CONSTITUTIONAL ISSUES

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CONSTITUTIONAL ISSUES

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CONSTITUTIONAL ISSUES

Criminal Defamation

  • It is defined under sec 499 and Sec 500.

  • They key arguments against sections 499 and 500 IPC are that they are not reasonable restriction on speech.

  • For example, if a person speaks truth, then truth will only be a defence if the statement was made for the public good. Otherwise, a person can be prosecuted for defamation even for speaking truth
    There are two types of defamation: Civil and Criminal

  • In criminal defamation there is physical punishment. Whereas in civlidifamation

  • Criminal defamation restricts freedom of expression especially in political matters.

  • Hence various political parties filed a petition to decriminalize defamation.

  • But SC rejected the viewpoint of decriminalizing Criminal defamation law because of two reasons:

  • (a) It will affect the fraternity word in the preamble. Right to reputation is integral part of Right to life.

  • (b) The socio economic condition of India is not fit for civil defamation as everybody cannot afford financial penalties.

    • Section 499 of IPC- Defamation. Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.

    • Section 500 IPC. Punishment for defamation — Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.

Section 66A of IT says

  • the Supreme Court ruled that Section 66A of the Information Technology Act is unconstitutional in its entirety and strike down a provision that had led to the arrests of many people for posting content deemed to be “allegedly objectionable” on the Internet.
  • What is the sec 66A?

  • Any person who sends, by means of a computer resource or a communication device

  • Any information that is grossly offensive or has menacing character; or

  • Any false information for causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will.

  • Any electronic mail or electronic mail message to mislead the addressee or recipient about the origin of such messages shall be punishable with imprisonment up to three years and with fine.”

  • Key Argument

  • Section 66A provides punishment for sending offensive messages through communication services.

  • The law was amended in 2008 and received Presidential assent on February 5, 2009.

  • Section 66A (b) is even more problematic than Section 66A (a) because it restrict freedom of speech and criminalise the causing of annoyance, inconvenience, insult or ill will.

  • It could be a criminal offence if it amounts to defamation. However, insulting someone or causing inconvenience per se cannot surely be a crime in itself either in the real or virtual world.

Section 295A of IPC

  • What is section 295 A of IPC?
  • In Ramji Lal Modivs State of UP, decided in 1957, tSec 295 A is valid as long as there is intention and potential to cause public disorder.

  • Shreya Singhalvs Union of India, the Supreme Court held that only “incitement” to violence could be prohibited under the public order ground, and even advocacy (of revolution, etc.) was permitted. Under a standard as strict as that of “incitement”, it is difficult to see how the language of Section 295A, which was upheld in the Modi case on the basis of a broad and vague “tendency” test, remains within the scope of Article 19(2).

  • Cases when it was in News:

  • KikuSharda case, Mahisasura episode of JNU, AIB show,

  • Court’s Judgment

  • Section 295A of the IPC penalizes insulting the religion or religious beliefs of any class of citizens, if such insult is offered with the deliberate and malicious intention of outraging the religious feelings of that class.

  • Even at the time, the drafting committee voiced its doubts about the wide wording of the section, and predicted that it might come to be used to target not just the “scurrilous scribbler”, but also religious dissent and critique. History has proven those fears justified.

  • It is regarding Religious hate speech or Blasphemy.  

  • Section 295A of the IPC penalizes insulting the religion or religious beliefs of any class of citizens, if such insult is offered with the deliberate and malicious intention of outraging the religious feelings of that class.

  • Challenges of Anti blasphemetic Law :

  • In Ramji Lal Modivs State of UP, decided in 1957, tSec 295 A is valid as long as there is intention and potential to cause public disorder.

Uniform Civil Code and Triple Talaque

  • In News: The brave fight put up by Muslim women against the practice of triple talaq has once again brought into focus the lack of a uniform civil code in India.

  • Shreya Singhalvs Union of India, the Supreme Court held that only “incitement” to violence could be prohibited under the public order ground, and even advocacy (of revolution, etc.) was permitted. Under a standard as strict as that of “incitement”, it is difficult to see how the language of Section 295A, which was upheld in the Modi case on the basis of a broad and vague “tendency” test, remains within the scope of Article 19(2).

