Friday, December 6, 2024

Dr. Ambedkar's inner journey revolves around Mahatma Buddha's inner journey

Dr. Ambedkar's inner journey cannot be understood without reading his trilogy- 1. The Buddha and His Dhamma, 2. Buddha and Karl Marx and 3. Revolution and Counter-Revolution in Ancient India

Notably, Siddhartha studied under Alara Kalam and Uddaka Ramputta before he took Parivraja (total giving up) at the age of 29. He attained enlightenment at the age of 35. Mahatma Buddha was born 180 years before Asoka's coronation and died 100 years before the coronation, a lifespan of about 80 years. He lived in eastern India sometime between the mid-6th and the mid-4th centuries before the Common Era. His 45-year journey began after enlightenment. He preached Madhyama Marga (Majjhima Patipada), the Path of Purity, Pratityasamutpada (Interdependent Co-Arising, cause and effect co-arise), the Four Noble Truths, Ashtanga Marga and the Path of Virtue.

In the first book, Dr. Ambedkar has admitted that he borrows from the language of  first-second century Buddhist philosopher and Sanskrit poet Ashvaghosha's epic poem Buddhacharita which had 28 cantos.

He underlines why "Right Outlook" comes first in the Noble Eight-fold Path, followed by right aim, right speech, right action, right mode of livelihood, right efforts, right mindfulness and right concentration.   

Why Right Views Rank First
1. Of the noble Eightfold path the noblest is Right Outlook.
2. Right thinking is the preface and the key to every thing else in the higher life, and ignorance.
3. The lack of understanding is the root of all evil.
4. For developing right outlook one must see all phenomena of life as a process of causal law. To have right outlook is to recognise the law of cause and effect.
5. " Whatsoever individual, brethren, follows perverted views, perverted aim, perverted speech or acts or living, perverted effort, attention, and contemplation : whose knowledge and emancipation are perverted, for him every action of deed, word or thought, performed and achieved according to such perverted views ; every willed act, every aspiration, every resolve, all his activities, these things one and all conduce to what is distasteful, unpleasing, repulsive, unprofitable, and painful. And why so ? Because of his evil view."
6. To be right is not enough. A baby may be right but that does not mean that a baby knows what is right. To be right one must know what is right.

In Buddha and Karl Marx, Dr. Ambedkar asserted that "Buddha established Communism so far as the Sangh was concerned without dictatorship. It may be that it was a communism on a very small scale but it was communism...The Buddha's method was different. His method was to change the mind of man: to alter his disposition: so that whatever man does, he does it voluntarily without the use of force or compulsion. His main means to alter the disposition of men was his Dhamma and the constant preaching of his Dhamma. The Buddhas way was not to force people to do what they did not like to do although it was good for them. His way was to alter the disposition of men so that they would do voluntarily what they would not otherwise to do." He added, "Equality will be of no value without fraternity or liberty. It seems that the three can coexist only if one follows the way of the Buddha. Communism can give one but not all." 

In his incomplete text entitled Revolution and Counter-Revolution in Ancient India, Dr. Ambedkar wrote: "Buddhism was a revolution. It was as great a Revolution as the French Revolution. Though it began as a Religious revolution, it became more than Religious revolution. It became a Social and Political Revolution. To be able to realise how profound was the character of this Revolution, it is necessary to know the state of the society before the revolution began its course. To use the language of the French Revolution, it is necessary to have a picture of the ancient regime in India." The text being incomplete its conclusions can only be deemed tentative. 

Dr. Ambedkar was India's first law minister and was the Chairman of the Drafting Committee of the Constitution of the Republic of India. He had presented the final draft of the Indian Constitution to Dr. Rajendra Prasad, President of the Constituent Assembly, on November 25, 1949. After embracing Buddhism along with 3,65,000 of his followers on October 14, 1956, he died at the age of 65 on December 6, 1956.

Admittedly, Dr. Ambedkar often drew from the language of other thinkers to express his own views on different subjects. He used British constitutional theorist A.V. Dicey's ideas. Dicey argued against a popular view that the British Parliament enjoyed unlimited powers. He cited another British thinker, Leslie Stephen to observe that Parliament could not conceivably pass a law enforcing the murder of all blue-eyed babies. Dr. Ambedkar used the example literally to make another argument: Group interests, which are not entirely constituted under the Marxist frame of class interest, restrict the scope for actions toward the common good. As an antidote to that situation, Dr. Ambedkar advocated assured representation to disadvantaged groups in legislatures and public services. Representation of opinions and preferences alone is not an adequate measure for democracy. It requires personal representation as well. The latter involves ‘representation of opinions as well as representation of persons.’ A government for the people, but not by the people, is sure to educate some into masters and others into subjects; because it is by reflex effects of association that one can feel and measure the growth of personality.’

Dr. Ambedkar felt that there are some constituencies, such as untouchables, who can be represented only by the untouchables themselves. Because others cannot understand their situation of dehumanisation, subjugation, denial of respect which one person owes to another as a human being and the denial of rights of citizenship that ensues therefrom. The representative should not merely hail from such a constituency but should be able to effectively highlight its concerns, monitor them across contending interests and pursue their implementation.

Dr. Ambedkar's constitutional ideas

Dr. Ambedkar was aware of the gap between the lofty principles of the Constitution and the reality of social and political life in post-independence India. He was deeply concerned that without meaningful social and economic reforms, the constitutional promises of equality and justice would remain unfulfilled. He understood the limitations of constitutional law in addressing deeply ingrained social inequalities.

Dr. Ambedkar developed his ideas about constitutionalism in legal-social terms. He was a constitutional expert who looked at legislature, a law making body, as a product of its social conditions. Federalism divides the power in the written Constitution and is a living structure. He was a believer in the evolutionary theory of the Constitution. For him, the Constitution was an organic whole which must adapt to the needs of the time. The amendment procedure in the Indian Constitution is testimony to it where several Articles are amended but are not deemed to be the amendment.

