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November 19, 2020November 19, 2020

Article 32-Two different days-Two cases-same bench-opposite observations

India witnessed the arrest of Arnab Goswami, the visible and more importantly a rancorous audible supporter of BJP on television over a two-year-old suicide abetment case under section 306 of IPC. Siddique Kappan, another journalist from Kerala, was arrested when he went to report on the Hathras gangrape case in UP. The major difference between the two is that Goswami was released just after a week, at the order of the Supreme Court after a special sitting, where the case was presented by Harish Salve. On the other hand, after spending 49 days in a jail in UP, Kappan got to speak for just five minutes with his family over his phone. No bail has been ordered for him, which has led to his prolonged stay in jail.

The Supreme Court gave two diametrically opposite instances of judgments while hearing the cases filed by the lawyer of Arnab Goswami and the team of Kerala Union of Working Journalists on behalf of Kappan represented by Kapil Sibal. Both cases were effectively filed under the same Article 32, which allows for filing of writs. Arnab’s and Kappan’s teams had filed Habeus corpus writs for their respective litigants.

Indian Constitution empowers the Supreme Court and the High Courts to issue various Writs for the enforcement of the fundamental rights enunciated or conferred upon by the Part-III of the Constitution under Article 32 and Article 226. Article 32 pertains to SCI and Article 226 relates to the High Courts in this regard. These writs basically are a tool for the citizenry to bring in the justiciability of the fundamental rights. There are five kinds of these Writs- Habeas Corpus, Mandamus, Certiorari, Prohibition, and Quo- Warranto, out of which Habeus corpus is the one which is relevant here.

The writ of Habeus corpus, meaning “present the body” is issued to produce before a Court the person who has been detained or imprisoned and not produced before the magistrate within 24 hours whether in prison or private custody. The importance of this writ lies in its capacity to release the person if such detention is found illegal. The specific purpose of the writ is not to punish the wrongdoer but merely to release the person unlawfully detained. It should help reflect how the writ was perceived in the two cases of Goswami and Kappan.

Article 21 (Protection of life and personal liberty) of Indian constitution cannot be suspended even during the proclamation of Emergency, which the BJP always brings into question while haranguing Congress or its other critics. In this backdrop, Habeas Corpus becomes a very valuable writ for safeguarding the personal liberty of an individual. While the Apex Court can issue the writ of habeas corpus only against the State in case of violation of Fundamental Rights, the high courts can issue the writ also against private individuals illegally or arbitrarily detaining any other person meaning that the High Courts have a wider jurisdiction in terms of writs.

The writ of habeas corpus as mentioned in Article 32 can be filed by any person on behalf of the person detained or by the detained person himself. In the Sunil Batra vs Delhi Administration case of 1978, a letter written by a convict to one of the judges of the SCI was treated as a writ petition. The case had also led to the observation that the rights of the person do not leave him/her when he/she enters the prison while they may suffer shrinkage.

The difference in the cases of Goswami and Kappan is in fact extremely stark in the manner in which discretion was being inculcated while applying the law of the land (Article 32) which as per Article 14 should be equal for all. While ordering bail for Goswami, the CJI issued a contempt notice to the Maharashtra Assembly Secretary. It must be underlined that the CJI had then asked a rhetorical castigating the Assembly Secretary, “How dare he says that? What is Article 32 for”. This indicates that cases under Article 32 should have gravity in the court room and get serious attention from the SCI in enforcing basic rights of individuals including journalists. But, the bench reacted in a totally different manner when a case under Article 32 was filed by KUWJ on behalf of Siddique Kappan. In this case, the same bench stated that they are trying to discourage petitions based on Article 32. So, it becomes apparent that Article 32, the base of Habeus Corpus has different situational meanings, based on who is detained. This tells a lot about the judicial system.

If the detained person is a journalist, not belonging to the privileged group, who simply wants to do his job of reporting a crime, then Article 32 might not help him. If the detainee is a loud-mouthed desk-slamming person calling out names, peddling a parochial twisted version of jingoism, then it can help him, and help him fast.