  • It means a set of common personal laws for all citizens. Currently, for example, there are different personal laws for Hindus and Muslims.
  • Personal law covers property, marriage and divorce, inheritance and succession.
  • Accommodation of various ideas/beliefs and consensus building should be the key rather than legal enforcement of a uniform set of norms.

  • The society must be slowed reformed and no manner of coercion must be exercised.

  • The fears among the minority community of majority domination must be adequately allayed and all apprehensions addressed.

  • The idea of uniform civil code is against secularism ideals as it involves the state interfering in religious matters.

Views against UCC:

  • Inconsistency in personal laws runs contrary to Right to Equality.

  • Article 25 empowers state to regulate “secular activity which may be associated with religious practices.

  • It is true spirit of secularism as religion is a personal matter so laws should be common for all religions.

  • Needed to protect vulnerable sections of the society from abuses of the personal laws; For eg. Triple Talaque, Prohibition of entry of Women Inside the place of worship,

Argument for UCC

  • Right to worship or to practice religion should not be confused with individual rights relating to inheritance, marriage or divorce.

  • Uniform Civil code is enshrined as article 44, as part of the Directive Principles of States policy, in the Indian Constitution.

  • It makes the implementation of the Uniform Civil Code as a duty of the state.

Jallikattu Debate

  • Jallikattu also known as Eruthazuvathal is a bull taming sport played in Tamil Nadu as a part of Pongal celebrations on Mattu Pongal day.
  • During Jallikattu, various cruel means are adopted to scare and anger the bull. It also causes some human casualties.

Challenges

  • It derived from the words ‘calli’ (coins) and ‘kattu’ (tie). In Jallikattu, the objective is to obtain the ‘Jallikattu’ a pouch which contains the reward coins called ‘Jalli’ tied to the horns of the bulls. 

  • While the players are not allowed to carry weapons bulls are equipped with a pair of sharp horns. Thus it’s actually the bull which has the upper hand in this match.

  • Jallikattu use only native breed of cows and it protected from going extinct which is a huge problem for western cattle industry.

  • What started as a simple act of bravado has become an act of cruelty towards animals.
  • Supreme court in 2014 banned the sport jallikattu as it violates provisions of Prevention of Cruelty to Animals Act (PCA)

  • Article 21 (Right to Life) prohibits any disturbance to the environment, including animals, considered essential for human life.

View of SC

  • Under Article 51 A (g) of the constitution it is the duty of every citizen of India to protect the wild life, and to have compassion for living creatures;

    • The Prevention of Cruelty to Animals Act

    • Enacted by Parliament to prevent the infliction of unnecessary pain or suffering on animals.

    • As per the provisions of the law the government of India formed the Animal Welfare Board of India.

    • The act however makes a provision as respects manner of killing prescribed by religion” :

    • Nothing contained in this Act shall render it an offence to kill any animal in a manner required by the religion of any community.

Cow Slaughter and Beef Ban

  • Except 7 States (Mostly North Easter) and UTs all other remaining States and UTs have already enacted laws to prevent the slaughter of cow and its progeny in one form or another.
  • Item 15 of the State List lays down “Preservation, protection and improvement of stock and prevention of animal diseases; veterinary training and practice” are within the exclusive powers of the State legislatures.

  • There is no Central law on this subject however certain constitution provisions under Articles 249, 250, 252 and 253 which may allow a Central law on a subject under certain situations.

  • Article 48 of the Constitution lays down a directive principle of state policy which directs that- “The State shall take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.”

  • Article 48A– The State shall endeavor to protect and improve the environment and to safeguard the forests and wild life of the country.”

  • Under Article 51 A (g) of the constitution it is the duty of every citizen of India to protect the wild life, and to have compassion for living creatures;

  • Therefore, it should be clear at the outset itself that the Constitution itself requires the State to enact laws to ban cow slaughter, and to protect the environment / forests / wild-life of the country.