He was opposed to the bureaucratic control of the politically organised society.  He enunciated the principle of democratic control of the bureaucracy which is a practice in the representative democracy. Democracy is the edifice on which constitutionalism survives. If in any socio-political life the democratic system is lacking or deficient then constitutionalism cannot live. He called the British Government a bureaucratic government. He proclaimed that Swaraj with its indigenous Constitution is the prerequisite to good governance and good life. In this respect his warning to the British Government is relevant. "We feel that nobody can remove our grievances as well as we can, and we cannot remove them unless we get political power in our own hands. No share of this political power can evidently come to us so long as the British Government remains as it is. It is only in a Swaraj Constitution that we stand any chance of getting the political power into our own hands, without which we cannot bring salvation to our people. No Constitution will be workable which is not acceptable to the the people. Let the consent of the people be the touchstone of your new Constitution. He conceptualised constitutional order impregnated with constitutional morality as the edifice of good life for the people of India. He was instrumental in its elaboration and establishment in the country. Speaking in the Constituent Assembly he summed up the true soul of the Constitution, when he said: "By parliamentary democracy we mean a 'one man, one vote’. We also mean that every Government shall be on the anvil, both in its daily affairs and also at the end of a certain period when the voters and the electorate will be given an opportunity to assess the work done by the Government. The reason why we have established in this Constitution a political democracy is because we do not want to install by any means whatsoever a perpetual dictatorship of any particular body of people.’ He said in the Constituent Assembly that both the words "fundamental" and "directive" are necessary and should be retained’ because they limits the powers of government as the Fundamental Rights and Directive Principles of State Policy can exercise sufficient limitations on the powers of any government in power.

In the constituent assembly, he said "While everybody recognizes the necessity of the diffusion of Constitutional morality for the peaceful working of a democratic Constitution, there are two things interconnected with it which are not, unfortunately, generally recognized. One is that the form of administration has a close connection with the form of the Constitution. The form of the administration must be appropriate to and in the same sense as the form of the Constitution. The other is that it is perfectly possible to pervert the Constitution, without changing its form by merely changing the form of the administration and to make it inconsistent and opposed to the spirit of the Constitution. It follows that it is only where people are saturated with Constitutional morality such as the one described by Grote the historian that one can take the risk of omitting from the Constitution details of administration and leaving it for the Legislature to prescribe them. The question is, can we presume such a diffusion of Constitutional morality? Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic."

His response to the criticism that "no part of it represents the ancient polity of India" is quite relevant. In later years, Dattopant Thengadi who founded Akhil Bharatiya Adhivakta Parishad in 1992 echoed that criticism. 

In his speech introducing the Draft Constitution in the Constituent Assembly on November 4, 1948, Dr. Ambedkar said, "It is said that the new Constitution should have been drafted on the ancient Hindu model of a State and that instead of incorporating Western theories the new Constitution should have been raised and built upon village Panchayats and District Panchayats. There are others who have taken a more extreme view. They do not want any Central or Provincial Governments. They just want India to contain so many village Governments. The love of the intellectual Indians for the village community is of course infinite if not pathetic. It is largely due to the fulsome praise bestowed upon it by Metcalfe who described them as little republics having nearly everything that they want within themselves, and almost independent of any foreign relations. The existence of these village communities each one forming a separate little State in itself has according to Metcalfe contributed more than any other cause to the preservation of the people of India, through all the revolutions and changes which they have suffered, and is in a high degree conducive to their happiness and to the enjoyment of a great portion of the freedom and independence. No doubt the village communities have lasted where nothing else lasts. But those who take pride in the village communities do not care to consider what little part they have played in the affairs and the destiny of the country; and why? Their part in the destiny of the country has been well described by Metcalfe himself who says:'Dynasty after dynasty tumbles down. Revolution succeeds to revolution. Hindoo, Pathan, Mogul, Maratha, Sikh, English are all masters in turn but the village communities remain the same. In times of trouble they arm and fortify themselves. A hostile army passes through the country. The village communities collect their little cattle within their walls, and let the enemy pass unprovoked.' Such is the part the village communities have played in the history of their country. Knowing this, what pride can one feel in them? That they have survived through all viscisitudes may be a fact. But mere survival has no value. The question is on what plane they have survived. Surely on a low, on a selfish level. I hold that these village republics have been the ruination of India. I am therefore surprised that those who condemn Provincialism and communalism should come forward as champions of the village. What is the village but a sink of localism, a den of ignorance, narrow-mindedness and communalism? I am glad that the Draft Constitution has discarded the village and adopted the individual as its unit."

His observations for the rights of minorities continue to be germane.

Dr. Ambedkar added: "The Draft Constitution is also criticised because of the safeguards it provides for minorities. In this, the Drafting Committee has no responsibility. It follows the decisions of the Constituent Assembly. Speaking for myself, I have no doubt that the Constituent Assembly has done wisely in providing such safeguards for minorities as it has done. In this country both the minorities and the majorities have followed a wrong path. It is wrong for the majority to deny the existence of minorities. It is equally wrong for the minorities to perpetuate themselves. A solution must be found which will serve a double purpose. It must recognize the existence of the minorities to start with. It must also be such that it will enable majorities and minorities to merge someday into one. The solution proposed by the Constituent Assembly is to be welcomed because it is a solution which serves this twofold purpose. To diehards who have developed a kind of fanaticism against minority protection I would like to say two things. One is that minorities are an explosive force which, if it erupts, can blow up the whole fabric of the State. The history of Europe bears ample and appalling testimony to this fact. The other is that the minorities in India have agreed to place their existence in the hands of the majority....It is for the majority to realize its duty not to discriminate against minorities. Whether the minorities will continue or will vanish must depend upon this habit of the majority. The moment the majority loses the habit of discriminating against the minority, the minorities can have no ground to exist. They will vanish."

