The Indian Constitution was never conceived merely as a framework for governing an independent nation. Constitutional historian Granville Austin famously described it as an instrument of a “social revolution”; a document intended to transform Indian society by replacing entrenched hierarchies with the principles of justice, liberty, equality and fraternity. This distinction lies at the heart of the debate surrounding the place of ancient Indian texts such as the Manusmriti in legal education.

Socio-political critic and columnist Solomon Mubash argues in his recent essay, From Constitutional Morality to Brahmanical Logic: Judicial Violence and Power, that the controversy extends far beyond curriculum design or the study of history. Instead, he contends that it reflects a deeper contest over the moral and ideological foundations of the Indian republic. Whether or not one agrees with every aspect of his argument, the questions he raises extend far beyond the classroom.

At stake is not whether students should read the Manusmriti. Any serious student of law, history, religion or sociology must engage with texts that have shaped the intellectual traditions of the subcontinent. The real question is how such texts should be situated within a constitutional democracy founded on equal citizenship.

History and heritage are not the same thing.

History seeks to understand the past—its achievements as well as its contradictions. Heritage often seeks to celebrate it. Confusing the two risks turning scholarly inquiry into cultural endorsement. Ancient texts deserve academic engagement because they reveal how societies understood law, authority and social order. They do not automatically acquire normative authority simply because they are old.

The Manusmriti occupies a distinctive and contested place in India’s intellectual history. As Indologist Patrick Olivelle, whose translation remains among the most authoritative, notes, it is one of the most influential Dharmashastra texts prescribing norms of social and legal conduct. Historians have also pointed out that while its actual legal authority varied across regions and historical periods, its prescriptions articulated a social order organised around hereditary hierarchy.

The text differentiates duties, privileges and punishments according to caste and gender. Women, Shudras and those placed outside the varna order occupy unequal positions within its normative framework. Scholars including B.R. Ambedkar, Nicholas Dirks and Christophe Jaffrelot have therefore interpreted the Manusmriti as a powerful symbol of graded social inequality, even while recognising that lived social practises were often more complex than any single text could capture.

Recognising this historical reality is not an act of hostility towards Indian civilisation. It is an acknowledgement that every civilisation contains traditions worthy of preservation alongside institutions that deserve critical scrutiny.

It is precisely this distinction that informed Dr B.R. Ambedkar’s understanding of constitutional morality. In his final address to the Constituent Assembly on 25 November 1949, Ambedkar warned that political democracy could not survive unless it rested upon social democracy founded on liberty, equality and fraternity. He cautioned that India was entering “a life of contradictions”, where political equality would coexist with deep social and economic inequality unless constitutional values transformed society itself.

For Ambedkar, constitutional morality was therefore not blind allegiance to a legal document. It was a civic ethic that required citizens and institutions to judge inherited customs against constitutional principles rather than treating tradition as the ultimate source of legitimacy.

His public burning of the Manusmriti during the Mahad Satyagraha in 1927 has generally been understood by historians as a symbolic rejection of scriptural sanction for caste hierarchy—not a rejection of Indian civilisation itself. His later leadership of the Constitution’s Drafting Committee represented an attempt to replace birth-based status with equal constitutional citizenship.

That constitutional commitment found concrete expression in Articles 14, 15 and 17 of the Constitution, which guarantee equality before the law, prohibit discrimination on specified grounds and abolish untouchability. A Dalit labourer, a Brahmin scholar, an Adivasi woman and a member of a religious minority stand equal before the law not because tradition confers equal worth upon them, but because the Constitution does.

That was the revolutionary promise of the Republic.

Mubash argues that a continuing tension exists between constitutional morality and what he describes as Brahmanical social logic. Regardless of whether one adopts that terminology, the broader constitutional question remains relevant. The tension between constitutional ideals and entrenched social hierarchies continues to surface whenever caste-based discrimination is defended in the language of tradition, women’s autonomy is subordinated to customary norms, or inherited privilege seeks legitimacy through appeals to civilisational continuity rather than constitutional principle.

The danger lies in confusing antiquity with authority. No constitutional democracy derives its legitimacy from the age of its ideas. Its legitimacy derives from the justice of its institutions.

Constitutional morality asks a different question from historical tradition. It asks not whether a practice is ancient but whether it is just; not whether it is customary but whether it respects the equal dignity of every citizen. The Supreme Court has repeatedly reaffirmed this principle in decisions such as Navtej Singh Johar v. Union of India (2018) and Indian Young Lawyers Association v. State of Kerala (2018), holding that constitutional morality must prevail where social morality infringes fundamental rights.

Yet the constitutional transformation envisioned by Ambedkar remains incomplete. Ambedkar himself distinguished between political democracy and social democracy, warning that the former could not endure without the latter. More than seven decades after Independence, the continued incidence of caste-based atrocities, manual scavenging, honour killings and structural exclusion—documented in reports of the National Crime Records Bureau, the National Human Rights Commission and successive government agencies—demonstrates that constitutional equality has not fully displaced social hierarchy.

The response to this challenge cannot be historical amnesia. Ancient texts should be read, debated and critically examined. But they must be approached as historical artefacts rather than constitutional guides. Legal education should encourage students not only to understand what such texts prescribed but also to examine who benefited from those prescriptions, who was excluded by them, and why independent India consciously chose a different constitutional path.

Every civilisation possesses traditions worth preserving. Every intellectual tradition contains ideas worthy of study. But no tradition becomes immune from criticism merely because it is ancient.

The Constitution occupies a unique place in India’s public life because it represents a conscious normative departure from systems that assign human worth by birth. As Granville Austin argued, it sought to facilitate a peaceful social revolution through democratic institutions rather than through coercion. It is therefore not merely a legal document but an aspirational framework for building a society in which liberty is not restricted by caste, equality is not constrained by status and fraternity is not defeated by inherited divisions.

The Constitution is not a mirror reflecting India as it was. It is a blueprint imagining India as it could be, and ought to be.

The real challenge before Indian institutions is not that they have forgotten their roots. It is that they sometimes forget the purpose of the constitutional project itself. That project was never about recovering an idealised past. It was about constructing a more equal future.

The future of Indian democracy will not ultimately be determined by how frequently it invokes its civilisational inheritance. It will depend on whether its institutions continue to uphold the constitutional vision articulated by Ambedkar, embedded in the Constitution and reaffirmed by the Supreme Court. India’s civilisational inheritance deserves careful study. Its Constitution deserves primacy. The Constitution is not the antithesis of Indian civilisation; it is arguably the Republic’s most profound civilisational achievement.

Oindrila Dasgupta is a doctoral researcher at Guru Gobind Singh Indraprastha University and teaches Social Inclusion and Journalism. Her work focuses on role of journalism in terms of social justice praxis and pedagogy in India.

Courtesy: The AIDEM

The post Beyond the Manusmriti Debate: Why Constitutional Morality Must Remain India’s North Star appeared first on SabrangIndia.

The irony of the Mahayuti government now championing the Constitution through campaigns like “Ghar Ghar Sambhavidhan” is glaring, especially given its own troubling history of undermining constitutional principles. From the very moment of its formation, the government has been marred by constitutional controversies. The Eknath Shinde-led coalition itself came into existence after a dramatic political coup, where defecting legislators bypassed democratic norms, raising serious questions about constitutional propriety. This was followed by a series of actions that further eroded constitutional values—ranging from bulldozer politics that disregarded due process to systematic attacks on dissent, and the selective targeting of marginalised communities. After repeatedly trampling upon the very ethos of the Constitution, it is deeply ironic, and indeed cynical, for this government to now promote itself as a defender of constitutional values. This sudden embrace of constitutional imagery in the run-up to the elections seems more like a strategic ploy to reclaim lost moral ground rather than a genuine commitment to safeguarding the foundational document of Indian democracy.

The expensive price tag of political propaganda

Before we dive into the irony of the advertisement, it is essential to point towards the financial cost of these advertisements, estimated to be upwards of ₹15–25 lakh for full-page placements in high-circulation dailies like Maharashtra Times and Lok Satta, is substantial. For perspective, multiple full-page ads in these leading publications over several days could cost the government crores of rupees. This expenditure begs the question: Why is the state splurging on image-building campaigns when Maharashtra faces urgent fiscal challenges? While these advertisements are a clear attempt to boost the image of the Mahayuti government ahead of elections, what’s often overlooked is who’s footing the bill for this political propaganda: it’s the taxpayer. Public funds—our taxes—are being used to pay for these ads that serve little more than to bolster the political capital of the ruling government.

Maharashtra’s public sector continues to grapple with a host of issues—rural healthcare infrastructure is overstretched, drought-hit farmers continue to demand support, and unemployment rates are rising. Despite these pressing needs, state funds are being diverted toward political advertising, and not just any advertising, but a clear attempt to consolidate votes before the election code of conduct is enforced. The misuse of public money for electioneering feels particularly egregious. Instead of being channelled into improving healthcare, education, or providing meaningful support to drought-affected farmers, taxpayer money is being diverted toward high-cost political advertisements. This blatant misuse of public resources for partisan gain not only raises ethical concerns but also underscores a government that prioritises its electoral fortunes over the actual needs of its citizens.

Take for instance the advertisement featuring Devendra Fadnavis himself. Prominently featuring Dr. B.R. Ambedkar’s image, it seeks to position the coalition of Shiv Sena (Shinde faction), National Congress Party (Ajit Pawar faction) and Bharatiya Janata Party (BJP) as the protector of constitutional values. However, behind the façade lies a government that has, on multiple occasions, shown contempt for the Constitution’s core principles of equality, justice, and fraternity.

The misuse of Ambedkar’s legacy

Dr. B.R. Ambedkar is a figure synonymous with the Indian Constitution, but his image has often, more so in the recent times, been co-opted by political parties for electoral gain. The “Ghar Ghar Sambhavidhan” campaign is an example of this strategic co-optation. At a time when Dalits and those marginalised communities continue to face violence, discrimination, and exploitation, invoking Ambedkar’s legacy without addressing the core issues affecting these communities is an exercise in tokenism.

Dr. B.R. Ambedkar’s life was dedicated to dismantling the oppressive caste system and fighting for the rights of Dalits and other marginalised communities. However, the Mahayuti government’s invocation of Ambedkar’s image through campaigns like “Ghar Ghar Sambhavidhan” rings hollow when juxtaposed with the escalating violence, discrimination, and land-related exploitation faced by Dalits and Adivasis in Maharashtra. While Ambedkar’s face is splashed across newspaper ads, Maharashtra’s Dalit and Adivasi communities continue to bear the brunt of systematic oppression and neglect under the very government that claims to uphold his ideals.

In March 2020, a brutal case of atrocity against Dalit women had surfaced from Solapur district, wherein a 16-year-old Dalit girl had been gang-raped by 10 men for more than 6 months, underscoring the stark reality of caste-based sexual violence in Maharashtra. The girl’s family faced immense pressure from the perpetrators to withdraw the complaint, while local authorities delayed taking action, sparking protests and demonstrations demanding justice. In August 2023, in Satara, Maharashtra, a Dalit woman had faced public humiliation and assault. Her only “crime” was daring to demand the return of money she was reportedly owed. These cases mirror the growing epidemic of violence against Dalit women in the state, where crimes of rape, assault, and social ostracisation are disturbingly frequent.

