Monday, May 16, 2022

Wronged, Rights violated & Duties Breached

72 years of Republic with 73 Issues

Prof (Dr) M Sridhar Acharyulu,

Dean, School of Law, Mahindra University, Hyderabad and

former Central Information Commissioner.

The people of India are celebrating the 73rd Republic Day of India, today, the day on which, 72 years ago, we the people of India, gave unto ourselves the Constitution of India, promising that we cherish constitutional values and ideas. The day calls for introspection into happenings in the country to verify whether they are in tune with or against our world’s best Constitutional ideals. Following are the wrongs and breaches of duties one could notice and it is a coincidence that there were 73 Constitutional wrongs, the rulers, their party or their persons need to notice and correct to re-erect the democratic edifice of the nation which helped India to progress in the last seven decades.  The President and the Supreme Court are requested to initiate measures to protect constitution from these wrongs,

Preamble

  1. Did we compromise sovereignty of India? Doubts were raised because of denying that China did not trespass and occupy some of our territory, fighting which more than forty soldiers laid down their lives. This need to be clarified.
  2. The Socialist principles have been totally violated when nationalized public sector units have been de-nationalized.
  3. Secularism is in danger when communalism is raising its ugly head in dividing voters on the lines of religion.
  4. Democratic norms are under attack when debate is scuttled in Parliament, dissent is punished in institutions and discussion in media is threatened with criminal cases.
  5. Republic nature remained normally but the Head of the Nation sometimes does not hesitate to sign the Ordinances and proclamation of emergency or imposition of President Rule without even checking whether Constitution is followed or not.
  6. Social justice is violated every time when weaker sections and downtrodden are suppressed.
  7. Economic justice is distant dream as poverty at lower bottom of 60 per cent is increasing.
  8. Political justice is disturbed by caste and community politics in elections besides liquor, fake news and money influencing the voter.
  9. Five varieties of liberty promised in Preamble are hardly transformed into reality on ground.
  10. World equality report 2022 says India is most unequal nation in the world.
  11. Fraternity is missing and dignity of individual violated when thousands of lives were not counted while their corpse were burnt openly during Covid. Thousands of migrant labour took to walking as Government did not remember that they were existing, when lock down announced with short notice of four hours in 2020.
  12. We the people of India gave to ourselves the Constitution, but each is asked to prove his/her citizenship after amending the Citizenship Act.

Article 1

  1. Article 1 is breached almost on a daily basis. The Union ignored the Constitutional fact that India is Union of States and acting like Centre is superior to States.  Proposal to tamper with deputation rules of civil servants is the latest example.

Doubted Citizens

  1. Article 5 to 11 deal with Citizenship Act, after amendment doubts every citizen and citizen is imposed with burden of proving date and place of birth was in India, of himself, parents and grandparents, if not, will be incarcerated in detention centre for indefinite period.

The State

  1. Article 12 defines ‘state’, but ‘judiciary’ is not specifically included within this expression, which means even if fundamental rights are violated by wrongful judgments or actions of courts, there is no remedy.
  2. In the context of privatization private bodies violate fundamental rights, multinational companies kill the people without any remedy, as the expression state do not extend obligation to respect fundamental rights of people.

The Law

  1. Article 13 is contradicted as long as several ‘laws’ like Armed Forces Special Powers Act and UAPA allows killing and imprisoning the people without showing the reasons.

Inequality perpetuated

  1. Right to equality under Article 14 is generally violated and specifically an individual has no remedy, especially when the Government policies result in enrichment of rich and impoverishment of poor, as established by World Inequality Report in 2022. Equality continues to be a distant dream.

Reservations as recommendations

  1. Reservations and quota-like affirmative principles were written in mischievous language that offers no right to needy sections to demand reservations but enables State to provide them, without imposing any obligation. Reservations became recommendations as part of Fundamental Rights; A great contradiction that facilitates inequality.
  2. Denationalization is a ploy to destroy quota system, which is in full swing of selling and monetization of every national resource and wealth.

Public Unemployment

  •  Article 16 equality of opportunity in public employment is diminishing year by year as public employment is deliberately shrunk and vacancies are allowed to remain; in alternative outsourcing employees are appointed for only one year. The unemployment is growing and suicides by unemployed youth are the proofs.

