This article shall talk about the discrimination against menstruating women is widespread in India, where periods have long been a taboo and considered impure. According to one study, only 36% of India’s 355 million menstruating females use sanitary napkins , while the rest use old rags, husk, ash, leaves, mud and soil and such other life-threatening materials to manage their flow.A woman’s menstrual health is crucial to her well-being and also to the well-being of her family and community. But too often — especially in the developing world — mindsets, customs and institutional biases prevent women from getting the menstrual health care they need. Menstrual hygiene continues to be amongst the most challenging development issues today. Menstruation is associated with the onset of puberty in girls and many a times, it brings with it rules, restrictions, isolation and changed expectations from the girls by the society. This changed attitude towards girls such as restrictions on their self expressions, schooling, mobility and freedom has far reaching consequences on the mindset of women. Menstruation is still considered a taboo in the Indian society. Even today, the cultural and social influences on people create a major hurdle in ensuring that the adolescent girls are given proper knowledge on menstrual hygiene. Mothers are also reluctant to talk about this topic with their daughters and many of them lack scientific knowledge on puberty. Culturally in many parts of India, menstruation is still considered to be dirty and impure. The origin of this myth dates back to the Vedic times and is often been linked to Indra’s slaying of Vritras. For, it has been declared in the Veda that guilt, of killing a brahmana-murder, appears every month as menstrual flow as women had taken upon themselves a part of Indra’s guilt. Further, in the Hindu faith, women are prohibited from participating in normal life while menstruating. She must be “purified” before she is allowed to return to her family and day to day chores of her life. However, scientifically it is known that the actual cause of menstruation is ovulation followed by missed chance of pregnancy that results in bleeding from the endometrial vessels and is followed by preparation of the next cycle. Therefore, there seems no reason for this notion to persist that menstruating women are “impure.” Many girls and women are subject to restrictions in their daily lives simply because they are menstruating. Not entering the “puja” room is the major restriction among urban girls whereas, not entering the kitchen is the main restriction among the rural girls during menstruation. Menstruating girls and women are also restricted from offering prayers and touching holy books.The underlying basis for this myth is also the cultural beliefs of impurity associated with menstruation. It is further believed that menstruating women are unhygienic and unclean and hence the food they prepare or handle can get contaminated. According to study by Kumar and Srivastava in 2011, participating women also reported that during menstruation the body emits some specific smell or ray, which turns preserved food bad. And, therefore, they are not allowed to touch sour foods like pickles. However, as long as general hygiene measures are taken into account, no scientific test has shown menstruation as the reason for spoilage of any food in making. Cultural norms and religious taboos on menstruation are often compounded by traditional associations with evil spirits, shame and embarrassment surrounding sexual reproduction. In some cultures, women bury their cloths used during menstruation to prevent them being used by evil spirits. Interestingly, in Asia including India, such beliefs are still practiced. However, there seems to be no logical or scientific explanation for this.In some parts of India, some strict dietary restrictions are also followed during menstruation such as sour food like curd, tamarind, and pickles are usually avoided by menstruating girls. It is believed that such foods will disturb or stop the menstrual flow. As far as the exercise is concerned, many studies in India and elsewhere have revealed that many adolescent girls believe that doing exercise/physical activity during menses aggravate the dysmenorrhea while in real exercise can help relieve the menstruating women with symptoms of premenstrual syndrome and dysmenorrhea and relieve bloating. Exercise also causes a release of serotonin, making one feel much happier. In some parts of India, perceptions of Hinduism center on notions of purity and pollution. Bodily excretions are believed to be polluting, as are the bodies when producing them. All women, regardless of their social caste, incur pollution through the bodily processes of menstruation and childbirth. Water is considered to be the most common medium of purification. The protection of water sources from such pollution, which is the physical manifestation of Hindu deities, is, therefore, a key concern. This highlights the possible reason why menstruating women are not allowed to take a bath especially for first few days of their menstrual period. It is believed that if a girl or women touches a cow while she is on her period, that the cow will become infertile – leading girls to associate their own bodies with curse and impurity. The main reasons for this taboo still being relevant in the Indian society are high rate of illiteracy especially in girls, poverty and lack of awareness about menstrual health and hygiene. Only less than 18 per cent of Indian women use sanitary pads. The latest National Family and Health Survey found that 58 per cent of young Indian women (15-24 years) use a hygienic method of protection (mostly sanitary pads), a significant increase from the 12 per cent using pads in 2010. The difficulty of accessing sanitary pads is another major issue. India scrapped a 12% tax on sanitary products in 2018 after months of campaigning by activists.Campaigners had argued that menstrual hygiene products were not a luxury and periods were not a choice that a woman could simply opt out of.However, tax exemption is only a small step towards a much longer journey of making menstrual health and hygiene an accessible reality for every woman in the country. This is, no doubt, a consequence of greater attention to menstrual hygiene management over the past few years in India. This not only prevails in the Indian society but is a global issue. From an early age, girls learn to live with the pain and fear and seldom do we see a girl seek help when in physical or mental discomfort due to periods. But with a surge in the use of social media in recent years, women have begun sharing their stories about menstruation too.Yet this freedom is often questioned and those sharing their stories are threatened with bans, while trolls who indulge in moral policing and shaming women go scot-free.Perhaps the more critical issue is that menstrual health experts say the current coronavirus crisis has worsened matters further in India. The country is under a strict lockdown which has severely impacted production and supplies of menstrual hygiene products. Access to menstrual hygiene products for Indian women, especially those in rural areas, has been severely impacted due to the coronavirus pandemic and closure of educational institutions and community organisations has further compounded the problem, a study has found.The pandemic has also disrupted the production of menstrual hygiene products, with many small and medium scale manufacturing units facing a shortage of labour, raw material and working capital, it said.
KEY CHALLENGES RELATED TO MENSTRUAL HYGIENE
1. Continuing taboos and restrictions related to menstruation.
2. Limited access to sanitary pads.
3. Limited access to social support.
4. Restricted access to sanitation facilities.
5. Anxiety and stress over how to manage menstruation.
6. Disrupted manufacturing of menstrual hygiene products.
7. Broken supply chains for menstrual hygiene products.
The result of the above factors found by one of the surveys was that most girls and women began to switch to cloth pads.
How do you maintain Period Hygiene? The Problem with Using Cloth Pads
How do you maintain period hygiene when you have no safe access to sanitary pads or sanitation facilities? A relevant area of concern.
A common problem linked to the use of cloth pads is that those who use it do not have adequate information on how to maintain the cloth they are using so that they are not infected later. In fact, using cloth pads without knowing how to maintain it poses danger to a woman’s health and they risk infections of a grave nature. In relief camps and shelters where food and water are of primary concern, and in quarantine and isolation facilities where testing kits and essential medicines are the necessity, menstrual products for women are not considered an essential item.
Female migrants on the road and women in quarantine or isolation facilities may experience discrimination and stigma more acutely owing to their menses. Women and girls may use their menstrual products for longer than recommended, or turn to unhygienic alternatives such as old cloth or rags. Irrespective of what is used, changing menstrual products regularly, washing reusable cloth pads, cleaning the body, and disposing of used materials, is now more challenging than usual. In slums, where many are dependent on community toilets, social distancing measures and mobility restrictions makes it difficult for girls and women to use toilets as frequently as they need to during their period. In rural areas, procuring additional water for washing related needs during menstruation may be a barrier. Privacy to change materials frequently and to discard them is impinged upon for urban and rural residents alike. For women migrants, managing periods on the long and tough road home without access to any type of amenity is an unimaginable difficulty. Limited availability of menstrual hygiene products and inability to maintain hygiene can affect the health of menstruators adversely. Strikingly, poor and affluent women alike, express anxiety over limited supplies for themselves and female family members.