His foresight in addressing issues such as caste-based discrimination, the protection of minority rights, and the need for social and economic justice continues to resonate in constitutional jurisprudence. His ideas have influenced key judicial decisions in India, particularly those related to affirmative action, the right to education, and the protection of minority rights (Indra Sawhney vs. Union of India, 1992). 

As part of 9-judge constitution bench, Justice B.P. Jeevan Reddy wrote:"The proceedings of the Constituent Assembly on draft Article (10) disclose a persistent and strident demand from certain sections of the society for providing reservations in their favour in the matter of public employment. While speaking on the draft Article 10(3) [corresponding to Article 16(4)] Dr. Ambedkar had stated, 'then we have quite a massive opinion which insists that although theoretically it is good to have the principle that there shall be equality of opportunity, there must at the same time be a provision made for the entry of certain communities which have so far been outside the administration.' It was this demand which was mainly responsible for the incorporation of Clause (4) in Article 16." 

Justice Reddy quoted Dr. Ambedkar's speech delivered on May 9, 1916 at the Columbia university of New York, U.S.A. on the subject "castes in India: their mechanism, genesis and development" (the speech was published in Indian Antiquary-May 1917-Vol.XLI), which shows that as early as 1916, "class" and "caste" were used inter-changeably. In the course of the speech, he said: "....society is always composed of classes. It may be an exaggeration to assert the theory of class-conflict, but the existence of definite classes in a society is a fact. Their basis may differ. They may be economic or intellectual or social, but an individual in a society is always a member of a class. This is a universal fact and early Hindu society could not have been an exception to this rule, and, as a matter of fact, we know it was not. If we bear this generalization in mind, our study of the genesis of caste would be very much facilitated, for we have only to determine what was the class that first made itself into a caste, for class and caste, so to say, are next door neighbours, and it is only a span that separates the two. A Caste is an Enclosed Class."  A little later Dr. Ambedkar stated:"We shall be well advised to recall at the outset that the Hindu society, in common with other societies, was composed of classes and the earliest known are the (1) Brahmins or the priestly class; (2) the Kshatriya, or the military class; (3) the Vaishya, or the merchant class and (4) the Shudra or the artisan and menial class. Particular attention has to be paid to the fact that this was essentially a class system, in which individuals, when qualified, could change their class, and therefore classes did change their personnel. At some time in the history of the Hindus, the priestly class socially detached itself from the rest of the body of people and through a closed-door policy became a caste by itself. The other classes being subject to the law of social division of labour underwent differentiation, some into large, others into very minute groups." 

Referring to the concept of equality of opportunity in public employment, as embodied in Article 10 of the Draft Constitution, which finally emerged as Article 16 of the Constitution, and the conflicting claims of various communities for representation in public administration, Dr. Ambedkar emphatically declared that reservation should be confined to 'a minority of seats', lest the very concept of equality should be destroyed. In view of its great importance, the full text of this speech delivered in the Constituent Assembly on the point is appended to this judgment. But I shall now read a few passages from it. Dr. Ambedkar stated:"...firstly, that there shall be equality of opportunity, secondly that there shall be reservations in favour of certain communities which have not so far had a 'poorer look- in' so to say into the administration.... Supposing, for instance, we were to concede in full the demand of those communities who have not been so far employed in the public services to the fullest extent, what would really happen is, we shall be completely destroying the first proposition upon which we are all agreed, nemely, that there shall be an equality of opportunity....Therefore the seats to be reserved, if the reservation is to be consistent with Sub-clause (1) of Article 10, must be confined to a minority of seats. It is then only that the first principle could find its place in the Constitution and effective in operation...we have to safeguard two things, namely, the principle of equality of opportunity and at the same time satisfy the demand of communities which have not had so far representation in the State...." Constituent Assembly Debates, Vol. 7, pp. 701-702 (1948-49).

The relevance of his thought in shaping India’s democratic institutions and legal frameworks emerges his constitutional vision which laid the groundwork for legal protections and affirmative action policies, much work remains to be done in realizing the full promise of social justice. His ideas emerged from his engagement with Buddhist principles, Western philosophical traditions. They continue to shape India’s constitutional trajectory.

Dr. Ambedkar infused his constitutional philosophy with a strong egalitarian ethos, anchored in social justice and the need to dismantle caste-based oppression.His vision for India’s future was rooted in the recognition that the country’s social hierarchies could only be effectively challenged through the creation of a just and inclusive legal and political system.

Certain episodes in Dr. Ambedkar’s political career, such as the Mahad Satyagraha, were crucial moment which influenced his constitutional and philosophical thought. His struggle for the basic right to access public water sources became symbolic of a broader assertion of equality and human dignity. Mahad Satyagraha was both an act of resistance against oppressive social structures and as a formative moment in Dr. Ambedkar’s evolving ideas on constitutionalism and social justice. His acts of civil disobedience informed his later work on the Indian Constitution.

His engagement with constitutionalism, represents both a continuation of and a radical departure from prior constitutional discussions. His ideas on popular government and citizenship, which form the crux of his democratic vision.

For Ambedkar, democracy was never a matter of mere procedural formalities, such as elections and majority rule, but was fundamentally concerned with the material realization of social and economic justice. Democracy had to be substantive—concerned not only with the protection of individual political rights but also with the redistribution of resources and opportunities in ways that would enable marginalized communities to participate fully and equally in the political process. Ambedkar’s insistence on the link between political democracy and economic justice was instrumental to his broader constitutional vision.