In November 2023, on Maharashtra’s Beed, a Tribal woman had been stripped naked by tearing her clothes, molested and beaten for land disputes. The heinous crime had been committed in the presence of police, and those involved included a BJP MLA Suresh Dhas’s wife along with three people.

In October 2023, four Dalit children had been hung from a tree upside down and thrashed for “stealing goats and pigeons” in Srirampur in Ahmednagar district. This deep-rooted casteism is a direct affront to Ambedkar’s fight for land and economic equality, yet the state government has been silent in addressing these ongoing attacks.

Furthermore, across rural Maharashtra, Dalit farmers are facing increasing threats of land grabbing, forced evictions, and illegal occupation of their agricultural lands. As many as 81% of Dalit farmers in Maharashtra were agricultural labourers, who had no land of their own and worked on others’ farmland as opposed to 49% of landless farmers among non-Dalits, according to Census 2011.  Even today, in many cases, state authorities turn a blind eye to these atrocities, failing to protect Dalit farmers’ rights to land and livelihood.

The displacement of Adivasi communities has also surged in recent years. A notable case occurred in the tribal regions of Palghar and Nashik in 2020, where Adivasis were forcibly evicted from their lands to make way for government infrastructure projects. These land grabs were carried out without proper compensation or resettlement, leaving entire communities destitute and without basic means of survival. Adivasis, who have historically been among the most marginalised groups in Indian society, find themselves repeatedly deprived of their constitutional right to land, despite the government’s public commitment to protecting the Constitution.

In Gadchiroli, in 2023, another alarming incident saw forest rights activists, including Adivasi leaders, beaten and detained for protesting the illegal encroachment of their forest lands by private contractors. This blatant disregard for the Forest Rights Act, which guarantees land rights to indigenous communities, reflects the deepening crisis in Maharashtra’s tribal belts. Dr. Ambedkar’s legacy, which emphasised the protection of marginalised communities and their access to land, is being blatantly violated by the state’s development policies, often at the behest of private industrial interests.

Another case that highlights caste violence occurred in February 2022, when a Dalit family in Latur district was attacked and boycotted for entering a local temple. The upper-caste mob severely beat the family members, accusing them of “defiling” the temple, a throwback to the deeply entrenched untouchability practices Ambedkar fought against. Even in September 2024, a Shiv Sena leader, purportedly a close aide of Maharashtra CM Eknath Shinde, had been booked along with several others for allegedly preventing Dalits from entering a temple. The local police initially refused to register a case, demonstrating how institutionalised caste bias continues to deprive Dalits of their basic rights, even in modern Maharashtra.

The grim reality for Maharashtra’s Dalits and Adivasis stands in stark contrast to the Mahayuti government’s public posture of honouring Ambedkar’s legacy. While the government spends crores on advertisements featuring Ambedkar’s image, the very communities he sought to uplift are being left vulnerable to exploitation, violence, and systemic marginalisation. The deliberate use of Ambedkar’s legacy in electoral campaigns without addressing the state’s failing record on Dalit and Adivasi rights reflects a cynical and opportunistic politics—one that exploits historical symbols for short-term political gain while ignoring the lived realities of the most oppressed sections of society. In this light, the state’s public campaigns appear less as a genuine commitment to constitutional principles and more as a cynical attempt to secure votes from marginalised communities ahead of elections.

Maharashtra, like other BJP-ruled states, has seen a rise in caste-based atrocities and systemic discrimination. In 2022 alone, the state recorded a total of 2276 cases of atrocities against Dalits under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, including heinous cases of violence and rape. Dr. Ambedkar’s vision for social justice is far removed from the reality faced by Dalit communities in Maharashtra today, and the state government’s actions have done little to address these grave injustices.

Trampling upon constitutional values: The reality

While the government speaks of safeguarding the Constitution through its campaigns, its actions paint a different picture. Multiple incidents highlight how the Eknath Shinde-led administration has failed to uphold constitutional values in practice.

Bulldozer justice and lack of due process: Maharashtra has seen instances where the state, like several other BJP-ruled states, has resorted to demolition drives targeting the homes of the accused before trials are even conducted. These extrajudicial actions violate the fundamental right to life and property as enshrined under Article 21 of the Indian Constitution. The most notable recent instance of bulldozer being used against Dalits was on June 6, when state authorities razed Jai Bhim Nagar in Powai to the ground. It is essential to note that even though demolitions and evictions are prohibited in the state during monsoons, civic and state authorities collude with developers and builders to carry out these alleged lawless evictions. 

The shrinking space for dissent: In Maharashtra, the crackdown on dissent has been particularly severe, with Adivasi rights activists facing relentless persecution for standing up against state-backed exploitation of their lands and resources. The state’s targeting of activists advocating for tribal rights underscores a broader trend of silencing dissent and crushing resistance from marginalised groups. From the tribal regions of Gadchiroli, where those protesting illegal land acquisitions by private contractors have faced brutal retaliation, including physical violence and arbitrary detention, to Palghar evictions, the state has abused its brutal power against those dissenting against him.

One also cannot forget the infamous Bhima Koregaon case, which is another chilling example of how dissent, especially from Dalit and Adivasi rights activists, has been criminalised in Maharashtra. The case stems from the January 2018 Bhima Koregaon violence, where clashes broke out after Dalits gathered to commemorate the 200th anniversary of the Battle of Bhima Koregaon, a symbolic event marking Dalit pride and resistance. However, in the aftermath, several prominent activists—many of whom had a history of defending Adivasi and Dalit rights—were arrested under draconian anti-terror laws, accused of being part of an alleged Maoist conspiracy to incite violence.

Among those targeted were well-known intellectuals and human rights defenders like Sudha Bharadwaj, an Adivasi rights lawyer, and late Father Stan Swamy, an 84-year-old Jesuit priest who had spent decades working to protect Adivasi land rights in Jharkhand and Maharashtra. The Bhima Koregaon case, which was initially about caste-based violence, was quickly transformed into a case about “national security,” with the state using the spectre of Maoism to suppress voices advocating for Dalit and Adivasi rights. The arrests of these activists not only stifled a crucial movement for social justice but also sent a chilling message to those working for the rights of marginalised communities in Maharashtra. It highlighted the shrinking space for dissent, where speaking up against caste violence, land grabs, and state excesses could be framed as a crime.

This pattern of state repression is also visible in the treatment of grassroots activists who oppose large-scale development projects that threaten to displace Adivasi communities from their ancestral lands. The government’s ruthless crackdown on these voices reflects its prioritisation of corporate interests over the rights of indigenous populations, while branding activists as “anti-development” or “urban Naxals” to justify their suppression. One must not forget that only in June 2024, the Maharashtra government tabled the Maharashtra Special Public Security Bill, 2024 on the penultimate day of just concluded session of the state assembly (Vidhan Sabha). The said bill, introduced by the state’s industries minister Uday Samant, was deemed to be brought in to stop the “proliferation of Urban Naxalism” in the state of Maharashtra.

Political expediency at the cost of governance

In the weeks leading up to the elections, the Eknath Shinde government has also issued a series of populist government orders, many of which appear designed to win votes rather than address long-standing problems. Many “beneficial policies” for the marginalised are being hastily rolling out s to win voter favour before the Model Code of Conduct (MCC) takes effect. In a clear election ploy, CM Eknath Shinde announced the waiving of tolls for light vehicles at all five entry points to Mumbai, effective midnight. This decision comes just days before elections are expected to be declared, aligning with a pattern of voter-friendly initiatives that prioritise political gain over substantive governance.  Notably, the toll waiver affects entry points at Vashi, Airoli, Mulund (LBS Road), Mulund (Eastern Express Highway), and Dahisar, where tolls were recently raised to Rs 45. Critics argue this move is a transparent gimmick to distract from more pressing issues.

Additionally, the Cabinet has approved salary hikes for madrasa teachers and increased the budget of the Maulana Azad Minority Financial Development Corporation from Rs 700 crore to Rs 1,000 crore. The government is also seeking to attract OBC and tribal voters by raising the non-creamy layer income limit for OBCs from Rs 8 lakh to Rs 15 lakh and doubling the guarantee for the Shabari Tribal Finance Corporation from Rs 50 crore to Rs 100 crore.

While these initiatives may appear beneficial, their timing raises concerns about their true intent, suggesting a focus on short-term electoral gains rather than addressing long-standing socio-economic challenges in the state. It is also ironical as the state has dragged its feet on providing meaningful relief for years, this sudden rush of policies ahead of elections reflects poorly on its intentions.

One glaring example of this election-oriented governance is the delay in resolving the long-pending Maratha reservation issue. Although the state government expressed its commitment to resolving the demands of the Maratha community, it has failed to bring about substantial solutions, choosing instead to delay contentious decisions to avoid political backlash. But now, as elections draw near, the same issues that were left on the back burner are being dusted off and used to appease the agitated electorate. This pattern of governance by political expediency is evident, yet the government hopes to manipulate voters by promising last-minute relief.

A gimmick wrapped in Constitutional drapes

The Eknath Shinde-led government’s actions are a masterclass in political posturing. By rolling out expensive, taxpayer-funded advertisements and issuing symbolic government orders in the eleventh hour, the administration is hoping to distract the electorate from its failures and shortcomings. The use of Dr. B.R. Ambedkar’s image to bolster its claims of constitutional integrity is a cynical move, especially in light of the numerous instances where this very government has undermined the values Ambedkar stood for.

As Maharashtra heads toward its elections, the electorate must critically assess whether these last-minute, high-cost campaigns and symbolic gestures represent genuine governance or if they are merely a well-timed charade designed to retain power. The people of Maharashtra deserve more than gimmicks and propaganda; they deserve a government that truly respects and upholds the Constitution, not just in words but in action.

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The post Pre-Election Gimmickry, Maharashtra: Mahayuti govt compelled to appropriate INDIA alliance Constitution driven call? appeared first on SabrangIndia.

The NCERT, which published textbooks between 2005 and 2008, is updating them in line with the National Education Policy (NEP) introduced by the NDA government in 2020. This year’s revisions include new textbooks for Classes 3 and 6, reflecting the latest National Curriculum Framework. In the newly revised editions, the Preamble appears only in the science book Curiosity and the Hindi book Malhar. The NCERT has consolidated the three EVS books into one, Exploring Society: India and Beyond, which does not include the Preamble but does cover fundamental rights and duties. The new mathematics textbook is not yet available.

The new English textbook, Poorvi, includes the national anthem, while the Sanskrit book Deepakam features both the national anthem and the national song, but omits the Preamble. The old Sanskrit book, Ruchira, also lacked the Preamble.

