Archive for India

An Unending Crisis: India’s Amendment to the Citizenship Act

Guest Contributor Anant Sangal is currently an undergraduate student of B.A., LL.B. (Hons.) at the National Law University, Delhi, India. He is deeply interested in the issues of constitutional law and human rights law

The sledgehammer of the Indian State is powerful and surreptitious. It is powerful because its impact is realized and is then hard to undo and is surreptitious, because it often acts in the ambit of the Indian Constitution. Most recently, it was cracked hard on the illegal Muslim immigrants from Afghanistan, Bangladesh, and Pakistan. In the first-half of December 2019, the Parliament of India passed a legislation, which sought to amend (“Amendment”, hereinafter), the Indian Citizenship Act, 1955 to provide for the citizenship to the people belonging to certain specified communities from India’s three neighboring countries, that is from Bangladesh, Afghanistan, and Pakistan. 

The new proviso to Section 2 (1) (b) of the 1955 Act reads, “Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 and who has been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as illegal migrant for the purposes of this Act;.

A plain reading of the proviso to the Section will establish this wide and clear that the sole community excluded from the realm of protection of the newly amended statute is the Muslim community. As per the Statement of Objects and Reasons appended to the Citizenship (Amendment) Bill, 2019 and in his speech while tabling the Amendment in the lower-house of the Parliament, the Union Minister of Home Affairs suggested that the Amendment seeks to provide a home to the religious persecuted minorities in either of these three theocratic nations, where Islam is the State religion. Therefore, the primary assumption is that people belonging to only these six communities are persecuted on the basis of their religion and hence, India must act as their homely abode.

The ostensible exclusion of the Muslim community is based on the assumption that they are not persecuted at all in those nation-states, where Islam is the state religion. However, this is far from being true. The Ahmediya and the Shia sects of the Muslim community have faced severe persecution at the hands of the Sunni Muslims in Pakistan and the Rohingyas of Myanmar continue to be widely persecuted by the Buddhists in Myanmar. The 2013 United Nations report states that the Rohingya Muslims are the most persecuted in the world. Therefore, the assumption and the justification the legislation provides for excluding the Muslim community is false and does not have a very strong foundation either. Rather, the new basis of granting citizenship to the illegal immigrants is based on a majoritarian conception. 

The Amendment projects that the true civilizational abode of the Hindus is only India. Therefore, it appears to be yet another step towards solidifying the argument that we hear for long about how the English have England, the Americans have America, but the Hindus do not have Hindustan (India). The Amendment finally seeks to legitimize a majoritarian and an exclusionary idea of citizenship, where a deliberate attempt is made to exclude only the immigrants belonging to the Muslim community from acquiring the Indian citizenship. The real dangers of legalizing something of this kind is while we do not have an established theocratic state but the selective targeting of a selected community helps us inch closer to an undeclared theocratic state, where rights for minorities remain at the whims of the majority.

That said, the founding fathers of the Indian Constitution were torn between choosing the just mode for granting citizenship to the people. The country was reeling under the aftermath of a bloody and a gruesome partition, where the Indian subcontinent was divided into two halves on the communal lines. In that setting, the drafters of the Indian Constitution, the great visionaries they were, decided to side with jus soli as the basis for the grant of citizenship rather than jus sanguinis. Jus soli provides for citizenship on the basis of the place of birth of an individual i.e. the soil, on which such person is born. Jus sanguinis is a much more elite and a racist conception of citizenship, where the citizenship is determined by an individual’s descent or ethnicity of one or both parents.

Operating under the scar of partition, it was surely very progressive to choose jus soli as the basis of citizenship and include the same in Part II of the Indian Constitution. The Indian Citizenship Act, 1955 was in furtherance of this conception itself. However, the successive Amendments to the Act dragged the basis of citizenship from jus soli to jus sanguinis, with religion acquiring a substantive stake in this shift. In 2004, the Act was amended to provide that even if a person was born on the Indian soil but had even one parent as an illegal migrant at the time of her birth, such person will not qualify for the grant of Indian citizenship. I mention that the Amendment was religiously motivated and targeted a specific community because it was introduced to neutralize the heavy efflux of people from Bangladesh, majority of whom are Muslims and happened to give birth to their children in India. The present Amendment is just another step furthering that very idea.

After the legislation was assented to by the President of India, the final stamping authority required for converting any bill into a legislation after the same has been passed by both the houses of the Indian Parliament, there has been a massive public uproar in the entire country. The entire political opposition has been on the streets rallying against the passage of the Amendment and a slew of petitions have already been filed in the Supreme Court of India (the apex Indian court), challenging the constitutional validity of the legislation. The petitions do, and rightly so, question the Amendment to be arbitrary as the classifications drawn by the Amendment are based on the inherent qualities of a human being, which the Indian Constitution prohibits. 

Under Article 15 of the Constitution, while the same is applicable only to the citizens of India, the presence of certain listed categories mandates that discrimination on the basis of the inherent qualities of a person is prohibited by the Indian Constitution, two of which are religion and place of birth. In that sense, the classifications drawn by the new Amendment itself are based on religion and the country of that person and hence, will fall fowl of the equality code of the Constitution. While it is being extensively argued how the limitation of applicability of Article 15 operates against the Muslim illegal migrants itself, it has to be recognized that Article 14, which is applicable to all persons and not just to citizens, will operate on the same principle which forms the basis of Article 15 as well.

As I conclude this article, the Chief Minister of West Bengal, another Indian state bordering Bangladesh, has given a clarion call to conduct a plebiscite on the Citizenship (Amendment) Act, 2019 under the vigil of the United Nations so as to reach the conclusion whether the people of the country support something like the Amendment Act. While I do not believe how valid is the demand for conducting a plebiscite will be, given that the Indian Constitution contains a well-defined and structured procedure for creation of a legislation, however, the repercussions of categorically exiling a community into invalidity will not be feeble, to begin with.

Erosion of the Right to Freedom in Kashmir: How India Violated Established Principles of Constitutional and International Law

Guest Contributor Bhaskar Kumar is a 3rd year student at National Law School of India University, Bangalore. His areas of interest include criminal justice, human rights, constitutionalism and international law. He writes for a number of platforms including law review blogs and media platforms like The Hindu, Live law JILS-NUJS etc.

In anticipation of unrest after altering the special constitutional status of the state of Jammu and Kashmir, the Indian government detained several political leaders and imposed a broad restriction on freedom of movement and press in August 2019.  

These restrictions were imposed in the aftermath of abolishing article 370 of Indian Constitution. This article was part of the Constitution of India which provided special status to the state of Jammu and Kashmir. By virtue of this article, the people of Jammu and Kashmir used to enjoy some privileges including exclusive property rights. 

The government justified this amendment by considering it a step that ensures the complete integration of the state into the Union of India and to have better control over the territory in order to curb terrorist activities allegedly taking place there.

By imposing section 144 of Criminal Procedure code (1973), the government banned public meetings and shut down the internet and phone services completely which consequently disrupted news and information services. With this step, the government of India has violated the right of freedom guaranteed under article 19 of Indian constitution which protects citizens’ right to freedom of movement, assemble peacefully without arms and press until and unless security of state, sovereignty or interests of the general public is at stake. When such concerns are at stake the government might impose reasonable restrictions over enjoyment of these rights.

