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Significance of attaining the age of majority: Decoding the landmark judgements in the light of Article 21

The 242nd Law Commission Report titled ‘Prevention of Interference with the Freedom of Matrimonial Alliances (in the name of Honour and Tradition): A Suggested Legal Framework’ demonstrates how crimes and unwarranted interference against persons marrying have the catastrophic and grave chilling effect on the individual’s right to choose. The report highlights, “As far as India is concerned, ‘honour killings’ are mostly reported from the states of Haryana, Punjab, Rajasthan and UP. Bhagalpur in Bihar is also one of the known places for ‘honour killings’.”

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If you are a major, you can even solemnize marriage with a criminal and no fetters can be placed on your choice; indeed, it may appear somewhat paradoxical to the ordinary mind but not to a legal mind. I am not pronouncing this verdict on unqualified grounds rather this phenomenon of the right to make a choice is the result of the peculiar stupendous judicial pronouncements. Recently, the right to choose a partner of one choice, the right to renounce one religion and accept another religion are such constructive, progressive, and liberal concepts that have garnered the substantive attention of large public discourse. But with the attention on the topic of choice of partner and religion, few people have paid attention to the subject matter of “Age of the Majority”.

According to Sec 3(1) of the Indian Majority Act 1875, an individual is said to attain the age of majority when he/she completes his/her 18 years. Article 21, does mandate that no person shall be deprived of his/her liberty but there is no such expression, expressly enumerated under this Article that we are having the liberty to marry a person, involved in criminal activities. Interestingly, it is worth mentioning that there are many rights guaranteed implicitly under Article 21 of the Indian Constitution as it is the mother in recognizing the “Unrecognised liberties”. It is desirable to note that one of such recognitions, was recognizing the significance of an individual who attains the age of majority.

The Hon’ble Supreme Court, while recently hearing the contention advanced by the petitioner in the case of Soni Gerry v. Gerry Douglas (2018) 2 SCC 197 that the daughter is under illegal custody/detention and the Court must free her from illegal restraint. The Hon’ble Court considered this particular fact that the daughter had completed 18 years of age on 19.9.2016, thus she had attained the age of majority. In this regard, the landmark observation that was made by the Court that – ‘when an individual attains the age of majority, it has its own significance. It was also observed that he/she is entitled to make his/her choice. The Hon’ble Supreme Court rejected the contention to pass the writ of habeas corpus and held that she was not under illegal detention.

AGE OF MAJORITY: A DETERMINATE FACTOR IN UPHOLDING THE TWO MAJOR RIGHTS

Recognising the two major rights- the right to marry a person of one’s choice and the right to renounce one religion and accept another religion are appositely valued and also its esteemed status is conferred under Article 21 of the Constitution of India.

Article 16 of the Universal Declaration of Human Rights also lays down the importance of age of majority that – “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

“India is a free and democratic country and once a person becomes a major he/she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut-off social relation with son or daughter,….”- This was the erudite observation made in the much-celebrated case of Lata Singh v. State of U.P and Another, (2006) 5 SCC 475 that reverberates in the Constitutional guarantee of freedom from the patriarchal tyranny and autocracy.

The notion of liberty was also examined and evaluated in the case of Gian Devi v. Superintendent, Nari Niketan, Delhi (1976) 3 SCC 234, that the girl has attained the age of majority and no restraints can be placed on her choices of the person with whom she is to stay, nor can any restriction be imposed regarding the place where she could stay. Even the Court does not possess the right to determine.

The landmark case of Shafin Jahan v. K.M Ashokan & Ors. AIR 2018 SC 357 cannot be ignored as the same is an important development for the right to choose a partner of one’s choice. It is worth stepping into the facts of the case where a girl namely Hadiya aged 26 years converted herself to Islam and married a Muslim boy namely Shafin Jahan. In this case, the father Ashokan moved a habeas corpus petition before the Hon’ble Kerala High Court alleged that her girl Hadiya was the victim of systematic psychological manipulation and forcefully converted to Islam and in the furtherance of same, her daughter was likely to transport out of the country. The High Court accepted the contentions and allowed him to sustain the writ petition of habeas corpus and annulled the marriage of her with Shafin Jahan. The High Court of Kerala was in the view that even though she has attained the age of majority, she is weak and vulnerable and capable of being exploited in many ways in the circumstances noticed in this instant case. An investigation was also ordered to National Investigation Agency to investigate the ‘education, family background, antecedents and other relevant details of Shafin Jahan and it is fascinating to note that the principal finding of the report was that Shafin Jahan is accused in a criminal case and his Facebook posts show a radical inclination.

