The Indian constitution grants certain Fundamental Rights to its citizen, enabling them to live with dignity and integrity and promote the idea of political democracy. These rights are enshrined in Part III of the constitution running from Article 12 to 35. Part III is described as the Magna Carta of India. It contains a long list of justiciable fundamental rights and is essential for individuals’ overall growth (material, intellectual, moral, and spiritual). Therefore, fundamental rights are given to all without discrimination on any grounds of sex, race, caste, religion, place of birth, or any of them.  

It is pertinent to note that these rights are justiciable against the ‘State.’ In case of any violation, a writ petition can be sought, under article 32 or 226, to obtain judicial decisions regarding the same. Thereby to answer the purpose of this paper, it is essential to understand what comes within the ambit of the expression ‘State.’

State:

The Indian Constitution defines ‘State’ in Article 12 –

 “Unless the context otherwise requires, the term state includes the following-

Executive and legislature of the union and states; all local or other authorities within the territory of India or under the control of Government of India.”[1]

The law dictionary defines it as a body politic or society of men united together to promote their mutual safety and advantage by their combined strength’s joint efforts.

Individuals need the fundamental rights for the State’s actions, which has the caliber of affecting these basic rights, which are a crucial aspect of an individual’s liberty and integrity in a democratic setup. Therefore, constitutional rights are generally applied vertically, acting as a citizen’s weapon against the State, and have been made directly enforceable only against bodies covered by the ‘State’ definition.

The mention of all the parties in Article 12 denotes that these bodies can violate the fundamental rights of the citizens and an individual to seek remedy for any such violation in the form of writ petitions. Here, the question arises whether the Judiciary, an organ of the State itself, is termed as the protector and guarantor of fundamental rights, capable of violating them. The expression is not conclusive and can include other bodies as well.

What it includes:

While defining this Article’s scope, Dr. BR Ambedkar said that fundamental rights would be binding on every authority. By the word ‘authority,’ he meant all bodies with the power to make laws or the power to have discretion vested in them.[2] Article 12 of the Indian Constitution mentions that the term State includes the Central and State Governments, Parliaments and Legislatures, and all local or other authorities functioning under India’s Government or Indian territory.

Executive and legislature of the central government and state governments

This includes the Union and State Governments, India’s president, and the Governors of State, which forms the Executive part. The term Government also includes departments of the Government and institutions under the control of any such departments.

Local authorities

This has been defined under section 3 of the General Clauses Act and includes bodies like:

1.      Municipalities- municipal corporations Nagar Palika, Nagar panchayat

2.      Panchayats zila panchayats Mandal panchayats gram panchayats

3.      District boards

4.      Improvement trusts etc.

Other authorities:

This term can be interpreted as those who have the power to make laws and regulations and the power to enforce them. There have been many attempts to solve this term. Initially, the scope was very narrow. It included bodies which bodies of a like nature, i.e., ejusdem generis; this meant that only bodies which had a governmental function or sovereign function were to be included. It cannot involve a person, natural or juristic. But later, this rule could not be used because there was a lack of common genus in the named bodies, and hence, they could be placed in one category as a rational basis. With more time and several more cases, the Judiciary widened the scope of this expression. Therefore, several issues have set up guidelines, falling under which a body is termed ‘State.’

In R.D. Shetty v International Airport Authority of India,[3] the court laid down the following test while trying to determine whether a body is an agency or instrumentality of the Government:

·         Wherein Financial resources of the State are the chief funding source.

·         Existence of deep and pervasive state control

·         The functional character being governmental.

·         If the body or department of Government is transferred to a corporation

·         Whether the corporation enjoys monopoly status, which is State conferred or State protected

These tests are not conclusive but illustrative only and will have to be used with care a caution and should not be stretched so far as to bring in every autonomous body with some nexus with the Government within the sweep of Article 12.

In Ajay Hasia v Khalid Mujib[4], the court said that the emphasis should be on how it is created by why it has been brought into existence. It is immaterial whether the corporation has been created by a statute or under law.

In Pradeep Kumar Biswas v Indian Institute of Chemical Biology,[5] the guidelines were:

·         The principles laid down in Ajay Hasia are not rigid, so if a body falls within any of them, it must be ex hypothesi be considered to be a state within the meaning of article 12.