November 12, 2020

Interim bail given to Arnab Goswami by the Supreme Court

The Supreme Court today ordered the release of Arnab Goswami on an interim bail on a bond of RS 50000. The other co-accused was also ordered to be released on the same bond amount.

The Apex Court stated that the High court erred in not giving interim bail to Arnab and that the HC was not doing enough in matters related to cases of personal freedom.

Justice D Y Chandrachud of SCI stated that if this way the situation had proceeded in the HC, and had the Apex Court not interfered, then it would have led to the undeniable destruction of the personal liberty of anyone who is targeted by the state government. He further stated that it should be made clear that SCI is there. He also added that it is up to people to choose whether they want to see Republic TV or not.

Advocate Harish Salve appearing on behalf of Arnab Goswami stated that the case did not stand the test of basic ingredients required to establish a case of abetment to suicide under Section 306 of the IPC.

Kapil Sibal represented the state of Maharashtra in the case and was asked by the SCI whether there was an active case of instigation or encouragement which would constitute an offence amounting to abetment of suicide. The judges also observed that Indian democracy is extraordinarily resilient and taunts on TV must be ignored to uphold this.

October 8, 2020October 8, 2020

After the Supreme Court verdict DGCA issues detailed refund guidelines

On October 8, detailed guidelines have been issued by DGCA, the statutory body of Aviation and airlines formed under Aircraft Bill 2020. The guidelines are regarding a refund of the ticket price for the flights canceled amid the coronavirus-triggered lockdown.

These guidelines have been issued after the six days of Supreme Court decision, as it directed that a complete amount of refund should be given immediately to passengers for the air tickets canceled between March 25 and May 24. As in this period, no domestic passenger flights operated in the country.

On the first of October, the Apex court had also given directions about the process of refund and credit shell formation for the bookings and cancellations done during the other time periods around the lockdown.

To follow the court’s guideline, passengers have been categorized into three categories by the DGCA. One category was formed of those who booked tickets between March 25 and May 24 for traveling within the same period, another formed of those who booked tickets before March 25 but the travel period was till May 24, and the last was formed of those who booked tickets anytime but for a journey post-May 24.

A full refund will be given by the airlines concerned for the tickets canceled to the passengers who belong to the first category, as stated by the regulator.

Directorate General of Civil Aviation (DGCA) has also stated that to the passengers who belong to the second category, the airlines should “make all endeavors” to refund their money within 15 days.

The DGCA further noted that if on account of financial stress, any airline/airlines are not able to do so, they shall provide a credit shell equal to the amount of fare collected (to the passenger). It added that the passengers can then use the credit shells to book any ticket by March 31, 2021.

The passengers, who belong to the third category, will be given a refund following the existing DGCA rules.

Owing to the coronavirus pandemic, the Indian aviation industry has been hit hard due to a sharp drop in flights. As a result, all airlines in the country have opted for cost-cutting measures such as layoffs, leave without pay for the employees among others.

In the country, after a gap of two months on May 25, scheduled domestic passenger flight services had resumed. However, currently, airlines are permitted to operate only up to 60 percent of their pre-COVID domestic flights.

Since March 23, scheduled international passenger flights continue to remain suspended in the country. However, under the Vande Bharat mission, special international passenger flights have been operating since May and under the air bubble arrangements formed with various countries since July.

September 10, 2020September 12, 2020

Supreme Court announces extension in the date for loan repayment moratorium

On Thursday afternoon, the Supreme Court had extended the moratorium for loan repayment. The extended date is September 28, 2020. Due to the non-payment of the installments at the time of the pandemic, the order remains functional, directing the banks not to declare any loan as a Non-Performing Asset (NPA).

On August 31, 2020, the former deadline of the loan repayment suspension had ended. The scheme had been introduced to help the borrowers cope up with the financial setback due to the Covid-19 crisis. As per this policy the borrowers had been spared from repaying their loan up to a period of 6 months.