He rejected the notion that democracy should be limited to the understanding of numerical majorities and electoral outcomes.

Instead, his conception of democracy was rooted in the recognition that India’s deeply hierarchical social structure necessitated constitutional mechanisms that would protect the rights of minority groups, particularly Dalits and other oppressed castes. He sought to create a constitutional framework that would transcend the formal legal equality of citizenship and instead actively protect the rights of marginalized communities through institutional safeguards.

Dr. Ambedkar's insightful observations

 1. "The roots of democracy lie not in the form of Government, Parliamentary or otherwise. A democracy is more than a form of Government. It is primarily a mode of associated living. The roots of Democracy are to be searched in the social relationship, in terms of associated life between the people who form a society.”
[Prospects of Democracy in India, 1956]

2. Bhakti or what may be called the path of devotion or hero-worship, plays a part in its politics unequalled in magnitude by the part it plays in the politics of any other country in the world. Bhakti in religion may be a road to the salvation of the soul. But in politics, Bhakti or hero-worship is a sure road to degradation and to eventual dictatorship.
[Excerpted from Dr. Ambedkar's speech in the Constituent Assembly on November 25, 1949]

3. “It is true that in our legislation there is a rule that all questions shall be decided by a majority. But I could ask you to be very careful about that principle. It is one of the most dangerous principles that we have got. The majority rule has been admitted merely for reasons of convenience [emphasis added]. But for God’s sake, do not ride that principle too much. You will create great deal of difficulties. In a certain sense, the rule of majority is the wrong rule.”
[Dr. Ambedkar's address at Siddharth College on 25 September 1947]

4. “Unfortunately, for the minorities in India, Indian nationalism has developed a new doctrine which may be called the divine right of the majority to rule the minorities to the wishes of the majority. Any claim for the sharing of power by the minority is called communalism while the monopolizing of the whole power by the majority is called nationalism.” - Dr. B.R Ambedkar.
[Taken from Dr. Ambedkar and Democracy: An Anthology (2018) by Prof. Christophe Jaffrelot and Dr Narender Kumar Publisher: Oxford University Press.( Page number 172).]

5. “As regards other Political Parties, the Scheduled Caste Federation’s attitude can be easily defined. The Scheduled Caste Federation will not have any alliance with any reactionary Party such as Hindu Mahasabha or the RSS.”
[Dr. Babasaheb Ambedkar: Writings and Speeches, Vol. 17, Part One, edited by Prof Hari Narke, Govt of Maharashtra, Mumbai, 2003, pp. 402]

6. “Democracy is a form and method of government whereby revolutionary changes in the economic and the social life of the people are brought without a bloodshed”
[Taken from — Dr. Ambedkar and Democracy: An Anthology (2018) by Prof. Christophe Jaffrelot and Dr Narender Kumar Publisher: Oxford University Press.( Page number 219).]

7. “Constitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil which is essentially undemocratic.”
[Dr. B.R. Ambedkar, Annihilation of Caste]

8. “I do not want that our loyalty as Indians should be in the slightest way affected by any competitive loyalty whether that loyalty arises out of our religion, out of our culture or out of our language. I want all people to be Indians first, Indian last and nothing else but Indians.”
[Bhimrao Ramji Ambedkar, Writings And Speeches: A Ready Reference Manual]

9. “It is not enough to be electors only. It is necessary to be law-makers; otherwise those who can be law-makers will be the masters of those who can only be electors.”
[Bhimrao Ramji Ambedkar, Writings And Speeches: A Ready Reference Manual]

10. “A just society is that society in which ascending sense of reverence and descending sense of contempt is dissolved into the creation of a compassionate society”
[Dr. B.R. Ambedkar in Annihilation of Caste]

Had Dr. Ambedkar been around, he would have said: Supreme Court, High Courts, Executive and Legislature are creatures of the Constitution and they are legitimate only as long as work to fulfill the promises made in the preamble of the Constitution and exist under the guiding light of its basic structure.

Dr. Ambedkar said citizens “must hold fast to constitutional methods” to achieve their social and economic objectives, if they wished to maintain democracy “not merely in form, but also in fact”. This message is quite relevant in the face of capture of the constitutional institutions by mobs. 

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Dr. Gopal Krishna

The author’s doctoral thesis is on corporate crimes and the accountability of public institutions. He is a lawyer and a researcher of philosophy and law. His current work is focused on philosophy of digital totalitarianism and monetisation of nature. He has appeared before Supreme Court’s Committees, Parliamentary Committees of Europe, Germany and India and UN agencies on the subject of national and international legislation. He is an ex-Fellow, Berlin based International Research Group on Authoritarianism and Counter Strategies (IRGAC). 


Wednesday, December 4, 2024

Right to get legal aid is a fundamental right of the accused: Supreme Court

In Ashok vs. State of Uttar Pradesh (2024), the Supreme Court has issued comprehensive guidelines to ensure fair trials, effective legal aid, and the proper role of public prosecutors. Justice  Abhay S.Oka pronounced the reportable  judgment of the Bench comprising Justices  Ahsanuddin Amanullah and Augustine George Masih on December 2, 2024.

The Court observed: "the right to get legal aid is a fundamental right of the accused, guaranteed by Article 21 of the Constitution. Even under Section 303 of the CrPC, every accused has a right to be defended by a pleader of his choice. Section 304 provides for the grant of legal aid to an accused free of costs. When an accused has either not engaged an advocate or does not have sufficient means to engage an advocate, it is the trial court's duty to inform the accused of his right to obtain free legal aid, which is a right covered by Article 21 of the Constitution of India." 

Sub-Section (1) of Section 304 reads thus:"Where, in a trial before the Court of Session, the accused is not represented by a pleader, and where it appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State."