Constitutional Provisions

  • However there are many variations among state laws for ban on slaughter of calf, bulls and bullocks.

Supreme Court Judgments

  • In Mohd. Hanif Quareshi v. State of Bihar5-judge Constitution bench SC held: A total ban on the slaughter of cows of all ages and calves of cows and calves of she-buffaloes, male or female, was quite reasonable and valid and is in consonance with the directive principles laid down in Article 48;

  • A total ban on the slaughter of buffaloes, breeding bulls ,working bullocks and milch or draught cattle was also reasonable and valid.

  • A total ban on slaughter of buffaloes, bulls, bullocks after they ceased to be capable of yielding milk or of breeding or working as draught animals could not be supported as reasonable in the interests of the general public, and was invalid.

  • Moreover, the challenge to the constitutional validity of the said laws on the basis of the right to equality under Article 14 was also clearly rejected by the Supreme Court.

  • In an important case of State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005) a 7-judge Constitution bench (Under Chief Justice R.C. Lahoti) of the Supreme Court held that cow progeny is needed in the interest of the nation’s economy.

  • Merely because it may cause “inconvenience” or some “dislocation” to the butchers, restriction imposed earlier judgment does not cease to be in the interest of the general public. The former must yield to the latter.”

Minority Institutions

  • In News: In January, the central government reversed the stand of its predecessor Government and decided not to support minority status for Aligarh Muslim University or Jamia Millia Islamia.

Constitutional Provisions:

  • Article 30(1) recognizes linguistic and religious minorities but not those based on race, ethnicity.

  • The National Commission for Minority Educational Institutions Act (for short the ‘Act’) has been enacted to safeguard the educational rights of the minorities enshrined in Article 30(1) of the Constitution.

  • According to the act “Minority Educational Institution” means a college or institution (other than a University) established or maintained by a person or group of persons from amongst the minorities.

  • A majority community can also establish and administer educational institution but they will not enjoy special rights under Article 30(1)(a).

Supreme Court’s Judgments:

  • T.M.A. Pai Foundation vs. State of Karnataka (11 judge Const. Bench) held that status of minority for a community will be determinable only by demography of the State and not by country as a whole.

  • In Azeez Basha vs. Union of India case SC held that to claim the benefit of article 30(1) such institution must be established and administered by the community (OR replaced by AND).

  • Analysis of Azeez Basha case means that a religious or linguistic minority is debarred from establishing a university.

  • In St Stephens vs. Delhi University case, 1992, SC ruled that MEIs can have 50% seats reserved for minorities. 

Stand of the government

  • Minority status to AMU or any institution set up by parliament or state is contrary to Article 15 of the Constitution, which prohibits discrimination by state on grounds of religion

  • These institutions are “unconstitutional” and “illegal” as they are discriminating against SC, ST and OBC using the minority tag.

Issue of Sedition 124 A

  • The Constitution of India does not define the word sedition.

  • Drafted by Thomas Macaulay, it was introduced in the 1870s, originally to deal with “increasing Wahabi activities between 1863 and 1870 that posed a challenge to the colonial government”.

  • According to Section 124-A of the IPC: “Whoever, by any means of presentation brings or attempts to bring into hatred, contempt or excites disaffection towards the Government established by law in India will consider as offence of sedition.

  • The word disaffection’ in this section includes disloyalty and feelings of enmity.

  • In the Ram Nandan vs. State case the Allahabad High Court held section 124-A to be unconstitutional citing that the section restricts freedom of speech (Article 19).

  • However decision of the Allahabad High Court was overruled by Supreme Court in the (1962).

Argument against section 124A

  • Supreme Court in Kedarnath Singh v State of Bihar has warned against the arbitrary use of sedition law.

  • It ruled that criticism against the government policies and decisions within a reasonable limit that does not incite people to rebel is consistent with freedom of speech and expression.

  • It has been used arbitrarily to curb dissent particularly by the independent intellectual thinkers.

  • The draconian nature of this law—non-bailable, non-cognisable and punishment that can extend for life— has a strong deterrent effect on dissent even if it is not used.

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