Constitutional Law – The Law Blog

Indian Constitution and its Contractual nature

Posted on 14 Aug 201714 Aug 2017 by The Law Blog

The Indian preamble, an ideal manifestation of the objective sought to be imbibed in the Indian culture, not only in theory but in practice as well; starts with this magnanimous terminology of ‘We the people of India’; therefore, bestowing the ultimate power to the Indian citizens; so it is the Indian citizens, who under the umbrella of ‘Collective force’ have bestowed the Indian Constitution[1] with the power and not the Indian Constitution who has bestowed the power on the Citizens of India.[2]And all the powers of the Constitution, and that of the Constituent Assembly is been derived from the people of the India.[3]It is this declaration which makes preamble a sublime one as compared to others, it is draft not forced upon the unwilling hands of the bearer, in fact, it has been given to themselves by the people of the country through their ‘Constituent Assembly.’[4] Further, it was observed in the case of Union of India v. Madangopal[5]–

“Our Constitution as appears from the Preamble, derives its authority from the people of India, and learned counsel conceded that it was open to the people to confer on the legislatures established by the Constitution, which they framed through their representatives, power to make laws having operation in relation to periods prior to the commencement of the Constitution.”

Additionally, it establishes a contractual nature of the Indian Constitution; which is a result of the consent of the Indian Citizens underlying it.[6] The very concept that Indian Constitution is a Contract, needs much convincing to be believed in. The Idea of the contractual nature of the Constitution was first given by Lysander Spooner; who quotes

“The Constitution has no inherent authority or obligation at all, unless as a contract between man and man.”[7]

On this principle he works out a contour, where he concocts that if a Constitution is a contract, similarly it shall be applicable to the persons who were present then when the contract was being made e.g., when the American Constitution was being framed in the 1776, this contract shall be applicable only to the citizens of America present at that time. Similarly, the Indian constitution which was drafted in 1950 is applicable to the citizens living at that time.

But the point of difference between a Contract and a Constitution comes in due to the compulsory nature of the latter as compared to the voluntary nature of the former. This is what John Locke called it as tacit consent to the citizenship.[8]As it is a pre-requisite for the formation of the Contract, that both the parties must have given their voluntary consent to the agreement; the same is not case with the Indian Constitution, as explained by John Locke in his “two treatise of Civil Government.”

Tacit Consent to the Contract

The very idea behind the concept of tacit consent to the Constitution was first evolved by John Locke, where he has styled that by taking birth in a particular country and by using its amenities we are impliedly agreeing to its suzerainty. The traces of which can be found in section 8 of the Indian Contract Act 1872; which specifically provides that a contract can be entered either by performing the condition or by receiving the consideration, therefore, our taking birth on the Indian soil and using its amenities has qualified us to be a party to this Contract we call Constitution.

The trespasser Obligation

Another theory which compels us to the obligatory nature of the Constitution is the concept of Trespasser obligation, under which the person trespassing the land of the owner is liable to follow his orders or else he shall be liable for trespassing, similarly by taking birth on the land of India, we are somewhere trespassing on the land of Indian Government, therefore are suzerainty is subject to Indian Sovereignty.

[1] Sauvik. Chakraverti, The Essentials Frederic Bastiat, Liberty Institute, 2007, Bastiat was a great supporter of human liberty and was of the view that it was the collective force of the human society which gives the Law its force.

[2] Keshavanada Bharti v. State of Kerala (1973) 4 SCC 225, see also Behram Khurshid v. The State of Bombay AIR 1955 SC 123

[3] Constituent Assembly Debates, Vol. 1, 13^th Dec. 1946, The resolution moved by Jawahar Lal Nehru on the the aims and object of the Indian Constitution.

[4] A.K Gopalan v. State of Madras, AIR 1950 SC 27: 1950 SCR 88 per MAHAJAN, J.

[5] Union of India v. Madan Gopal, (1954) SCR 541 (655).