Menstrual materials are worn for longer than they should be, simply to extend availability of limited stock to deal with restricted mobility, increasing the risk of reproductive tract infections (RTI). Reusable cloth pads, while a good alternative, may not be washed and dried thoroughly due to paucity of water and privacy, posing additional risks for infections.Women do not seek required healthcare for RTIs even under normal circumstances. With non-essential health services curtailed and frontline health workers focused on the pandemic response activities, RTI symptoms resulting from poor menstrual hygiene are likely to go unaddressed. Hence, action for ensuring access to safe menstrual products and information on menstrual hygiene are critical.
To deal with this crisis and to ease the problem of girls and women specially in the rural areas, I started an NGO called NAARI which aims to deal with stigmas related to menstruation and also distributes sanitary napkins to women. This journey started in the month of September and we have now reached almost 3000 women across two states, namely Jharkhand and West Bengal. We also conduct various sensitization programs amongst girls and women and the objective of this holistic sensitisation programme is accomplished through integrated awareness, motivation and meditation programmes. It provides them with know-how on how to handle menstruation, improve knowledge of personal hygiene and boost confidence by answering unanswered questions through interactive and engaging training methods.
We have taken this step because we were aware that this it is an important issue among underprivileged families specially during this pandemic and we aim to reach out to more number of women to provide them with sanitary napkins regularly.
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Cognisance of Section 138 NI Act offence by magistrate will not result in decree in civil suit for cheque dishonour: Delhi HC
This noteworthy judgement by Delhi High Court is very clear: Cognisance of Section 138 NI Act offence by magistrate will not automatically result in decree in civil suit for cheque dishonour. It certainly merits no reiteration that all the courts must always adhere to this commendable, cogent and convincing judgment by Justice Asha Menon.
It must be said before stating anything else that in a significant development, the Delhi High Court in a latest, landmark, laudable and learned judgment titled Sarvesh Bisaria vs Anand Nirog Dham Hospital Pvt Ltd & Ors in CM(M) 148/2020 that was reserved on 9 July, 2021 and pronounced on 30 July, 2021 has held in no uncertain terms that if the Metropolitan Magistrate takes cognizance of an offence under Section 138 of the Negotiable Instrument Act, 1881, it is not that a decree against the respondent defendant will follow automatically. It must be mentioned here that the Court rejected the argument that mere cognizance of an offence by a Metropolitan Magistrate in Section 138 of Negotiable Instrument Act proceedings should automatically lead to passing of a decree in a civil suit based on the very cheques. While rejecting the petitioner’s argument, Justice Asha Menon of Delhi High Court noted that cognizance leads to a trial where the accused can also get acquitted. It is stated right at the outset that, “CM (M) 148/2020 and CM APPLs.4803/2020 (by the petitioner u/S 151 CPC for ex-parte stay), 16711/2020, 9007/2021 & 9198/2021 (by the petitioner u/S 151 CPC for directions and orders).”
To start with, a single Judge Bench comprising of Hon’ble Ms Justice Asha Menon of Delhi High Court who delivered this notable judgment first and foremost while mentioning about the prayer made in the petition puts forth in para 1 that, “This petition under Article 227 of the Constitution of India has been filed with the following prayers:
“It is therefore most respectfully prayed that your lordship graciously be pleased to quash / set aside the orders dated 18.01.2020 and 24.01.2020 in C.S. No.836 of 2019 passed by Ms.Chetana Singh, ADJ-03/PHC/New Delhi in the case titled as Sarvesh Bisaria Vs. Anand Nirog Dham Hospital Pvt. Ltd. or may pass any other order and directions as may deem fit and proper in the interest of justice and also award costs in favour of petitioner.”
While mentioning the facts of the case, the Bench then enunciates in para 2 that, “The brief facts as are relevant for the disposal of the present petition are that the petitioner filed a suit for recovery of Rs.1,65,75,000/- under Order XXXVII of the Code of Civil Procedure, 1908 (“CPC” for short). The petitioner/plaintiff averred in the plaint that the respondent/defendant was known to him for a long period of 20 years and had family relations with each other and were close friends (sic).”
To put things in perspective, the Bench then observes in para 3 that, “The Managing Director and other Directors of the respondent/defendant persuaded the petitioner/plaintiff to give friendly loans to them at an interest @ 18% per annum. The petitioner/plaintiff and his wife gave Rs.18,00,000/- from the bank account to Shri Hari Om Anand as the Managing Director of the respondent/defendant, who was also the sole proprietor of Anand Medical Store, on 06th November, 2015. On the request of Shri Hari Om Anand, the petitioner/plaintiff also started looking after the legal consultation work of the respondent/defendant and the Managing Director and other Directors. Subsequently, the petitioner/plaintiff gave another friendly loan of Rs.3,20,00,000/- from his bank account to Shri Hari Om Anand and continued to take care of the legal work.”
As it turned out, the Bench then states in para 4 that, “He claimed he used to raise bills for his fees and expenses which were paid by the Managing Director and other Directors from their personal accounts as also from the account of the respondent/defendant. One such bill towards fees for consultation, legal work, etc., was submitted by him on 17th March, 2017 for a sum of Rs.30 lacs, which had been paid to him. Since he had a running account with the respondent/defendant, the petitioner/plaintiff submitted a bill towards his fees etc. on 28th December, 2018 for a sum of Rs.1.50 crores, which was duly acknowledged by the respondent/defendant.”
Furthermore, the Bench then envisages in para 5 that, “The further case of the petitioner/plaintiff is that six cheques were issued by Shri Hari Om Anand after deducting TDS. Those cheques were dishonoured on presentation due to funds being insufficient and the petitioner/plaintiff filed a criminal case under Section 138 of the Negotiable Instruments Act, 1881 (“N.I. Act”, for short). This was preceded by a notice dated 6th April, 2019, to which no reply was sent. The learned Magistrate had summoned the respondent/defendant to face trial and the case was pending.”
Going ahead, the Bench then lays bare in para 6 that, “Thereafter, the petitioner/plaintiff issued a Demand Notice on 10th August, 2019 claiming Rs.1,50,00,000/- along with the unpaid TDS of Rs.15,00,000/- and interest. No reply was sent by the respondent/defendant and the suit for recovery was filed under Order XXXVII CPC. The respondent/defendant was served, but though no appearance was entered by it, no decree was passed. The petitioner/plaintiff then approached this court in CM(M) 1787/2019, which was disposed of vide order dated 17th December, 2019 directing fresh service of the respondent/defendant under Form 4 Appendix B and in the meantime, restrained it from operating the bank accounts listed in the order to the extent of Rs 1.5 crores. This order was subsequently modified on 24th December, 2019 after the respondent/defendant entered appearance and offered to furnish a corporate guarantee duly signed by the Managing Director and duly authorized by the Board Resolution, along with documents relating to immovable properties, for securing the suit amount, and the restraint order was lifted.”
As we see, the Bench then discloses in para 7 that, “The present petition has been filed against two orders of the learned Trial Court dated 18th January, 2020 and 24th January, 2020. The order dated 18th January, 2020 has been challenged on the ground that the learned Trial Court allowed the respondent/defendant to place on record photocopies of the immovable property furnished as security. This, the petitioner/plaintiff contended, was against the tenor of the order passed by this court dated 24th December, 2019 in Review Petition No. 540/2019 in CM (M) 1787/2019 against the order dated 17th December, 2019. Vide orders dated 28th July, 2020, this court observed that the learned Trial Court had erred in not securing the amount of Rs. 1.5 crores as directed in the order dated 24th December, 2019 and ought to have asked the respondent/defendant to submit documents of a property of which the title was clear or a bank certificate recording a no objection to the creation of a second charge on the property to the extent of Rs.1.5 crores ought to have been furnished.”