For Class 3, none of the updated textbooks for Hindi, English, mathematics, or the new World Around Us (which replaces EVS) includes the Preamble. The old EVS book Looking Around and the Hindi book Rimjhim 3 contained the Preamble.

According to Telegraph India, Nandita Narain, a former faculty member at St Stephen’s College under Delhi University, said the Preamble is a miniature form of the Constitution and that the national anthem, national song, or the fundamental rights and duties cannot replace it.

“The NCERT must explain why it has removed the Preamble from several textbooks. I don’t think it is a coincidence,” Narain said.

“I feel that the BJP government is afraid of the Preamble, which encompasses the core values of the Constitution like liberty, equality and fraternity. This government has acted against the core values of the Constitution. So, it has removed the Preamble from so many books.” Reported Telegraph India

However, this year in June, NCERT has also revised the Class 12 Political Science textbook and removed the term “Babri Masjid,” which has now been referred to as a “three-domed structure” in the new edition.

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Former SC Judge, Justice KM Joseph

On May 30, Former Supreme Court Judge, Justice KM Joseph spoke at a inauguration ceremony and emphasised upon the values enshrined in the Preamble of the Constitution of India, importance of a free and independent Election Commission of India as well as independent and fair media. Justice Joseph were speaking at the inaugural ceremony of National Conference on “The Constitution in a Changing India”, organised by the Student Union 2023-24 at the GLCE Law Journal and the Bhagath Singh Study Circle of Government Law College, Ernakulam.

On the Preamble and the Indian Constitution: 

As per the retired judge, the Preamble of the Constitution effectively encapsulates the objectives that the founding fathers had in mind when they drafted it. According to him, the core values that are unchangeable, unchangeable, and permanent are liberty and equality. Justice Joseph also provided that only by following the path as provided by the principles of equality and liberty can Justice be attained. However, Justice Joseph stated that equality, liberty and fraternity can only be possible based on fraternity that exists among the diverse groups of people in our nation. 

“The constitution can speak through its silences much as it does through express words.”

On criticism of one’s country:

Justice Joseph also spoke about a citizen’s right to speech and expression, which also includes their right to voice criticism, and the same should not caste any shadow on their nationalism and love for country. 

“I love my country just as much as anyone but you cannot have the love of your country being conditioned by the imposition of a restriction that you’ll not be critical. My right to be critical of my country is a natural right which I will not surrender under the social contract theory merely because others may not like me and I’m in the minority. When you talk about democracy and political justice, it is not just about casting your vote every 5 years.”

On secularism and seeking votes on the basis of caste:

Justice Joseph also shed light on the importance of Secularism, which was made a part of the Preamble through the 42nd amendment, which ensured that all religions are treated as equals in India. As per Justice Joseph, based on principle of secularism, the courts had held that the political parties must be secular and they cannot have a de-facto reversion of state religion. 

In furtherance to this, Justice Joseph underscored the importance of the Election Commission of India to take timely action against those political parties that use religion, race, language and caste to fetch votes in elections. Stating the appeal for votes on the basis of such identities is forbidden by law, Justice Joseph said that the Election Commission must come down heavily against such practices.

“Another important aspect is S. 123(3) of RP Act which prohibits candidates from asking votes in the name of religion. This has been part of a lot of debates. You should understand that the politicians are very much aware of their limitations. Anything that they do, which creates a religious identity and fetch them votes is forbidden and ECI must come down heavily, whoever it is, however high he may be. The ECI should take action in time and not keep matters pending. If they do not do that, they are doing the greatest disservice to the constitution and the founding fathers.”

On the importance of freedom of media: 

Speaking about media treating their duty to impart information to the public as a business, Justice Joseph came down heavily upon the media houses making their journalistic duty subordinate to their wish to earn money. 

“When business houses control media houses, there is a tendency that they will tow a line which will be dictated by their editors and ultimately tracing the line of control to the management. The government of the day is powerful. If the government has a hold over them, in terms of controlling their business fate, the media will fall in line and surrender their freedom and duty.”

 Justice Joseph then brings in focus the citizen’s right to be informed and right to know, which are fundamental rights guaranteed under the Constitution of India. 

“Why this is important is because, to know itself is a fundamental right? If you don’t know, how will you take part in democracy? You can’t take part unless the stream of information coming from media houses is pure i.e., it’s unbiased and not done with an agenda to help anyone or to destroy another. Unfortunately, very large sections of the media are doing just that. This has a gross impact on the working of the constitution as it impacts the electoral system itself.”

Justice Joseph also highlighted the changes that can be brought into the country if media fairly, and without any fear, imparts information to the public. He took up the example of the Pune drunk driving case, wherein the minor accused who was given bail, was later dealt sternly due to public uproar. However, Justice Joseph also expressed his dissatisfaction with which media dealt with the Manipur crisis, succumbing to the pressure of the political parties in power.

“Who will question the people governing us if the media does not take up? I also say that it is not the role of media to be the opposition. But there are issues which matter to the common man, which the media has to take up as part of its duty. For eg, if in one voice, if the media had gone non-stop for Manipur, like they did for Pune, perhaps much better things would’ve happened I’m shocked when I watch some of the media but I still watch it with the hope that one day they’ll reform. I want a healthy and resilient media.”

The extracts have been taken from LiveLaw.

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The post Former Justice KM Joseph: ECI doing the greatest disservice to the constitution and the founding fathers by not taking action against those seeking vote on religion appeared first on SabrangIndia.

The BJP leader, and now poster boy of Hindutva, Sarma wrote a Twitter (X) post on December 26. In his post, he shared verse 44 of chapter 18 of The Bhagavad Gita with a comment that “Lord Krishna has himself described the natural duty of Vaishyas and Shudras”.

A Brahmin by caste, Sarma went on to say that the “natural duty” for Shudras was to serve the upper castes. It appears that Sarma selected a particular verse from The Gita to consolidate upper caste dominance within the state by promoting caste-based occupation.

In Sarma’s X post, a Sanskrit verse was written at the top and its Hindi translation was given below. The summary of the Hindi verse is as follows: the natural duty of Vaishyas is agriculture, trade and animal husbandry, while the natural duty of Shudras is to serve Brahmins, Kshatriyas and Vaishyas.

It is condemnable that a person, who has taken an oath of allegiance to Ambedkar’s Constitution, has written such objectionable content on his official account. He has not only hurt the sentiments of millions of Bahujans and violated democratic principles but has also gone against the teachings of Babasaheb Ambedkar.

Throughout his life, Babasaheb Ambedkar was opposed to the “division of labourers” because he thought it resulted in the denial of freedom for the non-Brahmin castes. The critiques of Ambedkarite scholars of the caste system are based on a similar logic that the rigidity of caste-based occupation puts individuals in chains and denies them to pursue the profession of their choice.

Ambedkarite scholars further argue that birth-based division of labour not only kills individual talent but also cripples the progress of the nation. On this question, Ambedkar has differences with Gandhi.

On the question of The Bhagavad Gita, whose verse the Assam Chief Minister Sarma often shares on his social media account, Ambedkar differs from caste Hindu leaders. In his uncompleted work Revolution and Counter-Revolution which he was developing in the 1950s, Ambedkar argued that The Bhagavad Gita and Manudharmashastra were written post-Buddhist period.

In the post-Buddhism period, Brahmanism rose and it launched deadly counter-revolutionary attacks on Buddhism. In that context, The Gita, according to Ambedkar, which appeared similar to the teachings of Buddhism, tried to justify the counter-revolution.

In other words, The Gita and its teachings go against the Dalit-Bahujan currents.

Ambedkar was highly critical of the teaching of The Bhagavad Gita in the following words: “The Bhagvad Gita is not a gospel and it can therefore have no message and it is futile to search for one…the Bhagvad Gita is neither a book of religion nor a book of philosophy…What the Bhagvad Gita does is to defend certain dogmas of religion on philosophical grounds”.

According to Ambedkar, The Bhagvad Gita provides not only “justification for war” but also “comes forward to offer a philosophic defense” of four-fold varna (Chaturvarnya). Besides, Babasaheb said that “The Bhagvad Gita, no doubt, mentions that the Chaturvarnya is created by God and therefore sacrosanct” (Cited in Valerian Rodrigues, ed., The Essential Writings of B.R. Ambedkar, Oxford University Press, New Delhi, 2002, p. 194).

Note, also that Assam Chief Minister and BJP leader Sarma later tried to pacify the public outrage by saying that the problem arose because of “incorrect translation” done by his staff. To escape from taking responsibility, he deleted his Shudra post and wrote on December 28, two days after his original post: “As a routine, I upload one sloka of Bhagavad Gita every morning on my social media handles. To date, I have posted 668 slokas. Recently one of my team members posted a sloka from Chapter 18 verse 44 with an incorrect translation. As soon as I noticed the mistake, I promptly deleted the post. The state of Assam reflects a perfect picture of a casteless society, thanks to the reform movement led by Mahapurush Srimanta Sankardeva. If the deleted post has offended anyone, I sincerely apologize”.

By blaming his staff and incorrect translation, Sarma tried to escape engaging with the Dalit-Bahujan critiques of The Gita. He seems reluctant to accept the fact that the differences and conflicts are not the outcome of the “wrong” translation but the text itself.

Unlike many upper-caste reformist scholars, Ambedkar was courageous and clear: he brought his criticism of The Gita to the public. Other Hindutva leaders, on the other hand, appear to be treading two contradictory paths.

While their core ideology of a hierarchy-based society has brought them attached to texts like Manu Smriti and its kinds, their vote bank politics has compelled them to show their public admiration for Ambedkar, whose life-long struggle was against the laws of Manu Smriti.

Neither Sarma nor any leader of the RSS is willing to accept the fact that the BJP and the RSS have to choose between Ambedkar’s Constitution and Manu Smriti and similar texts justifying caste-based hierarchy.

Eminent Marxist historian Prof R.S. Sharma (Ancient India) has done a pioneering study on the formation of a four-fold varna system in ancient India. He has shown that the post-Vedic society was based on a birth-based hierarchy where Brahmins were placed at the top and the Shudras, the fourth class, were degraded to the bottom. According to him, the Shudras were not only compelled to serve the top of three Varnas i.e., Brahmins, Kshatriyas and Vaishyas but also demonized as cruel and thieves.

But after Independence, Ambedkar’s point of view was accepted and the idea of equality was made an essential part of the Fundamental Right. Since the 26th of January, 1950 when the Constitution became the supreme law of the land, our country outlawed birth-based privileges as well as any form of discrimination based on caste.

Next, equal opportunity was made a key feature of the Fundamental Rights in the Constitution. Simply put, all people become equal and the state is prohibited from formulating any law that could discriminate against its citizens based on caste, gender, sex and region.

The framing of the Indian Constitution, based on secular, democratic and republican values, did away with birth-based hierarchical social rules. It was due to the powerful movements of Dalit-Bahujans, whose activists and philosophers rejected Manu Smriti and other Hindu religious texts and accepted values like equality, liberty and fraternity, one of the main pillars of the Indian Constitution. Ambedkar’s critique of The Bhagavad Gita should be seen in this context.