Notably, Sections 340 and 341 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) are the Sections which correspond to Sections 303 and 304 of the CrPC. Thus, under Section 304 of the CrPC, it is the duty of the Court to ensure that a legal aid lawyer is appointed to espouse the cause of the accused.

Ashok, the appellant was accused of raping and murdering a 10-year-old girl on May 27, 2009, in Uttar Pradesh. He was convicted by the trial court under Sections 376 (rape), 302 (murder), and 201 (causing disappearance of evidence) of the Indian Penal Code (IPC). 

Supreme Court has set aside the judgments and orders and  acquitted the appellant of offences alleged against him. 

The judgement reads: A copy of this judgment shall be forwarded to all State Legal Services Authorities to enable the authorities to take necessary measures." 

The Court has given directions on the role of the Public Prosecutor and appointment of legal aid lawyers are as follows:
"a. It is the duty of the Court to ensure that proper legal aid is provided to the accused. 
b.  When an accused is not represented by an advocate, it is the duty of every Public Prosecutor to point out to the Court the requirement of providing him free legal aid. The reason is that it is the duty of the Public Prosecutor to ensure that the trial is conducted fairly and lawfully;
c. Even if the Court is inclined to frame charges or record examination-in-chief of the prosecution witnesses in a case where the accused has not engaged any advocate, it is  incumbent upon the Public Prosecutor to request the Court not to proceed without offering legal aid to the accused;
d. It is the duty of the Public Prosecutor to assist 
the Trial Court in recording the statement of 
the accused under Section 313 of the CrPC. If the Court omits to put any material circumstance brought on record against the accused, the Public Prosecutor must bring it to the notice of the Court while the examination of the accused is being recorded. He must assist the Court in framing the questions to be put to the accused. As it is the duty of the Public Prosecutor to ensure that those who are guilty of the commission of offence must be punished, it is also his duty to ensure that there are no infirmities in the conduct of the trial which will cause prejudice to the accused;
e. An accused who is not represented by an advocate is entitled to free legal aid at all material stages starting from remand. Every accused has the right to get legal aid, even to file bail petitions;
f. At all material stages, including the stage of framing the charge, recording the evidence, 
etc., it is the duty of the Court to make the accused aware of his right to get free legal aid. If the accused expresses that he needs legal 
aid, the Trial Court must ensure that a legal aid advocate is appointed to represent the accused;
g. As held in the case of Anokhilal, in all the cases where there is a possibility of a life sentence or death sentence, only those learned advocates who have put in a minimum of ten years of practice on the criminal side should be considered to be appointed as amicus curiae or as a legal aid advocate. Even in the cases not 
covered by the categories mentioned above, the 
accused is entitled to a legal aid advocate who has good knowledge of the law and has an 
experience of conducting trials on the criminal 
side. It would be ideal if the Legal Services Authorities at all levels give proper training to the newly appointed legal aid advocates not only by conducting lectures but also by allowing the newly appointed legal aid advocates to work with senior members of the Bar in a requisite number of trials;
h. The State Legal Services Authorities shall issue directions to the Legal Services Authorities at all levels to monitor the work of the legal aid advocate and shall ensure that the legal aid advocates attend the court regularly and punctually when the cases entrusted to them
are fixed;
i. It is necessary to ensure that the same legal aid advocate is continued throughout the trial unless there are compelling reasons to do so or unless the accused appoints an advocate of his choice;
j. In the cases where the offences are of a very 
serious nature and complicated legal and factual issues are involved, the Court, instead of appointing an empanelled legal aid advocate, may appoint a senior member of the Bar who has a vast experience of conducting trials to espouse the cause of the accused so that the accused gets best possible legal assistance;
k. The right of the accused to defend himself in a 
criminal trial is guaranteed by Article 21 of the 
Constitution of India. He is entitled to a fair trial. But if effective legal aid is not made available to an accused who is unable to engage an advocate, it will amount to infringement of his fundamental rights guaranteed by Article 21;
l. If legal aid is provided only for the sake of providing it, it will serve no purpose. Legal aid must be effective. Advocates appointed to espouse the cause of the accused must have good knowledge of criminal laws, law of evidence and procedural laws apart from other important statutes. As there is a constitutional right to legal aid, that right will be effective only if the legal aid provided is of a good quality. If the legal aid advocate provided to an accused is not competent enough to conduct the trial efficiently, the rights of the accused will be violated."

 


High Court quashes orders of District Magistrate, Khagaria and Divisional Commissioner, Munger in arms license case

In Ranjan Kumar Mandal vs. The State of Bihar Justice Mohit Kumar Shah of Patna High Court observed that "order dated 15.3.2018, passed by the District Magistrate, Khagaria, as also the one dated 15.11.2019, passed by the Divisional Commissioner, Munger Division, Munger, ares solely based on absence of threat perception to the petitioner,  which has led to rejection of the application of the petitioner for grant of arms license, however, this Court finds that the said orders are contrary to the law laid down by the learned Division Bench of this Court" in the case of The State of Bihar vs. Deepak Kumar on January 21, 2019. 

The Court also relied on decisions of the High Court in Manish Kumar vs. The State of Bihar (2015) and Amrendra Kumar Singh vs. State of Bihar (2008). 

The Court quashed the orders dated March 15, 2018, passed by the District Magistrate, Khagaria and the one dated 15.11.2019, passed by the Divisional  Commissioner, Munger and remanded the matter back to the District Magistrate, Khagaria, for fresh consideration, who shall, after granting an opportunity of hearing to the petitioner, pass fresh orders upon the application of the petitioner for grant of arms license, within a period of twelve weeks of receipt/production of a copy of this order, in accordance with law and by taking into account the provisions, contained in the Arms Rules, 2016, as also the law laid down by the Division Bench of the High Court. The judgment was delivered on November 27, 2024. 