·         If the body is financial, it is administratively dominated by or under the control of the Government.

·         Such control must be particular to the body in question and must be pervasive.

·         Whether under statute or otherwise, Mere regulatory control would not serve to make a body a part of the State.

Broadly applying these guidelines:

·         The courts are created by a statute, Art 124-147. (composition and jurisdiction)

·         The expenses of the courts are charged from the consolidated fund of India.

·         The court enjoys a monopoly in the field, and such status is State conferred, and State protected.

·         All functions of the courts are public functions.

·         It is an independent body. There is only regulatory control of the Government.

 Whether Judiciary is ‘State’?

The Indian Constitution under Article 12 does not explicitly mention the term ‘State,’ which gives them the liberty to pass judicial decisions (decisions issued by courts concerning writ petitions or matters of fundamental right contravention brought before it) which might contravene the fundamental right.

The position of Judiciary concerning Article 12 depends upon its judicial and non-judicial decisions wherein if the Judiciary is deciding cases it cannot be brought under the expression state while performing its non-judicial functions they are included within the definition of State, since if the courts are entirely exempted from the State, then it would have an unsurmountable power to make laws that contradict fundamental rights. This is supported by Article 13, which provides that any law made in contravention of fundamental rights is void, and since courts have the power to make laws, this implies that they are State about this function. On the other hand, Article 141 purports that the supreme court’s decree binds upon all courts within India’s territory. Therefore, supreme courts’ decisions cannot be questioned, but the findings of subordinate courts can be challenged if they violate fundamental rights.

In the case Naresh Sridhar Mirajkar v State of Maharashtra.[6], the petitioner contended that the high court had violated his art 19(1)(a), it was held that there was no violation of fundamental right even if a court is the ‘State’ under Article 12, ‘a writ under Article 32 cannot be issued to a high court of competent jurisdiction against its judicial orders, because such charges cannot be said to violate the fundamental rights. What a judicial decision purports to do is decide the controversy between parties and nothing more. The court noted that Judiciary, while exercising its rule-making power under Article 145, would be covered by the expression ‘State’ covered by the expression state within the meaning of Article 12. Still, while performing its judicial decisions, it is not included. The court relied on the Ujjam Bai v State of UP, [7]Judgment wherein it was held that a quasi-judicial or judicial body in the exercise of its functions could not violate fundamental rights. Therefore, a writ of certiorari cannot be issued against a high court. It has been held that if an order passed by the Supreme Court violates the constitutional rights of the citizens and is against the principles of natural justice, it should be corrected by ex debito justitiae (i.e., as a matter of freedom), and it is not amenable to be updated by the writ jurisdiction under Article 32 of the Constitution.

In Rupa Ashok Hurra v Ashok Hurra[8], the Supreme Court reaffirmed and ruled that no judicial proceeding could be said to violate any fundamental right.  It was said to be a settled position of law that superior courts of justice do not fall within the ambit of ‘State’ or other authorities under Article 12. Therefore, it can rightly be said that while courts perform their administrative function, they are within the State’s definition and cannot violate any fundamental rights of the citizen. Still, when they give judicial decisions, they do not come within the meaning of State.

When talking about part IV of the constitution, the courts have differed in opinion in State of Kerala v N.M. Thomas,[9] held that the courts’ decision must “inform and illuminate” the court’s interpretational task, based on the view that they are State under art 12. Therefore, it was inferred that the Judiciary is ‘state’ when talking about part IV of the constitution.

The National Commission to Review, the Working of the Constitution (NCRWC), has recommended that an explanation be added to Article 12 wherein the word ‘other authorities’ would mean the authorities whose functions relate to a public nature.

Conclusion:

The Judiciary position is still very ambiguous when we talk about Part III of the constitution, but efforts have been made and precedents laid down to clarify them. The Judiciary is one of the Government’s three organs, and its purpose gives it an immense amount of power over the citizens. The Judiciary must ensure that the other two organs should not violate any basic or fundamental rights. The duty lies with the courts to clarify Article 12 to ensure that it does not infringe any right while performing its duties.