Soon after the Assam Chief Minister’s Twitter post quoting a verse from The Gita, a large number of people condemned him. Fearing that it may cost him dear in the upcoming elections and alienate a large section of the lower caste voters from the BJP, he was forced to suddenly delete his post.

Next, Sarma tendered an apology and blamed the “incorrect” translation. But it does not appear to be just a human mistake. On several occasions, the Hindutva leaders have spoken against Constitutions and praised “reactionary” social practices.

For example, while Sarma has apologised for his remarks on Shudras, he has never shown such a gesture as far as his anti-Muslim statements are concerned. It appears that he does it deliberately as he is aware of the fact that the success of the BJP in the state as well as outside is based on creating and maintaining a communal division between the non-Muslim Assamese populations and “infiltrator-Bangladeshi” Muslims living in Assam.

Such a communal narrative helps divert the public attention from the heart problem in the state. These include the unequal relationship between the Centre and the state. Other challenges include (a) achieving inclusive development, (b) protecting natural resources from being monopolized by the big corporate players and (c) ensuring the rights of the most vulnerable community of the state including Adivasis.

Worse still, the Adivasis and other backward castes remain largely excluded from the administration and public institutions in Assam. From business to culture, cinema and media, Dalits, Adivasis, Backward castes and Muslims remain largely kept out.

After joining the BJP from the Congress, Sarma further marginalised the already marginalised caste leaders from the BJP. He manoeuvred to succeed Sarbananda Sonewal, an Adivasi, as the fifteenth chief minister of the state. His ascendance in the BJP is due to his ability to exploit the upper caste network. Note that the numerically smaller upper castes are ruling the roost in the state, while the majority including Dalits, OBCs, Adivasi Muslims and women are kept excluded.

To maintain his dominance within the party and hide the failure of his government, Himanta Biswa Sarma is fond of airing anti-Muslim remarks. Such an anti-Muslim strategy protects upper-caste interests and pleases the RSS.

Since Sarma knows these fault lines well, he tries to blame Muslims and the Congress for all the problems. His attack on Nehru-Gandhi’s family is utterly distasteful. Nothing is as nasty as his tirade against Muslims.

A few months back, Sarma went on to blame Muslims for the price rise of vegetables. Around the same time, he gave an interview with NDTV and said that he would not “seek Muslim votes”.

It seems that the Muslims of Assam have become “politically untouchables” to him. His attacks on Muslim homes, identity and cultural and religious institutions including madrasas are getting intensified. Such a communal tone which he often uses is distasteful to democratic values.

Worse still, Sarma, in the recently held electoral campaigns in Chhattisgarh, attacked Mohammad Akbar, the only Congress minister, and said that “the land of Mata Kaushalya will get defiled if Akbar isn’t sent off”. Weeks later, he spit venom in another election rally at Khandwa (Madhya Pradesh) and said “Voting for Congress means encouraging the ‘Babars’ in the country”.

Even a quick analysis of Sarma’s speech would reveal that his narrative is not only anti-Muslim but also against Dalit-Bahujan philosophy.

In a democratic polity, no one is above the law.

But it appears that the BJP leader and the Assam Chief Minister Sarma have so far managed to easily walk away after making highly objectionable statements against the marginalized community. That is why many perceive that if half of the objectionable statements that Sarma has made so far were given by a Muslim leader or a Dalit activist, she/he would have been surely languishing in jail Thus, the citizens of the country are right to ask if Himanta Biswa Sarma is above the law.

The rise of Sarma is an example of the rise of Hindu “nationalism”. It appears that the prejudice against the working classes, mostly Dalits, Adivasis and OBCs, is being intensified under the Hindutva regime.

While Prime Minister Narendra Modi is never tired of playing the OBC card, the fact remains that under his almost 10-year rule, the position of the dominant sections of society has become further consolidated. For example, the educational, religious, cultural and commercial institutions are still monopolized by the upper castes.

The only positive change has been seen in the domain of politics where some OBC leaders have come to power. The rise of the lower castes in politics has created fear among the upper castes.

The Shudra post of BJP leader Sarma, a Brahmin Chief Minister in a Bahujan-dominated Assam, is an expression of the same Brahminical anxieties.

By invoking The Gita, he wants to tell the lower castes that they should never forget their “natural” duty to serve the upper castes. The promotion of The Gita by the state machinery under the Modi Raj should be seen as the ascendance of Brahminical ideology, which is using the ancient text to curb the rise of plebeians in modern times and weaken Ambedkar’s Constitution.

(Dr Abhay Kumar is a Delhi-based journalist. He has taught political sciences at NCWEB Centres of Delhi University.)

The post Assam: After taking an oath to uphold Ambedkar’s Constitution, the BJP CM invoked the Gita to promote caste-based occupation     appeared first on SabrangIndia.

Debroy’s call for scrapping the existing Constitution reflects the deep-seated historic discomfort of the Hindutva forces with Babasaheb Ambedkar’s Constitution. And Debroy’s statement is in no way his personal opinion. The opposition parties rightly came out to oppose it. Among the first leaders to comment was Congress general secretary Jairam Ramesh, who said that Debroy’s article “sounded the bugle for junking the Constitution – of which Dr. Ambedkar was a prime architect”. Jayant Chaudhary, Rashtriya Lok Dal president, too, criticised Debroy’s views: “I don’t think the chairman of the Economic Advisory Council to the Prime Minister is entitled to express any “personal views”.  Swami Prasad Maurya, the national general secretary of the Samajwadi Party, strongly sought action against those who demanded a new Constitution and supported the idea of a Hindu nation as it amounted to indulging in anti-national acts.

However, the sharpest critique of Debroy’s call was made by Bahujan Samaj Party (BSP) president Mayawati. “Bibek Debroy acted beyond his brief, which the central government must take immediate cognizance of and take action so that no one dares talk this way again”, said Mayawati. In her statement, Mayawati rightly said that the call for scrapping the Constitution was “anti-people” and “pro-capitalist” acts, which reflect a “casteist” outlook. In her words: “The Constitution is a guarantee of humanity and egalitarianism for poor, backward and neglected people. Only selfish, narrow-minded and casteist elements dispute such an outlook and seek to turn it into an anti-people and pro-capitalist document. Opposing such an idea is everyone’s responsibility”.

The BJP Government was quick to realise that Debroy’s view had politically backfired. Since the elections are at hand in several states and the united opposition parties are exposing the Narendra Modi Government’s failure to give relief to the people, the BJP Government, therefore, was quick to distance itself from Debroy’s remarks. In a damage-control exercise, the Economic Advisory Council to the Prime Minister stated that the call of having a new Constitution was the “personal” view of Debroy and “in no way do they reflect the views of EAC- PM or the Government of India”.

Bibek Debroy is one of the key ideologues of the Modi Government. He is a big supporter of market fundamentalism and reactionary and conservative Hindu nationalism. He, therefore, is a big opponent of vibrant public sectors, welfare and pro-poor policies. Caste-based reservation, other affirmative actions and minority rights are also anathema to him. This is how he fits into the RSS agenda.

It is true that the RSS sometimes speaks in favour of Swadeshi and spiritualism and opposes materialism and capitalism. But the larger reality is that it has been at the forefront of serving the interests of landlords, big merchants and corporate players.

The reason why the RSS and the BJP have risen to prominence in Indian politics within a short period is the strong backing they receive from dominant (even regressive)  forces. Hindutva ideology– which aims to establish majoritarianism and subordination of the workers, peasants, the lower castes, minorities and women – is often camouflaged as nationalism. In his article, Bibek Debroy also tried indirectly to strike a chord with nationalism by arguing that the Constitution had inherited a “colonial legacy”. As he put it, “Our current Constitution is largely based on the Government of India Act of 1935. In that sense, it is also a colonial legacy”.

It has been a favourite strategy of the RSS/BJP leaders to call anything that does not suit them, “colonial”.

From the Constitution to ideals such as secularism, gender rights and socialism is opposed by employing the charge of being non-Indic. But the RSS is not ready to accept the bigger reality that the foundation of its organisation and its core ideology of majoritarianism and cultural nationalism are what, in actuality, are completely foreign in origin. Several eminent political scientists have drawn parallels between the ideologies of German nationalism and the RSS worldview.

Since the Constitution is based on democratic ideals and its salient features are equality, liberty, fraternity, social justice, gender equality, the welfare state, secularism, pluralism, minority rights, federalism etc., the RSS has often found them impendent in their agenda to establish the complete hegemony of the privileged few. Remember that the large social base of the RSS and Modi is those who are strongly opposed to the rights of marginalized groups and minorities and welfare economics. But the electoral compulsion has restrained them not to come out openly to express their counter-revolutionary agendas. The anti-Constitutional statement of Debroy is a litmus test of the public mood.

History bears witness to the fact that the RSS has often tried to delegitimize the Constitution. When the Constitution was drafted, the Organiser, RSS mouthpiece, turned into a rejectionist mode. Instead of celebrating the democratic and secular Indian Constitution, it began to heap praises on Manusmriti. Remember that Manusmriti, the social code, was burnt by Ambedkar on 25 Dec 1927 at Mahad for promoting inequality. According to Babasaheb, Smriti literature, including Manusmriti, gave legitimacy to the counter-revolution. Moreover, it replaced birth with worth as the criterion for assigning social roles. Soon, it facilitated the downfall of Shudra. Eventually, it resulted in the servitude of Shudra and pushed women to fall into a state of ignominy.

In other words, Ambedkar argued that the servitude of marginalised groups including women was legitimized by Manusmriti. Since the days of Mahad, no other political groups other than the Hindutva forces have defended it. For example, the editorial of the Organiser (November 30, 1949), shamelessly wrote that “in our constitution there is no mention of the unique constitutional development in ancient Bharat. Manu’s laws were written long before Lycurgus of Sparta or Solon of Persia. To this day, his laws as enunciated in the Manusmriti excite the admiration of the world and elicit spontaneous obedience and conformity. But to our constitutional pundits, that means nothing”.

Note the dubious politics of RSS: while it claims to be “the champion” of Babasaheb Ambedkar, its leaders keep praising Manusmriti which Ambedkar opposed all through his life. M.S. Golwalkar, the second Sarsanghchalak of RSS and one of its key ideologues, went on to praise Manusmriti.  In his book Bunch of Thoughts (1966), Golwalkar believed that “Bhagwan Manu and the greatest lawgiver of mankind”. Manusmriti is also known as the Laws of Manu.

Continuing the attack on the Constitution, the VHP, an affiliate of the RSS, passed a resolution in his Dharm Sansad and called the Constitution as anti-Hindu. It, therefore, demanded that the Indian Constitution should be replaced with the one based on Hindu religious texts. 

Worse still, a group of people, who are believed to be anti-reservation, burnt a copy of the Constitution close to Parliament in August 2018. The upper caste lobby, the core of the RSS social base, is also anti-reservationist but because of the electoral calculation, it does not openly speak against it. However, the current RSS Sarsanghchalak has called for a review of the reservation, which aims at giving its core supporters a hint that the RSS is serious about their concerns.