In the present case, however, the measures taken by the government of India cannot be said to put reasonable restrictions on the enjoyment of these rights in light of numerous judgments delivered by the apex court. In Indian Express Newspapers v Union of India(1985) 1 SCC 641, the Supreme Court held that freedom of press is crucial to communicate facts and opinions which educate people about political establishments and hence, there cannot be any interference with that freedom in the name of public interest. In the present scenario, due to imposition of restrictions, newspapers are not able to operate or circulate their services. This amounts to an infringement of the right to freedom of expression.

While stressing the importance of the freedom of the press, the Apex court in Dinesh Trivedi v Union of India held that citizens have the right to know about government decisions and actions. But citizens can only know government’s decisions and restrictions when they have access to media sources. In Sakal papers pvt. ltd. v Union of India the Supreme Court observed that the right to freedom of speech entails the right to circulate one’s views to all whom one can reach and care to reach and courts must be vigilant of any kind of restriction over such circulation of views in order to preserve the democratic ethos. 

Due to the imposition of a curfew in Kashmir and the presence of a large number of military personnel, it is impossible for a journalist to cover the news about the prevailing conditions due to imposition of section 144 CrPC. According to its managing editor, the Kashmir Times, a leading newspaper of state, has only been able to publish a minute version of its editions because of restrictions. The imposition of section 144 has made it almost impossible for journalists to carry on their duties.


In Babulal Parate v. State of Maharashtra the apex court ruled that section 144 of CrPC can only be imposed when there is an actual prominent threat endangering public order and tranquility which has not been ensured by government before imposing the curfew. The Internet has also been shut down and the circulation of information has been impossible because of this. The Government of India has ruthlessly interfered with the freedom of press and information. The mandate of article 19 doesn’t give the unbridled power to governments to impose restriction merely on the grounds of speculation and anticipation. The reasonable restrictions on fundamental rights cannot be of such disproportionate nature that they extinguish the right itself. The Indian government has failed to justify the nexus between potential terrorist threats and internet and media shut down for an unreasonably long period of time, as there is no indication of any kind of threat to public tranquility in the  present case.

Looking at the situation from the perspective of international humanitarian law, Article 19 of the International Covenant on Civil and Political Rights (ICCPR) ,which has been signed and ratified by India, requires that the government protect the right to freedom of expression and Information. According to a resolution passed in 2012, the UNHRC affirmed that right to information applied online as well. Article 19(2) of the ICCPR mandates that everyone “shall  have right to freedom of expression and this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print in the form of art or through any other media of his choice”. As per article 19(3) of ICCPR, the right to freedom of expression and information can only be restricted on the conditions that they are done so by law and are necessary for respecting the rights of others and to protect the national security or public order.

In the present case, the aspect of necessity has severely been overlooked. As discussed earlier, there was no substance to show that there was in fact a threat to national security and public order. The respect of modern communication channels–particularly the internet–is very important for a democratic country. As an interactive medium, the Internet opens up new possibilities for communication and is accordingly relevant for the theory of democracy. It ensures participation by forming audiences and opposing audiences and enhances the possibilities for political information, deliberation and participation. No other medium facilitates the communication between state and citizen to the extent that the internet does.  Research on the importance of the internet for civil society groups shows that net-based communication is  key for the organization of transnational protests and solidarity in particular. Even though some studies have pointed out that online content is relatively conventional and little use is being made of the interactive potential inherent to the technology, this form of communication remains. In Ahmed Yildirim v. Turkey the European Court of Human Rights held that the access to media platforms is an indispensable tool for exercising the right to freedom.

The recent steps taken by Indian government in Kashmir constitute serious violations of principles enshrined in the constitution of India and international covenants signed and ratified by India. However, the government has not responded to the questions raised by media and civil society in this regard. Last month a delegation from European Union visited Srinagar, (the capital of Jammu and Kashmir) to have a first-hand understanding of situation. The visit was diplomatically important as the government’s move was criticized internationally by lawmakers. However, the visit was unofficial and there was no intention on the part of delegates to submit the report to European Union.

The Indian government should not have unbridled power to curtail the fundamental rights of its citizens. Constraints imposed on media and the internet must therefore be removed as soon as possible and citizens should continue to enjoy their freedom of speech.

The Ayodhya Ruling and the Rule of Law

Guest Contributors Prannv Dhawan and Parth Maniktalaare are law students at NLSIU Bengaluru and Campus Law Centre, Delhi respectively. Prannv is the founding editor of the Law School Policy Review and Parth is an editor of the online journal, Polemics and Pedantics.

A five-judge bench of the Supreme Court in India has unanimously held that the possession of the most-contested piece of land in Indian political history—the 2.77 acres where the Babri Masjid Mosque once stood—should in fact be exclusively given to the Hindu claimants of the case. At the same time, the Court invoked its special power to do ‘complete justice’ under Article 142 to restitute the damage caused by ‘egregiously illegal’ idol installation (1949) and Masjid demolition (1992). Hence, it ordered the government to allot an alternate plot of 5 acres to the Sunni Muslim Waqf Board at a ‘prominent place’ in Ayodhya for the construction of a new mosque. 

A few words have become an indispensable part of the vocabulary describing this judgment. Politicians and legal commentators alike are calling it a “win-win situation,” BJP spokesperson Nalin Kohli calls it an “inclusive judgment,” and Prime Minister Modi calls it “a golden chapter in the history of the Indian judiciary.” On the other hand, even as the judicial outcome has come to represent a vindication of the ideological Hindutva, many have stated that the Hindu majoritarian context and atmosphere has cast its shadow on the Court’s narrow and technical reasoning to hold that on the balance of probabilities, Hindu parties have a better claim to adverse possession of the site. Be that as it may, across the board there seems to be a concealed satisfaction, as if by upholding the claims of the Hindu-majority, the court has averted a crisis. However, the finer aspects of the rule of law seem to have been compromised or diluted in order to satiate the faith and belief of a community. 

Rule of law requires that people be governed in a manner that is equal, just, and non-arbitrary. Considering the highly religious nature of the property dispute, the court corrected emphasized the importance of equality amongst religions. It cites  SR Bommai v UOI to emphasize that secularism and fraternity are basic features of the Indian Constitution (see paragraphs 82 and 83). The Court goes on to strongly affirm both the constitutional value and significance of the Places of Worship Act, 1991. The Act, legislated in the context of deep communal divisions in the country by a legislature concerned about national integrity, provides for criminal punishment for converting the places of worship of any religious denomination. The court emphasizes the principle of non-retrogression of pre-constitution era disputes to further the legislative intent behind the Act, states: “The law is hence a legislative instrument designed to protect the secular features of the Indian polity, which is one of the basic features of the Constitution. Non-retrogression is a foundational feature of the fundamental constitutional principles of which secularism is a core component. The Places of Worship Act is thus a legislative intervention which preserves non-retrogression as an essential feature of our secular values.” Hence, the Court raises this statute to the pedestal of a constitutional statute whose importance has been highlighted by various secular and progressive activists considering the likelihood of similar communal disputes being raised in other places of worship in Mathura and Varanasi. This is an important signaling from the Court that any derogation from judicious application of the Act would certainly violate the Court’s reasoning.

The court remarks in the Ayodhya Judgment: “[land] title cannot be established on the basis of faith and belief alone (para 788).” And yet, the court proceeds to say “Once the witnesses have been deposed to the basis of the belief and there is nothing to doubt its genuineness, it is not open to the court to question the basis of the belief”; “Whether a belief is justified lies beyond the ken of judicial inquiry (para 555).” Analyzing this language,  Professor of law, Faizan Mustafa notes, “The court while pronouncing the judgment did try its best to strike a balance between law and faith. But clearly faith has the last laugh here.”