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EXPLAINING THE CONCEPT OF MENTAL ILLNESS

Mental illness, as defined by the Persons with Disabilities Act, 1995 (PWD Act), is any mental disorder other than mental retardation. The Constitution of India disqualifies any such person, who is declared of unsound mind by a competent court, from registering in an electoral roll. However, a distinct definition of ‘unsoundness of mind’ hasn’t been illustrated which leads to ambiguity as to who all are covered under this definition.

Mental illness should not be confused with unsoundness of mind. A mentally ill person may be of unsound mind at particular intervals, after which, he is capable of regaining his sanity. An apt example of this situation is mentioned under the contract law where if a mentally ill person enters into a contract during the lucid interval where he regains his sanity, then the contract amounts to a valid contract. Such persons, as psychiatrists argue, should be allowed to vote during this lucid interval.

Mr. R K Solanki, head of department of psychiatry at SMS Medical College, stated that ‘if the mentally ill people are able to think of the consequences of their decisions, then such people should be allowed to vote’.

Dr Sanjay Jain, superintendent of psychiatric centre, Jaipur also stated that like any other disease, mentally ill people who are still on medication tend to behave normally and that such people should be provided with voting rights. 

THE PROS OF PROVIDING VOTING RIGHTS TO THE MENTALLY ILL PEOPLE

India is by far one of the best democracies in the whole world. Voting rights provide strength to the principles of civil rights, equality, freedom of speech, and inclusivity that are responsible for reinforcing the true concept of democracy. Depriving people with mental illness, their right to vote, by structurally discriminating against such group can be tantamount to the failure of democracy as a whole.  

During the 1965 elections of the New York City mayor, researches conducted a mock voting process for around 325 patients in a psychiatric hospital in order to draw a conclusion about whether the result of this mock voting will match with the results of elections or not. Surprisingly, the results of the mental hospital for the two main candidates resembled with the results of the nearby district.

This study was used to conclude that people with mental illness are also capable of making an informed choice.

Apart from this, India works on the model of representative democracy where the people elect their representatives that take decisions for them on a larger platform. If we exclude the mentally ill people by disallowing them to vote, it is very likely that the concerns of this group of people will remain unheard of, and it will eventually lead to ignorance of such people on the representative front of the country.

On the other hand, if persons with mental illness were allowed to vote, the politicians will tend to address their concerns like lack of community-based services and disavowal of job opportunities and will provide for viable solutions of these issues.

Voting can be termed as a political act of free expression, which is to be performed independently and in secrecy. Therefore, over-reliance on the ‘companionship model’ can also lead to the infringement of this right.

India ratified the UN Convention on the Rights of Persons with Disabilities (CRPD) in 2007, in order to protect and promote the rights of Persons with Disabilities. Since then, two new legislations were formulat4ed in India namely, the Rights of Persons with Disabilities Act, 2016 and Mental Health Care Act, 2017. Later in 2018, the Election Commission of India (ECI) conducted a two-day National Consultation on Accessible Election in Delhi in order to make elections accessible for Persons with Disability (PwDs) in India. However, an RTI query revealed that no action has been taken upon any of the recommendations specific to persons with intellectual and psycho-social disabilities across the country.

APPREHENSIONS ABOUT ALLOWING VOTING RIGHTS TO THE MENTALLY ILL PEOPLE

While it is extremely necessary to provide voting rights to the mentally ill people, it must no be overlooked that such people often depend on others for sustenance. There is another fear in this regard due to the ease of manipulation that follows people with mental disabilities. Manipulation can lead to unfair voting processes which can crumple down the structure of democracy. Hence, the threat of voter fraud is the primary reason behind keeping certain groups of people away from the polls.

Also, if a companion accompanies them during the voting process, then there is a high chance that the decision might get influenced which would again amount to an unfair voting practice as the basic requirement of voting is that it should be independent.

Another major concern is that the country lacks a clear definition of mental illness or mental incapacitation or unsoundness of mind. This leads to ambiguity and confusion about which group of people can or cannot be categorised under these headings.

It is difficult to quantify mental illness in percentages which again makes it difficult to segregate the group of mentally ill people who can be made eligible to vote.

Therefore, many people fear that providing voting rights to this section of the society can lead to failure of the democratic process of free and fair voting.

CONCLUSION

Therefore, the country must devise a plan that acts as a middle road by providing voting rights to the mentally ill people without affecting the ‘fairness’ of the voting process. A method should be formulated in order to determine which set of people belonging to this category can be deemed fit to vote and special arrangements should be made for such people to prevent voter fraud.