When this matter came before the Hon’ble Supreme Court, it was observed that Kerala High Court has failed to recognize the undisputed fact that the girl Hadiya is major, and when an individual attains the age of majority, he/she becomes capable to take her own decision. It was also observed that the annulment order passed by the Kerala High Court is the non-acceptance of her choice that simply transgresses her fundamental rights guaranteed under our Constitution. The Kerala High Court, being a Constitutional Court was not supposed to interfere in this matter as the very interference amounts to a miscarriage of justice and the liberty and dignity of two consenting adults who have been subjected to judicial affront. The Hon’ble Supreme Court also clarified that if there is any criminality in any sphere then NIA may continue its investigation however the validity shall not form the subject matter of the investigation and NIA cannot interfere with the marital status of the two major couples. The appeal was allowed and judgment of the High Court was set aside.

There are other landmark judgments as well but in this overall context, the importance of emphasizing the concept of age of majority and right to make a free choice that the basic elements of a dignified life are also the realization of the significance of the right to choose within the legitimate parameters of the law. The individual’s authority is supreme and no one possesses the right to dictate or limit a person’s choice. Our choices are cherished because they are ours. Indeed, it is not a privilege rather a right of a major and more importantly it is further protected by the Constitution of India which ensures that every person can make the determinations on the matters which is central to the pursuit of happiness and is the intrinsic part of liberty and dignity guaranteed by the Indian Constitution.

Grave Social Symptoms: The Unwarranted Interference and Distressful Silence

It is disheartening to see all the survey carried or report submitted have become veritable documents of the fact that consent of family or the society or the clan is still required to enter into a wedlock. Despite of the fact, no shackles can be placed on the choice of a major, still there is an unwarranted interference of the family or the society or the clan that guillotines the freedom and liberty guaranteed under the Constitution of India and the distressful silence of the protectors of this right succumbs the objective of our Constitutional guarantee of freedom of choice which is the quintessence of the 21st Century.

The 242nd Law Commission Report titled “Prevention of Interference with the Freedom of Matrimonial Alliances (in the name of Honour and Tradition): A Suggested Legal Framework” demonstrates that how crimes and unwarranted interference against persons marrying have the catastrophic and grave chilling effect on the individual’s right to choose. The report highlights that- “As far as India is concerned, “honour killings” are mostly reported from the States of Haryana, Punjab, Rajasthan and U.P. Bhagalpur in Bihar is also one of the known places for ‘honour killings”. Even some incidents are reported from Delhi and Tamil Nadu. Marriages with members of other castes or the couple leaving the parental home to live together and marry provoke the harmful acts against the couple and immediate family members.”

The Report also underlines the pernicious interference of caste/community assemblies in the guise of ‘Khap Panchayats’ that underscores the liberty and instil the terror by inhuman treatment and inflicting the excessively harsh punishments on those individuals who tried to do exogamous marriage. Unfortunately, these merciless hands haunt the dignity of the individuals in the name of ‘moral vigilantism’ and distressful silence of the society waters them to continue this evil practise.

In 2018, Lok Foundation-Oxford University Survey run by the Centre for Monitoring India Economy (CMIE) reported that just 3 percent of marriages are love marriages. According to the 2011-12 India Human Development Survey, only 13 percent of married women in metro cities knew their husbands prior to marriage. Arranged marriages do not imply forced marriages necessarily however, this fact cannot be ignored that most of the Indian families and communities try to maintain endogamous marriage.

REASON BEHIND SUCH GRAVE SOCIAL SYMPTOMS

It is apt to refer to the case of Bhagwan Dass v. State (NCT of Delhi) (2011) 6 SCC 396 where the Hon’ble Supreme Court stated that many people feel that they are disgraced or dishonoured by the conduct of the young individuals who is related to them or belongs to their caste simply because they marry against their will or wishes or having an affair with someone, and as a result, they take the law into their hands and mentally, physically assault them and inflict the other atrocities which is not lawful in the eyes of law. The 242nd Law Commission Report mentions that the crimes against the young individuals take place as the result of doing exogamous marriage without receiving the family consent. Even the marriages between the young couples outside the gotra often called the violent reaction from the family or clan or society.