[6] Lysander Spooner, No Treason: The Constitution of no authority, Free Patriot press, U.S.A, 1867, the philosopher put forward the idea; that the constitution is only enforceable on the people who were living at the time when (Spooner, 1867)the constitution was made; he was an absolute believer on the contractual nature of the contract

[7] Id. Pg 3

[8] John Locke, Two treatise of the Civil Government, ed. Thomas Hollis (London: A. Millar et al., 1764). John Locke said by living under the suzerainty of a particular nation, we have given them our tacit consent to be their citizenship. See also Thomas Hobbes’ ‘Social Contract’ 1651, where he regarded as a single contract whih led to the offspring of state and devolution of the power by the people in the Levithian ruler whereas, John Locke in his Social Contract of 1689 was of the view that there were two contract, first by which the people organized themselves and by the second contract they surrendered their right to the sovereign King.

ABOUT THE AUTHOR

ASHIT KUMAR SRIVASTAVA

Ashit Kumar Srivastava (AKS) is currently working as an Assistant Professor at Amity University, Lucknow. His main area of interest is Constitution and Jurisprudence. However, he mostly inter-relates various socio-legal topics together.

A Need to Define Limits to Constitutional Change

Posted on 28 Mar 201728 Mar 2017 by The Law Blog

Constitutional reform, progressively known as constitutional change[1] in recent times, is an act of the state that results in a change in the constitutional text of the nation. Undoubtedly, there is a dire need of regular changes to a constitution keeping in view the ever-dynamic nature of the law as well as society. Also, almost all the constitutions[2] across the globe realise the necessity of a carefully designed well-defined process[3] therefor.

However, the debate arises when the question concerns the limit to which such changes can be made. The Constitution of a country undoubtedly provides the basic foundations for the building of political, economic, and legal systems thereof; and changes to the constitution may have serious effects on those, sometimes a detrimental one.

There arises a proposition that apart from providing a carefully crafted process for such constitutional changes, there must be some underlying rule or principle governing the limit to such changes. And, since the limits cannot be set by statutory means,[4] there must be underlying doctrines to serve the same.

Time and again various supreme courts have observed the necessity to define limits to constitutional change and have manifested their observations by laying down doctrines.[5] Also, sometimes the doctrines have been created out of the court rooms.[6] And in both the cases, there lies a belief at the root of this that there must be a limit to the constitutional change.

Putting limits to constitutional change seems of utmost importance when we look at the case of Turkey’s Constitutional Reform recently. Last December, Turkey’s ruling Justice and Development Party (AKP) unveiled a raft of proposed constitutional changes that may consequentially change the parliamentarian form of governance into a presidential one. Although it may seem that it has chances of ensuring stability in the governance, the chance of a one-man rule also cannot be denied.

In an ideal democracy, an unfettered power to change the constitution may be a thing of unanimous acceptance; but the case is different when there’s constantly a dark power play between parties and persons. Lack of limits to constitutional change always instils a fear of tyranny of the majority.

Noted Indian judge Hidyatullah J. observed the same when deciding for a case of similar nature in the Supreme Court of India.[7] Fundamental provisions like Fundamental Rights and Personal liberty, in his words, cannot be a plaything of the majority. Lack of any limit to constitutional changes may create occasions where the basic ideologies and fundamental provisions are treated as the plaything of the majority party in the parliament.

Apart from practical theories like the abovementioned, there also exists theoretical doctrines necessitating for limits to the constitutional change. Some doctrines, exploring the nature of the constitutional amendment power, conclude the same to be a sui generis power that rests within a spectrum between the constituent power and the ordinary legislative power. Drawing on the French Doctrine distinguishing pouvoir constituant originaire and pouvoir constituent derive, a further conclusion is drawn that the amendment power is a delegated ‘secondary constituent power’, authorised by ‘the people’s primary constituent power’.[8]

There are a number of similar arguments on the need and inherency of limits to constitutional change. The foundational structuralism argument contends that there are basic features of every constitution that make up a specific constitutional identity and a hierarchy of constitutional values beyond the reach of the delegated amendment power.[9] The basic structure doctrine developed by the Indian Supreme Court holds a somewhat similar view regarding unamendability of certain provisions.