Of course, the Bench then states in para 8 that, “Vide orders dated 4th December, 2020, this Court had after noting the letter of the Punjab National Bank, Gymkhana Branch, Meerut, U.P. that a lien had been created in the sum of Rs.1.50 crores, directed that the said amount of Rs.1.50 crores be deposited in an interest-bearing fixed deposit initially for a period of six months with auto renewal facility. This FDR was not to be encumbered further or released without the leave of the Court and was further subject to orders of this Court. This FDR has since been deposited in the Registry of this Court as has been noted in the orders of this Court dated 5th March, 2021 and 8th March, 2021. In these circumstances, Mr. Vivek Kumar Tandon, learned counsel for the petitioner/plaintiff has submitted that the relief sought against the order dated 18th January, 2020 has been satisfied.”
Moving on, the Bench then points out in para 9 that, “With regard to the order dated 24th January, 2020, the learned counsel for the petitioner/plaintiff has submitted that the learned Trial Court had wrongly granted leave to defend to the respondent/defendant in a case where the respondent/defendant had raised no triable issues. Learned counsel for the petitioner/plaintiff submitted that the learned Trial Court had proceeded in a wrong direction as the loan transactions between the petitioner/plaintiff and the respondent/defendant were different transactions and had nothing to do with the payment of Rs.1.50 crores, which was towards the legal fees of the petitioner/plaintiff and for which the invoice had been raised. There is no dispute that the petitioner/plaintiff had acted as a legal advisor to the respondent/defendant. An earlier bill for Rs.30 lacs had also been paid by the respondent/defendant.”
Adding more to it, the Bench then also points out in para 10 that, “It is further submitted by the learned counsel for the petitioner/plaintiff that as regards the cheques in respect of which proceedings under Section 138 of the N.I. Act are still pending, the signatures thereon have not been disputed. Since the cheques were issued in the year 2019, they were presented that year and it is not relevant whether the cheques were taken from a cheque book that was issued to the respondent/defendant in the year 2013. Reference was also made to the orders passed by the learned Chief Metropolitan Magistrate dated 3rd September, 2019 (Annexure-G) and, it was urged that as cognizance had been taken, and Notice under Section 251 Cr. P.C. served, a presumption had to be drawn against the respondent/defendant and the suit ought to have been decreed under Order XXXVII CPC. Instead, unconditional leave to defend was granted.”
What’s more, the Bench then states in para 11 that, “Reliance has been placed on the judgment of this Court in Lakshmi Builders v. Devinder Lakra, 2016 SCC OnLine Del 1453 and the judgment in Hari Om Gupta v. IFB Industries Ltd., 2014 SCC OnLine Del 2055 and the judgment in Shri Colonizers & Developers Pvt. Ltd. v. Felicia Realcon India Pvt. Ltd., 2019 SCC OnLine Del 11106.”
Against this backdrop, the Bench then brings out in para 12 that, “Mr. Sanchit Garga, learned counsel for the respondent/defendant submitted that the learned Trial Court had rightly granted leave to defend the suit as it was replete with incorrect facts. A single invoice for a sum of Rs.1.5 crores had been raised apparently, towards fees for legal opinion and assistance. However, the petitioner/plaintiff in the plaint had himself referred to business transactions, namely, loans of vast amounts being given to the respondent/defendant and the receipt of interest @ 18% per annum. The cheque book was issued in the year 2013 and the six cheques were clearly lying in the possession of the petitioner/plaintiff for several years is indicative of the fact that they were given, not towards any legal liability but only as security. There is no document to establish a lawyer-client relationship, no retainership agreement had been filed and therefore, the claim of the petitioner/plaintiff was suspicious that he was entitled to a sum of Rs.1.50 crores towards such legal assistance.”
Going forward, the Bench then states in para 13 that, “As regards the payment of Rs.30 lakhs on account of legal advice, the learned counsel has submitted that this was drawn from the personal account of Shri Hari Om and not from the account of the hospital and therefore, the respondent/defendant has never acknowledged having availed of legal services. In the background of these facts, the respondent/defendant had raised triable issues. Learned counsel submitted that now that an FDR of Rs. 1.50 crores has been furnished, the leave to defend is clearly conditional and the petitioner/plaintiff’s claim has been fully secured. As regards the judgments relied upon by the learned counsel for the petitioner/plaintiff, it was submitted that they are all related to delivery of goods and were not applicable to the facts of the present case.”
For the sake of clarity, the Bench then clarifies in para 14 that, “In the light of the orders already passed in this case, whereby an FDR has been furnished for a sum of Rs.1.50 crores, the grievance of the petitioner/plaintiff against the orders dated 18th January, 2020 does not survive any longer and no further directions on the said aspect are called for.”
Needless to say, the Bench then makes it clear in para 15 that, “As regards the question whether leave to defend has been rightly granted to the respondent/defendant or not, the facts that prevailed upon before the learned Trial Court were that the petitioner/plaintiff himself has referred to loans having been given to the respondent/defendant by way of bank transfer. The petitioner/plaintiff had also accepted that the respondent/defendant had been paying interest for some time after which it defaulted. In fact, the plaint record reflects this position. The existence of some business transactions is, therefore, made out even from the plaint. Though the petitioner/plaintiff has claimed now that those loan transactions were something different, that would be a matter to be seen during trial.”
Truth be told, the Bench then holds in para 16 that, “When the respondent/defendant has challenged the claim of the petitioner/plaintiff that he had acted as legal advisor to them and, therefore, the invoice raised was for a fee, this fact too will have to be proved. In fact, in the application for leave to defend, the respondent/defendant has averred that the petitioner/plaintiff had claimed to have been providing legal assistance to the respondent/defendant since the year 2000, yet the invoice had been raised only in December, 2018, and therefore, the amounts raised in the invoice would also be time barred.”
Most significantly, the Bench then clearly, cogently and convincingly holds in para 17 that, “With regard to the submissions made by the learned counsel for the petitioner/plaintiff, that, on taking cognizance of an offence by the learned MM under Section 138 of the N.I. Act automatically a decree against the respondent/defendant should follow, cannot be accepted, as cognizance leads to trial and the accused can also get acquitted. Secondly, on the one hand the petitioner/plaintiff claims that the cheques were towards loans which were separate transactions and on the other hand, wants this Court to draw conclusions on that basis, that the signatures on the cheques were admitted and the learned MM had taken cognizance of the case to decree this suit.”
Simply put, the Bench then observes in para 18 that, “In the light of these submissions, it is indeed a matter of trial as to what was the liability of the respondent/defendant towards the petitioner/plaintiff and towards what transaction or service rendered by the petitioner/plaintiff, that is, as a lender or as a legal advisor, would he be entitled to the suit amount.”
Be it noted, the Bench then remarks in para 19 that, “The learned Trial Court was, therefore right in observing that the defence taken was not moonshine and disclosed triable issues which required inquiry. Leave to defend had to be granted in the light of these varying stands taken by the petitioner/plaintiff in different proceedings.”
It is also worth noting that the Bench then observes in para 20 that, “The judgments relied upon by the petitioner/plaintiff have no relevance to the facts of the present case and do not require detailed discussions.”
It cannot be glossed over that the Bench then envisages in para 21 that, “Though in the impugned order, it has not been so recorded that any condition was attached to the grant of leave to defend, however, in the light of the previous orders of this Court and the deposit of the FDR for a sum of Rs.1.5 crores with the Registry of this Court, the leave to defend granted to the respondent/defendant is not unconditional and does not work to the disadvantage of the petitioner/plaintiff.”
No doubt, the Bench then rightly makes it clear in para 22 that, “However, it is reiterated that the respondent/defendant is bound by the earlier orders of this Court that the said FDR shall not be encumbered in any fashion and nor shall the Registry release the FDR to the respondent/defendant till further orders of this Court.”
No wonder, the Bench then very rightly holds in para 23 that, “The petition is devoid of merit and is dismissed along with the pending application.”
Finally, the Bench then holds in para 24 that, “The judgment be uploaded on the website forthwith.”