Ostensibly, it is clear that that the couples must be freed from the unlawful fetters or hindrances placed by the so-called social guardians who are doing nothing for the benefit for the society rather killing the soul of our Constitution. Hence, it is important to break down the same.

STEPS TAKEN

Undoubtedly, the Courts are playing the active and important role in asserting the choices of majors. For this reason, this particular subject matter becomes of utmost importance. The case of Sakti Vahini v. Union of India (2018) 7 SCC 192 is the evident and glaring example where the Hon’ble Supreme Court directed the police departments and State governments to adopt a robust mechanism to eradicate the crime of ‘Honour Killing’. The Hon’ble Court laid down certain guidelines which was preventive and punitive in nature. Also, the remedial measures were issued. However, if the governments and administrations at the different tiers will not work properly and become silent spectator then the importance of same will languish which is fortunately not in our case.

In order to boost and encourage the inter-caste marriages, the NDA government is providing Rs. 2.5 lakh for every inter-caste marriage with Dalit under the ‘Dr. Ambedkar scheme for social integration through inter-caste marriage’. This financial motivation was started in 2013 but there was a bar that total income must be less than Rs. 5 lakhs so that one can be eligible to receive the one-time monetary incentives of Rs. 2.5 lakhs. Recently, in order to infuse the teachings of BR Ambedkar in the society and to promote the social equity, the Ministry of Social Justice and Empowerment took this bold step and scrapped this bar. This will definitely help in the effective implementation and the administration of this scheme. Many states also have the similar schemes and protective, pre-emptive and corrective measures to curb the menace of crimes against the individuals and to assert their choices. For instance, Bihar government provides the National Saving Certificate amounting to Rs 25,000/- as monetary incentive to women performing inter-caste marriage. The Madhya Pradesh Government has a dedicated cell better known as ‘Crime Against Women Cell” that ensures the safety of couples.

CLOSING OBSERVATIONS

Indeed, The notion of ‘Significance of Age of Majority’ has achieved the landmark growth. Still, in the long growth, the directions issued by the Courts and policy, measures adopted by the Central and State governments has to reach at the grassroot levels and more importantly the society itself has to come forward to stamp out the acts of barbarism against the individuals “WHO HAVE ATTAINED THE AGE OF MAJORITY”.

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Policy & Politics

Making it happen: Did ‘Make in India’ happen?

Anil Swarup

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With a view to attracting international investment, while making his speech during the World Economic Forum recently, PM Modi announced that this was the “best time to invest in India”.

In the aforementioned context, I had tweeted: “Best way to attract international investment into India is not merely by saying that it is the best time to invest but to demonstrate that it is indeed the best time. Same ‘noises’ were made under ‘Make in India’ campaign”. Did Make in India happen?

Make in India was launched in 2014 with a lot of fanfare. While launching the Make in India initiative, the Prime Minister, Narendra Modi said, “I want to tell the people of the whole world: Come, make in India. Come and manufacture in India. Go and sell in any country of the world, but manufacture here. We have the skill, talent, discipline and the desire to do something. We want to give the world an opportunity that comes to make in India.” This iterates the whole gist of the program.

Did the “whole world” come to manufacture in India?

The main aim of this initiative was to make India a global manufacturing hub by encouraging both multinational as well as domestic companies to manufacture their products within the country. It was declared that in 2013, India’s growth rate had fallen to its lowest level in a decade, thus putting it into the category of “Fragile Five” nations. 

Did India become global manufacturing hub?

The main objectives of the campaign were to:

1. To transform India into a global design and manufacturing hub.

2. To introduce new initiatives for the promotion of foreign direct investment

3. To implement intellectual property rights.

4. To develop the nation’s manufacturing sector.

5. To boost the confidence of investors and manufacturers to build and invest in India.

6. To improve India’s rank on the Ease of Doing Business index.

7. To eliminate the hassles of laws and regulations in the bureaucratic process of business.

8. To promote job creation and innovation in the limits of the country.

9. To make government transparent and accountable in its working.

10. To encourage the avenues of skill development.

11. To improve the global competitiveness of the Indian manufacturing sector.

To promote the sustainability of growth:

1. To increase growth in the manufacturing sector to 12-14% per annum over the medium term.

2. To raise the contribution of the manufacturing sector to 25% of the Gross Domestic Product (GDP) from its current 16%.