While it is undisputed that a significant section of the Hindu population believes Ayodhya to be the birthplace of the Hindu deity Lord Rama, it is unclear whether such belief can be grounds for legal adjudication in what is essentially a title dispute. Furthermore, such deference to religious beliefs also stands in opposition to the Supreme Court’s ruling in the  Indian Young Lawyers Association vs. State of Kerala) case, wherein the court explicitly favoured constitutional morality over any personal/religious beliefs. “In the public law conversations between religion and morality, it is the overarching sense of constitutional morality which has to prevail.” (para 189). It remains to be seen what the Ayodhya ruling’s jurisprudence bears for the review petition in the Sabarimala case, in which an order is expected next week.  

Another instance of the court deferring in favour of the beliefs of Hindu devotees in the judgment is where it disregards the longstanding bifurcation of the disputed site between an inner and outer courtyard. The ruling states, “Despite the setting up of the grill-brick wall in 1857, the Hindus never accepted the division of the inner and the outer courtyard. For the Hindus, the entire complex as a whole was of religious significance. A demarcation by the British for the purposes of maintaining law and order did not obliterate their belief in the relevance of the “Garbh-Grih” being the birth-place of Lord Ram (para 773).” 

The court uses this logic to treat the entire disputed land as one unified territory—which it then proceeds to grant to the Hindu claimants. Again, this is a problematic deference to the belief of one community in disregard of the factual matrix (wherein Hindu devotees had initially only staked claims to the Ram chabutra, located in the outer courtyard). The suit that Mahant Raghubar Das had filed on January 19, 1885, sought permission to build a temple on the chabutra. The District Judge, in his judgment dated March 26, 1886, said: “This chabutra is said to indicate the birthplace of Ramchander.”

The consequences that follow from the court ignoring such distinction between inner and outer courtyards (and treating them as a composite whole) are of paramount importance. The court made two important conclusions that underpin its final orders: 

 

  1. “The Hindus have been in exclusive and unimpeded possession of the outer courtyard where they have continued worship.”

 

  1. “The inner courtyard has been a contested site with conflicting claims of the Hindus and Muslims.” (para 788, clause XVIII)

 

Therefore, as opposed to granting the Hindu representatives possession to the outer-courtyard, and then proceeding with a balancing act with respect to the possessory title for the inner courtyard, the court eventually concluded that “on a balance of probabilities, the evidence in respect of the possessory claim of the Hindus to the composite whole of the disputed property stands on a better footing than the evidence adduced by the Muslims… (para 800).” Hence, the court ordered that the “possession of the inner and outer courtyards shall be handed over to the Board of Trustees of the Trust or to the body so constituted.” The trustees, including the parties representing Lord Rama, shall have the powers for the construction of a temple and all necessary incidental and supplemental matters. 

It is also important to note that in reaching the conclusion that Muslims were not in exclusive possession of the inner courtyard, the court heavily relies on evidence of attempts by Hindus to disrupt the possession of the Muslims: “Even after the construction of the dividing wall by the British, the Hindus continued to assert their right to pray below the central dome. This emerges from the evidentiary record indicating acts of individuals in trying to set up idols and perform puja both within and outside the precincts of the inner courtyard (para 788, clause VII).”

In his essay ‘A Historical Overview’ published in the book ‘Anatomy of a Confrontation’ (1992), K.N. Panikkar records one such assertion by Hindus, “On 30th November 1858, Maulvi Muhammad Asghar, khatib and muezzin of the Babri Masjid, submitted a petition to the magistrate complaining that the Bairagis had built a chabutra close to the mosque and that they had written ‘Rama, Rama’ on the walls of the mosque.”

In a far more problematic way, the court uses the illegal acts of violence on part of Hindus to justify its conclusions about Muslims lacking exclusive possession: “The riots of 1934 and the events which led up to 22/23 December 1949 indicate that possession over the inner courtyard was a matter of serious contestation often leading to violence by both parties and the Muslims did not have exclusive possession over the inner courtyard (para 781).” 

It seems manifestly unfair for the court to allow the Hindu claimants to benefit from brazenly unruly acts which sought to interfere with the possession of the Muslims. In retrospect, Muslims amicably respecting the rights of Hindus to worship in Ram chabutra and Sita ki rasoi has in fact turned out to be counterproductive. Perhaps had they too sought to violently disrupt the religious proceedings of Hindus, the court would’ve applied the same “conflicting claims” yardstick to the outer courtyard too—and found against the exclusive possession of the Hindus. 

Nevertheless, it is important to not lose sight of a greater crisis that has been averted in Indian jurisprudence. In a context where large scale mass-mobilization for temple construction was threatened and it was declared that Ram Mandir was an issue of faith and the Supreme Court must not delay its adjudication, the Court has successfully engendered unanimous support for legal process. The court takes due notice of the unruly demolition of the Babri Masjid. “The damage to the mosque in 1934, its desecration in 1949 leading to the ouster of the Muslims and the eventual destruction on 6 December 1992 constituted a serious violation of the rule of law (para 788, clause XVIII).”  And yet the court refrains from restituting the Muslim community by restoring the mosque. The judgment seeks to establish a judicial precedent wherein minorities are simply compensated for violations of rule of law, as opposed to restituting them to their original positions with due respect for their rights and dignity. It is also worrisome because the same perpetrators continue to enjoy to impunity and gave self-congratulatory statements on the verdict.  AG Noorani’s critique of the Allahabad High Court’s judgement is equally applicable to that of the Supreme Court: “The Allahabad High Court had, in effect, sanctified the criminal conversion of the historic Babri Masjid, built in 1528, into a Hindu temple in 1949.”

The political ramifications of this judgment will not be immediately discernible. As far back as 2001, historian Mukul Kesavan had written in his book Secular Common Sense, “The construction of the Ram Mandir where the Sangh Parivar wants it built won’t lead to apocalypse. The world will look the same the morning after, but the common sense of the Republic will have shifted. It will begin to seem reasonable to us and our children that those counted in the majority have a right to have their sensibilities respected, to have their beliefs deferred to by others. Invisibly we shall have become some other country.”

The Supreme Court has averted an immediate crisis, insofar as there has been no outbreak of violence, nor any reports of bloodshed in the aftermath of the verdict. But perhaps the greater crisis that the court has involuntarily invited is that of minorities losing their faith in the institution of the judiciary. In an environment where the legislature and executive are turning unashamedly majoritarian, vulnerable minorities have nowhere to go than repose their faith in the courts. Even as the parties representing the Muslims have decided to file a review of this judgement to contest its conceptual flaws and inconsistencies, one can only hope the judiciary would give them a fair hearing and foster institutional faith in the efficacy of justice delivery. Moreover, as argued elsewhere the court should seriously consider passing directions to ensure an expeditious day to day trial in the languishing Babri Masjid demolition cases. This could be a concrete first step in the long way for the legal system to bridge the scales of justice.

On Constitutional Morality: Thoughts from Delhi

Guest Contributor: Anmol Mittal is a 5th Year Student at National Law University, Delhi. 

The question of what the true import of the term “Constitutional morality” is has become pertinent following India’s (Application to Jammu and Kashmir) Presidential Order C.O. 272, and the subsequent State Reorganisation Bill introduced in the parliament. On the morning of August 5, through a combination of the Presidential order and the Reorganisation bill, the special status accorded to the State of Jammu & Kashmir, by way of Article 370, within the Indian Union, was revoked. To examine where the moral compass of India’s Constituent document lies, it’s necessary that the Constitution be considered as a ‘whole’, and not as being contained ‘essentially’ in Part-III on Fundamental Rights (Part-III rights). 