For Ambedkar, reservation (read affirmative action) ensures the representation of marginalised groups in public institutions without which the upper caste policy-makers would serve their own caste interests. Contrary to it, reservation, for the Hindutva forces, is a negative policy that was “imposed” on the country by the secular Congress government. The Hindutva forces would like to end reservation because it facilitates the entry of marginalized groups into policy-making which has been so far the fiefdom of a few privileged castes.

Much before Debroy, the former  Jana Sangh President Deendayal Upadhyay (1916- 1968), in his booklet Rashtra Chintan, raised questions about the Constitution and identified lacunas in it. He said that the Constitution was framed after copying the Government of India Act 1935, a similar argument repeated by Debroy. Moreover, Upadhyay argued that it was based on Western knowledge; it was a bizarre combination of the presidential system of the USA and the parliamentary system of the UK; the lack of feeling of Indian- ness (Bhartiyata) in the Constitution. He also criticised the provision in the Constitution regarding the name of the country and national language.

In 2000, RSS Chief K. S. Sudarshan also raised a question mark over the Constitution.: “We do not accept the concept of minorities at all”. He also added that minorities should accept the “culture” of the majority. Earlier on August 14, 2000, Sudarshan—speaking to journalist Karan Thapar on BBC’s Hard Talk India said that “We do not accept the concept of minorities at all.” Sudarshan further said that the Constitution of India did not reflect the ethos of the people and we should evolve our constitution. As he put it, “The Constitution does not reflect the ethos of the people” and “we should evolve our own Constitution”. When the Atal Bihari Vajpayee Government came to power, it called for a review of the Constitution.

Given this, we need to keep vigil against counter-revolutionary attempts.

An earlier version of the article was published in News Trail.

(Dr Abhay Kumar is an independent journalist. He has also taught political science at NCWEB Centres of Delhi University.)

The post A historic discomfort: RSS & Ambedkar’s Constitution appeared first on SabrangIndia.

Determining Scheduled Areas under the Fifth Schedule of Article 244 of the Constitution has been left largely to administrative and political interpretations. Mired in ambiguities, most often adverse, this resulted in the denial of what this constitutional provision potentially could offer the Scheduled Tribes. About sixty percent of the Scheduled Tribes are unjustly denied and kept out of the purview of this constitutional provision. Judicial pronouncements and laws such as the Provisions of the Panchayats (Extension to Scheduled Areas) Act 1996 and the Forest Rights Act 2006 clarify many of the ambiguities. These and more are attempted to be linked up here as an update to set clear well-defined tasks to address this long-standing unfinished agenda.

Introduction

Scheduled Tribe (ST) communities constitute 8.6% of the total population. STs constitute a majority in 110 districts out of 640 districts in the country, 20 to 50 % in 87 districts and 10 to 20 % in another 74 districts. Of the 5,97,483 villages, STs are a majority in 1,10,118 villages, 20 to 50 % in 45,902 villages and 10 to 20 % in another 29,800 villages (MoTA 2013).

Scheduled Areas have been notified vide Para 6 (1) of the Fifth Schedule to the Constitution in 10 States viz. Andhra Pradesh, Telangana, Odisha, Jharkhand, Chhattisgarh, Madhya Pradesh, Rajasthan, Gujarat, Maharashtra and Himachal Pradesh. They cover some 11.3 % of the total land area of the country (Wahi 2018:28). Of the 640 administrative districts, 104 districts have Scheduled Areas; 45 districts are fully notified and 63 are partially notified. They cover 77,564 villages of 22,040 panchayats in 664 blocks (MoPR 2023). These Scheduled Areas have 5.7 % of the country’s total population and 35.2 % of ST population. About 53 % of the total population in the Scheduled Areas are STs (Wahi 2018).

There are numerous ST habitations across the country that are not notified as Scheduled Areas. These STs are denied the constitutional rights and empowerment under Article 244 and the provisions in various laws as are applicable to the Scheduled Area such as the Provisions of the Panchayats (Extension to Scheduled Area) Act 1996 (PESA), 1 Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 20132, and where ‘local bodies’ are empowered as the Biological Diversity Act, 20023  and the related court orders.

There have been several sustained demands and campaigns from Adivasi (tribal) organisations to the concerned State governments for inclusion of the villages left out in the 10 States that have Scheduled Areas, and from other States that have ST populations, both large and small, but no Scheduled Area. The Bhuria Committee which was constituted to recommend provisions for the extension of panchayat raj to the Scheduled Areas had recommended to this effect. There have been a few positive initiatives from the State governments and fewer still have fructified. These tardy responses have often been explained away primarily with the argument that the demands and proposals do not consist of viable ST majority administrative units that may be considered eligible for notifying as Scheduled Areas. Parallel to this are the demands, both surreptitious and open, to denotify existing areas within Scheduled Areas. These demands have been made using the very same argument that several administrative units in existing Scheduled Areas no longer hold Scheduled Tribe majorities.

The legal basis for notifying Scheduled Area as to who can decide and what constitutes a Scheduled Area is examined here in order to determine whether the demands for inclusion of more areas as Scheduled Area and its reorganisiation, and exclusion of certain areas from Scheduled Areas are compatible with the law.

Who decides the area to be notified as Scheduled Area?

Article 244 (1) of the Constitution of India provides for the administration of the Scheduled Areas and Scheduled Tribes in States (other than Assam, Meghalaya and Tripura) in accordance with the provisions of the Fifth Schedule. ‘Scheduled Areas’ in Para 6 (1) of the Fifth Schedule to the Constitution means such areas as the President may by order declare to be Scheduled Areas. The Constitution does not provide any norm defining the administrative unit that ought to be the basis for declaration of Scheduled Area. The minimum percentage of ST population that must be contained in such area and a cut-off date for this are also not prescribed under Article 244, or in any law.

Further, Para 6 (2) of the Fifth Schedule confers powers exclusively on the President to declare any area as Scheduled Area. The Andhra High Court concluded that ‘neither the Executive Government nor the State Legislature, much less this Court, can declare an area to be a Scheduled Area’. Para 6 does not impose any limitation or restriction on the power of the President as to which areas are to be included or excluded in the Scheduled Area. This power is absolute and left to the discretion of the President. Therefore, the decision regarding the areas which are to form Scheduled Areas is not open to question or judicial scrutiny.

The Fifth Schedule unambiguously states that: ‘The President may at any time by order —

(a) direct that the whole or any specified part of a Scheduled Area shall cease to be a Scheduled Area or a part of such an area;

(aa) increase the area of any Scheduled Area in a State after consultation with the Governor of that State;

(b) alter, but only by way of rectification of boundaries, any Scheduled Area;

(c) on any alteration of the boundaries of a State or on the admission into the Union or the establishment of a new State, declare any territory not previously included in any State to be, or to form part of, a Scheduled Area;

(d) rescind, in relation to any State or States, any order or orders made under this paragraph, and in consultation with the Governor of the State concerned, make fresh orders redefining the areas which are to be Scheduled Areas’.

The Supreme Court has held that ‘the identification of Scheduled Areas is an executive function and we do not possess the expertise needed to scrutinize the empirical basis of the same,’ that ‘there has been a considerable influx of non-tribal population in some of the Scheduled Areas’ and ‘that persons belonging to the Scheduled Tribes should occupy at least half of the seats in Panchayats located in Scheduled Areas, irrespective of whether the ST population was in a relative minority in the concerned area’.

A  Public Interest Litigation challenging the 2007 notification declaring the Scheduled Area in Jharkhand on the ground that the percentage of ST population is less than 50 % in some blocks was dismissed by the Jharkhand High Court observing that the declaration of Scheduled Area ‘being within the exclusive discretion of the President neither violates any constitutional provisions, nor is the exercise of power has been done on extraneous considerations so as to be amenable to judicial scrutiny’.

The criteria for determining Scheduled Areas

The 1961 Dhebar Commission Report (GoI 1961) suggested four criteria for declaring new areas as Scheduled Area. They are:

(a) the preponderance of tribal population,

(b) compactness and reasonable size of the area,

(c) under-developed nature of the area and

(d) marked disparity in the economic standard of the tribals living in the areas.

The Ministry of Tribal Affairs largely agreed to the above recommendations9 which have generally been used for declaring Scheduled Area resulting in the Constitutional Orders since 1950 till 2007. All that the above recommendations mean is that the

• STs are to be greater in number, preponderant, not a majority, as compared to other social categories of peoples as the Other Backward Classes (OBC), Scheduled Castes (SC) and the residual ‘Other’ category. and
• that the area proposed should be a viable administrative entity. Therefore, the administrative entity or unit to be considered for scheduling is left to political and administrative decision grounded in social reality.

The Scheduled Areas and Scheduled Tribes Commission 2002 constituted under the Article 339 (1) of the Constitution had recommended that ‘All revenue villages with 40 % and more tribal population according to 1951 census may be considered as Scheduled Area on merit’ (GoI 2004). The Tribal Affairs Ministry communicated this recommendation in 2018 for consideration by the States for declaration of Scheduled Areas.10

The Bhuria Committee in 1995 (MoRD 1995) recognised the face-to-face community in the tribal areas managing its affairs to be the basic unit of the system of self-governance in tribal areas. A hamlet, or a group of hamlets or a village, as the case may be, is the natural unit of the community; this is distinctly different from the administrative units as the revenue village, the Panchayat, Taluk or the District. The Committee observed that the present administrative boundaries were drawn during the British period keeping their administrative convenience in mind. It took no note of the tribal situation in the country. Most of the country’s tribal population is located on the margins of different administrative units.

Moreover, the recommendations of various Government-appointed Committees were to include the remaining Tribal Sub-Plan (TSP) applicable in 21 States and 2 Union Territories with 193 Integrated Tribal Development Projects/ Integrated Tribal Development Agencies, Modified Area Development Approach (MADA) areas numbering 259, as well as similar pockets of 82 clusters, under the Scheduled Areas notification. Most states have ignored this till date.

The ambiguity in deciding on what should be the basic unit for consideration for notifying as Scheduled Area was finally settled when the fundamental administrative unit was defined under the PESA 1996.  PESA defined ‘village’ as: ‘a village shall ordinarily consist of a habitation or a group of habitations, or a hamlet or a group of hamlets comprising a community and managing its affairs in accordance with traditions and customs’. Following this, the ‘Gram Sabha’ got defined as ‘consisting of persons whose names are included in the electoral rolls’ of the village thus defined. This radically departs from the definition of the village which is generally the revenue village with a number of habitations, and the Gram Sabha which is at the Gram Panchayat level with a number of revenue villages and numerous habitations, resulting in a totally unwieldly area and population that intrinsically makes such Gram Sabhas non-functional, at best nominal.

The definition of ‘village’ under PESA, 1996 was adopted in the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA) applicable across the country making their Gram Sabha as the statutory administrative entity with reference to forest. Further FRA requires all ‘forest villages’, whether notified as a village or not, to be treated as ‘village’ in FRA and converted to revenue village. The definition of the village as the habitation or group of habitations as defined in PESA has now expanded its application beyond the Scheduled Area to the forest fringe areas and forest villages inside the forest.