3. To create 100 million additional jobs by 2022 in the manufacturing sector.

4. To increase domestic value addition and technological depth in the manufacturing sector.

“Make in India” campaign was launched world-wide at the expense of millions of Rupees. However, there is no formal evaluation available in public domain about the outcomes of this initiative that was launched with so much fanfare.

What needs to be examined is whether the objectives were actually achieved from the available data.

One of the primary objectives of the campaign was to increase growth in the manufacturing sector to 12-14% over the medium term. COVID did have an impact but well before its arrival, the numbers were dismal. In fact, the actual manufacturing growth rate has been much below the targeted one

2016: 2.8%

2017: 4.4%

2018: 4.6%

2019: 3.9%

(Source: Statista 2021)

Poor growth in manufacturing sector got reflected in the overall GDP growth as well:

2016-17: 8.2%

2017-18: 7.2%

2018-19: 6.1%

2019-20: 4.2%

(Source: GoI Data)

It is evident from the above that this particular objective of “Make in India” was missed by a long margin.

There was also an objective of creating 100 million additional jobs by 2022. COVID has made this task extremely difficult. However, even before COVID arrived, the country was facing the worst unemployment crisis ever. Ministry of Labour and Employment used to release the official employment data periodically but it was stopped in 2016 perhaps because it was revealing the ground reality. There have been doubts raised about CMIE data but that is what we have. The CMIE Data shows that for graduates in the age group of 20-24 years, unemployment was 42% in 2017. It rose to 55.1% in 2018 and to 63.4% in 2019. The World Bank data is also pretty damning. Youth Unemployment data has been released by the World Bank for 2019 for 181 countries. India is placed even below the Congo Republic at 23%. Countries like Thailand (4.2%), Philippines (6.7%), China (11.0%) and Indonesia (13.4%) are well ahead.

So, where did “Make in India” go wrong?

First and the foremost is the faulty approach adopted under the Make in India initiative. The primary focus on road-shows proved its undoing. People travelled all over the world conveying to investors to come to India and invest. There were grand announcements and lion became the symbol of Make in India. It was visible in all the Indian embassies abroad. I saw one in Warsaw during my visit to Poland in my capacity as Secretary, Coal.

Climbing ease-of-doing business ladder became the primary objective and all effort was made to “please” the mandarins of the World Bank. It worked well in the beginning as India did apparently climb the ladder and everyone went to town. Whether the business actually became easy is a million-dollar question. The whole process was a dubious one and recently, the World Bank has itself “dumped” this charade of comparing countries on the basis of ease-of-doing business.

There was no effort to engage intensively with the investors in India to ascertain why wasn’t investment happening here and what could possibly be the way forward. The road-show approach never revealed the ground reality as the investors didn’t have the courage to reveal the “truth” in public glare.

No concurrent evaluation of the scheme was done to ascertain what was going wrong to bring about a course correction. In fact, there was apparently never an admission that anything was going wrong. It was all hunky dory.

There were factors beyond “Make in India” that disrupted it. A well-intentioned but poorly implemented demonetization devastated the economy. Similarly, Goods and Services Tax was long overdue and eminently required but launching it without necessary preparatory work, virtually destroyed the small and medium sector. COVID arrived much later but devastated the economy that was yet to recover from earlier blows.

It is evident that the “Make in India” approach did not work. We have to first admit that and then find a new way of moving forward. There are huge lessons to be learnt from sectors like national highways that did very well irrespective of COVID.

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.

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Policy & Politics

Don’t thrust learning poverty upon children

Pandemic threatens to jeopardise the future of kids, and their emotional intelligence is likely to be impacted too.

Vijay Darda

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The precious lives lost in the aftermath of atomic bombings of Hiroshima and Nagasaki turned out to be the gravest tragedy in human history and its after-effects were far more painful as those who survived it contracted several dreaded diseases. Their life became miserable. They went through severe trauma and got frustrated with their sufferings and started to think as to what is the use of such a life? Its deleterious effects on the later generations are still visible. While feeling the pain of people during my visit to Japan, my eyes moistened and my heart wept. Will the future of our children follow a similar trajectory after coronavirus?