Every power must come with its own set of limits, for limitless power opens door to tyranny, dictatorship, and corruption. Be it the foundational structuralism, the constitutional essentialism, or the basic structure doctrine, there must be set well-defined limits to constitutional change so as to prevent the constitution from being a plaything of the majority.

[1] The UK parliament has expressed the view that the term ‘constitutional change’ is to be used rather than the term ‘constitutional reform’ as the latter necessitates a positive stroke in the change. Read the full text here: https://www.publications.parliament.uk/pa/ld201012/ldselect/ldconst/177/17704.htm

[2] Constitutions of various countries contain provisions as to how the constitutional changes will take place. For example, Article V of the American Constitution, Article 368 of the Indian Constitution etc.

[3] A well-defined process is of utmost importance as observed by many scholars and cited in many reports. See Constitution Committee, 8^th Report (2010-2011): Fixed term parliament bills (HL Paper 69), para 160, UK

[4] Constitution being the supreme law, must lay down the limits and principles for itself. However, providing specific rules regarding the same will be practically of no use as they too are vulnerable of being amended/changed. Alternatively, extra-strict or rigid provisions regarding the limit also seems unreasonable owing to the constant factor of change in the national as well as global scenario.

[5] For example, the Indian Supreme Court has laid down the ‘Basic Structure Doctrine’ in the case of Kesavananda Bharati v. State of Kerala.

[6] The doctrine of Constitutional Essentialism by John Rawls is a burning example of such cases. Although the doctrine of Constitutional Essentialism has not been approved yet by the US Supreme Court, still the effect of the same on the American Constitutional Law cannot be denied.

[7] Sajjan Singh v. State of Rajastan, 1965 AIR 845, IN

[8] Yaniv Roznai, Chapter 4, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers, Oxford University Press, 2017

[9] Ibid.

ABOUT THE AUTHOR

ANSHUMAN SAHOO

‘Passionate!’ That’s the only word he uses to describe himself. Questioning assumptions. Challenging hypocrisies. Making the planet a better place to live in. Can be found at http://www.anshumansahoo.in.

Constitution of India, Constitutional Law, Debatable topics

Countering the Criticism against Judicial Activism

Posted on 18 Sep 2016 by The Law Blog

This article is written by Dibyadarshini Nanda. Dibyadarshini is currently pursuing LLM from Utkal University, Odisha.

The concept of judicial activism has been criticised from its very beginning. The third President of USA, Thomas Jefferson referred it as the “despotic behaviour” of Federalist federal judges, in particular, of former Chief Justice John Marshall.[1] Some label it “judicial terrorism”, while it is called by others, the unchallenged authority acquired by the higher judiciary.[2]

The major criticism of Judicial Activism is that it is unconstitutional as the authority of legislative and executive is usurped by the judiciary which is not elected by the people.[3] In most countries, judges are appointed through methods involving selection or nomination, in which ordinary citizens do not have a say. It is argued that allowing the judiciary to rule on the validity of the enactments passed by a popularly elected legislature amounts to a violation of the idea of ‘separation of powers’.[4]

However, we must consider that the founding fathers of our Constitution placed enormous powers in the hands of the Judiciary[5]. Supreme Court is the guardian of Fundamental Rights of Indian citizens. According to Dr B.R. Ambedkar, the provision for judicial review constituted the heart and soul of the constitution.[6] There are many articles in the constitution, Article 32, 141, 142 and the likes, which show the vision of constitution makers about judiciary playing a predominant role in upholding the rule of law.