Untouchability

  • Article 17 talks about abolition of untouchability, but the discrimination continues unnoticed and without response.

Awards with political motives

  • Article 18 abolishes titles but some Padma awards are based on political motives. Except in sports, arts, literature and military, the Government should not give any awards to politicians.

Freedom of speech at distress

  • Article 19 rights are under attack almost every day. Social media writers, journalists, students and speakers face UAPA, Sedition and other false cases for criticising the Government. The gravity of situation could be understood when a constitutional Court has to declare that reading Preamble of Constitution of India is not a crime.
  • The First Amendment has empowered the state to curb the freedom of expression. The laws of sedition, preventive detention laws like UAPA are powerful weapons to silence the voices.
  • Law of criminal defamation with the support of state is indiscriminately used by ruling politicians against opposition politicians, ministers against journalists, corporates supported by rulers against the independent journalists and social media writers, etc.
  • Civil cases of defamation demanding hundreds of crores of rupees are entertained to silence the voices.  In addition, the lynching mobs, rowdy elements, property confiscation laws, political attacks, killings of those exercising freedom of expression continue unabated.
  • The State machinery waged a war against agitating farmers who protested anti-Constitutional and anti-poor farmers laws introduced by ordinances and through passing of Bills without discussion or voting in Parliament. No Government bothered about farmers who had put up stayed on roads, where they were attacked by mobs and police. The courts also refused to intervene for a long time, and when intervened, no complete justice was given. It is a major violation of Article 19. But it was a significant success of democracy when the adamant Government was compelled to cancel the three laws.

RTI is under attack

  • Whistle blowers and RTI activists are either killed or attacked not to complain or seek information. The revolutionary RTI Act is amended to dilute the independence of Commissioners. General data on covid deaths, and many other aspects of governance is routinely denied and PM Cares Fund claims immunity from Right to Information Act. Electoral bonds are shrouded in secrecy, breading corruption.
  • Freedom to assemble peaceably is denied as by refusal of permissions by police and governments, protest sites are removed, the judiciary mandates that dharna should not obstruct traffic, etc.
  • Freedom to form associations is denied with new Labour Codes increasing the complex and impossible conditions to get association recognized.

Article 20: Third Degree torture and prosecutions under law that was struck down

  • Article 20 (3) is violated every day and night when the confessions are extracted through third degree methods employed by police against persons in custody. The Supreme Court ordered fixation of CCTVs in every centre of custody to prevent torture by police. It is one of the orders of Supreme Court which is yet to be implemented.
  • Article 20 (1) says nobody should be prosecuted without there being a law declaring that act as a crime. But there are thousands of criminal cases registered and magistrates allowed them to be prosecuted under Section 66A of IT Act, even after Supreme Court struck it down as unconstitutional. It’s pathetic that Supreme Court has to be moved again.

Right to life becomes Authority to kill

  • Article 21 is violated when thousands of covid victims died unaccounted, migrant labour walked on roads and succumbed to accidents on roads and railway track in 2020, when 15 civilians died in ambush by Armed Forces in Nagaland, when people are killed in false encounters and lynching, whenever a woman is gang raped and a girl disappeared, farmers or unemployed youth committed suicide or in honour killings or killings by moral policing mobs.
  • Right to life is under threat when people supported by rulers make hate speeches and when state does not act to curb it. The Haridwar hate speech calls for genocide and speakers proclaim that they kill the other communities even if they are convicted, after coming out of jails. Government acts only after Supreme Court directed.
  • A Union Minister’s Son drives a heavy vehicle into the farmers procession from backside to mow down farmers and journalists deliberately. The Supreme Court is compelled to perform the duties of collector, SP or Home Minister or Chief Minister.

Right to speedy trial

  • Right to life includes right to speedy trial. Everybody including criminally charged politicians are benefitted by delay in justice delivery, hence there is sincere effort not to take any measures for speedy trial. If at all there is any speedy justice, it is privilege of a few rich and resourceful and curse for the weaker sections and the poor.
  • The Supreme Court said the voters have right to know the educational qualifications of candidate contesting elections in MairembamPrithviraj vs. PukhremSharatchandra Singh, (2017) 2 SCC 487. But the Government of India fights an appeal against the order of Central Information Commission to Universities to disclose the degree related information of holder of high constitutional authority contending that educational qualification information is his private information.