Geographical jurisdiction and compactness of area

The territorial jurisdiction or the geographical limit of the ‘village’ has expanded under FRA to include the ‘Community Forest Resource’ (CFR). CFR is defined as the ‘customary common forest land within the traditional or customary boundaries of the village or seasonal use of landscape in the case of pastoral communities, including reserved forests, protected forests and protected areas such as Sanctuaries and National Parks to which the community had traditional access’ where FRA is applicable. The collective control of the Gram Sabhas and command over the CFR and its resources has now become lawful, although limited to forest land. The traditional or customary boundaries on revenue lands remain to be determined and demarcated by the Gram Sabhas.

Having identified the villages where STs are the major social group, the notion of compactness of the area is generally equated to whether the villages constitute a contiguous area, or are contiguous to existing Scheduled Area, if any. The Constitution does not prescribe that the area that is being scheduled has to be compact and contiguous. Contiguity is not a mandatory criterion adopted for demarcating administrative units. Rather, it is flexible though desirous, contingent on the ground reality. For instance, the Union Territory of Dadra and Nagar Haveli, and Daman and Diu are not contiguous. The Union Territory of Puducherry consists of four small geographically unconnected districts, namely Puducherry and Karaikal (enclaves of Tamilnadu), Mahé (an enclave of Kerala) and Yanam excluding Chandranagar (an enclave of Andhra Pradesh). There are enclaves of non-Autonomous District Council areas within the Tripura Tribal Areas Autonomous District Council Area.

Moreover, by policy recommendations, the Scheduled Area is to be coterminous with Tribal Sub-Plan and MADA areas. Many of these are not contiguous with each other, and to the existing Scheduled Areas in the States that have Scheduled Areas. In effect, contiguity is not a required criterion for notification of Scheduled Area. The Government of Kerala proposed the notification of Scheduled Area in 2015 comprising of 2,133 habitations, also called colonies or oorus, 5 Gram Panchayats and 2 wards which are enclaves in 5 different districts. This proposal is awaiting Union Government approval and Presidential notification. These are not contiguous areas.

Conclusion

The basic building unit of Scheduled Areas that is now well established in law applicable to Scheduled Areas is the ‘village’. A ‘village’ is defined as ‘a habitation or a group of habitations, or a hamlet or a group of hamlets’. All such villages outside of the existing notified Scheduled Areas in any State and UTs, where STs are greater in number as compared to other social categories of peoples as the OBC, SC and the residual ‘Other’, are to be notified as Scheduled Area. This step has to be initiated post-haste as the majority of STs continue to be denied the constitutional rights and empowerment under the Fifth Schedule provisions regarding the administration and control of Scheduled Areas and STs under Article 244 (1) despite the Constitution coming into force in 1950, and the passage of PESA a quarter century ago.

The geographical limit of these villages extend to the Community Forest Resource area in Scheduled Area and outside it as well on forest land under FRA where applicable. Therefore, the Gram Sabhas of the villages in Scheduled Areas should be empowered in law through suitable amendments to the relevant State/Union Territory laws, rules, regulations and manuals to determine and demarcate the geographical limit on revenue lands based on their customary and traditional boundaries. This has to be followed up by redrawing the geographical limits at the Gram Panchayat, Sub-Divisional and District level whether contiguous or not in the Scheduled Area.

The completion of the unfinished task of identifying villages and the area to be covered under the Fifth Schedule by the State and Union governments is a constitutional requirement that ought not to be delayed any further.

(The author examines natural resource conflicts and governance issues)

1     See https://tribal.nic.in/actRules/PESA.pdf

2     See https://www.indiacode.nic.in/handle/123456789/2121?sam_handle=123456789/1362

3     See https://www.indiacode.nic.in/bitstream/123456789/2046/1/200318.pdf

4     Andhra High Court, WP Nos. 15688 OF 2011, Mandava Rama Krishna & Seven Ors vs State Of Andhra Pradesh & Eight Ors on 17 April, 2014, https://indiankanoon.org/doc/127746566/

5     Patna High Court, Amarendra Nath Dutta And Ors. vs State Of Bihar And Ors. on 23 December, 1982, AIR 1983 Pat 151, 1983 (31) BLJR 609, https://indiankanoon.org/doc/201364/

6     See https://www.mea.gov.in/Images/pdf1/S5.pdf

7     Supreme Court of India. Union Of India vs Rakesh Kumar & Ors on 12 January, 2010,  Civil Appeal Nos. 484-491 of 2006, https://indiankanoon.org/doc/1356187/

8     Jharkhand High Court. Md.Ashique Ahamed vs Union Of India & Ors. on 10 February, 2016,  W.P. (PIL) No. 689 of 2010, 2016https://indiankanoon.org/doc/1356187/

9     Ministry of Tribal Affairs, Government of India. Criteria for declaring Scheduled Areas, Declaration of Scheduled Areas, https://tribal.nic.in/Clm.aspx

10    Ministry of Tribal Affairs, Letter No. 18016/04/2017-C&LM dated 1 January 2018 on redefining criteria for declaration of Scheduled Areas under Fifth Schedule of the Constitution.

11    See https://tribal.nic.in/downloads/FRA/FRAActnRulesBook.pdf

12   Principal Secretary, SC/ST Development Department, Government of Kerala. Declaration of Scheduled Area, Letter to Ministry of Tribal Affairs, Government of India No. 3432/D1/15/SCSTDD dated 07-04-2015.

13   Land and land revenue are subjects of State list (List II), listed at Sl. No.18 & 45.

References

1. Government of India (GoI) (1961): “Report of the Scheduled Areas and Scheduled Tribes Commission”, Vol. 1, 1960- 61, p.63, https://indianculture.gov.in/flipbook/1761
2. GoI (2004): “Report of the Scheduled Areas and Scheduled Tribes Commission”, Vol. 1, 2002-2004, p.76, https://ncst.gov.in/sites/default/files/2021/Report/Report.pdf
3. Ministry of Panchayati Raj, Government of India (MoPR) (2023): “Annual Report 2022-23”, p.120, https://panchayatgyan.gov.in/documents/448457/0/Annual+Report+2022-2023+%28English%29.pdf/4b1a9e49-0832-8138-7ab7-f5c8165b1e4b?t=1677130886320
4. MoPR (2023): “State-wise details of notified Fifth Schedule Areas”, https://cdnbbsr.s3waas.gov.in/s316026d60ff9b54410b3435b403afd226/uploads/2023/03/2023032444.pdf
5. Ministry of Rural Development, Government of India (MoRD) (1995): “Report of the Committee of Members of Parliament and Experts Constituted to make Recommendations on Law Concerning Extension of Provisions of the Constitution (Seventy-Third Amendment) Act, 1992 to Scheduled Areas”, https://ncst.nic.in/sites/default/files/2021/Report/Report_1.PDF
6. Ministry of Tribal Affairs, Government of India (MoTA) (2013): “Statistical Profile of Scheduled Tribes in India”, p.8, https://tribal.nic.in/downloads/statistics/StatisticalProfileofSTs2013.pdf
7. Wahi, Namita and Ankit Bhatia (2018): “The Legal Regime and Political Economy of Land Rights of Scheduled Tribes in The Scheduled Areas of India”, Centre for Policy Research, p.28-9, https://cprindia.org/wp-content/uploads/2021/12/The-legal-regime-and-political-economy-full-200418.pdf

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The people of our nation are charged with the duty of operating the Constitution and giving life to it by defending the core values enshrined in it and preventing it from being abused, said Justice K.M. Joseph on Saturday. The Supreme Court judge further explained, “Each generation of citizens is duty bound to remain alert and on their toes to safeguard the core value which the Constitution seeks to uphold and promote.” He added, “Every act or omission of one generation will either be a milestone marking the progress of a nation, or God forbid, the times which future generations will unerringly point to as tragic aberrations.”

Justice Joseph, as one of the senior puisne judges of the apex court, was speaking at the Constitution Day celebrations organised by the Supreme Court. During his brief address, he spoke about how it was the bounden duty of citizens to protect constitutional ideals and fend off attempts of misusing the “noble instrument”. “It is a legitimate right and duty of every citizen from every walk of life to prevent the Constitution from being abused,” he said. To deliver his point home, he quoted British philosopher and statesman, Edmund Burke who had said, “Nobody made a greater mistake than he who did nothing because he could do only a little.” Justice Joseph also pointed out that the architect of our Constitution, Dr B.R. Ambedkar had himself reportedly said if he found the charter being misused, he would be “the first to burn it”.

Speaking about the core values of the constitution, Justice Joseph enumerated, “One of the most cherished ideals “firmly enshrined” in the Preamble to the Constitution is fraternity. Our Constitution contemplates that Bharat will be a secular nation. Liberty is also a fundamental norm. ‘Liberty of thought, expression, belief, faith and worship’ are not merely words appropriately proclaimed in the Preamble, but are meant to ignite the minds and hearts of every citizen.”

Justice Joseph also highlighted how the Constitution of India conferred a fundamental duty on every citizen to promote transcendental harmony and a spirit of common brotherhood amongst all the people of India. He said that the adoption of the Constitution marked the culmination of a “long but uniquely peaceful struggle by millions who stood shoulder to shoulder bearing their differences based on religion, caste and the region from which they hailed”. “It is a fundamental duty to cherish and follow the noble ideals which inspired our national struggle for freedom. Not unnaturally, therefore, citizens also have the fundamental duty to promote harmony and a spirit of harmony transcending religious, linguistic, regional, or sectional diversities,” Justice Joseph observed.

Related:

“Only accommodation of differences can promote Unity in Diversity”: Chief Justice DY Chandrachud on Constitution Day

Our Constitution does not speak the language of exclusion: minority judgement holds EWS as unconstitutional

It’s Welfare & Social Justice under the Indian Constitution, not “freebies”

The post “Every Indian citizen has the duty to prevent abuse of the Constitution”: Justice KM Joseph On Constitution Day appeared first on SabrangIndia.

The Delhi High Court sentenced a police officer to 1-day imprisonment as he had arrested a man in defiance of the guidelines laid by the Supreme Court in Arnesh Kumar v. State of Bihar. The man arrested was detained for 11 days before bail could be granted to him.

The case against the man was of criminal breach of trust having a maximum sentence of three years and hence notice of appearance was needed to be served in order to arrest and if exceptional circumstances pleaded, reasons for the same were to be recorded.

“The requisite notice was not served upon the petitioner. There were mere allegations of criminal breach of trust against the petitioner, which entailed a maximum sentence of three years. It did not warrant the arrest of a person in the manner in which it was done,” said Justice Najmi Waziri.

Explaining the nature and consequences the Court stated:

“No amount of explanation to the neighbors or those who may have seen the arrest, would undo the embarrassment and indignity suffered by the petitioner and his relatives. Arrest and incarceration destroys a person and collaterally affects many other innocent relatives. Subsequent release or acquittal of an innocent, is of no solace and offers no reparation to the loss of reputation or for the temporary loss of precious personal liberty.”