In conclusion, the upshot of the above discussion about this noteworthy judgment by Delhi High Court is very clear: Cognizance of Section 138 NI Act offence by Magistrate will not automatically result in decree in civil suit for cheque dishonour. The reasons have already been discussed hereinabove. It certainly merits no reiteration that all the courts must always adhere to this commendable, cogent and convincing judgment by Hon’ble Ms Justice Asha Menon while ruling in similar such cases!
SC strikes down ‘a part of 97th amendment’: Does to fulfil the aim of the PIL?
The decision of the Gujarat high court has been upheld by a three-judge bench consisting of R.F. Nariman, K.M. Joseph, and B.R. Gavai. Only Part IXB was stated to be struck down by Justices Nariman and Gavai. However, Justice Joseph stated that the whole of the constitutional amendment has to be stuck down.
The Indian constitution is amongst the most intriguing texts in the world. Still, no nation has a constitution as extensive as ours. Despite its comprehensiveness, the reason this text is so intriguing is that it is highly adaptable. The framers of the constitution intended it to be non-rigid and should flourish the country to grow with it. As a result, the government of India has the authority to modify the constitution in response to numerous problems raised under Article 368 of the Constitution of India. An individual being a citizen of a democratic country as India has a right given by the Constitution that can be challenged any amendment made to the Constitution and when they do that it creates an obligation on the court of law to examine the matter in issue on the bases of its merits.
Along with the amendments in several legislations, some obligations are related to the Constitution. As the parliament derives its power to amend through Constitution, it is also necessary to follow the necessary procedures. Presently, the question was raised on the 97th amendment of the Constitution. It was bought in the Gujarat High Court by the way of PIL. The name of the case stands as Rajendra N. Shah v Union of India. However, the same was appealed to the Supreme Court to strike down the decision of the Gujarat High Court.
WHAT IS 97TH AMENDMENT ALL ABOUT?
The 97th amendment to the Constitution came as a dilemma. The main cause of this amendment was to look after the working of the cooperative societies and amend some of its rules and regulations. By the way of amendment, Article 19(1) (c) was amended. This was done to give protection to Article 43B of the Constitution. Article 43B of the Constitution states the promotion of cooperative societies. Also, Part IXB was inserted. The amendment was passed without being ratified by the State Legislatures. This led to the non-following of the procedure required by the Constitution.
Part IXB consists of Articles 243ZH to 243ZT. The articles in total have impacted the powers of state legislatures. It does not only restrict the powers but, has also paved a way for interference. Also, the amendment has bought the doctrine of basic structure in the scenario by making amendments to non-amendable parts of the constitution.
OVERVIEW OF THE DECISION OF GUJARAT HIGH COURT
In 2012 a writ petition was filed by Mr Rajendra N. Shah (hereinafter referred as petitioner) in the High Court of Gujarat at Ahmedabad through PIL. The major contention dealt with the 2011 amendment to the Constitution of India that the embedding Part IXB comprising Articles 243ZH to 243ZT violates the Indian Constitution since it does not make use of Article 368(2) of the Constitution, which requires the expressed ratification by a majority of the State Legislatures.
Apart from this petition, several other similar petitions were filed. The main challenge was to strike down the additions done via the 97th amendment, the argument of the petitioners was not for striking down the provisions but, for ratification by half of the state. The reason being, the amendment affected a subject that was present in the state list.
The petition expressly stated that the power under Article 368 is related to the basic structure of the Indian Constitution, and the fact that the impugned constitutional amendment did not follow the procedure prescribed in Article 368(2) of the Constitution, which recognizes the federal structure of the Constitution as one of the basic structures, is a violation of the Constitution of India. According to the petitioner, the State Legislature is the only competent authority in law to enact laws for cooperative societies as the same does not fall under the VII Schedule Entry 45 of List I of the Constitution, and that it is expressly excluded from Entry No. 43 of List and the proposed amendment should be set aside as violative of the Indian Constitution because the consent by way of ratification from the majority of State Legislatures was not obtained before presenting the Bill proposing the amendment to the President of India as provided in Article 368 (2).
The Gujarat High Court held in the present case that the amendment was taking away the necessary powers of state governments. On July 20, 2021, the apex court upheld the decision of the high court and has saved the supremacy of State Governments. Also, this amendment would have led to extensive interference of centres in subject matters of state. This judgment has been delivered by keeping in mind the federal structure of the Indian Constitution.
ARTICLE 368: IMPORTANCE AND HISTORY
As stated above, one of the major reasons for challenging the 97th amendment is that it was not done by complying with Article 368 of the Constitution. The main reason behind this is the “basic structure doctrine”. Before the applicability of this doctrine, even fundamental rights were amendable by the virtue of Article 368. With the series of judgements, the doctrine developed and some parts of the constitution were held to be non-amendable.
Mainly, in the case of I.C. Golaknath v State of Punjab and Haryana, it was held that the amendment of fundamental rights cannot be authorised. As, due to this, fundamental rights will vanish one day. So, parliament cannot amend them. Similarly, in the case of Keshvananda Bharati v State of Kerala, it was held that some of the basic features of the constitution cannot be amended as they will affect the federal structure of the constitution.
In India, we follow a rule of checks and balances. It is necessary to keep a check on the amendments made. One more important case is I.R Coelho by L.Rs v State of Tamil Nadu and ors. The main issue in the case was if Schedule IX of the Constitution can be amended by the virtue of Article 368 or not? It was held that any amendment made to Schedule IX is against the doctrine of basic structure. Also, Article 368 cannot be amended to allow the same.
Hence, when it comes to stating the importance and history of Article 368, it is an important asset to the doctrine of basic structure. It is against the basic principles to breach the basic features of the constitution. The same is being argued in the present case related to the 97th amendment. The position of Article 368 still stands the same and thus it cannot amend the basic structure of the Constitution.
THE DECISION OF THE SUPREME COURT AND ITS ANALYSIS
The decision of the Gujarat high court has been upheld by a three-judge bench consisting of R.F. Nariman, K.M. Joseph, and B.R. Gavai. Only Part IXB was stated to be struck down by Justice R.F. Nariman and B.R. Gavai. However, Justice K.M. Joseph stated that the whole of the constitutional amendment has to be stuck down.
As a consequence of the judgment, not the whole of the amendment has been struck down but, only a part of it. It has been stated that: We have struck down Part IXB but, have saved the Constitutional Amendment”. It has been contended that the part denudes the state of their powers but also restricts them. It has also been contended that the amendment is not a direct attack on the power of state legislatures in regards to cooperatives.
The other opinion that has been given about the amendment is that to achieve uniformity in the amendment, it was necessary to take recourse to Article 252 of the Constitution. This article states that it is necessary to take the consent of two or more states to bring any such amendments. Presently, the same is being challenged as the 97th amendment has been made without complying with the appropriate procedure. Hence, relying on the precedents, makes it clear that the amendment made to Part IXB of the Constitution is against the doctrine of basic structure and hence has been struck down by the Supreme Court.
The criticism for the amendment can also be seen through various opinions. One such opinion from All India Kisan Sabha states that these amendments are making India centralized which will, in turn, destroy the federal structure. To keep the working inflow, it is necessary to keep the powers with the states intact and not to include the Centre in it.
However, mixed opinions have been observed. The other side states that many of the states had already amended the legislatures according to the Constitutional Amendment. This calls for keeping the amendment intact as it is necessary for keeping a check on the activities in the state. This judgment now requires the pre-amendment of several legislatures in the states.
The decision of the High Court states that the provisions of amendment about cooperative societies lead to violation of the basic structure of federalism. The amendment was challenged based on various loopholes. One of them was, the process of amendment was not followed. Secondly, the provisions are an attack on the powers of state legislatures. Thirdly, the provisions are not following the federal feature of the constitution. Fourthly, the provisions are not empowering cooperative societies.