Right to Privacy and Telephone Tapping

  • Right to privacy is recognized as new fundamental right. But Pegasus – a foreign spy software is used to tap phones of cabinet ministers, opposition leaders, journalists and general members of public continuously. Facebook accounts, WhatsApp information is stolen. Phone numbers Data is sold for commercial purposes, Call Detail Reports are extracted without following due process. Privacy is yet to be defined and Data Protection is yet to be made.

Right to education

  • Right to Education is added through Article 21 A, but public education from KG to PG is deliberately starved by Union and State governments to sell the lands of universities and encourage Private educational Institutes, where there can be no reservations for weaker sections at all.
  • Inequalities among teachers and employees in public employment continues- one regular, second – on contract, third- outsourced employee, with huge disparity in their salaries. An average of 30 per cent of vacancies are deliberately maintained.

Fundamental ‘right’ of State to violate article 21

  • Article 22 authorises preventive detention without judicial review and without informing the reasons for detention for some months. A great contradiction within chapter of Fundamental Rights. Article 21 is violated by Article 22, a wonder which is not found in any democratic Constitution. And when the Constitution mandates that preventive detention law should be temporary, the Government made permanent laws to authorise the detentions in utter violation of both Article 21 and 22.

Article 23 violated every day/hour

  • Article 23 that prohibits traffic in human beings and forced labour, is violated when women and girls go missing and some of them found in flesh market and when young unemployed continue as outsourced employee with bare minimum wage without even a right to renew employment for next year. A contractor is authorised to supply human beings for employment in government with far less salary without any right of continuation.

Article 24 violates its own spirit and Article 21A

  • Article 24 prohibits employment of children in factories. But the definition of children as below 14 years will allow children from 14 to 18 to be employed even in Hazardous industries and definition of hazardous industries which does not include some real hazardous industries, allows even the children below 14 years. Article 24 is drafted in such a mischievous manner that it violates in letter and spirit of the article of prohibiting child labour. It is also a straight violation of Article 21A, right to education of children up to 14 years of age, because it permits children below 14 years to be employed in non-hazardous industries, which means they need not go to schools.
  • Article 25 to 30 giving various rights to freedom of religion, which are under threat with communal politics, hate speeches and open call for genocides besides murderous attacks in the form of communal riots.
  • Article 31, which authorized compulsory acquisition of property is removed, but Article 31 A is added by First Amendment in 1951 that allows state to acquire any estate, extinguish any right, take over management in public interest, amalgamate any corporation with another, extinguishing rights of management and rights arising out of agreement etc. Even if they are violative of Article 14 or Article 19, they shall be deemed to be non-violative of Articles 14 and 19.  States also can make such laws. It is complete violation of letter and spirit of fundamental rights.
  • Article 31B is inserted again by First Amendment 1951 which validates certain Acts if they are included in 9th Schedule and kept them beyond judicial review. This is neither logical nor legal.  Inclusion of certain Acts in Ninth Schedule by amendments before 1973 are held valid and the inclusions of Acts after 1973 have to satisfy that they do not damage basic structure of the Constitution as per Keshavananda Bharathi decision. This also a wonder.
  • Article 31 C is another addition of unconstitutional provision, which says that if the Government declares that the law is giving effect to directive principle of state policy, it shall be deemed to be valid and shall not become void on the ground that is inconsistent with or takes away or abridges any of the rights conferred by Article 14 or Article 19. Another wonder that still exists.
  • Article 32, that guarantees right to Constitutional remedy is the greatest positive merit of the Indian Constitution, which was further positively expanded by judicial activism to invent public interest litigation, which is saving the Constitution from destructive attempts of Executive and Legislature. But use of Article 32 totally depends upon the independence and courageous conduct of Judges of Supreme Court. Any threat to independence is threat to weaken Article 32.