As the primary aim is to ensure that the principle of democracy is sustained, it should be kept in mind that denying the right to vote to this section will harshly affect the democratic process but at the same time, misuse of the right to vote through this section will also have adverse consequences. Hence, striking a balance between the two is of utmost necessity.

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Establishment and significance

For the starters the parliament as an institution has huge amount of work that are of complex nature because to run a country there are a lot of laws in hand which are diverse, complicated and technical as well at times. To ease down on this work there are mainly two types of committees in the parliament first is the AD-hoc committee which exists on the temporary basis and are usually agenda specific after that specific project is done with the committee is dissolved. In the past such a committee was formed to enquire into the matters of 2G scam, Bofors contract etc. On the other hand there is standing parliamentary committee which are formed for 1 year and their work runs whole year long. These are not agenda specific but their role is to aid the process of law making by discussing and researching on the potential laws on which the parliament as whole is working on. The most recent development which could be seen in context of the workings of these committees was in regards of the discussions pertaining to Information Technology (Intermediary Guidelines) Amendment Rules of 2018 due to which Dr Shahsi Tharoor who was the head of the standing committee dealing with the bill had summoned the CEO of facebook India in order to enquire about some privacy issues coming under the ambit of the bill. This move was further questioned by the ruling party but the standing committee was completely in its powers to take such an action. Initially the system was set up in April 1993 by India after independence while the parliament was chaired by the honourable vice president KR Naryanan. At that time the committees were segregated into 17 departments and as of now to meet the evolving needs we have 24 standing committees within the ambit of the parliament. These committees comprise of 31 members 21 of which are from Lok Sabha while 10 members are from Rajya Sabha. Viewing from the analytical point view the significance of these committees lie in the fact that they provide the representatives the opportunities to deliberate upon the issue by being away from the public eye. Not only this but while they are in these committees they are also not under their constituency pressure which is the case while they are present within the on record parliamentary debates. The main task of these committees is to prepare reports regarding different bills by analysing and researching upon them from every aspect possible, these reports are not binding in nature to the government but definitely bear an advisory and persuasive value. Although there is no separate provision within the Indian law which talks about standing parliamentary committees but section 105(4) which states “The provisions of clauses ( 1 ), ( 2 ) and ( 3 ) shall apply in relation to persons who by virtue of this constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any committee thereof as they apply in relation to members of Parliament”[1]  of the Indian constitution gives them the powers and privileges to be involved in such process. Adding to this the essence of the committee is to scrutinise the bills with the specific expertise which the members posses. They are efficiently able to do so because under the concept the members are able to make decisions without any politics involved. The process also sometimes initiates collection of public feedback and mutual consensus. This deep determination of public needs and socio economic analysis make the upcoming law more competent for the societal needs while meeting the principles of the welfare state in a better manner.

Critical analysis

Diverting towards a bit critical aspect of the system if we may see the very latest developments itself recently the parliament passed 22 bills within a span of few days, the reason behind this which has been duly pointed out by many policy makers is that none of these bills was discussed by the standing parliamentary committee. This situation arose because the concerned authorities failed to form the required standing committees as well due to which the government evidently misused the situation to get the bills passed without much deliberation or debate. This in return reflects badly upon the law making capacity of the country. Since law formulation is a crucial task for the working of any country which not only affect the daily lives of people but also influences the socio-political, financial, cultural, economic and moral well being of the state. In some previous years the working of the standing committee have shown tremendous success as due to this diversity of our country such expertise within the discussion is an inevitable need for our country. As per PRS Legislative Research, in “the 16th Lok Sabha, 25% of the Bills introduced were referred to Committees, much lower than 71% and 60% in the 15th and 14th Lok Sabha respectively”[2]. Such a trend bears the potential of public outrage since much consultation is not done upon the passed laws which would further hinder the proper implementation of these laws since they might not be widely accepted by the general public. Keeping in mind the overall analysis of the concept and the extensive importance it holds within the procedure of law making it might be a feasible option that to bring in some more level of authority and reform for these committees so that full fruit of their existence and work done can be borne by the parliament. For this it has been highlighted that provided these committees with full time staff, larger ambit of research support and regulations making such scrutinies mandatory for the bills can be one of the many measures which can be taken to maintain the prestige of these committees. As the function performed by them is not only the part of law making proceedings but they also act as an indirect guardian for the appropriate consideration which any competent bill requires so as to make it a successful and fool proof law in the future.   