The question of judiciary usurping the authority of legislative and executive is aptly answered by C.N Irani as, “When the executive refused to apply law and willfully constantly and conspicuously refused to do their duty, it falls to the judiciary to act in defense of the constitution and the mandate of the rule of law and equality before law.”[7]

Further, it is quite clear from people approaching Court on issues of governance, that they have relatively greater regard for the Courts compared to other organs of government.[8]

Countering the arguments in regards of ‘separation of power’, as Alladi Krishnaswami Ayyer’s had remarked, “while Supreme Court’s function may be one of interpreting the Constitution, it cannot in the discharge of its duties afford to ignore the social, economic and work tendencies of the time, which furnish the necessary background.”[9]

The judicial view that “judges don’t make law, they declare it” is flawed. As said by Justice P.N. Bhagwati, “this theory has been evolved in order to insulate judges against vulnerability to public criticism. It also helps judges to escape accountability for what they decide. They can plead helplessness by saying that it is a law made by the legislature and they have no choice but to give effect to it.”[10] It cannot be denied that every doctrine of common law is developed by a judge at some point of time. Lord Reid, English judge put it “We do not believe in fairy tales anymore, so we must accept the fact that for better or worse judges do make law.”[11]

Judiciary is known as the temple of justice among the Indian citizens. The cost of litigation being quite high, an Indian litigant, moves to court when all other options have failed him. In this scenario, if the court would deny him relief, exercising restraint, then it would be a grave miscarriage of justice.

In a developing country like India, where the parliament is adjourned most of the time due to political reasons, the executive branch fails to implement the laws and police and other authorities often misuse their power, the active action by the judiciary is very much needed, though some amount of judicial restraint should be exercised from time to time to prevent vexatious and frivolous cases.

[1] ‘Judicial Activism’ (Wikipedia) <http://en.wikipedia.org/wiki/Judicial_activism> accessed 18 May 2013

[2] ‘IPA, Judicial Activism, Phenomenon, Fallout of Political Class’s Failure’ National Herald (New Delhi, 18 January, 2005 )

[3] Arjun.M, ‘Judicial Activism in India- An Overview’ (Solutions to Change, 12 December, 2012) <http://cppr.blogspot.in/2012/12/judicial-activism-in-india-overview.html> accessed 19 May 2013

[4] Justice K.G. Balakrishnan, ‘Judicial Activism under the Indian Constitution’(Trinity College Dublin, Ireland, 14 October, 2009)

[5] Justice R.C. Lahoti, ‘Judicial Activism’- Constitutional Obligation of the Court’ (B.M. Patnaik Memorial lecture, Cuttack, 22 January 2005) cited at 2005(1) CJD 1, p.5

[6] Dr. B.R. Ambedkar, Constituent Assembly Debates, Vol.7

[7] C.N Irani, ‘Cry the beloved Country’, The Statesman (New Delhi, 9 August, 1997)

[8] S.P Sathe, Judicial Activism in India (1^st Edn, Oxford University Press 2002)

[9] Alladi Krishnaswami Ayyer, Constituent Assembly Debates, Vol.7

[10] Justice P.N. Bhagwati, ‘Judicial Activism in India’ (1986) Volume 17, Issue 1 Gargoyle Alumni Magazine, University of Wisconsin Law School, Wisconsin, USA <http://law.wisc.edu/alumni/gargoyle/archive/17_1/gargoyle_17_1_3.pdf> accessed 20 May, 2013.

[11] Lord Reid, “The Judge as Lawmaker”

Constitution of India, Constitutional Law, Debatable topics

Doctrine of revival within the NJAC

Posted on 13 Sep 2016 by The Law Blog

On 16^th October 2015 the Supreme court passed a landmark judgement in which it repealed the 99th Constitutional amendment Act and held that the NJAC, which was supposed to replace the present collegium system of appointing judges, was unconstitutional. Although the court relied on a number of constitutional doctrines and various case laws to justify this verdict the most controversial aspects of its reasoning remained the application of the Doctrine of Revival for continuing the collegium system and the Stand that the basic structure would be violated by the NJAC.

1) WHETHER THE DOCTRINE OF REVIVAL COULD JUSTIFY THE COLLEGIUM SYSTEM

This case brought into limelight the Doctrine of revival, and soon after this judgement , a discussion regarding the merits and de-merits of this Doctrine of revival ensued in almost all legal circuits across the nation.