For the uninitiated, Part-III rights are, in a manner of speaking, India’s version of the bundle of rights in America guaranteed through the 1st, 5th, 6th amendments and so on. Article 19 corresponds directly with the 1st Amendment, Article 20 with the 5th Amendment, and the 6th Amendment has, in a manner of speaking, read into Article 21 and so on. Through a series of constitutional decisions, the Supreme Court of India has placed Part-III rights in the ‘infallible’ category–i.e. they cannot be amended to the ‘disadvantage’ of the holders of these rights. The legislative body is disempowered insofar as it’s amending authority is inhibited at the infallible category, a principle better understood in India as the “Basic Structure Doctrine”. This is, by no means, a mean feat. As Senior Advocate Arvind Datar notes in Courtroom Genius, no other country following a Westminister-type parliamentary democracy had ever had a legislation duly passed by Parliament struck down on grounds of fundamental rights violation. Kesavananda Bharati case, the genesis of such doctrine, really was an outlier. 

The seal of the constituent assembly of India

India, like various other countries with a protracted anti-colonial struggle, places its Constitution and the decisions of its Constituent Assembly as central in determining the validity of actions of present day government. While this in itself is hardly unusual, it is the political value that the Indian government still attaches to the Constitution that sets it apart from other nations. Seldom will one find instances in India of blatant disregard of the Constitution from members of the Executive branch of Government. On either side of the political divide, therefore, it is pertinent to understand India’s Constitution as a ‘whole’, and to not obfuscate the myriad considerations that the Constituent Assembly had in its mind when finalizing it in 1949. 

When drafting the Constitution, India’s Constituent Assembly must have been, as a matter of presumption, truly aware and cognizant of the implications of including Art. 358-359 in the Constitution. Specifically, Article 359, which states that: 

the right to move any court for the enforcement of such of [the right conferred by Part III (Except Art. 20 & 21)] as may be mentioned in the order……remain suspended for the duration for which the proclamation is in force”.

The presence of ‘Emergency Provisions’ under Art. 352 and its enabling provisions in Art. 358-359 suggest that the Constituent Assembly and its conception of a ‘Constitutional Morality’ considered a ‘threat’ to the Security of India as a bigger ‘emergency’ than the suspension of fundamental rights in mounting an effective counter to such a threat. If the converse, which is to say that the constituent assembly in its wisdom was convinced that Part-III rights would, by law, never be suspended from operation the correct position according to the Constituent Assembly, the text of the Constitution would not have so expressly contravened it. 

The only condition for suspension of Part-III rights is that there be a Proclamation of ‘Grave Emergency’ under Art. 352 by the President. This would be enough grounds to activate Art. 358, which automatically suspends all fundamental freedoms under Art. 19, such as speech, movement or even trade. Further, Art. 359 empowers the Government to, by issuing a Presidential Order, suspend the ‘enforcement’ of all other fundamental rights under Part-III.  

In Attorney General for India vs. Amratlal Prajivandas and Others, a nine-judge bench ruled on the extent of the President’s powers during a Proclamation of emergency under Art. 359. The Supreme Court, stating the view of the Constituent Assembly, held that the President was not clothed with the power to suspend fundamental rights but only their enforcement. This implied that while in theory fundamental rights exist, their judicial protection is suspended for the duration of the emergency. Essentially, writ jurisdiction, which enables anyone to move the court under Articles 32 & 226 for enforcement of their Part-III rights is suspended, except in cases where Fundamental Rights under Art. 20 & 21 are claimed to be violated, i.e. protections with respect to Convictions, such as the Right to Self-Incrimination, and the Right to Life. 

Therefore, all that the constitution requires to set in motion the suspension of generally revered Part-III rights is the meeting-of-minds of members of the Cabinet (The only time the word ‘Cabinet’ is used in the Constitution) and the communication of the same to the President, an exercise of purely executive power with no legislative approval. The provisions, after the Indian experience with the Emergency under PM Indira Gandhi, were tweaked to strengthen them by requiring the communication of such meeting-of-minds in writing. The grounds for the judgment of the Cabinet that security is under threat earlier included even ‘internal disturbances’, which was removed to limit the 3 grounds to War, External Aggression and Armed Rebellion. 

The import of Art.358-359 is further muddled following the Maneka Gandhi judgment. A 7 judge-bench laid to rest the AK Gopalan theory, that each Article in Part-III guarantees a distinguishable right, and each right is contained wholly in separate silos, with no overlap amongst each other. The Court disagreed with Gopalan, and constructed fundamental rights as being protected through overlapping provisions and not as ‘restricted’ under specific provisions of Part-III: i.e. a right may be guaranteed by and protected under several articles and not exclusively under one. The Right to Privacy, for instance, has been read as both, a part of the Right to Life (Article 21), because it is essential to the enjoyment of life, and also as under Right to Freedom of Expression (Article 19)

Therefore, the extent to which Part-III rights will be suspended (or not) during a proclamation under Art. 352 is subject to the minds in Bhagwan Das Road (The seat of the Indian Supreme Court) demarcating the extent to which a right falls under Art. 19 and not 20 & 21. This indicates a reversal to the ‘restricted’ conception of Fundamental rights as under Gopalan in order to safeguard their exercise, and also leaves to judicial discretion issues ill-suited for adjudication during an Emergency.

In effect, for a government exercising complete (‘Single’) majority in the Parliament, legislative approval for the passage of a bill, after the proclamation of an emergency and suspension of Fundamental rights, is only a matter of procedure. Freedom to speak and question the government in Parliament is the protection, in essence, that the Constitution ensures for our democracy. However, once these two parameters are met and the single ruling party has passed a bill, a 6-month suspension period follows before requiring legislative scrutiny again. 

Two conclusions can be drawn. One: ‘Constitutional Morality’ and ‘enforcement of Part-III rights’ are two separate spirits in the Indian Constitution, with the former comprising more than just the latter. As a result, it cannot be claimed that actions taken in violation of Part III rights invariably violate ‘Constitutional Morality’. Two: the suspension of Part-III rights can be considered violative of ‘Constitutional Morality’ only in cases where the prescribed ‘Constitutional process’ is violated. In other words, the essence of Part-III rights is contained not only in their substance, but also in the processes required to render them (un)enforceable. 

Seen in light to the developments in Kashmir, to criticise the media blackout and the militarisation of the valley only on grounds of the violation of the substance of Part-III may not be the same as stating that the actions undertaken are beyond ‘Constitutional Morality’. Emphasis needs to be added to the procedures which are required in order to ensure that Part-III rights are not suspended arbitrarily. It is the political cost of having to declare an ‘emergency’ to meet the Arbitrariness requirement and igniting the collective paranoia of Indians left over by Indira Gandhi which is crucial to any meaningful opposition to the actions of August 5 on grounds of ‘Constitutional Morality’. 

Decoding India’s Faltering Extradition Track Record: A Human Rights Approach

Guest Contributor: Tanishk Goyal is a second year law student at the West Bengal National University of Juridical Sciences, Kolkata. 

On July 2 2019, The U.K refused to extradite a couple who were accused of murdering their adopted Indian boy and his brother-in-law in order to receive a life insurance payout. The UK’s reasoning for this refusal took place against the backdrop of the inhumane and degrading human rights conditions prevailing in India. This discharge added on to the intractably dismal extradition track record of India, despite it having ratified the 1949 Geneva Conventions and The U.N Convention Against Corruption which adopt the framework for extradition and mutual legal assistance between countries for an expedited and effective extradition process. One of the fundamental reasons for this situation is India’s international perception as a country which cannot ensure the safety of the offenders it extradites. 