The writ petition was filed for quashing the orders passed by the District Magistrate, Khagaria and the Divisional Commissioner, Munger Division, Munger denying arms license. 

Samyukta Kisan Morcha in Delhi to demand MSP law

The 14th Prime Minister had announced his decision to repeal the controversial three farm laws, the union government, through his secretary (Farmers Welfare) on December 9, 2021. He assured the leadership of Samyukta Kisan Morcha (SKM) that a committee including representatives from the Centre and state governments, agricultural scientists and farmer leaders of different unions would be constituted with the mandate to devise methods to implement Minimum Support Price (MSP). 

The letter dated December 9, 2021 noted that the Union government in principle has agreed to withdraw criminal cases by its agencies against farmers for participation in struggle and that it would appeal to the state governments, too, to withdraw the cases. The Centre had assured SKM that it will also hold discussion on provisions impacting farmers in Electricity Amendment Act. 

Government’s invitation to SKM to join the committee on Zero Budget Farming was rejected by the SKM leaders because the committee had majority members who had backed the farm laws. 

SKM has asserted that the Commission on Agriculture Costs and Prices (CACP), the Central body responsible for announcing MSP for procuring crops from farmers, has been employing a wrong methodology for calculating the input costs of seeds, fertiliser, herbicides, pesticides, diesel and harvesting. While CACP has used A2 + FL formula, the farmers has been asking for C2+ 50% for fair returns on the produce. A2 covers major costs, such as fertilisers, pesticides, herbicides and diesel among other costs and FL implies unpaid family labour. C2 refers to comprehensive costs, which also covers rents and forgone interest on land, apart from traditional costs. 

Taking note of the MSP rates announced for the Kharif season in 2024, the SKM pointed out that they lost Rs 704 per quintal for paddy alone. While the A2+FL rates for paddy were fixed at 1,533/quintal and the final MSP was fixed by summing A2 + FL + 50% (Rs 2,300/quintal). Similarly, for jowar hybrid, SKM said they had lost Rs 1,066 per quintal. 

After a year-long movement against the now repealed three farm laws, now the SKM farmers began a march on tractor trolleys and vehicles o Delhi on December 2, 2024. They plan to stay put till their demands for fair MSP law is met. After the administration opened the way for talks, the farmers stopped their march and have set up a concrete front on the road on the Delhi-Noida border. 

SKM leaders are demanding minimum support price (MSP) as per the Swaminathan Commission formula, one time debt relief from all public and private lenders, curbing privatisation of electricity and insurance in public sector for crop and animal husbandry. It has announced that its protest is “comprehensive” because it includes all major sections of workers, farmers and agricultural workers. SKM supports the demand of workers' unions who have appealed for the repeal of four labour codes. The workers' unions support farmers' demand. They have formed a  Joint Platform with Central Trade Unions. agriculture workers’ unions. 

Monday, December 2, 2024

CBSE fails to comply with Patna High Court's orders in Sameer Raj vs. Union of India

Sunday, December 1, 2024

India remains 'socialist’ and ‘secular’:Supreme Court

In Dr. Subramaniam Swamy vs. Union of India and Balram Singh vs. Union of India, Supreme Court's  bench of 51st Chief Justice Sanjiv Khanna and Justice Sanjay Kumar heard the writ petitions challenging the insertion of the words ‘socialist’ and ‘secular’ in the Preamble to the Constitution of India by the Constitution (Forty-second Amendment) Act in 1976. The  retrospectivity of the insertion in 1976 was challenged because it resulted in falsity given the fact that Constitution was adopted on the 26thday of November 1949. It was submitted that the Forty-second Amendment to the Constitution was vitiated and unconstitutional since it was ‘passed’ during the Emergency on November 2, 1976, after the normal tenure of the Lok Sabha that had ended on March 18, 1976. Therefore, there was no will of the people to sanction the amendments.

The Court observed that these writ petitions do not require detailed adjudication as the flaws and weaknesses in the arguments are obvious and manifest . The two expressions—'secular' and 'socialist' and the word 'integrity' were inserted in the Preamble vide the Constitution (Forty-second Amendment) Act, 1976. These amendments were made in 1976. Article 368 of the Constitution permits amendment of the Constitution.bThe power to amend unquestionably rests with the Parliament. This amending power extends to the Preamble. The amendments to the Constitution can be challenged on various grounds, including violation of the basic structure of the Constitution. The fact that the Constitution was adopted, enacted, and given to themselves by the people of India on the 26th day of November, 949, does not make any difference. The date of adoption will not curtail or restrict the power under Article 368 of the Constitution. The retrospectivity argument, if accepted, would equally apply to amendments made to any part of the Constitution, though the power of the Parliament to do so under Article 368, is incontrovertible and is not challenged.

The Court underlined that "the Constitution is a living document". India has developed its own interpretation of secularism, wherein the State neither supports any religion nor penalizes the profession and practice of any faith. This principle is enshrined in Articles 14, 15, and 16 of the Constitution, which prohibit discrimination against citizens on religious grounds while guaranteeing equal protection of laws and equal opportunity in public employment. The Preamble's original tenets—equality of status and opportunity; fraternity, ensuring individual dignity—read alongside justice -social, economic political, and liberty; of thought, expression, belief, faith, and worship, reflect this secular ethos. Article 25 guarantees all persons equal freedom of conscience and the right to freely profess, practice, and propagate religion, subject to public order, morality, health, other fundamental rights, and the State's power to regulate secular activities associated with religious practices. Article 26 extends to every religious denomination the right to establish and maintain religious and charitable institutions, manage religious affairs, own and acquire property, and administer such property in accordance with law. Furthermore, Article 29 safeguards the distinct culture of every section of citizens, while Article 30 grants religious and linguistic minorities the right to establish and administer their own educational institutions. Despite these provisions, Article 44 in the Directive Principles of State Policy permits the State to strive for a uniform civil code for its citizens.