First of all, we need to understand what exactly the Doctrine of Revival is. The accepted common law stand is that when an amending act is struck down the pre-amendment version of the act will not revive solely by virtue of this amendment being struck down. However, the Indian judiciary has recognised three situations in which this common law stand does not apply. These three exceptions collectively form what is known as The Doctrine of revival.

These three exceptional situations are – Firstly when the lack of legislative competence causes an Amendment to be struck down. Secondly when such an amendment violates a Fundamental Right of the citizens of India, which is guaranteed by the constitution itself and thirdly when any amendment corrodes or works against the basic essential values of the constitution. Thus the doctrine of revival holds that if an amendment is struck down on the basis of any of the three

Thus the doctrine of revival holds that if an amendment is struck down on the basis of any of the three above-mentioned grounds then the former UN-AMENDED LAW revives itself and becomes automatically applicable. The first two of these exceptions were very clearly and unambiguously stated By the supreme court in State of Tamil Nadu vs Shyam Sunder–

“Thus, the law on the issues stands crystallized that in case the Amending Act is struck down by the court for want of legislative competence or is violative of any of the fundamental rights enshrined in Part III of the Constitution, it would be unenforceable in view of the provision under Article 13(2) of the Constitution and in such circumstances the old Act would revive, but not otherwise.”

The third exception, however, was not arrived at by the Supreme Court but was addressed by the Madhya Pradesh High court in the case of Sharique Ali vs State of Madhya Pradesh. However, it has gained the validity and approval of the Supreme Court which has used it as a standard to apply the Doctrine of Revival on more than one occasion. [1]

In this particular judgement the ,the discussion on this Doctrine started in an attempt to decide whether the striking down of the 99^th constitutional amendment act, on the grounds that it violated the basic structure of the constitution by the Supreme Court also meant that the Collegium system would get revived automatically due to the operation of this doctrine.

In my opinion, the collegium system should not be revived by the application of this doctrine. My Reasons for holding this belief are the following –

THIS DOCTRINE ITSELF HAS BEEN CHALLENGED IN THE COURT-

In the case of Property owners Association vs The State Of Maharashtra[2], the validity of the Doctrine of revival itself has been challenged by the supreme court, which is yet to form a proper bench to adjudicate upon the matter. The judges clearly overlooked the fact that the question of revival of the original article post the declaration of the unconstitutionality of the amendment still remains contested and thus using this same doctrine and supporting the legal rationale behind it to justify the revival of the collegium system( which is an issue which would have a long lasting and very significant national consequence) is completely incorrect in my opinion. Many would argue that the doctrine of revival has been applied to a lot of significant cases prior to the Property Owners case in which it was challenged, including the Keshavnanda Bharti case[3], which is supposed to be one of the most landmark judgements of Indian constitutional law. However, it is important to note that all these judgements came before the challenge to this doctrine. In other words, In all such cases, the final judgements were based on the assumption of revival; the point was never contested before the Court.

THIS IS A CONSTITUTIONAL LAW CASE NOT A CASE INVOLVING GENERAL LAW-

If one looks at how the doctrine of revival evolved over the years one would realise that these three exceptions, which form the doctrine of revival were all held in the context of ordinary laws and amendments to such laws and not to constitutional amendments. The constitution of India is the heart and soul of Indian Democracy. The very fact that only the Supreme Court which is the Apex court of the country has original jurisdiction over any matter that deals directly with the constitution and any article under it shows the importance of the document. Thus it only seems logical that amendments to the constitution should be treated on a higher footing than amendments to ordinary laws and thus the standards, doctrines and tests that apply to the constitutional matters should also be different and a little more complex and refined than those accepted and applied to ordinary laws.

Another significant fact is that the applicability of the doctrine of revival to constitutional amendments, as opposed to ordinary laws, has never been conclusively pronounced by the Supreme Court. This question was to be decided in the case of Property Owners Association vs State of Maharashtra, which was referred to a 9-judge bench of the Supreme Court. The 9-judge bench is yet to hear the case.