Although India has ratified the International Covenant on Civil and Political Rights, which lays down a human-rights based framework against torture, the country has still not been able to convince the international community that it can ensure the protection of the civil rights of the accused. 

The UK has justified its actions based on the ruling from a 1989 case in the European Court of Human Rights, Soering v the United Kingdom. This ruling argued that on the basis of Article 3 of the European Convention on Human Rights, before extraditing an individual, the requested state must conduct a strict judicial scrutiny of the extradition process in order to assess for any potential human rights violations against the accused which might take place in the requesting state. This reasoning is primarily intended to ensure the fulfillment of jus cogens norms as a part of the international obligation to protect human rights. Moreover, before the requested state can commence extradition proceedings, it needs to ensure compliance with its treaty obligations. Particularly, it ought to examine the compliance with the United Nations Convention Against Torture, which has been ratified by 166 state parties of which India is not one of them. Thus, as the ECHR understands it,  jus cogens and treaty obligations in fact do override state sovereignty if there is a possibility of the violation of an accused’s human rights in the requesting State.

 

The international community tends to perceive India as a country which continues to have a relatively higher capital punishment rate. This is amply illustrated by the fact that, in the year 2018, India had as many as 162 persons who were sentenced to death by the trial courts. The absence of provisions dealing with the human rights of the accused in the Indian Extradition Act, and the recent Criminal law (Amendment) Act, 2018, which favours a pro death penalty approach to sentencing, also drastically reduces India’s chances for conducting successful extraditions. The overcrowding of Indian jail cells, the lack of proper medical facilities, and the lawlessness and highhandedness of the police in India are oft cited reasons for refusing the extradition of its offenders. 

The appalling conditions of Indian jail cells and ill-treatment of individuals in custody is tremendously infamous internationally. This was illustrated by the 1990 case of Gill v Imundi, when a US District Court, on the basis of evidence offered to it from India, noted that sending the accused to India would lead to gross violations of human rights and the treatment that he would receive would shock the court’s “sense of decency.” Come 29 years later, the precedence of this case still evokes the same international sense that India disregards the human rights of its prisoners, which is one of the fundamental reasons why, even today, India faces the questions of the violation of due process and human rights before it can commence extradition proceedings. 

Beyond formal treatment of prisoners in custody, India also has a demonstrated history of vigilante justice, with vigilantes lynching people on mere suspicion and hearsay. India’s lack of any substantial jurisprudence or case law taking active steps to curb these lynchings also does not help it enhance its extradition numbers.

If India wishes to have success in future extradition requests, Indian Extradition Law needs to be amended to include provisions which ensure the protection of human rights of the extradited individuals. In practice, India must display appropriate precedence which shows that extradited individuals are treated as per international human rights obligations, and protected from unjust and inhumane conditions. Undoubtedly, India should accede to the  UNCAT in order to build a more persuasive case for extradition in the times to come. 

It is imperative to note that, while India assures the international community that an accused person, after being extradited, would be treated according to international humanitarian standards, it can only add weight to these assurances by carving out certain inroads into the Indian Extradition Law. This allows India to address its human rights issues by actively setting precedence which fundamentally transforms its misconceived perception in the international realpolitik.  

Of Orwellian Times and Beyond: Examining India’s Recently Amended Anti-Terror Law

Guest Contributor Ashwin is an Advocate practising across trial and appellate courts in India. He belongs to ’18 B.A.LL.B.(Hons.) class of Rajiv Gandhi National University of Law, India.

When governments decide to condemn one as being “involved in terrorism” simply on the basis of belief and nothing else, one cannot help but wonder whether “Thought Police” from George Orwell’s 1984 is being brought to life. To be condemned solely on beliefs would indeed be blasphemous for the vires of justice. The Indian Parliament has recently introduced a process which allows individuals to be subjectively designated as terrorists by the government. The recent amendments to the Unlawful Activities (Prevention) Act allow the Indian Central Government to designate any individual as being “being involved in terrorism” based solely on, as stated,“if [the Central Government] believes that such… individual is involved in terrorism.”

 Violation of the Principles of Natural Justice & lack of Procedural Fairness

These recent amendments to the Act threaten the principles of natural justice and procedural fairness. The principles of natural justice underlie the need for procedural fairness. These principles aim at safeguarding the right to a fair trial procedure. The two most widely recognized principles of natural justice are audi  alteram partem and nemo judex in causa sua.  Audi Alteram Partem refers to  the right of a person to be heard before he or she is condemned by law. Similarly, nemo judex in causa sua literally implies that none shall be a party to their own cause.This implies  that a party which levels an allegation, cannot adjudicate upon the accusation as well.   While commenting on the fitness of a legislation vis-à-vis principles of natural justice, in the landmark case of Maneka Gandhi v. Union of India the apex court laid down that “…  legislation must take processual provisions which accord with fair norms, free from extraneous pressure and, by and large, complying with natural justice. Unilateral arbitrariness, police dossiers, faceless affiants, behind-the-back materials, oblique motives and the inscrutable face of an official sphinx do not fill the ‘fairness’ bill…

Under the Unlawful Activities (Prevention) Act, the Government of India is not required to establish convincing evidence or even give an opportunity of representation to an individual, before they are designated as a person involved in terrorism. The government, solely acting on its “belief”, can pass an order unilaterally,thereby violating the principle of audi alteram partem.  Additionally, there is no requirement to hand over the reasons in writing to the person being so condemned. 

The only instance of a statutory hearing offered through the legislation comes after the label of being “involved in terrorism” is attached. This hearing takes place in the form of a review process, under S.36 of the Act. This review process entails a summary proceeding by a Review Committee, which assesses whether the grounds of detention are indeed valid or not. The review proceedings award wide discretion to the presiding adjudicators since its manner of working has not been comprehensively outlined in the legislation. Notably, the power of appointing an adjudicator to hear an accused’s review plea lies with the Central Government, which also designates the person as a terrorist.  Pursuant to S. 37(3), the Central Government may appoint the judge who is to preside over a Review Committee. While in the event of appointing a sitting judge, the concurrence of the Chief Justice of the High Court is required; if the government chooses to designate a retired High Court judge to hear the issue, then in such a case complete discretion regarding the choice of adjudicator lies with the Central Government. Thus, the same authority which condemns an individual for being involved in terrorism, i.e., the Central Government, has also been awarded the discretion to appoint the person who shall decide the condemned individual’s review plea.

Amendments to the Anti-terror law & India’s international obligations

The legislation also derogates from India’s international obligations. This is particularly true in relation to the International Covenant on Civil and Political Rights, to which India is a party. The ICCPR lays down under Article 14 that “…everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal...” Furthermore, the covenant provides the right “To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him.” The ICCPR calls such rights “minimum guarantees”. 

Interestingly enough, the Government of India has itself recognized the obligation of a state to ensure a fair trial by relying on ICCPR in its own written submissions to the International Court of Justice in the Jadhav Case, even according it the status of an erga omnes obligation.

To have a zero-tolerance policy towards terrorism is indeed a welcome step. However, in doing so, one cannot manifest a procedure which awards excessive power. The recent terror amendments have evoked criticism within India, with scholars and writers looking at the amended law as a potential threat which may lead to civil death for those who dissent, and even India’s very own McCarthyism moment

It must be noted that in the past more than 2/3rd of the cases under the Unlawful Activities (Prevention) Act have resulted in acquittals or discharge of the accused. The unamended Act already defines a  “Terrorist act” and accords an independent trial procedure and punishment for it.The recent amendments add erroneous discretion to an Act that ought to be based in principles of procedure and natural justice. 