Further the Court highlighted that the right to personal liberty was granted by the Constitution and could only be curtailed by a procedure established by law. In case this procedure, in the present case that under Section 41A Cr.P.C. is violated, it may not only affect the petitioner but the whole family.

The police officer even tendered an apology, however the court refused to accept the same and imposed a fine of Rs. 2000 as well as nominal costs of Rs.15,000 to be paid to the petitioner.

The complete order may be read here: 

SC Guidelines in Arnesh Kumar

In Arnesh Kumar v. State of Bihar (2014) 8 SCC 273, having apprehensions related to arrest under Section 498-A of the Indian Penal Code, 1860 and Section 4 of the Dowry Prohibition Act, 1961, the Court ordered that no arrests will be made automatically in cases under Section 498-A.

Examining the statistics highlighted the increase in marital disputes and rampant misuse of Section 498- A to make arrests and harass the husband’s family, the court said:

“The rate of charge-sheeting in cases under Section 498A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal.”

The Court further elucidating the role of magistrates and police officers in making arrests, laid the following guidelines:

1. State governments had to instruct police officers to not directly arrest person when registered with offence under S. 498-A. It may be necessary when it falls under Section 41 of the CrPC.

2. Checklist under Section 41 (1) (b) (ii) need to be given to all police officers.

3. While producing accused before magistrate for further detention, this check list to be duly filled and also having the reason and material necessary for making the arrest

4. Relying on this report and only after recording the reason for arrest and on magistrate’s satisfaction, will further detention be granted.

5. If not arresting accused, this decision be forwarded to magistrate within two weeks from when case instituted with copy of Magistrate extended by the Superintendent of police of the district for the reason to be recorded in writing.

6. Notice of Appearance as per Section 41-A CrPC is to be served to accused within two weeks from when case instituted and which may be extended by the Superintendent of Police after recording the reason in writing.

7. If directions not complied with, police officers liable for contempt of Court before the High Court having jurisdiction.

8. If detention is authorized by Judicial magistrate without recording reasons, they be liable for departmental proceedings by the High Court.

9. Further, these directions were to not only apply to cases under Section 498-A or Section 4 of the Dowry Prohibition Act, but also all such cases where offences are punishable with seven years or lesser imprisonment, irrespective of the fine.

10. The copy of this order was to be forwarded to all the chief secretaries and DGPs of all the states and Union territories as well as the Registrar Generals of all high courts in order to ensure compliance with.

Previously, the judgement has been cited in cases whereby bail was granted if the arrest were not in compliance with the guidelines e.g. interim bail of comedian  Munawar Faruqi (Munawar v. State of Madhya Pradesh, Writ Petition (s) Criminal No.(s) 6/2021.)

Contempt cases and liability of police officers:

1              In 2017, when these guidelines were not adhered, a contempt case- Pankaj Goyal v. Dushyant Tyagi, COCP No. 283 of 2016 was filed in the Punjab and Haryana High Court. However, delivering on the lines of the Government’s contention that high courts can’t initiate contempt proceedings or provide punishment in cases of contempt of the Supreme Court as previously held in Vituasah Oberoi & ors. vs. Court on its own motion (Criminal Appeal No. 1234 of 2007), the petitioner was allowed to withdraw his case.

2              In Jaikanth v. State of Karnataka (CRL.P. NO.4306/2019), the Karnataka HC quashing the FIR filed against S Jaikanth (admin of Facebook page named Troll Maga), not only reprimanded the police over their act of Fundamental rights violation, but also imposed a fine of Rs. 1 lakh, to be solicited from the officers involved with the arrest. Further, the Court also directed the DGP and Inspector General of Karnataka Police to conduct enquiry against these officers involved. The Judicial magistrate who had remanded Jaikanth even though anticipatory bail was granted by the Court was ordered departmental action against by the HC.

3              The Telangana HC dated 24.01.2021 order Ramadugu Omkar Varma v. Shri Ashok Naik (Contempt Case No.1179 of 2019) and Madras HC order dated 11.02.2021 in Mariappan v. J.K. Tripathy, Contempt Petition (MD) No.1711 of 2019 are other such examples of Contempt cases. In the former case, complaint being registered under Sections 420, 354 and 509 of Indian Penal Code, 1860, the said offences not being punishable with more than seven years imprisonment, the petitioner however was arrested without issuing a notice under Section 41-A of the CrPC. The Court acknowledging the deprivation of the petitioner’s personal liberty as due process of law was not followed, the police officer was levied a fine of Rs. 2000 and 4-week imprisonment. In the latter case, there being a complaint against the petitioner on a financial transaction as to when the complainant went to the petitioner for getting a Rs. 5, 00, 000 /- loan, the petitioner arranging for the loan through Santosh Kumar, obtained mortgage on complainant’s properties as security in the favour of himself. When the loan amount was repaid to the petitioner, he in turn did not pay it to Santosh Kumar and also did not cancel the registered mortgage deed.

When the complainant made a complaint to the SP, Virudhunagar, a police inspector from district crime branch, Virudhunagar, registering a case against the petitioner under Sections 406, 420 and 34 IPC, also arresting them and remanding to judicial custody. In this case however, the inspector justified the arrests on the basis that the petitioners are indulging in similar offences. Thus, for smooth course of proper investigation and preventing them from tampering the evidence or any threat or promise to any person that may be knowing the facts of the case, the officer made the arrest. There was no willful deliberation on her part.

Further the officer had also made an unconditional apology if any part of the Supreme Court orders were violated. Further, the Judicial magistrate was also satisfied by the remand report. The Court in this case further referring to other two contempt cases (viz. Cont.P.No.16 of 2008 dated 26.09.2008 and in Cont.P.(MD). No.974 of 2014 dated 18.08.2014), observed that the Court has showed leniency and left with a warning. Accordingly, the Court dismissed the case by directing the DGP to apprise its officers by circulating a memo with the law as laid in the Supreme Court order.

4              In November 2021, the Telangana HC in V. Bharath Kumar v. State of Telangana (CRL.P. No. 8108/ 2021), elucidating the duty of the police officers to follow the procedure, it stated caution:

“Any deviation in this regard (procedure under Section 41A CrPC and Arnesh Kumar Guidelines) will be viewed very seriously”

In this case, the petitioner had filed an application for anticipatory bail under Section 438 CrPC, as he had duped the complainant. Thus, he was booked under Sections 406, 420, 504 and 506 IPC and the police instead of following the procedure under Section 41A CrPC threatened the petitioner with arrest.

Thus, the Court held:

“If the petitioner is aggrieved by the action of the police in not following the procedure contemplated under Section 41-A Cr.P.C. and resorting to other means and measures by threatening him to compromise the matter, petitioner is at liberty to initiate appropriate proceedings against the officers concerned. It is further directed that having issued notice under Section 41-A Cr.P.C., the police are bound to follow the procedure and the guidelines issued by the Hon’ble Apex Court“

5              The Court in M.A Khaliq v. Ashok Kumar (LL 2021 SC 472), whereby the wife had complained against the husband of offence under Section 498-A, the husband had prayed before the Court that his arrest not be made without a notice as per procedure under Section 41 A CrPC, to which the Court ordered that the Arnesh Kumar guidelines be followed. Despite this he being detained, he filed a case of contempt and the Court had sentenced the police officer for three months imprisonment. This order was set aside by the division bench on grounds that no crime was registered and the guidelines were hence not applicable, however, the Supreme Court found this Division bench order not only violative of the Arnesh Kumar guidelines, but also D.K. Basu v. State of West Bengal. Thus. even though crime was not registered, the Arnesh Kumar guidelines apply. The Court restored the single bench order and reduced the sentence to 15 days.

Implications for jurisprudence:

As also earlier understood, many High Courts have made directions not only to the police officials but also the Judicial magistrates who have the onus of issuing remand.

1. The Judicial magistrate who had remanded Jaikanth even though anticipatory bail was granted by the Court was ordered departmental action against by the Karnataka HC in Jaikanth v. State of Karnataka (CRL.P. NO.4306/2019), mentioned above.

2. Similarly, in a petition that came up before the Patna HC in Kundan Kumar v. State of Bihar & Ors. (WP (Crl) No. 1703/2019) whereby the judicial magistrate had very casually remanded custody of the accused without satisfying the necessity for arrests and such remands continued to be passed for three months, the Court said that it not just being a formality, the Judicial officers are not equivalent to mere post officers and they have to necessarily examine the record  and then record their satisfaction as to the necessity of detaining the accused. Further, in this petition, the Court directed the Patna judicial academy director to train the magistrates in matter of custody and remand applications

De-congestion of prisons:

With the increase in number of arbitrary arrests not confining to the guidelines, a petition was filed in the Apex Court which sought its direction so that the guidelines are properly followed by the Police officers. Statistics stated by the plea are:

“The national average prison occupancy rate was 18.5% as of 31 December 2019 according to the National Crime Records Bureau Prison Statistics India 2019 Report. According to the same report several States and territories have had a glaring occupancy rate including Delhi (174.9%), Uttar Pradesh (167.9), Uttarakhand (159%), Meghalaya (157.4%), Madhya Pradesh (155.3%), Sikkim (153.8%), Maharashtra (152.7%) and Chhattisgarh (150.1%)”

The bench presided by the former Chief Justice of India SA Bobde refused to entertain this plea filed by law researchers Ameya Bokil and Srujana Bej on grounds that prayers in the writ petition were “broad and general” and though, specific instances of arrests in petty offences amidst the pandemic and as against the guidelines were brought in front of the Court, it was suggested by the Chief Justice of India that contempt cases be filed if the order conditions are violated by arrests. Hence, the petition was withdrawn with liberty to file a new one.

However, during the second wave of Coronavirus, the Apex Court in May, 2021 while passing directions in order to de-congest prisons in Re: Contagion of Covid 19 Virus in Persons, Suo Motu Writ Petition(C) No.1/2020, while listing measures to be followed, firstly reiterated the need of strict adherence to the Arnesh Kumar guidelines when making arrests.

Further, the compliance of this order in the state of Madhya Pradesh was examined in Reference (Suo Motu) v. The State of Madhya Pradesh and Others (WP/08391/2020). The Madhya Pradesh High Court having set up a high power committee for reviewing the situation, when apprised of the non- compliance of various resolutions taken by the committee, the Court directed it to:

1. Meet again and review the situation in order to evaluate compliance

2. Examine cases of anticipatory bail being rejected and advisability to file new applications

3. To impart to the DGP to comply with the guidelines

Checking compliance to Section 41-A

In Vimal Kumar & Ors. v. State of UP & Ors. (Criminal Misc. Writ Petition No. 17732 of 2020), filed before the Allahabad High Court, whereby dowry was demanded from daughter-in-law by a family and complaint filed, the police officer regularly visited the accused’s home and thus the plea for following the procedure. The Court being aggrieved by the fact that even in cases where punishment is less than 7 years, the police has been routinely arresting the accused and repeatedly writs are being filed, elucidated the object of Section 41- A to be that person not having committed heinous crime and not requiring detention, be not arrested. Further the Court studying the judgement in Manav Adhikar & Anr. v. Union of India & Ors., Writ petition (civil) no. 73 of 2015, made the following observations:

1. In the initial stages of accused not being proven guilty, like where accused has to be detained after investigation as under Section 170(I) and Section 41(I)(b)(ii)(e) Cr.P.C or in case the person surrenders,  the bail is to be considered expeditiously rather than mechanically.