Senior Advocate Rajeev Dutta queried that where exactly the relief for the borrowers is. Loans are simply being restructured, which should have been done earlier. On top of it the compound interest is still being charged. He further added that lakhs of people were in hospitals for their sufferings; many people have lost their sources of income. He asserted that the Central Government should make their stand clear, decide on relief on the issue of the moratorium and waiving of interest on interest and others if it felt so.

The Reserve Bank of India and the Centre also informed the Supreme Court that the moratorium period is extendable by two years.

Solicitor General (SG) Tushar Mehta who appeared for the Centre and the RBI stated that the central bank and government are in the process of identifying the distressed sectors to vary benefits as per the Covid-19 impact of the hits that they have taken. This statement was made by him to a panel headed by Justice Ashok Bhushan. He also added that steps have been taken concerning the rapidly contracting economy and stressed sectors of the country.

Supreme Court had declared that the final decision will be made on Wednesday, September 11, 2020. A group of petitions will be heard with aim at waiving interests on the suspended Equated Monthly Installments (EMIs) in the loan repayment moratorium time-period.

The Supreme Court had also stated that there is “no merit in charging interest on interest” for the exempted loan payment EMIs during the time of the Covid-19 pandemic.

August 19, 2020August 19, 2020

Supreme Court junks plea to transfer PM CARES fund to NDRF

On Tuesday, a plea that sought its direction to the Centre to transfer contributions made to the PM CARES Fund for fighting the Covid-19 pandemic to the National Disaster Response Fund (NDRF) has been rejected by The Supreme Court.

Hearing a petition filed by NGO Centre for Public Interest Litigation, a bench headed by Justice Ashok Bhushan and comprising justices RS Reddy and M R Shah said that voluntary contribution can always be made to the NDRF. The NGO had claimed the Centre was “refraining from divulging information” about the money “contributed to the PM CARES Fund till date”.

On March 28, The Centre had set up the Prime Minister’s Citizen Assistance and Relief in Emergency Situations (PM CARES) Fund essentially to deal with emergency situations such as the Covid-19 outbreak, and extend relief to the affected. The Prime Minister is the ex-officio chairman of the fund, while the ministers of defence, home and finance are its ex-officio trustees.

After the formation of PM CARES fund, the Opposition parties, including the Congress, raised a question on setting up such fund to overcome the situation when the Prime Minister’s National Relief Fund already exists for such purposes.They also alleged that PM CARES had been designed to avoid audit by the Controller and Auditor General and would result in a lack of transparency about the source and use of these contributions.

Hundreds of crores of rupees has been contributed to the PM CARES fund by Many companies (public and private), individuals and government departments. Companies are also allowed to use their Corporate Social Responsibility (CSR) funds to contribute to the PM CARES, whereas this facility is not available for the state-level Covid-19 funds set up by chief ministers.

The Centre had opposed any transfer of the PM CARES funds, in its submission to the apex court. ” It mentioned that here are several funds which are either established earlier or now for carrying out various relief works. PM CARES is one such fund with voluntary donations,” the centre had said in its affidavit. It argued that “mere existence of a statutory fund would not prohibit creation of a different fund like PM CARES Fund, which provides for voluntary donations”.

The centre had also said the NDRF, as stipulated under Section 46 of Disaster Management (DM) Act, 2005, consisted primarily of the fund in the form of budgetary provisions made by the central government and state governments without any private contribution.

After Tuesday’s verdict, a political combat broke out. . BJP President Nadda said it is a resounding blow to the “nefarious” designs of senior Congress leader Rahul Gandhi and his band of “rent-a-cause” activists. “The SC judgment is a body blow to transparency & accountability of Govt to people,” tweeted, Congress chief spokesperson Randeep Surjewala.

August 18, 2020August 18, 2020

Supreme Court recommends appointment of 11 new judges for three high courts

The Supreme Court collegium has recommended the appointment of 11 new judges to three high courts. This recommendation has been shared at a meeting of the collegium on August 14. the eleven recommendations will now have to be cleared by the central government.