The judgment given by the apex court is vital. It has stated the main issues with their solutions. Striking down only part of the amendment states that no whole of the amendment was incorrect. Only the part that was being inconsistent has been removed. Various views are coming out. It has made it necessary to follow the procedures as established by law to avoid such circumstances.
Along with the amendments in several legislations, some obligations are related to the Constitution. As Parliament derives its power to amend through Constitution, it is also necessary to follow the necessary procedures. Currently, the question was raised on the 97th amendment of the Constitution. It was bought in the Gujarat High Court by the way of PIL. The name of the case stands as Rajendra N. Shah v Union of India. However, the same was appealed to the Supreme Court to strike down the decision of the Gujarat High Court.
MAKING IT HAPPEN: COMBATING PANDEMIC THROUGH PUBLIC-PRIVATE PARTNERSHIP
The recent wave of Covid-19 pandemic spread like a ‘tsunami’ in India. The second wave was worse than the first one. There could be several factors responsible for the huge spike in number of cases and its severity in the second wave as compared to the first, but it was a herculean task for any government to handle a pandemic of such scale and impact.
Among many other things from augmenting medical oxygen to post-covid complications like black fungus, ramping up critical care infrastructure to save lives was one of the major challenges faced by Governments. In this backdrop, Dr. P.S Harsha, an IPS officer was appointed as Nodal officer and head of the Mission on 30th of April to set up 500 ICU beds in each of the 8 BBMP zones.
At the time he was appointed as a Nodal officer, the situation was very challenging. In the first week of May, Bengaluru had about 10,937 beds reserved for Covid-19 patients out of which about 559 beds were ICU beds and about 478 beds were ICU beds with ventilator. When the city was still around 2 weeks away from the peak, more than 95% of the beds were occupied. There was shortage of ICU beds, ventilators faced by most of the hospitals. To make matters worse, there was also shortage of oxygen supply.
The Mission had three main objectives. First, to immediately assess the requirement of critical care infrastructure which broadly included Oxygenated beds, HDU, ICUs. Second, to visualize a feasible operational plan and an implementation structure to create the infrastructure as assessed by experts and relevant departments of the Government tackling the COVID 19 crisis. And, the third, to put up an elaborate action plan with implementation framework delineating clearly the roles and responsibilities of various departments of Government and functionaries involved. To facilitate the above upgradation of infrastructure, ensuring adequate manpower availability is necessary to put up a coordinated effort on the ground.
Karnataka Government adopted a whole-of-government and whole-of-society approach to ramp up health infrastructure on war-footing. The Chief Minister gave a clarion call appealing to corporate sector to come forward and join hands with the government to combat the virus. Bengaluru, home to several marquee MNCs, received overwhelming response to CM’s call and several companies came forward to leverage their CSR initiatives towards Covid-19 relief and rehabilitation efforts. However, coordinating and collaborating with all these agencies and institutions to increase scale and speed was the challenge. In order to reduce the turnaround time and optimize costs it was decided to go ahead with brownfield approach instead of greenfield approach where government identified public hospitals and teaching hospitals attached to medical colleges. The idea was to use existing general beds and convert them into ICU beds, so that the healthcare personnel and other required manpower could be readily made available.
The Indian Institute of Architects, Karnataka Chapter and Columbia Asia Hospitals came forward as technical partners to this mission, for conducting the baseline assessment for the facilities identified for bed augmentation. They agreed to carry out these services pro-bono. A team of senior architects along with experts in the field of hospital design assisted in conducting surveys at the hospital, and preparing the proposal, including cost estimations for the same.
The Confederation of Indian Industry (CII), through its Karnataka chapter and CII Foundation have acted as a conduit to channelize CSR funding from Corporates into healthcare facilities. Also, CII through its foundation has facilitated an institutional mechanism to channelize individual contributions as well to this mission.
As of July 22, 2.82 crore vaccine doses have been administered in Karnataka, the highest among all South Indian states. Initially, due to a lot of rumour mongering, there was vaccine hesitancy. But subsequently, this hesitancy was gone. Print media, TV and hoardings were used to promote vaccination drives. However, what really worked was the reassurance from religious leaders and celebrities. Intervention by the local district administrations that interacts with people on a daily basis also helped in convincing people, even in rural areas. It is expected that the entire population will be vaccinated by the end of the year.
The outcomes of this initiative have been very encouraging. Though the mission has initially started for infrastructure upgradation in the city of Bangalore, there has been tremendous response from districts’ administration to scale up the mission pan Karnataka.
About 1090 beds are at different stages of augmentation, of which 204 beds have already been set up and operational, 390 are under progress and corporates are being tied up for the rest.
About 24 beds have been set up in Jayanagar General Hospital by Embassy and AZU. CV Raman General Hospital has got 56 beds through contribution from 3M, Hitachi, ABB Power Grids and Volvo Group. Another 24 beds are operational in Epidemic Diseases hospital which is set up in collaboration by Embassy Group, McAfee, AXA, Yahoo, Capital Land Swiss Re. In addition, 100 beds have been added at Yelahanka by Boeing, Celko Foundation and KPCL.
The implementation of 190 beds being set up by Texas Instruments, Modulus and Swasti Agency is underway at Rajiv Gandhi Institute of Chest Diseases (RGICD).
Infosys has also provided equipment worth INR 1.5 crore in Anekal General Hospital, KR Puram and Yelahanka General Hospital. Wells Fargo (in collaboration with UnitedWay) is setting up 100 bedded modular hospital at Gadag Institute of Medical Science (GIMS), Gadag. 40 beds are being augmented at Indira Gandhi Institute of Child Health (IGICD) by 3M, Embassy, CII Foundation Swiss Re foundation, ICEMA. Oxygen plant is also being set up at IGICD by Lowes India and Sambhav Foundation. M/s HDFC Bank Limited is undertaking infrastructure upgradation activities at ESI Rajajinagar hospital. Indian American Foundation is setting up 100 beds at Shikaripura Taluk General.Hospital in Shivamogga District. Organisations like M/s Doctors for you, M/s LabourNet, etc., have taken an initiative to partner with the government in bridging the manpower shortages, wherever required.
In addition to the above, infrastructure upgradation activities are in pipeline at various other hospitals like HMT Hospital, Taluk Hospital in Doddaballapur, Devanahalli, Nelamangala and Hoskote and ESI Hospitals in Indiranagar and Peenya, etc. Also, plans are underway to set up Oxygen plants in Kodagu, Shimoga and Gadag districts through CSR mode.
Dr.Harsha and his entire team of dedicated personnel made-it-happen.. The use of CSR funds and the initiative to involve corporate was an outcome of a well-defined strategy by the team. Apart from utilization of CSR Funds, the industry was willing to contribute 50 Oxygen concentrators and 50 non-invasive Bilevel Positive Airway Pressure (BIPAP) ventilators. Such proactive interventions reflect the confidence that the government had built with the industry to augment necessary health infrastructure through the CSR initiative. Government’s decision to take the CSR route to ramp up critical health infrastructure, even as the second wave retreats, reflects the continued focus to ensure preparedness for the third wave.
The initiative taken under the inspired leadership of Dr Harsha has set many benchmarks in public-private cooperation. It also illustrates that there is enormous scope for cooperation between the public and private sectors when it comes to handling a crisis.
Anil Swarup has served as the head of the Project Monitoring Group, which is currently under the Prime Minister’s Offic. He has also served as Secretary, Ministry of Coal and Secretary, Ministry of School Education.
WILL MAMATA’S ALLIANCE GAME PAY OFF?
Politics heats up after Mamata Banerjee’s meeting with Sonia Gandhi; they are giving the slogan ‘Save democracy, save nation’.