References 

1)     https://www.jagranjosh.com/general-knowledge/parliamentary-committees-1438142790-1 

2)     https://www.prsindia.org/parliamentary-committees/2194 

3)     https://rajyasabha.nic.in/rsnew/rsat_work/CHAPTER%E2%80%9425.pdf 

4)     https://www.jurist.org/commentary/2020/09/avirup-mandal-vatsla-varandani-shashi-tharoor-summons-facebook/ 

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The Leader of the Opposition is that the politician who leads the official opposition in either House of the parliament of India. The Leader of the opposition is that the parliamentary chairperson of the party with the foremost seats after the govt party. The Leader of the opposition is a statutory post defined under the definition clause Section 2 of The Salaries and Allowances of Leader of Opposition in Parliament Act, 1977.

“Definition.—In this Act , “Leader of the Opposition”, in relation to either House of Parliament, means that member of the Council of States or the House of the People, as the case may be, who is, for the time being, the Leader in that House of the party in opposition to the Government having the greatest numerical strength and recognized as such by the Chairman of the Council of States or the Speaker of the House of the People, as the case may be.

Explanation.—Where there are two or more parties in opposition to the Government, in the Council of States or in the House of the People having the same numerical strength, the Chairman of the Council of States or the Speaker of the House of the People, as the case may be, shall, having regard to the status of the parties, recognize any one of the Leaders of such parties as the Leader of the Opposition for the purposes of this section and such recognition shall be final and conclusive”.

To claim the position of “official opposition” in either house of the parliament, a party has to secure 55 seats (10%) of the seats in Lok Sabha and 25 seats (10%) of the seats in Rajya Sabha (Mavlanker Rule).The Leader of the Opposition is recognized by the chairman of the Rajya Sabha or the speaker of Lok Sabha.

And it is also provide that the Leader of the Opposition in the House of Lok Sabha shall inducted as a member of the selection committee in the appointment of Central Vigilance Commissioner and Vigilance Commissioner, when no such Leader has been so recognized, include the Leader of the single largest group in opposition of the Government in the House of the People.

Leaders of the Opposition in Lok Sabha & Rajya Sabha

The parliament had recognized no Leader of the Opposition until 1969. In Lok Sabha, the post was also vacant between 1980 and 1989 and at present, since 2014. In Rajya Sabha , the Leader of Opposition should satisfy three conditions, namely,

1. he should be a member of the House

2. of the party in opposition to the Government having the greatest numerical strength and

3. be recognised by the Chairperson of the Rajya Sabha (Vice-president of India)

Current Leader of the Opposition in Rjya Sabha is Ghulam Nabi Azad from Party Indian National Congress from 8 June 2014 to till now.

During 16th Lok sabha, the then Speaker was Sumita Mahajan, who refuse to recognize the congress party as leader of opposition. Last year in 2019, MP Adhir Ranjan Chowdhury was chosen by the Congress as its leader within Lok Sabha. The new appointed Speaker Om Birla has not appointed him as the Leader of Opposition. A petition has been filed in the Delhi HC seeking a direction to the Lok Sabha Speaker to appoint a Leader of Opposition for the 17th Lok Sabha contending that denying the second largest party the leadership in the parliament sets the wrong precedence and dilutes the democracy.

Brief history of opposition parties in India

For a healthy Parliamentary democracy it is always considered essential that there should be a strong opposition. But in India the position has been quite different. It may be said that for quite some time it was believed that opposition’s role is only negative but with the passage of time it is appreciated all over, that it has positive role to play in national politics. Hence one of the biggest parliamentary achievements of our country is that the role of the opposition has been formally recognized and given a due place in parliamentary system.

Post independence

After the independence of India, INC enjoyed great respect and confidence of the people. It was difficult to differentiate them from authority. When the first general elections were held in the country Congress under the leadership of Pt. Nehru swept polls both of the Centre as well as the States. By this time, however, Shyama Prasad Mukherjee founded Bhartiya Jana Sangh as an opposition party. The Socialists under Ashok Mehta and the Communists also began to oppose the Congress party on its policies and programmes. By 1962 elections the Communists, the Socialists, Swantantra Party and Bhartiya Jana Sangh had started making their dents.

