mandatory in India: A last resort towards battling Covid-19

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With the spread of novel coronavirus (COVID-19) across the globe, there is hardly any country which has been able to protect its citizens from it. During this unprecedented situation which has persisted more than a year, this pandemic has claimed as many as 3.18 lakh lives in India itself, making the situation abysmal and chaotic in the country. But a silver lining arose on January 03rd, 2021, when the Government of India approved emergency authorization for Covishield and Covaxin for effectively tackling the pandemic situation.

Till date, around 160 crore people have been vaccinated out of which around 4.24 crore have been fully vaccinated. As can be evidently seen, India’s COVID-19 vaccination drive is alarmingly behind schedule, especially when India is facing an unforeseen situation and it is the need of the hour to rustle up the vaccination drive. Indubitably, the government has miserably failed in procuring vaccines leading to an inordinate delay in inoculating people. One of the reasons behind such a delay is an acute shortage of supply of vaccines from the manufacturers. But there is another hidden but known facet which has conspicuously reduced the percentage of vaccinated population despite vaccines being available at local vaccination centers. Suspicions and myths pertaining to vaccines in general are creating mistrust among people, especially for those residing in rural or marginalized areas, who are very skeptical about getting inoculated. Due to such fear and apprehension, people are not registering for vaccination and even after scheduling an appointment, they are not turning up for vaccination at the centers leading to wastage of thousands of doses raising a cause for concern in the entire country.

First and foremost step to be taken by the government is to initiate an awareness drive throughout the country by educating the people residing especially in rural and marginalized areas about the various personal and community health benefits of getting vaccinated. However, in case there is timely and unhindered supply of vaccines and yet people refuse to take it then the government must promulgate laws making vaccination compulsory in the nation. Although, it is not always necessary to go through the trouble of making vaccination compulsory but it should only be kept as a last resort to tackle the problem. It is well within the legislative powers of the State Legislature to enact such a law related to public health and sanitation. (vide Entry 6 List-II of the Seventh Schedule of the Constitution on India). Here, a focus needs to be drawn to a similar step taken by the British Government to make smallpox vaccination compulsory by way of the Vaccination Act of 1892. Another example was laid down by the US Supreme Court which upheld the law made by the State for compulsory vaccination stating that is well with its police power for the protection of public health.

LAWS EMPOWERING THE GOVERNMENT TO MAKE VACCINATION MANDATORY

The Epidemic Disease Act of 1897 contains provisions empowering the government to take whatever measures it deems necessary to prevent the outbreak or spread of an epidemic disease, provided the existing laws are not sufficient to deal with the situation. Moreover, a collective reading of numerous provisions of the National Disaster Management Act of 2005 shows that the Central Government is empowered to constitute a National Disaster Management Authority which can lay down the policies, plans and guidelines for disaster management for ensuring timely and effective response to a disaster. The Central Government has invoked its power under Section 6 (2)(i) of the Disaster Management Act, 2005 directing the State Governments to restrict the movement of people and various other activities in the beginning of the pandemic and those can be applied for the process of vaccination too. Under such laws, the government can formulate policies for compulsory vaccination during the current unprecedented situation in India.

ENFORCING MANDATORY VACCINATION

It is certainly not advisable to impose penal action like imprisonment against an individual who refuses to get inoculated. There are several ways through which the government can enforce mandatory vaccination on such individuals. For instance, it can impose fine on people who refuse vaccination. Another way can be by imposing a reasonable restriction on the movement of an individual within any part of this country since the freedom to move freely within the territory in India is subject to reasonable restrictions as laid down under Article 19(5) of the Constitution of India. Moreover, for the people who are visiting India, vaccination must be compulsory upon failure of which can lead to restricting the use of their passport by the Government by exercising its powers under the Passport Act, 1967. Alternatively, if a person still refuses to get vaccinated upon his arrival in India, he shall be mandatorily kept under 7 days institutional quarantine as per the guidelines for international arrival issued by the Ministry of Health and Family Welfare (MoHFW). Moreover, for foreigners who are not vaccinated, the government can pass an order under Section 3 (2) (e) of the Foreigners Act, 1946. For example, people applying for immigration to the United States need to show their vaccination certificates. Otherwise the applicant must be given those vaccines at the time of medical exam.