Being labeled as a terrorist has immense consequences for the accused. This designation should only be awarded once a person is convicted of committing a terrorist act under the Act, pursuant to proper procedural review. This would ensure that the label of being involved in terrorism comes after appraisal of evidence by an independent court rather than simply the belief of the executive.

Will the ‘not so accessbile’ Rajasthan State Assembly Elections, 2018, be a precursor to the Lok Sabha Elections in 2019?

The 2019 Lok Sabha Elections are happening throughout India in several phases. At the present moment, the entire nation is embroiled in debates about who will be elected into the next Indian government, as well as reflections on the achievements of the current administration. Part and parcel to the upcoming elections is an important element that has been widely neglected: the question of accessibility. There is a broad lack of awareness about the issue of accessible elections, exasperated by a tendency for discourse to focus on more “appealing” election issues such as development, poverty, corruption and nationalism.

‘Accessible Elections’ was finalised as the central theme for all the upcoming elections by the Election Commission of India (ECI) during the National Consultation on Accessible Elections held in the first week of July, 2018. The aim is to increase the participation of Persons with Disabilities (PwDs) in elections by making them more inclusive and accessible to increasing numbers of people from different communities. The ECI debated on means to counter various barriers to accessibility for PwDs in elections and decided to make sincere efforts to increase accessibility and ensure that the challenges faced by PwDs are addressed in an effective manner. To implement this commitment, the ECI launched the Systematic Voters’ Education and Electoral Participation (SVEEP) initiative, which is a model program launched by the ECI for educating the Indian voter base, creating awareness and promoting literacy among voters. Accessibility to elections for PwDs is a part of this initiative. Additional guidelines haven been issued by the Commission providing for certain Assured Minimum Facilities (AMF) for PwDs at the polling booths.

In keeping with the central theme of accessible elections, elections in the states of Chhattisgarh, Madhya Pradesh, Mizoram, Rajasthan and Telangana were to be held to the standards as set out by the ECI.

I conducted a basic survey of some polling booths in the city of Jaipur during the voting for Rajasthan State Assembly Elections, 2018 (the elections) in order to analyse the extent of implementation of the AMF guidelines and examine any potential loopholes which existed between planning and actual implementation.

Legislative Background

Regarding the national law, Article 14 of the Constitution of India provides for equality before law and Article 21 provides for the fundamental right to life and liberty. With specific regard to elections, Article 324 provides for the establishment, powers, and functions of the Election Commission and its objective of conducting elections in a free and fair manner. Furthermore, Article 325 provides that no person shall be ineligible to vote on the grounds of religion, race, caste or sex. This corresponds to Article 15(1) of the Constitution which provides for non-discrimination by the State against any citizen on the abovementioned grounds. Additionally, Article 326 provides for the principal of universal adult suffrage as the basis for holding national as well as state elections. In light of these provisions, Rule 49N of the Conduct of Election Rules, 1961 and the ECI guidelines have been laid down to address the issue of providing assistance to PwDs.

Relevant legislation to the question of election accessibility also exists at the international level. The United Nations Convention on the Rights of Persons with Disabilities (CRPD) was ratified by India in 2007. Article 29 of the Convention lays down that all States-Parties shall guarantee political rights to PwDs and provide the opportunities to enjoy them, including the right to vote through procedures that are accessible and easy to understand. In 2016, the Rights of Persons with Disabilities Act (RPwD) was passed and hailed by disability rights activists as ushering in a new era for PwDs. Section 11 of the Act provides that “The Election Commission of India and the State Election Commissions shall ensure that all polling stations are accessible to persons with disabilities and all materials related to the electoral process are easily understandable by and accessible to them.” This provision has been laid down keeping in view the rights provided by the Constitution of India and the Article 29 of the CRPD. Both of these provisions elucidate the fact that elections have to be made accessible to PwDs in order for them to enjoy their legal and democratic rights of choosing their governments as citizens of India.

Survey

According to the website of the Department of Empowerment of Persons with Disabilities (Divyangjan), there are more than 1.5 million PwDs in Rajasthan and 436,125 of them were enrolled as voters for the elections.

Given this large number of voters, the issue of accessibility becomes highly relevant for the continued protection of the human rights of PwD. Curious to see if the AMF guidelines were truly being implemented, I conducted a random sampling survey at polling booths in the capital city of Jaipur during the elections. The criteria I studied were:

  • Physical accessibility to the polling booths- Ramps, Wheelchairs and Attendants.
  • Availability of Braille Scripts with the indication of the parties/candidates.
  • Awareness and sensitization of the Block Level Officers (BLOs) about the ECI guidelines and laws related to rights of PWDs and their readiness towards addressing the issues faced by PwDs during the voting process.
  • Availability of separate toilets for PwDs.
  • Separate entry and exit for PwDs.

Observations and Conclusion

Most of the schools in Jaipur, both private and government, were designated as polling booths. I visited a few of these schools to conduct my survey.  I observed that, in all of the polling booths which I attended, none were at all accessible to the PwD voters.

First, there was no separate entry and exit for the PwD voters. Second, ramps were either missing in some of the places or they were temporarily set-up and seemed quite rickety and dangerous to be used. Third, there was a either a shortage or an absence of wheelchairs in most of the polling booths. Fourth, braille scripts were mostly not available for aiding the visually impaired voters and even if they were, they weren’t being used by the election authorities. Fifth, there were no separate toilets for the PwDs in any of the polling booths. Sixth, attendants were only deputed at one of the polling booths, which was a government school. And last, there was a severe lack of sensitization about the theme of elections and the SVEEP initiative and an unwillingness to help on the part of the Block Level Officers (BLO) and other election authorities. At one of the polling booths, the BLO got agitated upon being questioned about the shortage of wheelchairs and tried to put the blame on the higher level authorities. I was able to speak with some of the PwD voters who were facing issues while accessing the polling booths, but most of them were a bit hesitant to share their specific challenges with me.

The above mentioned observations depict the reality of the polling booths during elections. It illustrates a stark difference between the reformative objectives envisaged by the Election Commission of India and the actual practices that took place during the day of voting.

The lack of physical accessibility due to the absence of ramps and wheelchairs meant that PwD voters had a hard time entering as well as exiting the polling booths. The absence of braille scripts meant that those who had visual disabilities had to take another person’s help in casting their vote, which took away their sense of autonomy and privacy in voting. Furthermore, the lack of separate toilets meant that PwDs weren’t be able to relieve themselves as they stood waiting to cast their votes.

Additionally, the lack of separate entry and exit for PwDs created additional impediments for them in accessing the polling booths. Above all, the lack of awareness on the part of the Block Level Officers and other election authorities further aggravated this situation as they were not able to understand the challenges faced by PwD voters and hence were not willing to provide any assistance to them.

In practice, it is clear that the theme of accessible elections was in vain at the Rajasthan State Assembly Elections, 2018. The lack of accessibility which I observed at the elections highlights a clear violation of the rights provided to PwDs by the Constitution of India. The ECI’s AMF guidelines were flouted during the organisation of the elections, as they were not carried out equally or adequately in the individual polling places. As a result, only 100,200 out of the total enrolled PwD voters in Rajasthan were able to cast their votes during the 2018 state elections.