Present status

The Congress has won 52 Lok Sabha seats in the just-concluded Lok Sabha election and remains the main Opposition party in the house. However, like the 16th Lok Sabha, the Congress has not qualified to have a Leader of Opposition in the 17th Lok Sabha. In the 16th Lok Sabha, the largest party in the Opposition, the Congress, had 44 seats. After careful consideration, it was decided not to recognise the party’s leader as LoP. Now, the matter needs to be revisited in the context of the 17th Lok Sabha.

The Congress demanded an amendment to the relevant laws to allow the single-largest party in the Opposition to send its legislative party leader to attend meetings of key appointment panels. Amendment was made with regard to the appointment of the CVC and also the CBI director but the Lokpal Act was not modified to bring the single-largest Opposition party on board if it did not secure 10 per cent seats in the Lok Sabha.

Significance of Leader of the Opposition 

Leader of the Opposition plays an important role in providing practical criticism of the ruling party. Consultation of the leader of the Opposition also required at the time of important appointments. There is a great responsibility of office of the Leader of the Opposition. It is also said that Leader of Opposition are called as the ‘Shadow Prime Minister’. The Leader should be ready to take over if the government falls in any adverse circumstance. In case of vacant position of such Leader of the Opposition, It will weaken India as the Opposition will not be able to put up a unified front against the ruling party. The leader of the opposition plays an important role in bringing cohesiveness and effectiveness to the oppositions functioning in policy and legislative work. It also helps in bringing neutrality to the appointments like institution of accountability and transparency such as CVC, CBI, Lokpal, CIC, etc. The other role of the leader of Opposition is to watch for the violation of rights of minorities. They can also demand debates on such crucial issues, when the government is trying to slide away without parliamentary criticism. Therefore, the Leader of the Opposition must be familiar with all the mechanism of working of ruling government and all the tricks of skilled parliamentarian. All in all the main function of the opposition part is to check policies during question hour, provide fair criticism , has right to check expenditure, attract media and press and act as monitor over ruling party. All these power are given under constitution. Public Accounts Committee is there whose chairmen are none other than Leader of the Opposition to check the expenditure of the ruling party.

Last year in Rafale case, Rahul believed Rafale was a scam and perhaps as he claimed in different public rallies in the run-up to the Lok Sabha election in 2019. This belief landed Congress Party in big problem which is evident from the result of the election also because there was no proper fact or report to support their statement. But in February, 2019 the Comptroller General of India (GAC) pointed out several issues with NDA’s deal that could make the government sweat. There are several such examples which shows the significant role of leader of opposition in our Indian government.

Reforms required in Leader of the Opposition

No matter whosoever gets the majority, the Leader of the Opposition is critical to effective functioning of the opposition in the Parliament. Now that there is a law recognizing the Leader of the Opposition, passed by the Parliament, it has to be enforced and it can’t be overlooked or undermined, no matter what the flexibility or ambiguity that exist in the legal framework. There arises a drag when no party in opposition can secures 55 or more seats. In such situations, the numerically largest party in the opposition should have the right to have a leader recognized as leader of the opposition by the speaker.

Conclusion 

Under India’s almost unique system of state, the Leader of an Opposition features very special responsibility towards the Parliament and to the state. During circumstances like foreign danger or also in matters affecting the security and safety of the realms the Leader of the Opposition plays an vital role in the ruling Government. While he remains a critic he must during a sense be, a partner and even a buttress of the Govt to which he is opposed. This dual responsibility he must discharge with fidelity.

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Today, social media is used by almost everyone in the world be it one form or the other. Social media is any digital tool, which allows the users to create and share any content with the public. Social media surrounds a wide range of other websites and applications.

Anyone having access to the internet can sign up for a social media account and can use that account to share and post any content and this content reaches to anyone who visits their account/profile/page.

Social media is used by individuals to stay in touch with friends and family, for social shopping networks, for sharing economy networks while it is used by businesses as a market to grow and expand their business and also to promote and sell their products. Some of the social media platforms used are Facebook, LinkedIn, Twitter, Pinterest, and Wikipedia.