2. Focused on interim bail in appropriate cases

3. Remand magistrates to not grant remand if preconditions for granting same as listed in sections 41(1)(b) and 41 A Cr.P.C are not fulfilled if penalty is 7 years imprisonment. Further, also not in malafide cases. It also sounded caution on granting remand routinely and that the repeated entry in case diary of the above-said pre-conditions are not sufficient for approving arrest.

4. The Court also directing the magistrates to report names of police officers that according to their opinion make mechanical or malafide arrests in order to take action may be taken against them. This can be done by the magistrate informing the Registrar of the High Court through the District Judge. Further, action is to be taken against such officials by directing the DGP accordingly or contempt proceedings to be filed in the Court.

5. Compliance with Section 41 A to be reviewed in monthly meetings by district judges, administration and superior police officials.

Similarly, in June 2021, the Madhya Pradesh High Court in Zarina Begum v. State of Madhya Pradesh through P.S. E.O.W highlighted the issue that district judges were extremely tight fisted with granting bail as they may be apprehensive that the same maybe complained to the High Court and enquiry proceeding be initiated. However, the Court emphasizing on the need of a fearless judiciary gave directions to the magistrates and police officers on the lines of Supreme Court order in Arnesh Kumar and its implementation as follows:

Direction to police officers:

1. Unless a special statute needing arrest in case of offences with imprisonment up to 7 years, no arrest by police by ordinary course.

2. In such cases, the police needs to record reasons necessitating arrests such as to prevent from committing offence further, etc.

3. Checklist of pre-conditions fulfilled by police under section 41(1)(b)(ii) Cr.P.C, for offences with imprisonment up to 7 years and the same needs to be furnished before the magistrate along with remand application.

4. If decision is to not arrest, police is to intimate the magistrate within 2 weeks of FIR registration and the period can be extended by SP if reasons in writing.

5. If interrogation required, notice in terms of section 41A Cr.P.C or s. 160 Cr.P.C has to be served to the accused within 2 weeks of registering FIR and the period can be extended by SP if reasons in writing.

6. If police does not arrest accused and if on notice, he himself surrenders, then police may not arrest except for compelling reasons which are to be recorded, as per para 31.2.

7. If police does not perform accordingly, contempt proceedings can be filed and administrative action can be taken.

Direction to magistrates:

1. The magistrates while giving remand are to make sure that:

2. Arrest satisfies requirements under Section 41 CrPC

3. The check list as ordered in the Supreme Court guidelines is there

4. If paras 11.2/11.3 of the Arnesh Kumar guidelines are not complied with, the arrest being unlawful, further detention is not to be authorized and accused is to be released.

5. Independent satisfaction is recorded while authorizing detention and for further detention, this satisfaction stand in compliance to para 11.4 of the Arnesh Kumar guidelines.

6. Satisfy that specific reasons for arrest are recorded and also that they are relevant

7. and raise a reasonable conclusion that one of the conditions for further detention is satisfied.

8. If the magistrate fails to follow any of these, administrative proceedings may be initiated.

 The Court also listed the factors that were to be considered while granting bail as follows:

1. If bail is granted, will it help the person attempt and influence the witness or course of investigation by threatening or monetary inducement.

2. In case of recidivists or repeated offenders, the probability of person committing another crime if released on bail to be considered.

3. The probability that the complainant may take a revenge action against the accused.

4. Whether there is reasonable apprehension that release may breach peace and result in social or civil unrest giving regards to the nature of the offence alleged against him.

5. Whether evidence can be destroyed which has not been collected during investigation.

6. Prima facie evidence is indicative that the person may abscond if given bail.

In the particular case, the Court giving bail the directions given were directed to be circulated to all districts including to the lowest functionaries.

Related:

Erratic arrests by police and the Arnesh Kumar Judgement
Release persons not arrested as per Arnesh Kumar guidelines: MP High Court

The post Delhi HC sends police officer to prison for a day for violating Arnesh Kumar guidelines appeared first on SabrangIndia.

The Constituent Assembly (CA) of India finalised the Constitution of India on November 26, 1949, a date which is celebrated now every year as Constitution Day. This Constitution promised a new-born Indian Republic a polity based on democracy, justice, egalitarianism and rule of law. However, RSS was greatly annoyed. Four days after the historic event of approval of it, the RSS English mouth-piece, Organiser in an editorial on November 30, 1949, complained:

“But in our Constitution, there is no mention of the unique constitutional development in ancient Bharat. Manu’s Laws were written long before Lycurgus of Sparta or Solon of Persia. To this day his laws as enunciated in the Manusmriti excite the admiration of the world and elicit spontaneous obedience and conformity. But to our constitutional pundits that means nothing.”

Thus, Rashtriya Swayamsevak Sangh (RSS) wanted this Constitution to be replaced by Manusmriti or Manu Code which is known for its derogatory and inhuman references to Sudras, Untouchables and women. By demanding promulgation of the laws of Manu in independent India RSS was simply following its mentor, philosopher and guide VD Savarkar. According to him,

“Manusmriti is that scripture which is most worship-able after Vedas for our Hindu Nation and which from ancient times has become the basis of our culture-customs, thought and practice. This book for centuries has codified the spiritual and divine march of our nation. Even today the rules which are followed by crores of Hindus in their lives and practice are based on Manusmriti. Today Manusmriti is Hindu Law.”

RSS continued to hate the Indian Constitution despite it being regarded as one of the finest documents upholding principles of equality and justice, globally. The most prominent ideologue of RSS, MS Golwalkar declared it to be anti-Hindu. The collection of his writings Bunch of Thoughts which is a Bible for the RSS cadres carries the following statement against the Constitution.

“Our Constitution too is just a cumbersome and heterogeneous piecing together of various articles from various Constitutions of Western countries. It has absolutely nothing which can be called our own. Is there a single word of reference in its guiding principles as to what our national mission is and what our keynote in life is?”

What kind of civilization the RSS and Hindutva camp want to build by enforcing the laws of Manu, can be known by having a glimpse of the laws prescribed by Manu for the lower castes/Untouchables and women. Some of these dehumanising and degenerate laws, which are presented here, are self-explanatory. 

Laws of Manu concerning Dalits/Untouchables

[This selection of Manu’s Codes is from F. Max Muller, Laws of Manu (Delhi: LP Publications, 1996; first published in 1886). The bracket after each code incorporates the number of chapter/number of code according to the above edition.] 

1.    For the sake of the prosperity of the worlds (the divine one) caused the Brahmana, the Kshatriya, the Vaisya, and the Sudra to proceed from his mouth, his arm, his thighs and his feet. (I/31)

2.    One occupation only the lord prescribed to the Sudras, to serve meekly even these (other) three castes. (I/91)

3.    Once-born man (a Sudra), who insults a twice-born man with gross invective, shall have his tongue cut out; for he is of low origin. (VIII/270)

4.    If he mentions the names and castes (jati) of the (twice-born) with contumely, an iron nail, ten fingers long, shall be thrust red-hot into his mouth. (VIII/271) 

5-    If he arrogantly teaches Brahmanas their duty, the king shall cause hot oil to be poured into his mouth and into his ears. (VIII/272)

6.    With whatever limb a man of a low caste does hurt to (a man of the three) highest (castes), even that limb shall be cut off; that is the teaching of Manu. (VIII/279)

7.    He who raises his hand or a stick, shall have his hand cut off; he who in anger kicks with his foot, shall have his foot cut off. (VIII/280)

8.    A low-caste man who tries to place himself on the same seat with a man of a high caste, shall be branded on his hip and be banished, or (the king) shall cause his buttock to be gashed. (VIII/281)

      As per the Manu Code if Sudras are to be given the most stringent punishments for even petty violations/actions, the same Code of Manu is very lenient towards Brahmins. Shloka 380 in Chapter VIII bestowing profound love on Brahmins decrees:  

      “Let him never slay a Brahmana, though he have committed all (possible) crimes; let him banish such an (offender), leaving all his property (to him) and (his body) unhurt.”

Laws of Manu concerning women

1.    Day and night women must be kept in dependence by the males (of) their (families), and, if they attach themselves to sensual enjoyments, they must be kept under one’s control. (IX/2)

2.    Her father protects (her) in childhood, her husband protects (her) in youth, and her sons protect (her) in old age; a woman is never fit for independence. (IX/3)

3.    Women must particularly be guarded against evil inclinations, however trifling (they may appear); for, if they are not guarded, they will bring sorrow on two families. (IX/5)

4.    Considering that the highest duty of all castes, even weak husbands (must) strive to guard their wives. (IX/6)

5.    No man can completely guard women by force; but they can be guarded by the employment of the (following) expedients:

6.    Let the (husband) employ his (wife) in the collection and expenditure of his wealth, in keeping (everything) clean, in (the fulfilment of) religious duties, in the preparation of his food, and in looking after the household utensils.

7.    Women, confined in the house under trustworthy and obedient servants, are not (well) guarded; but those who of their own accord keep guard over themselves, are well guarded. (IX/12)

8.    Women do not care for beauty, nor is their attention fixed on age; (thinking), ‘(It is enough that) he is a man,’ they give themselves to the handsome and to the ugly. (IX/14)

9.    Through their passion for men, through their mutable temper, through their natural heartlessness, they become disloyal towards their husbands, however carefully they may be guarded in this (world). (IX/15)

10.  (When creating them) Manu allotted to women (a love of their) bed, (of their) seat and (of) ornament, impure desires, wrath, dishonesty, malice, and bad conduct. (IX/17)

11.  For women no (sacramental) rite (is performed) with sacred texts, thus the law is settled; women (who are) destitute of strength and destitute of (the knowledge of) Vedic texts, (are as impure as) falsehood (itself), that is a fixed rule. (IX/18)

Reproduced parts of Manu Code above need no further elaboration and commentary. They are too glaringly venomous, fascist and degenerated against Untouchables who are referred to as Sudras by Manu.

It is a hugely sad time for democratic-secular Republic of India that RSS-BJP rulers who worship Manusmriti and want to undo the present Indian polity would be putting up a farcical show of celebrating the Constitution Day. The nation must be at guard to defend the Constitution from wolves in the attire of sheep!

*Views expressed are the author’s own. 

Other articles by Shamsul Islam:

On 72nd anniversary of the Indian Constitution

Demolition of democratic, secular Constitution, old project of Hindutva gang

In times of CAA & NRC remember the words of Kakori martyrs 

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