This brings to light questions about the role of political will, planning, and implementation in the enforcement of human rights treaties such as the CRPD and in domestic legislation like the RPwD Act. The Indian government has taken many legislative steps to express its commitment to making rights for PwD a reality, but there remain larger policy challenges to be tackled through proper implementation of the law. This could include a stricter follow-up strategy by authorities at polling places. Concrete and reliable policy implementation is vital in order to have the largest and most positive impact on PwD and their rights to vote. Without it, the rights of PwD will remain confined to the realm of debates and discussions, leaving voters without a means to participate in their democratic society.

By: Mohneesh Rai, guest contributor, 4th year studying at the NALSAR University of Law in India-Mohneesh Rai (4th Year, NALSAR University of Law)

Children Languishing Behind Bars: A Grim Reality of Indian Prisons

By Vasudev Singh and Karan Trehan, students of law in India at RML National Law University and NALSAR University of Law, respectively. 

recent revelation by the Government of India concerns the condition of children residing in prisons with their mothers and raises an important question regarding the basic human rights guaranteed to these children. As of 2015, Indian prisons accommodate some 419,623 prisoners (including pre-trial detainees/remand prisoners). Out of them, 4.3 percent— or around 18,000— are women. Women who face trial or who are found guilty of a crime are allowed to keep their children with them during their time in jail. Approximately 1,866 children lived in prison with their mothers at the end of 2015, according to prison statistics. 

According to the Indian constitution, the state governments are assigned to the administration and management of prisons. This means that the state governments can make prison laws according to their own discretion and requirements. However, these state powers remain subject to other centrally-enacted laws such as the Prisons Act, 1894. As a result, there exists a difference in the laws regarding the management of prisons and welfare of the prison population.

To date, the law dealing with the protection of children lodged in prisons with their mothers has not been uniformly codified under any act or statute in India and varies among different states. The Supreme Court of India, in the case of R.D Upadhyay v. State of A.P, AIR 2006 SC 1946, framed several guidelines for the protection and development of these children. The guidelines were framed around key areas requiring urgent intervention such as food, medical facilities, accommodation, age of residence, education and recreation facilities. Pursuant to these guidelines, different states amended their jail manuals and included provisions concerning the welfare of children and mothers in prisons. 

However, various reports have pointed toward the abysmal state of affairs in which these children have been forced to live in Indian prisons. The non-uniform and poor implementation of existing rules and guidelines has further aggravated the condition.

Approximately 1,866 children lived in prison with their mothers at the end of 2015. // Feminisminindia.com

The age up to which children are allowed to stay with their mothers in prisons varies among the states, for example. In states such as Delhi and Assam, the children are allowed to stay with their mothers until they are 6 years old. Whereas, in Bihar, they are allowed to stay only up to 2 years.

The diet, medical and educational facilities provided to children in various states also starkly varies. In many states, children below 5 years old are provided with the same food as other inmates. Furthermore, due to the lack of adequate infrastructure and funding, special medical facilities are not available in every state to look after the children. Reports have found that only the prisons in metropolitan cities such as Delhi, Chandigarh, and Mumbai have medical facilities equipped to cater to the needs of children. In other states, children are sent to nearby centers for education purposes due to the lack of a facility of formal schooling. Moreover, there are no special provisions for food, medical, educational and recreational facilities for women prisoners with children.

These non-uniform laws have left behind major inequality. Several instances of gross human rights violations have also been reported where children have been lodged alongside criminals. Thus, some children are currently living in a state of extreme neglect. Also, due to the absence of any enforcement or grievance mechanism to keep check on the implementation of rules and guidelines, the promise of ensuring a healthy upbringing for children behind bars gets defeated. Thus, the guidelines passed by the Supreme Court and the existing provisions in different states have failed to fulfill their intended purpose, rendering them futile.

Analyzing the laws of various countries, it is clear amended policy should address several important concerns. The first and foremost policy implementation should be the development of infrastructure and facilities, including a necessary increase in funding to prisons across the country. Modernization of the prisons would ensure that children have better living conditions and can lead a more dignified life. In addition, children should be allowed to remain with their mothers until they reach age of 6 years old, with the “best interest” of the child of the utmost importance. Cases involving issues of domestic violence should be taken into consideration, for example.

Special provisions for dietary, educational, medical and recreational facilities should also be made available for children and their mothers in all prisons. These proposed provisions will augment the mental as well as physical growth of children at such a tender age. Maintenance of separate prisons solely for the mothers and their children should be considered by the government. In such prisons, there would be a better atmosphere for parenting, providing more harmonious living conditions for the children and protecting them from violence which could result from living with the general prison population. Regular inspection of prisons should also be carried out. An ombudsman should be appointed for redressal of grievances and an authority should be created to ensure the enforcement of guidelines.

State governments should further endeavor to include the above-mentioned recommendations in jail manuals to better ensure equal treatment of children residing in prisons across the country. 

Article 21 of the Indian constitution guarantees the right to live with human dignity to every person. The Directive Principles enshrined within the Constitution also provide that suitable opportunities be given to children to ensure a healthy manner of development. Furthermore, India has ratified various international conventions, such as the UNCRC, which further obliges the Indian government to work toward the development of conditions beneficial to the well-being of the children. Therefore, the government should recognize the need of the hour and make necessary amendments to policy so as to meet its international as well as constitutional obligations.


Vasudev Singh is a student at RML National Law University, Lucknow. His research interests include health rights, environmental rights and prisoner rights.

Karan Trehan is a student at NALSAR University of Law, Hyderabad. His research interests include children rights, refugee rights and education rights.

Ensuring Healthcare in India by Going Beyond Politics

By Ananye Krishna, a student at Nalsar University of Law, Hyderabad, India

The government of India launched the Ayushman Bharat – National Health Protection Mission in late March 2018 to provide health coverage of Rs. 5 Lakh (or approximately $7,335) per year for all Indian families. This was a much needed reform measure in the Indian healthcare system, but the question remains whether the government made required infrastructural changes in order to ensure the full benefits that would allow the Indian people to access their fundamental human rights to healthcare.

The poor state of healthcare in India was illustrated last year when more than 60 children died in a government hospital because of inadequate infrastructure. This was not an isolated incident. There have been cases of fires breaking out in hospitals and of surgeries being conducted en masse under extremely poor conditions. Such incidents demonstrate that the right to health as guaranteed by the Indian constitution is being violated through lack of adequate reform. Reports suggest that the government made its March decision in haste considering that primary health centers (state-owned rural healthcare facilities) across the country, specifically in North India, are in a deplorable state, rendering the reform inadequate.   

From above, it is clear that the current state of the healthcare system will make it difficult for the people to benefit from the government’s reforms. Some activists have also suggested that this policy might be a political ruse prior to the 2019 Lok Sabha elections in order to ensure the victory of the ruling BJP (Bhartiya Janta Party) government. These half-hearted measures are not acceptable; democracy should not only be about winning elections and political patronage. It should be about the welfare of the people. A popularly elected government has a duty to ensure that the constitutionally guaranteed right to healthcare is not violated.

An initiative in a rural health center in India. // Trinity Care Foundation // Flickr

Furthermore, with India a party to International Covenant on Economic, Social and Cultural Rights (ICESCR), it becomes the duty of the government to protect the right to health of its people and provide them with the highest attainable standard of physical and mental health as provided under Article 12 of the ICESCR.  Also, considering that India is a party to the World Health Organization constitution, it is important that the state follows the standards set by the international organization. When WHO states that maximum available resources must be put to use to ensure the right to health, these same standards should be upheld by the Indian government. Thus, it is important that the government focus its attention on the infrastructural and professional development of primary health care centers in India to protect the basic human rights of its people. These reforms are currently absent from the government’s plan to address the poor state of healthcare.