Even as Mamata Banerjee went to meet Sonia Gandhi and Rahul Gandhi at their residence during her Delhi visit, I recalled the West Bengal election! For Mamata, it was a matter of political life and death as the Bharatiya Janata Party had left no stone unturned to defeat her. Every trick in the bag was being tried. Mamata Banerjee must have expected that secular parties would support her against the BJP. Of course, the major onus for this was on the Congress, but Sonia Gandhi and Rahul Gandhi did not show any mercy to Mamata.
Congress entered into an electoral alliance with the Indian Secular Front under Pirzada Abbas Siddiqui of Furfura Sharif. It was a great loss for Mamata. It is, however, another matter that it hardly had any effect on Mamata’s electoral fortunes. She returned to power with about 48 per cent of the votes and the Congress ended up with just 2 per cent of the votes and it could not win even a single seat. It is evident that Mamata must have been upset with the attitude of the Congress, but the political maturity she has shown for the sake of opposition unity has only added to her stature. Putting aside her displeasure and the bitterness of the West Bengal elections, she went to meet Sonia Gandhi at her residence where Rahul Gandhi was also present. So Mamata’s message is clear that for opposition unity, she will not mind going to every doorstep where there is a ray of hope. Although she could not meet Sharad Pawar, both of them must have definitely spoken over the phone.
I had written in these columns during the run-up to West Bengal Assembly elections that Mamata Banerjee will return to power after which she will work at the national level. And this has already begun. I perceive a big deal of change in Mamata Banerjee. Certainly she is a well-mannered, very experienced and outspoken politician. Her whole life is a saga of struggle. She has understood the exigencies of time very well. Her maturity is reflected in the fact that on one hand she meets Prime Minister Narendra Modi in Delhi and on the other, she seeks to evolve a strategy for opposition unity. During the press conference, she once again raised the slogan ‘Save democracy, save nation’. Her message to the opposition parties is crystal clear that the need of the hour is unity of opposition parties. This is also her right as a people’s representative. It is crucial to have a strong opposition party in a democracy and this is also a healthy tradition of Indian politics. The country’s first Prime Minister Pt. Jawaharlal Nehru also favoured a strong Opposition. Pandit Nehru also exemplified this by his own conduct. He facilitated the entry of many leaders of national stature inside the Parliament.
Mamata Banerjee may have defeated the Narendra Modi-led BJP in West Bengal, but she knows that without the Congress at the national level, the opposition unity cannot be strengthened. She knows that over the years the Congress has become headless and moved away from the people on the ground, but even today the grand old party has about 30 per cent of the vote share and its roots are spread from villages to cities. And if the Congress wakes up for the better, it will take no time to completely change the political landscape.
Mamata Banerjee also knows that the Bharatiya Janata Party she has pitted herself against has changed completely. It is not the BJP of leaders like Atal Bihari Vajpayee, Lal Krishna Advani or Murli Manohar Joshi. It is now a Narendra Modi-led BJP. Narendra Modi created his own culture in politics. He has become the high command of BJP today. He is the most popular leader of the party. He has also carved out a special place in the RSS, the progenitor of the BJP. Though Modi ji comes from the Sangh Parivar itself, he has a different way of thinking and working. If such Narendra Modi-led BJP is to be wrestled with and defeated at the national level, the different forces opposed to the BJP will have to be united. And this cannot be done without Congress. It is not possible to dislodge Modi ji without Congress on board.
Mamata Banerjee has vast experience in overthrowing the two-and-a-half-decade-old government of the cadre-based Communist Party of India (M) and remaining in power for more than a decade. She is a grassroots leader, a past master at street politics and not afraid to face brute force. She is ready for every battle like a fearless warrior. Certainly, she is packed with confidence and hence if the opposition parties come together, the BJP can be vanquished at the Centre.
Now the moot question is whether Congress is ready for such an alliance? If yes, how would it like to see itself in the alliance? The question also is, if Congress does tag along, will it accept Mamata Banerjee or Sharad Pawar as its leader? Will the regional party leaders like Akhilesh Yadav agree to accept Mamata’s leadership?
The questions are aplenty. The answers to these questions will decide the direction of Indian politics. And the biggest question is will the alliance win the battle against Modi ji with the mere chanting of the slogan ‘Save democracy, save nation’?
The author is the chairman, Editorial Board of Lokmat Media and former member of Rajya Sabha.
After defeating the BJP in West Bengal, Mamata Banerjee is exploring the possibility of bringing about Opposition unity but the question is: Will the Congress accept her leadership? And if the alliance is formed, what will be the role of Sharad Pawar? Will the politics of Uttar Pradesh accept Mamata Banerjee as the national leader?
Politics and governance in India: An analysis
Political instability has been a recurring phenomenon in the history of mankind with the fall and rise of political systems or regimes. The term ‘political stability’ means different things to different scholars as there is a lack of consensus among social scientists on its exact meaning.
In the general notions of stability such as social or psychological, economic, cultural and political, political stability is one of the most morally imperative in building the nation state. This article discusses the roots (why, what), past trends of political instability in India. In addition to this the expedient taken to satisfy the salient conditions of successful government or stabilise it. But it had been known since Independence then why is there still political instability? the inter and intra party workers reciprocate or retaliate? Is the balanced approach decisive?
In general the notion of “stability” depends on the social or psychological, economic and political conditions and projecting the ‘trends’ and ‘patterns’ of any nation. Political instability or ‘in’ stability has been a recurring phenomenon in the history of mankind with the fall and rise of the political system or regimes. The term ‘political stability’ means different things to different scholars as there is a lack of consensus among the Social Scientists on its exact meaning. Due to technological advancement, increase in communication and the process of modernisation in the last century has seen significant changes in nature and patterns of political instability. It is not static (government in structure, process, policy making) and keeps changing. That is dynamic. Changing notions about the causes and characteristics of new forms of government, their conceptions, outcomes and cures have been major concerns and components for individuals in formation of the durable or their ideal government. For stability or finding the precise definition of stability depends on the various transparent statistical indicators. Justice Potter Stewart in this view of immorality says that “I know it when I see it.” For that the portrayal should be in a clearer sense on exactly what we are looking for. In the federal system like India, a government at state and center, their ministerial stability is different from each other and to some extent protected from each other. Thus, it can be said that the state may undergo periods of instability while the central government remains stable, as seen in the numerous cases since India’s independence. On the other hand, the state governments may be unstable and ineffective while the central government may be stable as in the Janata period (1977-1980). This instability can have numerous effects with multiple issues or a single issue with an extreme pace of destruction and can be dangerous when it occurs.
According to the Aristotle thought on polity as he divide into the general (monarchy, aristocracy, oligarchy, or democracy) and particular sense to avoid the extremes as in after the fusion of the democratic and oligarchic elements, he intensely disliked both the extreme richness and extreme poverty and believed confidence that powers should be vest with the middle class in the best practicable state (middle class in majority with poor taken together preferably more than the richer class). Professor Maxey criticises Aristotle’s middle class on the ground that “middle-class mediocrity is no shining deal for the foundation of a state.” However this criticism goes to the consonant of Aristotle’s saying that polity is not the best ideal state, rather it is best on the average and practicable. The most stable and administered states have been under the control of the middle class. In this context or a one part for the stability that is the middle class is one of the most important contributions to political thought.
But from where this instability has its roots? The reason for the political instability in India or its main characteristics depends on the various factors such as deepening economic crises, breakdown of a political consensus, improper responsiveness and responsibility, rising expectations, core issues like population explosion (their increased pressures or need of services and other demands), unemployment, casteism (politicisation of caste, improper representation and inequity, caste based violence and politics), poverty and so on. It is in detail in the fifth section of this article.