PERCEIVED CRITICISMS

Making COVID-19 vaccination mandatory for people can have some serious legal concerns. A person can claim that the legislation making vaccination compulsory is violative of the right to privacy under Article 21 of the Constitution of India. The term privacy has been interpreted in its widest sense so as to restrict the government from infringing it by way of an unfair, unjust and unreasonable laws and regulations. But it is pivotal to argue that the right to privacy is embraced under the right to life and personal liberty which may be restricted according to the procedure established by law. Therefore, the right to privacy can very well be curtailed by the government by way of enacting just, fair and reasonable law which is in interest of public at large (vide K.S Puttaswamy v Union of India). Further in the case of Evara Foundation vs Union of India in the affidavit it was stated that “It is humbly submitted that the direction and guidelines released by Government of India and Ministry of Health and Family Welfare, do not envisage any forcible vaccination without obtaining consent of the concerned individual”.

At this juncture, it is also pertinent to give reference to Hohfeld’s theory of jural relations. As Hohfeld says, if a person has a right, then that right is accompanied by a duty to protect the rights of others. In other words, the people are guaranteed the right to privacy which can be restricted by making the vaccination compulsory for the people refusing to take the vaccination for collective public interest, since COVID-19 will continue to spread if people do not get vaccinated. For instance, if majority of the population in the Country is vaccinated then it will obviously break the chain of the spread of the virus and the positivity rate will come down.

Moreover, there are many developed countries across the world like U.K., Australia, France, Italy, who have made the vaccination mandatory for their citizens despite the fact it is not the last resort but it was the only way to break vicious cycle of waves of the virus. In addition, India is a developing country where the health care system is ineffective to cater the vast number of populations. So, India should also follow the footsteps of the developed countries in order to save the lives of its citizens.

SUMMING UP

In order to achieve herd immunity by vaccinating a large number of people either by way of voluntary vaccination or forced vaccination, equitable distribution of vaccines is a pre-requisite, failure of which can render the former otiose. There is an obligation on part of the government to ensure that there are no obstacles or impediments in providing vaccines all across the nation without any discrimination.

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Policy & Politics

PIYUSH GOYAL CALLS UPON STARTUPS TO LEVERAGE ‘DEEP TECH’

Goyal says start ups to build solutions for local & global markets: AI, IoT, Big Data, etc.

Tarun Nangia

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Piyush Goyal

The Minister of Commerce and Industry, Consumer Affairs, Food and Public Distribution, Piyush Goyal today called upon the Indian industry to aim for raising 75 unicorns in the 75 weeks to the 75th anniversary of Independence next year.

“We have added 43 unicorns added in 45 weeks, since the start of ‘Azadi ka Amrit Mahotsav’ on 12th March, 2021. Let us aim for atleast 75 unicorns in this 75 week period to 75thAnniversary of Independence,” he said, while releasing the NASSCOM Tech Start-up Report 2022.

Goyal said Startup India started a revolution six years ago and today ‘Startup’ has become a common household term. Indian Startups are fast becoming the champions of India Inc’s growth story, he added.

“India has now become the hallmark of a trailblazer & is leaving its mark on global startup landscape. Investments received by Indian startups overshadowed pre-pandemic highs. 2021 will be remembered as the year Indian start-ups delivered on their promise, – fearlessly chasing opportunities across verticals – Edtech, HealthTech & AgriTech amongst others,” he said.

Goyal lauded the ITES (Information Technology Enabled Services) industry including the Business Process Outsourcing (BPO) sector for the record Services exports during the last year. “Services Export for Apr-Dec 2021 reached more than $178 bn despite the Covid19 pandemic when the Travel, Hospitality & Tourism sectors were significantly down,” he said.

• “Let us aim for at least 75 unicorns in the 75 weeks to the 75th Anniversary of Independence”: Piyush Goyal

• Goyal lauds the ITES industry including the BPO sector for the record Services exports during the last year despite the pandemic

•  Piyush Goyal says the PM’s interaction with Startups a week ago has supercharged our innovators

• The next “UPI moment” will be the ONDC (Open Network for Digital Commerce) – Goyal

• New India is today being led by new troika of Innovation, Technology & Entrepreneurship (ITE), ‘India at 100’ will be renowned as a Startup nation: Goyal

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Subhas Chandra Bose statue to be installed in India Gate, announced PM Modi

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Prime Minister Narendra Modi announced on Friday that a grand statue of iconic freedom fighter Netaji Subhas Chandra Bose will be installed at India Gate. This announcement came ahead of the 125th anniversary of Netaji Subhas Chandra Bose. Prime Minister Narendra Modi announced that his statue will be installed at India Gate to honor his contribution to the independence movement.