While for the Gujarat high court three names were recommended, four names each were recommended for appointment to Allahabad and Kerala high courts.
The names which have been recommended for appointment to the Allahabad high court are Sanjay Kumar Pachori, Subhash Chandra Sharma, Subhash Chand and Saroj Yadav. Allahabad high court, is currently functioning with 99 judges even though its sanctioned strength is 161.

For the Kerala High Court the recommended names are Murali Purushothaman, Ziyad Rahman AA, Karunakaran Babu and Dr. Kauser Edappagath.

The three names recommended for elevation to the Gujarat HC are Vaibhavi Devang Nanavati, Nirzarkumar Sushilkumar Desai and Nikhil Shreedharan Kariel. All three are lawyers. There are only 27 judges at the Gujarat HC which has a sanctioned strength of 52.

August 12, 2020August 12, 2020

Equal rights of daughters in joint Hindu family property- how far the Coparcenary law has come

Inheritance in India has been a widely debated concept. A simple idea that all who are born in a particular family have equal rights to the tangible and intangible property has been complicated by the socially constructed dyadic notion of men vs women. The complex evolution of the social norms under the shadow of the varied interpretations of the Hinduism in different parts of India has given birth to different kinds of inheritance laws, which makes for an interesting comprehensive reading. There are basically two schools of codified Hindu law dealing with inheritance- the Mitakshara school and the Dayabhaga school.

To be historically precise, it began with a twelfth century jurist in the court of Western Chalukyan king Vikramaditya VI. The jurist was known as Vijnaneshwara who wrote the treatise(on inheritance) the Mitakshara– based on the Yajnavalkya Smriti- an earlier text on Dharma, law and jurisprudence. Another author of the twelfth century India was Jimutavahana who wrote the Dayabhaga, which was another treatise on inheritance law like Mitakshara. Dayabahaga and Mitakshara give the right of the inheritance to the sons almost exclusively. But, there is a fine difference between the two. While the Mitakshara gives the right of inheritance to the sons upon their birth, the reformed Dayabhaga places the right of inheritance to the sons and in special conditions to the daughters after the death of the father.

The notion of the coparcenary originated in the concept of daya. It was Vijnaneshwara who explained the idea of daya while writing a commentary on the Yajnavalkya Smriti in the treatise Daya Vibhaga prakranam vyavahara adhyay. Here, it is stated that the daya is the only property that is given to other based only on the reason of relation. Thus, the distinctive concept of coparcenary is a result of early Hindu jurisprudence which subsequently became one of the central features of Hindu law in general and especially the Mitakshara School of Hindu law.

The Mitakshara School is based on the law of inheritance based on the Principle of Propinquity i.e. on the closeness of blood relations. In post 1947 India, the Hindu Succession Act 1956 passed by parliament has given full effect to the same principle of propinquity

This school subsumes within itself the doctrine of survivorship, which means that after the death of the common ancestor the property devolves to the survivor. In other words, the sons of the family have a birth right in the property based on the following two rules under this doctrine:

1: Females will not inherit, and

2: Agnates to be preferred over cognates. (It means that the paternal line is preferred in inheritance over the maternal line.)

This school is composed of four sub schools: Dravidian, Maharashtra, Mithila and Banaras sub schools.

The Dayabhaga school is famously known as the unorthodox reforming school of the Benaras sub-school under the Mitakshara category. Benaras has been the centre of the Brahmanical learning and the citadel of Brahmanical orthodoxy and conservatism in India since ages. As a reformatory measure, the Bengal school of Hindu law of Inheritance propagated a series of enlightened theories, ideas and doctrines. The Bengal school had its genesis in the Jimutavahana’s summary on leading Smritis by the name of Dayabhaga. Bengal School following the Dayabhaga idea is prevalent in Assam and Bengal. The Dayabhaga school, on an overall basis is established on the elevated idea or principle of spiritual benefit or religious efficacy. One who bestows more spiritual benefit is entitled to inherit the property in comparison to the one who bestows less spiritual benefit. This is known as the Doctrine of Oblations. As a result the females in the family may also inherit the property. According to this School, the sons do not have a birth right to the property as enunciated in the Mitakshara treatise. In the case when the male coparcener dies issueless (without any biological heir), his widow has a right to succeed to his share. She can then enforce a partition on her own account.