Since the initial days of the coronavirus epidemic, I have been very anxious, especially about children. I have also been constantly talking to experts and psychologists in the field of education about the ill-effects it can have on the personality of children. Now my concern has exacerbated following the statement of Jaime Saavedra, Global Education Director, World Bank. He has stated that the effect of the epidemic on the education of children is going to be more severe than what was thought. A situation of learning poverty is emerging. Learning poverty means inability to read and understand even a simple sentence by the age of 10 years. In common parlance, we can call it learning or academic poverty.

I have been constantly monitoring the mental state of the children. I have realised that children have suffered the most but how can they express that? The effect varies according to age. Children in KG or primary schools may have a different effect, while those in secondary schools show some different changes. The children of KG and primary schools have started believing that there is nothing called school. And if it is, it is online and at home! Whenever you feel like learning, sit in front of the tablet and do something! It will take time to change their perception. It will not be easy for them to go to school and follow the routine. Though a lot of changes are taking place, I will not call them permanent, and the effects of the epidemic will linger on long after its departure. For example, the children of KG had barely started going to schools when they were closed following the pandemic outbreak. Now these kids are over two years old and when they go to school again everything will be new and adjusting to it won’t be easy for them.

The school has its own environment. Its discipline has a profound effect on shaping the personality. Children have been deprived of it for two years. Everyone is at home but they are all lost in themselves. It is not yet clear how much attention those at home pay towards the children. Some people pay attention, but many parents have become so irritable that they have started venting their ire on the children.

There is a greater risk of personality disorder affecting children under these circumstances. Older children are victims of different problems. In the initial phase of school shutdown, many parents pushed children towards mobiles and computers so that they could keep playing games and not disturb the parents. Many parents didn’t care what else the kids were watching. It is feared that many may also have gotten addicted to porn. Staring at the screen continuously will also harm the eyes of the children. They will have to wear glasses.

Of course, technology should be used and is being utilised in education but technology cannot be the answer to the traditional style of face-to-face learning. When the eyes of the teacher and the children meet, it has a different effect. What other children used to ask inside the class and the conversation that used to take place are missing. This emotional power cannot be gained by learning online. There is no such situation as the emotional bond between the teacher and the children. Therefore, the personality of the children is not taking the desired shape. A few years later, when the situation becomes normal, we will definitely see its ill-effects in some form or the other. Due to the lockdown, children are not able to go to the playground to play games and they are unable to meet friends. Most importantly, there will be a change in emotional intelligence. Let me illustrate the definition of emotional intelligence by citing an example. Whenever there is an accident, a lot of people gather but there are very few people who call an ambulance. Some people just look the other way while some others even crack jokes. This behaviour depends on emotional intelligence. One cannot learn these things sitting at home. It is learnt along with others. The child learns a lot from the feeling of touch. Thus, there has been a huge loss in the field of emotional intelligence in the last two years.

Children in rural areas are worst affected. They have no access to proper internet connection, smartphones and tablets. This lack of electronic resources has alienated children from studies. They are under tremendous pressure that time is running out and they are not able to study. This pressure is impacting them psychologically. Therefore, it is high time the schools reopened all over the country. It is a welcome development that some states have reopened schools or the date of reopening has been announced.

As I said, there have been serious and far-reaching effects on children. If there is going to be a long-term effect, it is necessary that substantive research is conducted on this serious problem and the focus should be on what emotional support is needed to bring the children back to normal. The opinion of psychologists, educationists and other experts should be taken into consideration and corrective steps should be initiated accordingly. The government has to take some extraordinary steps. We are the youngest nation in the world. These children are our assets, strength and future. Let us hope our future is not jeopardised in any way. Stay safe!

The author is the chairman, Editorial Board of Lokmat Media and former member of Rajya Sabha.

Will the coronavirus pandemic prove as destructive as the atomic bombing of Hiroshima and Nagasaki? The nuclear bombs had killed thousands in the blink of an eye and made lives of the survivors miserable. Its impact can be felt even today. Similarly, the impact of the pandemic is feared to last long too, especially in the field of education. India is facing a grave risk of learning poverty.

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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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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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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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