The Court recalled that in a number of decisions of the Court, including the Constitution Bench judgments in Kesavananda Bharati v. State of Kerala and S R Bommai vs Union of India have observed that secularism is a basic feature of the Constitution. In R C Poudyal v. Union of India, the Court elucidated that although the term 'secular' was not present in the Constitution before its insertion in the Preamble by the Constitution (Forty-second Amendment) Act, 1976, secularism essentially represents the nation's commitment to treat persons of all faiths equally and without discrimination. In M Ismail Faruqui (Dr) v. Union of India, the Court elaborated that the expression secularism in the Indian context is a term of the widest possible scope. The State maintains no religion of its own, all persons are equally entitled to freedom of conscience along with the right to freely profess, practice, and propagate their chosen religion, and all citizens, regardless of their religious beliefs, enjoy equal freedoms and rights. However, the ‘secular’ nature of the State does not prevent the elimination of attitudes and practices derived from or connected with religion, when they, in the larger public interest impede development and the right to equality. In essence, the concept of secularism represents one of the facets of the right to equality, intricately woven into the basic fabric that depicts the constitutional scheme's pattern.

The Court pointed out that "the word 'socialism', in the Indian context should not be interpreted as restricting the economic policies of an elected government of the  people's choice at a given time. Neither the Constitution nor the Preamble mandates a specific economic policy or structure, whether left or right. Rather, 'socialist' denotes the State's commitment to be a welfare State and its commitment to ensuring equality of opportunity. India has consistently embraced a mixed economy model, where the private sector has flourished, expanded, and grown over the years, contributing significantly to the upliftment of marginalized and underprivileged sections in different ways. In the Indian framework, socialism embodies the principle of economic and social justice, wherein the State ensures that no citizen is disadvantaged due to economic or social circumstances. The word ‘socialism’ reflects the goal of economic and social upliftment and does not restrict private entrepreneurship and the right to business and trade, a fundamental right under Article 19(1)(g)."

During the consideration of the Constitution Forty-Fifth Amendment Bill, 1978, the inclusion of the words 'secular' and 'socialist' came under scrutiny. Subsequently, this Bill was renumbered and called the Constitution Forty-Fourth Amendment Act 1978. The word 'secular' was explained as denoting a republic that upholds equal respect for all religions, while 'socialist' was characterized as representing a republic dedicated to eliminating all forms of exploitation—whether social, political, or economic. However, the said amendment as proposed to Article 366 was not accepted by the Council of States. 

Notably, in Excel Wear v. Union of India and Others, the Supreme Court had held that the addition of the word socialist in the Preamble may enable the Court to lean more in favour of nationalization and State ownership of industries, yet the Court recognized private ownership of industries, which forms a large portion of the economic structure. The majority judgment of the Court by the 9-Judge Constitution Bench in Property Owners Association and Others v. State of Maharashtra and Others has cleared any doubt and ambiguity, as it is held that the Constitution, as framed in broad terms, allows the elected government to adopt a structure for economic governance which would sub-serve the policies for which it is accountable to the electorate. Indian economy has transitioned from the dominance of public investment to the co-existence of public and private investment.

The Court concluded: "The fact that the writ petitions were filed in 2020, forty-four years after the words ‘socialist’ and ‘secular’ became integral to the Preamble, makes the prayers particularly questionable. This stems from the fact that these terms have achieved widespread acceptance, with their meanings understood by “We, the people of India” without any semblance of doubt. The additions to the Preamble have not restricted or impeded legislations or policies pursued by elected governments, provided such actions did not infringe upon fundamental and constitutional rights or the basic structure of the Constitution. Therefore, we do not find any legitimate cause or justification for challenging this constitutional amendment after nearly 44 years. The circumstances do not warrant this Court’s exercise of discretion to undertake an exhaustive examination, as the constitutional position remains unambiguous, negating the need for a detailed academic pronouncement. This being the clear position, we do not find any justification or need to issue notice in the present writ petitions, and the same are accordingly dismissed." The judgement was authored by the 51st Chief Justice and delivered on November 25, 2024.


Revenue Department, Finance Ministry complying with Supreme Court's order for prevention of sexual harassment of working women at work place

"Sexual harassment" includes any one or more of the following acts or behaviour, (whether directly or by implication), namely:—
(i) physical contact and advances; or
(ii) demand or request for sexual favours; or
(iii) sexually coloured remarks; or
(iv) showing any pornography; or
(v) any other unwelcome physical, verbal, non-verbal conduct of a sexual nature.

The following circumstances, among other circumstances, if it occurs or is present in relation to or connected with any act or behaviour of sexual harassment may amount to sexual harassment:—
(i) implied or explicit promise of preferential treatment in employment; or
(ii) implied or explicit threat of detrimental treatment in employment; or
(iii) implied or explicit threat about her present or future employment status; or
(iv) interference with her work or creating an intimidating or offensive or hostile work environment for her; or
(v) humiliating treatment likely to affect her health or safety

 "Workplace" includes:—  
(i) any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the Government;
(ii) hospitals or nursing homes;
iii) any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto;
(iv) any place visited by the employee arising out of or during the course of employment including transportation provided by the employer for undertaking such journey;
(v) a dwelling place or a house." 