In the Hindu social system, Dharmasastras do not have a separation of the spiritual from the secular. Thus, in the Grasthasrama, a core unit in Hindu sociology, a person is given the training to lead a complete and meaningful life for the benefit and welfare of three generations. These include those who are left from the older generation, those who are present in the current generation and those who will be born. It is one of the distinctive phenomena of Hindu philosophy in which the Hindu family has been thought of as one of the most important institutions in the four defined institutions. It is because all the other three institutions like Brahmacharya, Vanaprastha and Sanyasha depend on it. Hence, the importance of the family is stressed upon in the Dharmasastras.

After the introduction of the Constitution in independent India, the first important law made at the central level with regards to inheritance and property relating to Hindus was the Hindu Succession Act of 1956. It brought forth the changes in the law of succession and gave rights to women, which were unknown till that time, in relation to her rights to inheritance and property. The definitions and meanings of the rights and coparcenors become important in the context of the Hindu undivided family, based on which the latest judgement of the Supreme Court was passed. Hindu joint family or a Hindu undivided family is an arrangement of extended family where every member is a lineal descendant of a common ancestor. This structure of the Hindu undivided family is governed by the Hindu succession act 1956.

The section 6 of the act of 1956 (which was amended in 2005) did not interfere with the special rights of members of a Mitakshara coparcenary, with certain riders. The original act provided for the structure of the inheritance laws under both the Mitakshara and Dayabhaga schools along with the schools in certain parts of southern India who were previously governed by the Aliyasantana, Murumakkattayam and Nambudri Systems. The Hindu Succession act is applicable to any person who is a Hindu as defined under section 2 of Hindu Succession Act, 1956.

With the act of 1956, the question still remained as to whether the equal right to property and inheritance was properly given to the women or was it just a hollow announcement. Retention of the Mitakshara coparcenary without involving the women in it meant that women couldn’t inherit ancestral property as men could. This gets reflected prominently when a joint family gets divided. In this situation just the male coparcenors get their share not the females. Only when one of the male coparceners dies, a female gets his share as a heir. Hence, the act of 1956 by preventing the daughters from participating in coparcenary ownership (just because of their sex) not only continued a pervasive inequality against females but also has led to the violation of their right to equality enshrined in the Constitution. It necessitated amendments in the act which were carried out in 2005.

The subsection (2) of section 4 was removed and the section 6 of the Hindu Succession Act, 1956 was amended was in 2005. The amendment of 2005 made the women equally responsible coparcenor of property, liable to family debt and eligible to be made the karta of the house. But, there had been lingering doubts with respect to the express provision of retrospective effect to the amended parts. This was due to two contradictory judgments given in two cases. In the Prakash vs Phulavati Case (2015), the judgement stated that the amendments were only applicable to the living daughters of living coparcenors as on Sept 9^th 2005, when the amendment was notified. But, in the Danamma & Suman Suppur vs Amar Case (2018), the share of property of father who had died in 2001 was given to his two daughters. Hence, the doubt over the retrospective effect had remained ever since. On August 11^th 2020, a three judge bench of the Supreme Court, in a clear cut statement asserted that the daughters would still be eligible for inheritance even if the father had died before the enforcement of the Hindu succession amendment act 2005. This judgement brings a further needed clarity in the inheritance law. As a measure of reassertion the Supreme Court bench stated in its judgement –daughters must be given equal rights as a daughter remains loving daughter throughout the life.

August 7, 2020August 7, 2020

Uniform Civil Code is next agenda for BJP, RSS

BJP, RSS hope for consensus over the Uniform Civil Code as The party had three major agendas at the time of the establishment of the BJP, including the construction of the Ram temple and the repeal of Article 370 of the Constitution from Jammu and Kashmir. Now a major agenda of BJP is left is the Uniform Civil Code.