I do not believe that the doctrine of revival has no merits at all. On the contrary, I believe that it is an extremely important legal rationale which saves the legislature an immense amount of time and effort, which would be required to make and pass new laws to cover those subjects, the amendments to which have been disallowed. However, I do believe that in this particular case the revival of a system as arbitrary and prone to misuse as the judicial collegium, should not be based solely on this doctrine.

[1]http://TheTribune/2015/06/15/will-the-collegium-revive-itself-if-the-supreme-court-voids-the-njac-3925/

[2] Property Owners Association vs State of Maharashtra(1996) 4 SCC49

[3]KesavanandaBharati v. State of Kerala, AIR 1973SC 1461

AUTHOR

Simran Bhinder

Constitutional Law, Fundamental Rights

Right to Information and Right to Privacy: A Critical Analysis of the Act

Posted on 11 Sep 2016 by The Law Blog

The right to know and the right to privacy are two of the most ambiguous legal arena today facing government the court, the public and individuals. The welfare of the society is the primary duty of every civilised state. Right to privacy is not explicitly enumerated as a fundamental right under Part III of the Constitution. But, the Honorable Supreme Court has developed the law as to privacy by spelling it out from ‘Right to Freedom of Speech and Expression’ in article 19(1) (a) and within the ambit of ‘Right to Life’ under Article 21 of the Constitution. The Supreme Court has said, “Privacy is the State of being free from intrusion or disturbance in one’s private life of affairs”.[1] In Mr. X v. Hospital Z the supreme court held that it was open to hospital authorities or the doctor concerned to reveal such information to the person related to the girl whom he intended to marry and she had right to know about the HIV status of the appellant. A three-judge bench of the supreme court held the disclosure of HIV-positive status justified as a girl has right to know, there was no need to for this court to go further and declare in general as to what right and obligation arise in such context as to right to privacy.[2]

An encroachment upon one’s privacy is only shielded if the offender is the state and not a private entity. In R. Rajagopal v. State of Tamil Nadu[3] the Supreme Court held that the right to privacy is a right to be let alone. No one can publish anything concerning the above matters without the consent of the parties, whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages.

The right to privacy is not, however, absolute; reasonable restriction can be placed thereon in public interest under article 19(5).

The Right to Information Act is a strong weapon in the hands of the media and the press. The restrictions imposed on such right under the Constitution, the Act itself, any other law and by judicial interpretation seem to be reasonable and strike a good balance between people’s right to know and secrecy maintained by the State.[4]

But the question arises regarding how far the Right to Information Act has succeeded in achieving its above-mentioned objective. A review of the practical application of the Right to Information Act makes a revelation of the following tangent to the situation.[5]

Efforts made to generate mass awareness of the RTI Act are lacking.[6]

Misuse of the Act: – The experience of the past years has shown that there are cases wherein frivolous applications are being filed in the name of transparency. The principal objectives for which the RTI Act is being misused are:-

To know the secrets of competitors (third party).
To harass the Public authority or bring disrepute to a public servant with the intention of settling a score.
For promotion of self-interest like a survey or research; tender or other business interest; blackmailing; derailing investigating; service matter- appointment , transfer, promotion, vigilance enquiry, etc.;
It has the potential for being misused for spying activities.[7]
The Act does not have strict penal provisions. The fee charged for information and the manner of payment is not uniform, there is also confusion about the head of accounts to which the application and other fees are to be credited.[8]

More than 75 percent of the citizens are dissatisfied with the quality of information being provided.[9]It is found that the Nodal Departments have not yet published user guides in most of the states.[10]

RTI is indeed a noble idea, yet the context has somehow assumed a new dimension and requires attention so as to fulfill our goals of good governance.

[1] Krishna Pal Malik, Right to Information (Faridabad: Allahabad Law Agency, 2013)161.

[2] Nidhi Saini and Shashi Bhushan. “Right to Information Constitutional Aspect”, Nyaya Deep, Vol. X,

(3), (2009).