The Revenue Department, Ministry of Finance of Government of India has reconstituted Internal Complaint Cell (ICC) in compliance with Supreme Court's order for prevention of sexual harassment of working women in the work place. The ICC was reconstituted by an Office Memorandum (OM) dated October 16, 2024. The ICC comprises of Himabindu Mudumbai, Vijay Rajmohan, Sunil Kumar Pandey, Manju Kak, Sudha Rani, Ritu Sahrma and Garima Mali. Himabindu Mudumbai was the chairperson and Garima Mali was the member secretary. The composition of the ICC which was reconstituted in September 9, 2024 was little different because it included Priyanka Kapoor as one of its members.  Prior to this, the ICC was reconstituted by OM dated May 27, 2024.

The ICC was constituted for the first time by an OM dated September 20, 2007. The  directions  issued  by  Cabinet  Secretariat  dated August 7, 2009 directed that the Complaint review cell  is to hold quarterly meeting of the complaint cell even if there are no complaints and review the state of preparedness to deal  with such complaint reviewed as also measures to be taken to make all officers fully aware of  their responsibilities in this regard. The OM of 2007 was suppressed by subsequent OM dated December 5, 2023.  All  concerned  were  advised  to  contact  the  Chairperson/Member  Secretary of the Complaint Cell, for redressal of their grievances. 

As per Section 4(1) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, the Internal Complaints Committee is to be set up at every workplace. As per Section 4(2), this will be headed by a woman and at least half of its members should be women. In case a woman officer of sufficiently senior level is not available in a particular office, an officer from another office may be so appointed. To prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committees should involve a third party, either an NGO or some other body which is familiar with the issue of sexual harassment. 

Section 4 reads: "4. Constitution of Internal Complaints Committee.— (1) Every employer of a workplace shall, by an order in writing, constitute a Committee to be known as the “Internal Complaints Committee”:
Provided that where the offices or administrative units of the workplace are located at different places or divisional or sub-divisional level, the Internal Committee shall be constituted at all administrative units or offices.
(2) The Internal Committees shall consist of the following members to be nominated by the employer, namely: —
(a) a Presiding Officer who shall be a woman employed at a senior level at workplace from amongst the employees:
Provided that in case a senior level woman employee is not available, the Presiding Officer shall be nominated from other offices or administrative units of the workplace referred to in sub-section(1):
Provided further that in case the other offices or administrative units of the workplace do not have a senior level woman employee, the Presiding Officer shall be nominated from any other workplace of the same employer or other department or organisation;
(b) not less than two Members from amongst employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge;
(c) one member from amongst non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment:
(3) The Presiding Officer and every Member of the Internal Committee shall hold office for such period, not exceeding three years, from the date of their nomination as may be specified by the employer.
(4) The Member appointed from amongst the non-governmental organisations or associations shall be paid such fees or allowances for holding the proceedings of the Internal Committee, by the employer, as may be prescribed.
(5) Where the Presiding Officer or any Member of the Internal Committee, —
(a) contravenes the provisions of section 16; or
(b) has been convicted for an offence or an inquiry into an offence under any law for the time being in force is pending against him; or
(c) he has been found guilty in any disciplinary proceedings or a disciplinary proceeding is pending against him; or
(d) has so abused his position as to render his continuance in office prejudicial to the public interest, such Presiding Officer or Member, as the case may be, shall be removed from the Committee and the vacancy so created or any casual vacancy shall be filled by fresh nomination in accordance with the provisions of this section.”

In the case of Vishaka and Ors Vs State of Rajasthan and Ors (1997), the Supreme Court had laid down the guidelines and norms to be observed to prevent sexual harassment of working women. The 3-Judge bench of 27th Chief Justice J.S. Verma, Justices Sujata V. Manohar and B.N. Kripal held that " Each incident of sexual harassment of working women results in violation of fundamental rights of 'Gender Equality' and the 'Right to Life and Liberty'. It is a clear violation of the rights under Articles 14, 15 and 21 of the Constitution. One of the logical consequences of such incident is also the violation of the victim's fundamental rights under Article 19(1)(g) 'to practice any profession or to carry on any occupation, trade or business'." The judgement was authored and delivered by the 27 Chief Justice on August 13, 1997.

The immediate cause for the filing of the writ petition was an incident of brutal gang rape of a social worker in a village of Rajasthan. The incident revealed the hazards to which a working woman may be exposed and the depravity to which sexual harassment can degenerate.

In pursuance to the pronouncement of this judgement, Department of Personnel and Training took the following steps:
(i) Guidelines/ Norms of the Supreme Court were circulated by Department of Personnel & Training vide OM No. 11013/10/97-Estt.(A) dated February 13, 1998 for strict compliance by the Ministries/ Departments.
(ii) Amendments in Central Civil Services (Conduct) Rules, 1964 were also carried out by inserting the Rule 3-C declaring Sexual Harassment of Working Women as a misconduct, vide Notification No. 11013/10/97-Estt.(A) dated February 13, 1998 published in Gazette of India as G.S.R. 49 dated March 7, 1998.
(iii) Subsequently, Central Civil Services (Classification, Control & Appeal) Rules, 1965 were also amended by inserting a provision below sub-rule 2 of Rule 14 in connection with treatment of the Complaint Committee as Inquiring Authority and to follow the procedure as laid down in these Rules to hold inquiry into the complaints of Sexual Harassment. This was notified vide Notification No. 11012/5/2001-Estt.A dated July 1, 2004 published in Gazette of India vide G.S.R. No. 225 dated July 10, 2004.

Later on, the 'Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was promulgated on April 22, 2013. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 were notified on December 9, 2013. The Act and the Rules framed thereunder provide a redressal mechanism for handling cases of sexual harassment of women at workplace.

The Consolidated Guidelines issued by Department of Personnel and Training including the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and Handbook on Sexual Harassment of Women at Workplace provide a roadmap for securing the fundamental rights of women.