There are the three components of political stability that are society, regime, and government. These components are interrelated to each other and the extent of the stability depends on all three. The first component in short means the societal demands which are proposed in an orderly and peaceful manner. There can be a violent use that is against the norms associated with democratic polity. It is nearly impossible that there is no use of violence in any political system but the degree is reduced in accordance with the political culture of that particular country. The second component is of a stable regime or a form of government which is long lasting, durable and has a tendency to be stable under the strains and stressful conditions. Where this regime is weak, it leads to dictatorship and military rule. The third component is of government and administration which remains for the specific duration in an office in accordance with the constitution and the flexibility in the government with the legal trends. In brief there should be balance between the policy to be executed and the legal and social forces in the country. For example, The decision-making machinery must be in an adequate constant to allow a sufficient time to execute rational decisions in order to maintain legitimacy of the regime, and keep control over the various social forces of the society.
History of the Political stability of Independent India: The period between 1967 and 1972 has seen a tremendous political instability with the dilution of the one-party dominance that was congress and further formation of the coalition governments. In a broader sense the political stability in the history can be divided into four components, first one-party dominance (for the two decades after the independence) from the first to the fourth general elections (1952-1967 represents a phase of political instability), second the period between the fourth and the fifth general elections (1967-1972 breakdown of a political consensus), third the period between fifth and the sixth general elections (1972-1977 signifies temporary return to calm situation) and lastly the fourth period post-1977 and in the 1980s represents the worst kind of instability, disorder and violence in India. For instance, strike is a legitimate legal protest in most of the democratic institutions but the intensity of it can affect political stability.
WHY IS POLITICAL INSTABILITY?
Population: As the population demands of jobs, services, housing and above all, food place a heavy burden on India’s limited resources. A Population crisis committee finds that “the most stable countries were ones with a lower level of population pressure.” Growing population is a threat to democracy as the potential for political instability correlates with various factors such as “large youth population in overcrowded cities with high expectations and limited opportunities, intense religious factors and oppressive governments which violate human rights.” India’s leaders have been disappointed after the current growth rate of 0.97 percent from 2020 which is indeed harmful for India’s largest democratic survival.
Education: There is a lack of political participation or political consciousness in elections. As the major votes turnout in India is due to the greater capacity of political parties to mobilise the support and the self awareness of the individual as well as rational decision making in choosing their representatives totally depends on education. On the other hand, increased political consciousness is also present which has made people more aware of poverty or their vulnerability to raise voice. As the expectations of the people turn into disappointment these people’s frustration expiates politically, and which turn out to be demonstrations and revolutionary violence that has become a pattern in Indian elections. Hence, it leads to political instability.
Economic growth and corruption: “Economic growth and Political instability are deeply interconnected.” If there is an unstable political environment then it can lead to “less investment and reduce the pace of economic development.” On the other side of the coin, poor economic growth can lead to the breakdown of government and political unrest. Indian Political regimes are fragile because if the country does not worry about the conflicts and radical changes of regimes, the people can focus on working, saving and investing. In today’s world there are many countries that combine the robust factor of corruption with the opposite to the politically stable that leads to the ‘politically stable autocracies’ or unstable democracies.
There is the other perspective (sometimes it is important to normalise the euphoric thing or anything to have a different perspective) that, if there is political stability then it does not allow real competition for the ‘governed elites.’ Political system has a stringent barrier on freedom such as freedom of press, freedom of religion, access to the internet and political dissent and this leads to the abuse of power and corruption. The related issues of political corruption (more about political and economic power) were “use of public office for private gain, where an official entrusted with carrying out a task by the public engages in some sort of “malfeasance” for private benefit.” This can of course happen in the private sector too but it is not a main foundation of our country, no doubt may become that’s another thing. But the current stand gives rise to the “immoral” and “corrupt” transactions in the government sector.
HOW TO STABILISE THE POLITICS OF INDIA
Political thinkers have made substantial contributions to the theory to ascertain some fundamental requirements of political stability. For example, the crucial ones are equitable distribution of wealth, attitude towards the state, equal class structure, appropriate political institutions, etc.
Approaches which can be used for the proper understanding of the political phenomenon in India or stabilise the politics in India are:
Political stability as against a violence: This is the most common view that if there will be absence of violence then the decision making and socio-political changes are properly institutionalised. Dissent is necessary in healthy democracy but through electoral competition rather than the violent process. The motive is to resolve the issues without conflict and aggression within the political system against other individuals and groups of office-holders.
Existence of the legitimate constitutional orders: The legitimacy in the political system to the extent it’s output is accepted as right by the population. There should be no legitimacy disturbance or even if it is disturbed then it should be restored soon to its original state.
Existence of the Multi Dimensional societal attribute: In depth study and cross-national analysis on the aggregate data is important as a purpose of multidimensional attribute. It means that taking society as a multifaceted factors that absence of the several negative indicators such as violence, revolution, political movement against the existing system and the presence of positive indicators such as both constitutional rigidity and flexibility, not only government longevity but also adaptability of the changing social patterns, effective decision making, and more. For Palmer and Stern, political stability can be maintained as“the result of integration and congruence of all phases of traditional life: political, social, economic and ecological.” Ernest A. Duff and John F. McCamant believed that “social and political factors influence political stability/instability of a political system.” They appear to be confused about the stability constituted by societal factors and only suggest that in a stable democracy “welfare must be greater than social mobilisation, and there must be a high rate of economic growth, an equitable income distribution, and broad based institutionalised political party.”
Concluding observations: Each of the conceptual approaches have their own strength and weakness, they have certainly contributed towards the understanding of complex problems of political instability. But a simple application of these approaches cannot help to explain the intricacies and sensitive problem of political stability in Indian states. This leads to the inadequacy of existing theories of political stability which calls for a more realistic approach and takes into consideration the special constitutional features of the working of parliamentary democracy at the state level in India. Thus, the question is how Political stability should be operated? Answer is: It is based on working on both sides equally, the stability of the government in the parliamentary system depends on the support of the representatives in the legislature. If the assembly divided into the political parties and the government become uncertain and the solid state of a government is not established. Hence, a fine balance between the legislature and government is based on the strong institutionalised political institutions.
As written earlier about the three major components of political stability that are “society, regime and government.” The third component that is government is a major source affecting the other two in political stability. Although different socio-ecopolitical cultural, regional and ethnic groups made frequent use of “violent and non-violent methods to exert the pressure on the government to accept their demands.” It even leads to the change in government, but by and large these groups demonstrate their loyalty to political and social regimes. If there is government instability it can majorly affect the other two. But in India no joint attempt has been made by social groups to overthrow political regimes that are parliamentary democratic systems. Balanced approach, interdependence and implementing according to the short-term and long-term situations is a realistical, practicable and theoretical approach. Therefore, it must come after.
Uttar Pradesh Population Bill, 2021: An analysis
India’s population is not really growing at a fast pace as it is made out to be; in fact, as per Census, India’s population has registered a sharp decrease in a span of two decades—population growth rate dropped from 21.54% in 1991-2000 to 17.64% in 2001-2011. Moreover, India’s fertility rate has dropped to 2.3 births per women in 2016 compared to 3.2 births per women in 2000. Also, population growth is not uniform across the nation with a rate varying from region to region. Sikkim, for example, has the lowest fertility rate as compared to Bihar which has the highest in India.
There is one thing India is prominently known for; it’s population, the second highest in the world. And we know that India has never worn population badge proudly. For decades successive governments have tried their best to control population but couldn’t achieve the desired goal.
After the government’s announcement to introduce new population policy for 2021-2030, the Uttar Pradesh State Law Commission on the occasion of World Population Day i.e- 11th July, has released the first draft of the bill aimed at the population control. The draft has been titled as “Uttar Pradesh Population (Control, Stabilisation and Welfare) Bill, 2021”. The bill has enlisted incentives for those limiting their families to two children or less. However disincentives or non-adherence to the two-child norm have also been laid down.