The Prime Minister further said that Bose’s grand statue will be made of granite and will be a symbol of India’s indebtedness to him. “Till the grand statue of Netaji Bose is completed, a hologram statue of his would be present at the same place. I will unveil the hologram statue on 23rd January, Netaji’s birth anniversary” PM Modi tweeted

“At a time when the entire nation is marking the 125th birth anniversary of Netaji Subhas Chandra Bose, I am glad to share that his grand statue, made of granite, will be installed at India Gate,” PM Modi tweeted on Friday. “This would be a symbol of India’s indebtedness to him.”

The statue will be installed under the grand canopy near which the Amar Jawan Jyothi flickers in remembrance of India’s martyrs. The eternal flame, which has not been extinguished for 50 years, will be put off on Friday, as it will be merged with the flame at the National War Memorial.

The canopy, which was built along with the rest of the grand monument in the 1930s by Sir Edwin Lutyens, once housed a statue of the former king of England George V. The statue was later moved to Coronation Park in Central Delhi in the mid-1960s.

The announcement was hailed by many Bharatiya Janata Party (BJP) leaders, Union ministers and civil society members.

“Great news for the entire nation as PM @narendramodi Ji has today announced that a grand statue of Netaji Subhas Chandra Bose, will be installed at the iconic India Gate, New Delhi. This is a befitting tribute to the legendary Netaji, who gave everything for India’s freedom.” Amit Shah tweeted.

“Netaji is an epitome of India’s true strength & resolve. Congress has left no stone unturned to forget the immortal contributions of India’s brave son. PM @narendramodi’s decision to install Netaji’s statue at India Gate on his 125th Jayanti will inspire our generations to come.” Amit Shah added in his tweet.

The Prime Minister Narendra Modi will unveil a 216-foot statue of Ramanujacharya, a 11th century saint and a social reformer, in Hyderabad on February 5. The statue described as the ‘Statue of Equality is located in a 45-acre complex at Shamshabad on the outskirts of the city.

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‘US, India should set bold goals to attain $500bn target’, said Keshap

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Having achieved a huge success in their bilateral relations, two of the world’s greatest democracies – India and the United States of America should opt in favour of setting bold goals in order to take their relationship to a new high thereby achieving the ambitious target of $500 billion in bilateral trade echoes retired American Diplomat Atul Keshap, who recently became the new president of the US India Business Council (USIBC).

“I think it’s vitally important that we show that democracies can deliver; that the United States and India can be a driver of global growth and a model for prosperity and development in the 21st century,” Keshap said.

During his illustrious career, the veteran diplomat has served in various capacities with the US State Department. He has been the US Ambassador to Sri Lanka and the Maldives and has also served as the Principal Deputy Assistant Secretary of State.

In 2021, he took over as the Chargé d’affaires of the United States mission to India and has been instrumental in shaping the US-India ties under the Joe Biden administration.

“I feel it’s critically important that we show that open societies powered by a free enterprise can be relevant for their people and can help power the world out of this pandemic. I tend to agree entirely with President Biden and PM Narendra Modi that the US India Partnership is a force for global good and it’s going to have a huge impact on economic growth,” he said.

Keshap feels that USIBC is the podium where he can give his best and help the people from both countries. “We need to move forward on the global trade agenda. We need to ensure the prosperity of the future, especially after this pandemic,” he said.

The 50-year-old diplomat reflected on the vision set by Biden, about potentially having a $500 billion trade in goods and services between the US and India. “That’s a very ambitious number and I believe in it. It is a great idea to try to have ambitious targets, else we are on a standstill” he said.

Having donned the new role recently, Keshap said he wants to help meet that $500 billion bilateral trade goal. “This is where the government and the private sector have to work together hand-in-hand,” he said.

“We have to articulate the benefits and have to convince all our stakeholders that there is value in lowering trade barriers, in creating strong standards and in creating positive ecosystems. There is value in dealing with small technical issues that might be creating a blockage to greater prosperity between our countries,” Keshap said.

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