Directive Principles of State Policy ignored

State violates the Constitutional Duties

  • The income gap between the top ten per cent and the bottom 50 per cent in India is one to 22 in 2021. The bottom 50 per cent of the households own almost nothing. Middle class is relatively poor, owning 29.5% of the total wealth. The inequality in India has widened compared to British rule (since the period power was transferred from the East India company to the British Crown till Independence). It found that Indian income inequality was very high under British colonial rule (1858-1947), with the top ten per cent of the population sharing around 50 per cent of the national income. Now independent India surpassed these figures and ‘achieved’ wider inequality than British Rule. (World Inequality Report 2022)
  • France-based World Inequality Lab which does work through evidence-based research on the drivers of inequality worldwide)
  • India stands out as a “poor and very unequal country, with an affluent elite”, where the top 10% holds 57% of the total national income(World Inequality Report 2022)
  • and liberalization, so called, adopted by India have mostly benefited the top one per cent, as per World Inequality Report for 2022.
  1. Article 39 says the state shall direct its policy towards securing (a) that the citizens, men and women equally have the right to an adequate means of livelihood. Growing unemployment is proof of violation of this duty. Annual income of poorest 20 percent of Indian households was Rs 1.37 lakh in 2015-16, which plunged to 0.65 lakh which means fall of 52.6 per cent in 2020-21. (World Inequality Report 2022, by France-based World Inequality Lab which does work through evidence-based research on the drivers of inequality worldwide)
  2. Article 39 (b) the state shall direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to sub-serve the common good. The top one percent of total national income is held by just 1 per cent rich people. This shows that Governments never bothered about this duty.
  3. Article 39 (c) says the state shall direct its policy towards securing that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. The annual average income of richest 20 per cent of India in 2015-16 was Rs 5. 26 lakh that increased to Rs 7.31 lakh registering growth of 39 per cent. India stands out as a “poor and very unequal country, with an affluent elite”, where the top 10% holds 57% of the total national income(World Inequality Report 2022)
  4. All these three directives are violated through indiscriminate privatisation of public assets, national wealth, community properties, auction of government lands, allocation of lands at low cost to Special Economic Zones, Multi-National Corporates etc. Phenomenal growth of wealth of rich class in recent times shows how this duty is violated.
  5. The economic reforms and liberalization, so called, adopted by India have mostly benefited the top one per cent, as per World Inequality Report for 2022.
  6. Article 39(d) says there shall be equal pay for equal work for both men and women. According to the Monster Salary Index (MSI) on gender for 2016, women in India earn 25% less than men.India ranks 108 in World Economic Forum’s (WEF) gender gap index in 2018.  Apart from the gender pay gap, India is also facing a huge pay disparity among the categories of organised and unorganised sectors, rural and urban areas and regular and casual workers. WEF 2018 also reported that India ranks 142 out of 149 in the economic opportunity and participation sub-index.
  7. Article 39(f) says the children should get opportunity to develop in healthy manner and in conditions of freedom and dignity. The WEF also noted that India continues to rank third-lowest in the world on health and survival, remaining the world’s least-improved country on this sub-index over the past decade. “In fact, India actually widens the gender gap on this sub-index this year,” Report wrote.
  8. Article 39 A says state shall ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. The poor cannot afford to approach High Courts and the Supreme Court because of prohibitive costs of litigation and hiring a lawyer. Free legal aid is a token support which is out of reach for many. The great right under Article 32 cannot be realized for a person who was denied his rights to approach Supreme Court because of distance and cost of travel, in addition to cost of litigation and lawyer. The Supreme Court sits only in Delhi and refuses to have benches in such a big country, is a whole sale violation of Article 32 and Article 39A.
  9. Article 40 talks about organization of village panchayat and three tier federation ensuring self-government at tier at bottom. This is another distant dream.
  10. Article 46 deals with duty of promotion of educational and economic interests of Scheduled Castes, Scheduled tribes and other weaker sections. This is yet another distant dream.
  11. Article 47 deals with duty of State to raise the level of nutrition and the standard of living and to improve public health.  Despite this, 14 per cent of India’s population is undernourished, according to ‘The State of Food Security and Nutrition in the World, 2020’ report. The report states 189.2 million people are undernourished in India and 34.7 per cent of the children aged under five in India are stunted.