As per the law comes in force, there are certain incentives for the public servants, state government employees who voluntarily undergo sterilisation and adopts the two child policy are eligible for two additional increments during the entire service, subsidy towards purchase of plot or house site, soft loans for house purchasing, rebate on charges for utilities such as water, electricity, house tax etc, maternity/paternity leave for 12 months will full salary and allowances, and other such incentives. However non-adherence to the policy might attract disincentives such as debarring from benefit of the government sponsored welfare schemes, limitation of ration card up to four people. Apart from this on enactment of law one violating it shall be ineligible to contest the election to local authority or any body of the local self-government and apply for the government job under the state government. There are several exemptions as well like multiple births out of second pregnancy and adoption. If the first or first two child are disabled then third pregnancy will not be considered as violation. There are also provisions for polygamy and polyandrous marriages as well.
The bill lists out some government duties as well. It states that maternity centre will be established at all the primary health centres, the centres and NGO’s will distribute contraceptive pills, condoms, etc. The family planning methods awareness will be spread through community health workers and ensure mandatory registration of pregnancies, deliveries, births and debts across the state. Also it will be duty of the government to introduce a compulsory subject relating to the population control in all of the secondary schools.
As per the Population Census of 2011, majority of population is between the age of 5 years to 20 years and there have been an exponential increment in its pace since 2011.
India’s population is not really growing at a fast pace as it is made out to be in fact as per census India’s population has registered a sharp decrease in a span of two decades population growth rate went from 21.54% in 1991 to 2000 to 17.64% in 2001 to 2011. Moreover India’s fertility rate has dropped to 2.3 births per women in 2016 compared to 3.2 births per women in 2000. Also population growth is not uniform across the nation with a rate varying from region to region, for example – Sikkim has the lowest fertility rate as compared to Bihar which has the highest in India.
India does have a population control bill if we are to talk about it but it has never been passed. In 2016 and 2019 the population regulation bill was stabled and discussed but it never went to vote. The bill penalizes those having more than two children debarring from political participation, government jobs and even government schemes while India does not have a national law on population control yet individuals states are implementing their own versions of it with most of state laws penalizes families for having more than two children.
Then why the bill has not been passed and is not a law yet?
If the government were to bring in a law to control population, there are number of repercussions it could produce. Firstly during the 1970’s emergency period India Strikes forced sterilization which didn’t go down well. Also the family planning program mostly targeted the poor, some accounts state that men were dragged away forcefully for vasectomies many of whom also died due to complications and unhygienic practices. Secondly we have an example of our neighbouring country China as its one child policy gives a wider glimpse into the ills of adopting such a law. China now struggles with disproportionate numbers of aging population as compared to the younger population. The one child policy also resulted in one of the world’s most skewed sex ratio with 1.15 males for every female in China as per the data available for 2016. While China has since ended the policy but its impact continues to linger. Thirdly China’s concern could be India’s too as the country still has preference for male children. According to Sample registration system SRS report shows that sex ratio at birth in India decreased from 906 females to every 1000 males in 2011 to 899 females in 2018. The normal sex ratio at birth is 950 females to 1000 males. Broadly the primary victims of the Draft Bill will be Indian women in general, of this generation as well as future generation. In many areas already women do not have the option to refuse marriage or to reproduce and several are forced to undergo non-voluntary birth control measures. The 1991 census found that in states which has penalized with more than two children had resulted in men divorcing their wives as soon as they become pregnant with the third child.
These habits will only intensify under a law that passively legitimises such actions, including forced sterilisation, IUD insertion and use of hormonal contraceptives (even when they may be medically inadvisable). Female infanticide will also likely worsen, from the current skew of 909 female births per 1,000 male births.
And lastly the burden of family planning disproportionately falls on women the national family health survey for data shows that out of 47.8% of the total modern contraception used in India 41.6 are for the use of women or bodies with uterus, more than 75 of the overall modern contraceptive used in India is bored by the women while contraception has drastically declined. In an unintended effect, the Bill will ensure the continued marginalisation and erasure of women from public life.
This Bill seeks to revitalize the efforts and provide for measures to control, stabilize and provide welfare to the population of the state by implementing and promoting two child norms. However the basic rule under the Constitution is equality of opportunity for every person in the country. The provisions of the Constitution mandate the State to give preferential treatment to only socially, educationally or economically disadvantaged people. It does not provide for similar reservations on the basis of the birth of the children. UNESCO defines educational discrimination as “any distinction, exclusion, limitation or preference which being based on race, color, sex, language, religion, political or other opinion, national or social origin, economic condition or birth has the purpose or effect of nullifying or impairing the equality of treatment in education.”
According to the Draft Bill, if a person acts in contravention of two child policy, then that person shall be ineligible to avail any incentives and shall be subject to disincentives like debarring them from government sponsored welfare schemes and limit upto four will imposed on ration card. It is not specified whether a person will be barred from State welfare schemes or Central welfare schemes. It is open ended clause and implies if a third child is born, he will not be provided with social benefits like right to food, right to housing. There are many welfare schemes that operate under Central government and States are bound to follow and every person who is eligible under Central government welfare schemes cannot be barred. Like Anganwadi and Mid-day Meal schemes. The objective of this scheme is to combat child hunger and malnutrition. The Midday Meal scheme provides food to school children in schools in order to avoid the classroom. hunger, increase school enrollment and address malnutrition. Funding pattern of midday meal schemes is 60:40 between the Central and State governments. It is covered under National food Security act 2013 (NFS) and the state government is bound to implement the NFS act and midday meal scheme. And all children studying in Primary and Upper Primary Classes in Government, Govt. Aided, Local Body, EGS and AIE Centres, Madarsa and Maqtabs supported under Sarva Shiksha Abhiyan and NCLP Schools run by Ministry of Labour are eligible for Mid-Day Meal. Thus, the state government cannot bar the welfare rights of having the right to food to any child as it comes under ambit of the Central government and state government is bound to implement. So, according to the provision of UP population policy if a person does not adhere to the two-child norm policy, the state bars the third child from government welfare schemes. But the State is bound to implement these welfare schemes and eligible persons cannot be barred.
The Draft Bill, especially sections 5, 6 and 7, contemplates additional incentives than the ones prescribed under the general scheme of the bill. Section 5 lays down that public servant who have only one child and who opt for “voluntary sterilization operation upon himself or spouse, in addition to the incentives provided in the usual scheme under the present Bill”. Section 7 is mutatis mutandis to that of its preceding part except it extends to the general public And Section 8 moves a step further and is applicable to the “couple living below poverty line”. The concern that is raised here is that if in the normal course of action and without any due process of law, the state tries to sterilise its citizens to advance the limited child policy as is the general scheme of the present act, it will be unconstitutional on multiple fronts specially violating the right to life and personal liberty under Article 21 of the Indian Constitution.
The state’s fertility rate is 2.7% which is second most in the country after the Bihar which has the fertility rate of 3.2 whereas it should ideally be less than 2.1%.
The estimation is that while India may remain the country with the highest population perhaps even overtaking china one day the population will gradually decrease naturally.
The data states that in Uttar Pradesh there are limited ecological and economic resources at hand hence, it is necessary and urgent that the provision of basic necessities of the human life including affordable food and safe drinking water, decent housing, access to quality education, economic livelihood opportunities, power or electricity for domestic consumption and a secure living is accessible to all the citizens and thus it is imperative to have two-child policy or population control.
According to the Draft Bill, if a person acts in contravention of two-child policy, then that person shall be ineligible to avail any incentives and shall be subject to disincentives like debarring them from government-sponsored welfare schemes and limit up to four will imposed on ration card. It is not specified whether a person will be barred from state welfare schemes or Central welfare schemes. It is an open-ended clause and implies if a third child is born, he will not be provided with social benefits like right to food, right to housing. There are many welfare schemes that operate under Central government and states are bound to follow and every person who is eligible under Central government welfare schemes cannot be barred. Like Anganwadi and Mid-Day Meal schemes. The objective of these schemes is to combat child hunger and malnutrition.
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