For the people of India

For the people of India

In the era of protests, the Constitution of India has suddenly acquired a more personal connect. From students and homemakers, to working professionals and political activists, every citizen is more woke and aware of their rights and freedoms. They are freely demonstrating and expressing their concerns on the streets and all other available public platforms. What we have learnt in the past year is that if the authorities pay a lip service to people’s rights and freedoms, citizens won’t take it lying down. 

Law-making bodies should make amendments keeping in mind the changing ethos of society. On India’s 71st Republic Day, we talk to a few academicians and an expert in the Indian Constitution about the legislations, amendments and Constitutional provisions that have been made to strengthen our democracy.

Prof Ulhas Bapat, Expert in the Indian Constitution
The phrase ‘Aaya Ram Gaya Ram’ became popular in Indian politics after Haryana MLA Gaya Lal changed his party thrice on the same day in 1967. The anti-defection law, that came into force in 1985, sought to prevent such political defections which may be due to reward of office or other similar considerations.

The anti-defection law was introduced by the Rajiv Gandhi-led Government through the 52nd Amendment of the Constitution of India. It was earlier discussed by Prime Minister Morarji Desai who came to power after the state of Emergency was lifted. The Janata Party Government didn’t act on it and later, Desai was forced to resign due to infighting. His successor was Chaudhary Charan Singh who failed to sustain parliamentary majority as the alliance partners withdrew their support. Indira Gandhi came to power in 1980 and she too discussed the anti-defection bill. Following her assassination, the Congress party swept the 1984 Lok Sabha elections.

Their manifesto said that they would amend the Constitution to get the anti-defection bill passed. They did it within a month of coming to power as they had a mammoth majority. The amendment inserted the 10th schedule in the Constitution. It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House. The law applies to both the Parliament and the State Assemblies. 

Under this law, it means that if a Member of Parliament (MP) or Member of Legislative Assembly (MLA) leaves his/ her political party, or goes against the whip of the political party and s/he abstains from voting, they can be disqualified. Before the law came into force, it was understood that if 1/3rd of MPs left the party, it was considered that the political party had split. The law was amended again during Atal Bihari Vajpayee regime and the term ‘split’ was removed. Now, if 1/3rd of MPs leave, they are disqualified or if the 2/3rd of legislators leave, then it can be considered as merger. There is only one exception for it, and that is the Speaker or whosoever is the Presiding Officer. As long as the legislator is the Presiding Officer, s/he can leave the party. If s/he quits the party, they have the option to rejoin it. 

The final authority to decide whether defection has taken place or not lies with the Speaker. The most recent example is that of the Karnataka Assembly where  17 legislators were disqualified. 

In my opinion this is one of the important amendments because we have seen political instability in the country from the late ’80s. If we didn’t have anti-defection law in place, the legislators would have a free run. 

The political leaders had approached the Supreme Court, saying that the anti-defection law is a breach of their Freedom of Expression. But the apex court disagreed. It ruled that in a democracy, the political party is more important than the individual, because s/he gets elected on the party’s ticket. Therefore, the loyalty of the individual is to the political party. The choice before the individual is to resign from the party and get re-elected on another party’s ticket. The Supreme Court has thereby upheld the validity of this amendment. 

Dr Sulabha Patole, Associate Professor, Garware College of Commerce
The Constitution of India aims at establishing a welfare state and ensures to secure for its citizens, justice — social, economic and political. Dr B R Ambedkar, who was the chairman of the drafting committee of the Constitution of India, was very critical about demoralisation and degradation of the status of women in society. So he structured the Hindu Code Bill that gave to Indian women — Right to Succession; Right to Marry and Remarry; Right to Divorce; and Right to Adoption. But amidst a strong opposition by the Members of Parliament, this Bill was not passed. Dr Ambedkar resigned. Eventually, through successive amendments all the aforementioned rights were granted. 

What I would like to mention here is that Dr Ambedkar strongly established the law of equality and equity for every man and woman, as a citizen of India through the following articles:  

Article 15: Not a single man or woman should be discriminated only on the basis of religion, caste, race, gender and birth place. Also, all the public places like, shops, public restaurants or recreation places should be open for all. The government and semi-government constructed wells, dams, roads, lakes, bathrooms and other public places should also be open to all.

Article 16: All the appointments to the posts under government control should be equal to all the citizens. 
Article 39: Every citizen has the right to get employment. Each citizen should get equal salary for equal amount of work. 
Article 23: Women and children get victimised through bonded labour, so this tradition is strictly prohibited. 

In the Indian Constitution, the concept of ‘Citizen’ subsumes men and women, hence every woman has been provided equal Constitutional rights and freedom. 

During his term as Labour Minister, he also ensured provisions of:
- Equal pay to women as men for equal amount of work.
- Women should get maternity leave and relief.
- Child care units for the children of working omen at workplace.
- Universal adult franchise for all men and women.
- Prohibition of Devdasi, Murali and Jogtin tradition in untouchable castes.

Dr Sanjay Jain, Associate Professor, ILS Law College
Continuing on the subject of disabilities, I would like to add that with the Rights of Persons with Disabilities Act 2016 (RPWD) and Mental Health Care Act 2017, democracy has been strengthened. The RPWD act is a widespread legislation and it promises a lot to the community. Earlier, only seven disabilities were recognised. But the 2016 Act recognises 21 disabilities including acid attack victims and people suffering from blood disorders.

The major achievement of this law is that it recognises international human rights standards vis-à-vis disabilities. Those standards include two factors — accessibility and reasonable accommodation. Now the whole focus is on dignity. The focus is that every citizen, irrespective of difference, should be given a dignified treatment. To that extent, we can say democracy has opened up. The diversity aspect of democracy, the kind of sensitivity it required was not there earlier. We can now say that at least on paper, things are shaping correctly. 

Besides, I believe, that a lot of work has happened on the front of accessibility. The accessibility aspect of polling booths, ballot papers, or EVMs has been taken care of. 

If we were to talk of core Constitutional areas, we have the Right to Negative Voting (None of the Above button) in the electoral process. In the recently concluded Maharashtra elections, I was told that in a few constituencies the rejection votes were more than the votes polled by the candidates.

Prof Vaijayanti Joshi, Principal, ILS Law College
The process of elections and formation of a government is one aspect of a functioning democracy. On a broader scale, I feel, democracy is for people at large. The Mental Health Care Act passed in 2017 strengthens the constituency of those people who were hitherto deprived from exercising their rights and privileges. If you consider the general legal system, the mentally disabled people couldn’t vote or open a bank account. 

Thus we come to the question: Can we deprive people of their rights, privileges and powers when India is a signatory to the international convention on Protection of Rights for People with Disabilities? According to the international convention, the legal system of every country should recognise the rights of people with disabilities. 

Prior to the 2017 Act, a person was presumed to be suffering from a mental disability on his/her appearance. There was potential scope for misuse.

The previous legislations, including the Lunacy Act during the British rule had many lacunae. This act rescinds or revokes the Mental Health Care Act 1987, which had been widely criticised for not recognising the rights of a mentally ill person and paving the way for isolating such patients. This Act has overturned 309 Indian Penal Code which criminalises attempted suicide by a mentally ill person. 

Another highlight of the 2017 Act is it protects the rights of a person with mental illness, and thereby facilitating his/her access to treatment and by an advance directive, how s/he wants to be treated for his/ her illness. They are now allowed supported decision-making.

The ILS Law College’s Centre for Mental Health, Law and Policy helped the Government of India draft the Bill, which later became an Act. The unit is also involved in implementing the legislation, and establishing requisite authorities.

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