  12. Article 48 talks about duty of state to organize agriculture. The hurried passage of three Farmer Legislations and their withdrawal after hundreds of farmers died in a year-long agitation against, is the proof of breach of this duty.
  13. Article 48 also talks about duty of state to prohibit slaughter of cows and calves and other milch and draught cattle. There is much emotional talk about cow protection without any viable economic program to protect cows, calves and cattle.
  14. Article 48A imposes an obligation to protect and improve environment and safeguarding forests. The State of India’s Environment Report 2021 released by Centre for Science and Environment (CSE) in June 2021 with comprehensive data on subjects such as Forest, Climate Change, Habitat, Water, Air Pollution, Rural Development, Biodiversity, and Industry has stated that India ranked 117 out of 180. In achieving 17 SDGs (sustainable development goals) India slipped to 117 in 2021 from 115 in 2020. Challenges such as hunger, low food security, achieving gender equality, fostering innovation are the reasons why India’s rank slipped in 2021.India ranks below four South Asian nations such as Bhutan, Bangladesh, Nepal and Sri Lanka.
  15. Article 49 declares it as a duty of state to protect monuments and places and objects of national importance. Gurmeet Rai Sangha, director, Cultural Resource Conservation Initiative (CRCI) and Heritage Management Specialist, who has worked on several heritage conservation projects with the Punjab government, reacted to the renovation of Jallianwala Bagh, and said, “I would say that such places of historical and heritage importance are being reduced to theme parks. This trend has been going on for the last five to seven years. Jallianwala Bagh was the beginning of the end of British rule in India. Instead of reducing it to a theme park by putting statues, the focus should have been on things like documentation and interpretation centre.”
  16. Article 50 specifically states that the State shall take steps to separate the judiciary from the executive in the public service of the State. This is required for protection of independence of the judiciary. The measures like giving post of Governor and Rajya Sabha membership on nomination to those just retired from the high position of Chief Justice of India will have a fatal effect on independence and dent the credibility of this esteemed institution. Executive is luring the justice with post-retirement positions.
  17. Article 51-A prescribed fundamental duties to every citizen of India. The architects of the Constitution never intended to prescribe penal consequences for the breach of these duties. It is ethical and moral duty of citizens to adhere to these duties. To say that some who do not stand when national anthem is recited in cinema halls should be jailed is not a constitutional mandate. Those who are in power and out of it also should respect the national heroes and symbols, and it is not proper to register criminal cases against them, like registering FIR for wiping the face with national tricolour. The leaders should not use national flag as piece of cleaning cloth, reflecting utter disregard for the national symbol. It indicates individual ethics and culture rather, though it need not be converted into a crime.
  18. It is not proper to breach the duty under Article 51-A(b) i.e., to cherish and follow the noble ideals which inspired our national struggle for freedom. Hating father of nation Mahatma Gandhi and first Prime Minister Nehru with manufactured fake news for political reasons is the worst breach of this duty.
  19. Article 51-A(e) specifically says it is the duty of citizens to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectoral diversities; This duty is specially breached deliberately by leaders of a religious group in Haridwar during 2021 December, and the worst part of it is that the state did not act immediately against this breach which is also a criminal wrong under Indian Penal Code.
  20. The Article 51-A(e) also says that every citizen shall renounce practices derogatory to the dignity of women. Remark in Haridwar that their women can act as the mistresses of anyone and that they are their greatest strength has rightly invited prosecution. More than 170 activists and women’s groups wrote an open letter to Prime Minister expressing “horror” over the alleged hate speeches and using “fear of rape as a campaign message” during the Delhi poll rallies against women who were protesting Citizenship Amendment Act etc.
  21. Article 51-A(h) makes it mandatory for every citizen to develop the scientific temper, humanism and the spirit of inquiry and reform. Union Ministers talking like Babhi Ji papad will cure corona, dung bath will prevent it, and speaking similarly in National Science Conference is highly unscientific and against this spirit of inquiry.  Saying Ganesha’ head is fixed by plastic surgery, Karna in Mahabharatha born outside mother’s womb, claiming Darwin was wrong because no one has ever seen an ape turning into a man, or cow is the only animal which breathes and exhales oxygen, etc are in tune with this duty.
Prof. M. Sridhar Acharyulu
Author is Dean, Professor of law at Mahindra University at Hyderabad and former Central Information Commissioner. He published a number books in English and Telugu.

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