The NDA government led by Prime Minister Narendra Modi has been working for a long time to implement a uniform code of conduct in the country. It is to be noted that in this regard, some time back the Modi government had asked the Law Commission to examine its implications in the event of implementing a uniform code of conduct (Uniform Civil Code) in the country and also sought a report. According to media reports of this time, this is the first time since independence when a government has sought its opinion from the Law Commission on Uniform Civil Code.

The matter is going on in the court to implement the Uniform Code of Conduct in the country. It is believed that the Delhi High Court may soon take action on the petitions seeking implementation of the Uniform Code of Conduct. On November 15, a bench of Chief Justice DN Patel and Justice C Harishankar will hear it. Last May, the court had asked the Central Government to file its affidavit on PIL regarding its implementation.

It is believed that this move by the Bharatiya Janata Party-led government will start a political controversy as political parties are not unanimous about the implementation of a uniform civil code in the country. Political parties have their arguments on the Uniform Civil Code. If Parliament passes the Uniform Civil Code Bill, then uniform law will be applicable to all citizens across the country.

Uniform civil code or uniform code of conduct means a secular law that applies equally to people of all religions. In other words, the absence of separate civil laws for different religions is the basic spirit of the ‘Uniform Civil Code’. It is above all personal laws of any religion or caste. Uniform law for all citizens of the country. That is, it will be a fair law. When this law is made, Hindus, Muslims, Sikhs and Christians will all have to follow the same law. That is, Muslims will not be able to do even three marriages.

After the Ayodhya verdict, BJP leaders and supporters have started talking about the Uniform Civil Code. On social media, people are now seen talking like Bari of Uniform Civil Code. At the same time, Defense Minister Rajnath Singh said on the question asked by the journalists about the uniform code of conduct that now the time has come.

Let us tell you that Article 44 of the Constitution discusses the Uniform Civil Code. This article related to the Directive Principles of State Policy states that ‘the State shall endeavor to obtain a uniform civil code for citizens in all the territories of India’. It is also mentioned in the Constitution that the Directive Principles are fundamental in the governance of the country and it will be the duty of the state to implement them in making laws. Implementation of Uniform Civil Code in the constitution states the responsibility of the State under Article 44, but it has not been implemented in the country till date. There has been a big debate about this.

While the majority of population of the country has been vehemently demanding to implement the Uniform Civil Code, the minority class has been opposing it. The Muslim community has always argued that its cases fall under Muslim personal law in which the law of the country cannot interfere. While this reasoning among the people of other religions has been the cause of resentment.

At the same time, the discussion on the Common Civil Code has been raised in the Supreme Court only last month. A bench of Justices Deepak Gupta and Anirudh Bose discussed this while hearing a Goa property dispute case. The court said that all the people of the country had expressed their displeasure at the non-implementation of uniform civil code. The court said that the Hindu law was enacted in 1956 but even after 63 years had passed, attempts were not made to enforce uniform civil code across the country. During this time, the court gave the example of Goa. Actually, the Uniform Civil Code is in force in Goa. Let us understand under which circumstances this important law is applicable in only one state of the country.

The Indian state of Goa is a shining example, which has implemented the Uniform Civil Code for all, regardless of religion. Muslim men whose marriages are registered in Goa cannot commit polygamy. There is no provision of oral divorce (triple talaq) for those who believe in Islam. “Under the Uniform Civil Code applicable in Goa, there is the same law for Hindu, Muslim and Christian in respect of succession, dowry and marriage.”. Also, there is a provision in this law that no parent can deprive their children of their property completely. There is also a provision contained in it that if a Muslim registers his marriage in Goa, then polygamy will not be allowed.

In such a situation, it is important to understand how the Common Civil Code is applicable in Goa alone. Actually, the merger of Goa in India and the implementation of Uniform Civil Code there is an interlinked issue. India gained independence from the British rule on 15 August 1947 and India became an independent country, but even then some areas of India were under Portuguese, French colonial rulers, including Goa, Daman Diu and Dadar Nagar Haveli, who’s India could be merged later. The Government of India launched the ‘Operation Vijay’ campaign to gain control over Goa, after which the Indian Parliament passed the Goa, Daman and Diu Administration Act 1962 law for the administration of Goa, Daman and Diu after joining India in the year 1961 did. In this way, the Uniform Civil Code came into force in Goa.