[3] AIR (1994) 6 SC632

[4] Priyanka Jana, “Limitation of the Right to Information Act, 2005”, Global Media Journal, Dec 2010

[5] Dr. Rajinder Kumar Marwah, “Critical Appraisal of The Right to Information Act, 2005”, Law

Journal, Guru Nanak Dev University, Vol. XVII, 2009

[6] Anshu Jain, A Treatise of The Right to Information Act ( New Delhi: Universal Law Publication, 2014)

177

[7] Dr. R.K. Verma, PIO’s Guide To RTI, (New Delhi: Taxman Publication (p) Ltd., 2011) Page no. 549

[8] Anshu Jain, A Treatise of The Right to Information Act ( New Delhi: Universal Law Publication, 2014)

179.

[9] Ibid.

[10] Right to Information Act, retrieved from http://www.ssrn.com visited on 5-09-2016 at 2.45 pm

AUTHOR

Rashmi Pandey

Constitution of India, Constitutional Law

Breaking the Barriers of Religion Imposed over Women in India

Posted on 11 Sep 2016 by The Law Blog

Recently, the High Court of Bombay has pronounced a judgement on the Public Interest Litigation filed by Dr Noorjehan Safia Niaz and Zakia Soman (co-founders of Bhartiya Muslim Mahila Andolan) over the issue of restriction on entry of the woman inside sanctum sanctorum of Haji Ali Dargah. The court in its judgement has held that such a restriction is contrary to the Fundamental Rights enshrined in the constitution and “it is also the duty of the State to ensure the safety and security of the women at such places. The State is equally under an obligation to ensure that the fundamental rights are protected and that the right of access into the sanctum sanctorum of the Haji Ali Dargah is not denied to women.”[1]

Judiciary has played an important role in India in securing rights of the people. The very judgement of the High Court of Bombay in the Haji Ali Dargah case has paved a way for breaking barriers imposed on the religious freedoms of women in India. The judgement provides the solution to the issue of entry of women in Haji Ali Dargah but also it has touched upon the aspects of religious freedom of women and gender equality.

Article 15 of the Constitution of India states that;

“No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to:
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.”[2]

Article 25 (1) of the Constitution of India provides for Freedom of Conscience and Free Profession, Practice and Propagation of Religion which states that;

“Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.”[3]

Even after decades of independence, women of India are still struggling for gender equality and religious equality. The constitution makers while framing the constitution have guaranteed certain rights which are prescribed to all the citizens of India irrespective of their gender, but we can observe that there are many prejudices over the treatment of male and female in the Indian society. Indian society is patriarchal in nature, therefore the restrictions imposed on the freedoms of women can be observed in the society.

Lately, we can observe that there are many incidences where women are actually raising voice against the illogical and unjustifiable restrictions imposed over them from decades. We can actually observe a shift in the society where women in India were confined to household chores, now women in India are educated, independent and are at par with men in all the fields. Now, since due to this shift the religious barriers imposed upon women are questioned on the ground of human rights, constitutional rights, law and morality.

In order to have development in the society and in order to progress it is important that every individual must be guaranteed with inalienable rights as a human being, which are to be respected and upheld by each individual and each authority. The citizens of a nation, irrespective of it being a male or a female has a right to live and to have religious freedom as basic human rights.

The precedent set forth by the Bombay High Court has paved a way for liberation of woman from the dreadlocks of superstition and religious barriers in India. Therefore, now we may hope to observe development of gender equality and religious freedoms in India.

[1]SonamSaigal, “Woman can enter Haji Ali sanctum, rules HC”, 27^th August 2016, The Hindu Newspaper.

(Available at:http://www.thehindu.com/news/cities/mumbai/bombay-high-court-verdict-on-women-entering-haji-ali-dargah/article9035710.ece), Last accessed on:9^th Sept 2016.

[2]Article 15, Constitution of India.

[3]Article 25, Constitution of India.

AUTHOR

Pooja Ogale