If proper infrastructural development is undertaken, it is possible that doctors wary of working in rural areas and in poorly equipped institutions could be attracted to work in these healthcare centers, for example. The current policy of making it mandatory for doctors to engage in rural service does not work toward any effective benefit because the deplorable state of government hospitals forces most of the people to turn toward private hospitals despite exorbitant rates at these facilities. Thus, the government continues to deny people their right to healthcare and forces them to bear an unnecessary financial burden when their financial state may already be poor. If any mandatory action has to be taken, then that action should be aimed at ensuring that no hospital, clinic or other healthcare institution overcharges it patients.

As mentioned previously, the current policy of the government is to prescribe mandatory rural service for doctors. This policy has been challenged by doctors who naturally find this to be an unnecessary restraint on their professional life. No other profession is subject to similar restraints. This policy even seems constitutionally unsound as it appears to violate Article 19(1)(g) of the Indian constitution, which states the people have the freedom to practice their profession as they wish. It is important for the government to understand that excessive regulation will lead to resentment among the people, harshly impacting the functioning of the whole democracy.

If the government truly seeks improvement in the health of its people and protection of their fundamental human rights to healthcare, then it will have to remove excessive regulations and engage in proper infrastructural development. When properly equipped healthcare institutions are built, doctors are more likely to be attracted to these institutions. To incentivize doctors, policy should consider more adequate compensation, on par with what the doctor would have potentially earned otherwise. Furthermore, if doctors have to serve in remote areas, the government should ensure that they have the necessary amenities to function at their full potential.

Under the current healthcare system in India, the pent up resentment and poor infrastructure negatively impact overall efficiency. Reform, if properly undertaken, can provide a strong base for building the Indian healthcare system and ensuring the rights of both the people and the doctors.


Ananye Krishna is a Year IV student at Nalsar University of Law, Hyderabad, India.

Death Penalty for Child Rapists in India: Populist, Hasty, Counterproductive

by Shardool Kulkarni, a law student at the University of Mumbai

This January, an eight-year-old girl hailing from a minority shepherding family in India was abducted, gang raped and brutally murdered in the Kathua region of Jammu and Kashmir. In the subsequent months, the incident generated polarized reactions in India and around the world, with public outcry juxtaposed against the response from individuals in authority and alleged politicization of rape owing to the victim’s minority status. The ensuing public discourse has placed the ruling dispensation headed by Prime Minister Narendra Modi under intense scrutiny, particularly in relation to the government’s stance and policies regarding child rape.

In April 2018, the Criminal Law Amendment Ordinance, 2018 was promulgated. The said ordinance brought in several changes to the existing legal framework pertaining to child rape in India, the most significant being the imposition of the death penalty as punishment for rape of a girl below the age of twelve years. The move, while hailed by some as an example of the government’s toughened stance on child sexual abuse, was criticized by academics, judges, NGOs and legal practitioners as being likely to worsen the plight of victims of child sexual abuse.

Disincentivising Reporting

The Kathua rape case involved the victim being abducted, drugged, gang-raped and brutally murdered by eight persons, including four policemen. However, it is pertinent to note that this is not the norm when it comes to instances of child sexual abuse: according to the National Crime Records Bureau of India, 95.5 percent of rapes are committed by persons known to the victim. The perpetrator of abuse is not the figurative shadowy stranger who strikes fear into the minds of the public, but rather the more closely known devils such as parents, older siblings, teachers, neighbors, or family friends. Victims of rape aged below twelve years are also unlikely to report a crime unless an older family member does so on their behalf. The likelihood of this happening is already low and could be diminished further if the consequence of reporting is the death penalty. As such, the amendment is likely to push the already underreported crime of child sexual abuse deeper into the chasm of unspoken, unacknowledged secrets of Indian society.

A Death Sentence for Victims?

The ordinance seemingly also ignores the possibility that making the act of raping a girl below twelve years punishable by death, a punishment usually reserved for murders, could encourage perpetrators to kill their young victims. Rape is an exceedingly difficult crime to prosecute if the only witness in most cases, the victim, is dead. While it may seem counterintuitive that a rapist would murder his or her victim and increase his or her chances of being sentenced to death, the heightened risk of being caught if the victim survives and thereby receiving the death penalty anyway could, in the opinion of some, prompt more rapists to kill their victims.

Indian students protest against rape in India in 2015. Sexual assault of women has been an ongoing issue in India. // Sajjad Hussain // AFP Photo

Following the enactment of the Criminal Law (Amendment) Act, 2013, the term “rape” has been accorded a wider connotation, including not only the traditional notion of penetrative sex but also other forced sexual acts such as fellatio. Thus, “rape,” as defined by the Indian Penal Code, is unrelated to the risk of death and need not necessarily be an act that may result in the death of the child owing to the sheer physical violence accompanied by it. Placing the punishment for raping a child on the same pedestal as the punishment for murdering a child might simply incentivize more abusers to ensure that their victim does not live to tell the tale.

Gender Bias: An Evidence of Populism and Apathy

Most media outlets in India carried news of the government’s decision on child rape. Interestingly, the ordinance only makes the rape of girls below the age of twelve years punishable by death, casting a blind eye toward male victims who constitute 52.94 percent of the victims of child sexual abuse in India. This sidelining of male victims points to a knee-jerk response to momentary outrage, a clear manifestation of the skewed discourse surrounding sexual violence that too often turns a blind eye to male victims. 

Subsequent to the promulgation of the ordinance, the Central Government announced its intention to amend the Protection of Children from Sexual Offences Act (POCSO) in order to make the changes brought in by the ordinance apply to male victims as well. While the move is a welcome one, it further highlights the fact that the policy in question was a hasty move.

Death Penalty: An Ineffective Deterrent

In its 262nd report, the Law Commission of India concluded that there was no evidence to suggest that the deterrent effect of the death penalty was any better than that of life imprisonment. In the United States of America, for example, states that did not impose capital punishment for homicide were found to have lower homicide rates than states that did impose capital punishment. As such, the presumption that the death penalty acts as an effective deterrent is fundamentally flawed.

Moreover, presuming that death penalty does indeed deter child sexual abuse, the deterrent effect is watered down significantly in India by poor case disposal and conviction rates. In its 2016 report titled “Crime in India,” the National Crime Records Bureau revealed that the conviction rate under the POCSO Act is an abysmal 28.9 percent. To make matters worse, pendency in cases of child rape was 89.6 percent. Moreover, there are no witness protection programs in place, and no probe has been made into the functioning of Child Welfare Committees set up by the government. Imposing stringent punishments becomes meaningless if the law remains a mere dead letter.

Several persons in authority responsible for the ruling dispensation, including two ministers in the State of Jammu and Kashmir, protested against the arrest of the accused in the horrific Kathua rape case. The apathy of the police authorities, the statements made by persons in power and the communal color that the entire incident acquired created a strong public sentiment against the ruling party on the issue of child rape. In this light, the Criminal Law (Amendment) Ordinance, 2018 can only be regarded as a hasty and populist move to placate the outraged public without addressing, and moreover possibly aggravating, the plight of the innocent victims of these horrific human rights violations.


Shardool Kulkarni is in his penultimate year as a law student of the five-year law course at the University of Mumbai. He holds the distinction of being the youngest Indian to have deposed before a parliamentary committee in Indian legislative history. In the past, he has worked as a law trainee under Justice F. M. I. Kalifulla, Judge, Supreme Court of India, and as an Attaché to the Office of the Speaker, Lok Sabha, Parliament of India.