Unity in law for all will increase unity in the country and in a country where there is unity among citizens, there is no discrimination. With this, the country will move rapidly on the path of rapid development. Not only has this, due to different laws of different religions, but the judiciary also had an additional burden. Once it is implemented, the burden of the judiciary will be reduced and due to the time saved and law, many pending cases will also be settled soon.

On the other hand, when the law of every religion will be the same, then in reality the rights and laws of all citizens can be said to be one. In that case, unity will increase among the citizens, not only this, the shops of politicians doing politics in the name of religion will be closed. During the election, the polarization of votes based on castes will also be reduced, which will help in fair elections.

July 31, 2020July 31, 2020

Petition filed in Supreme Court for removal of ‘Socialist’ and ‘Secular’ words from Preamble

A plea has been filed in Supreme Court seeking deletion of ‘Socialist’ and Secular words for India’s Preamble on the pretext that these words, added through the 42^nd Amendment Act, were “antithetical to the constitutional tenets as well as the historical and cultural theme of India”.

The move was “per se illegal for violating the concept of freedom of speech and expression enumerated in Article 19(1)(a) of the Constitution and the right to freedom of religion guaranteed under Article 25 of the Constitution,” it said.

Claiming that it is a communist concept that has been applied to India, the petition says ‘India, the oldest civilization of the world, having clear concept of ‘Dharma’ different from the concept of religion,” and that the communist theory of State cannot be applied in Indian context which was not in tune with the religious sentiments and socio- economic conditions of India.

“Issue appropriate direction striking down the words ‘Socialist’ and ‘Secular’ inserted in the Preamble of the Constitution by section 2 (a) of the Forty Second Constitution Amendment Act, 1976,” the petition, filed by advocates Balram Singh and Karunesh Kumar Shukla and an individual Pravesh Kumar, said.

The three petitioners – Balram Singh and Karunesh Kumar Shukla and Social worker – Pravesh Kumar intend to launch their own political party so they have challenged the insertion of these words in Section 29-A (5) of the Representation of People Act, 1951, by an amendment in 1989, seeking a clear direction from the Union of India to declare that the concept of ‘socialism’ and ‘secularism’ referred to the nature of the republic and was limited to the working of the sovereign function of the State and same is not applicable to the citizens, the political parties and the social organisations.

There have been attempts to insert these words but all the attempts were dismissed. The plea mentioned three such instances when there were attempts to include these words earlier but all were dismissed and argues that the original Constitution makers deliberately chose to keep these concepts out of the Preamble.

On November 15, 1948, Professor KT Shah had proposed adding the words “Secular, Federal and Socialist Nation”, but the Constituent Assembly (CA) had rejected it after a lengthy discussion.

Again, on November 25, 1948, a second amendment was introduced and discussed on incorporating the word ‘secular’ in the draft Constitution. That, too, was rejected.

On December 3 that same year, a third attempt was made to include ‘secular’ in the Article 18 of the Constitution, which was also dismissed by the CA.

“In view of the fact that states have power to indulge in religious matters, though in limited sense, and can give grant to religious minorities, the state as a political entity cannot be a secular republic in strict sense,” the petition stated.

We shall wait and watch what could be outcome of such petitions.

Earlier in June, a PIL was filed by an individual named Namah seeking to change the name of the country from ‘India’ to “Bharat”. In this plea, petitioner – Namah – sought enforcement of the fundamental rights under Article 21 of the Constitution which entitles every citizen equal right to call his or her own country as ‘Bharat’.

However, Chief Justice of India SA Bobde refused to entertain the plea and told the petitioner that “Bharat” was already included as a name for the country under the Constitution of India, clarifying that the Supreme Court “could not do” what the petitioner was asking for.

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