Social media has not just confined its wings to sharing information and pictures, earlier predicted a basis of one-way communication, social-media has now become a platform of sharing thoughts, ideas, and reviews thus exercising freedom of speech to the amplest.

It’s a free platform where people find ownership. They speak on their own behalf without anyone guiding them and keeping an eye on what they have to filter while expressing. It is marked to be the widest source of original expression of speech amongst people not confining to any particular age group.

Considering the psychological aspect of why did social media become such a huge platform of expressing opinions and views, we can reach to a conclusion that India being an Illiberal democracy, where although elections are held considering the votes of citizens but the transmission of power, fulfillment of promises and upliftment of the general public through legal means is opaque. So, people have always had their share of debates and opinions which never paved way to the outside world due to lack or fear of power, for example- In 2011, Aseem Trivedi started a nationwide anti-corruption movement India against Corruption gathered pace in India. He started a cartoon based campaign, Cartoons Against Corruption to support the movement, launched a website www.cartoonsagainstcorruption.com and displayed his cartoons in the MMRDA ground, Mumbai during the hunger strike of Anna Hazare but the website was banned by Mumbai Crime Branch for displaying “defamatory and derogatory cartoons” in Dec, 2011 following his website’s ban. Thus, social media came as a blessing to people for voicing out their views and opinions, organizing protests, forming groups for discussing and assembling agendas in total exercising their freedom of speech.

We have seen some great moments in the past which started on the internet and took the world by storm, the most recent example of such a movement which gained world-wide public support and engagement was “Black Lives Matter”. This movement which started off as a mere hash tag spread likes wildfire. People expressed their opinions and views as to why racism is an offense and should be put to stop. Another most recent example of social media movement would be Agrima Joshua’s standup case which involved a clip of the stand-up comedian presenting a set with mentioning Shivaji Maharaj in her satire. This was not galloped by audience like cheese but incase turned out to be a huge ruckus for the comedian, the rage crossed boundary when a man from Gujarat went public on his YouTube channel and gave open rape threat to the lady which became a concern for him. Everyone stood up on social media for the woman and defended her saying open rape threats are not justifies. Within 24 hours of the movements, Vadodara Police arrested the man and took him behind the bars which once again marked the power of Social media as an expression of opinions, speech and Justice.

Freedom of Speech and Expression

Under article 19(1) (a)[1]of the Constitution of India Right to freedom of speech and expression is one of the major fundamental rights guaranteed to the citizens under part III of the Constitution of India. According to it:

All citizens shall have the right

(a) To freedom of speech and expression;

Freedom to Speech and Expression means a citizen has the right to express one’s own opinions freely by way or writing, printing, pictures, mouth or by any other mode. This means that expression of one’s idea through any communicable medium including writing, printing, pictures or mouth or visible representation including signs gestures etc.

This right is only available to the citizens and not to all persons, this means that every person within the territory of India does not have this right but it is available only to the citizens of India.

Right to Freedom of Speech and Expression is not an absolute right and it allows the govt. of India to frame laws and to impose restrictions in the interest of sovereignty and integrity of India.

Although there is no particular legislation which covers the leverage of expression and opinions or violation on social media but there are certain provisions in cyber-law which can be addressed in case of any violation or misuse of Social media, let’s study them in brief.

(a) Under Chapter XI of the Act, Sections 65, 66, 66A, 6C, 66D, 66E, 66F, 67, 67A and 67B contain punishments for computer related offences which can also be committed through social media viz. tampering with computer source code, committing computer related offences given under Section 43, sending offensive messages through communication services, identity theft, cheating by personation using computer resource, violation of privacy, cyber terrorism, publishing or transmitting obscene material in electronic form, material containing sexually explicit act in electronic form, material depicting children in sexually explicit act in electronic form, respectively.

(b) Section 69 of the Act grants power to the Central or a State Government to issue directions for interception or monitoring or decryption of any information through any computer resource in the interest of the sovereignty or integrity of India, defense of India, security of the State, friendly relations with foreign States, public order, for preventing incitement to commission of any cognizable offence, for investigation of any offence.

(c) Section 69A grants power to the Central Government to issue directions to block public access of nay information through any computer resource on similar grounds.

(d) Section 69B grants power to the Central Government to issue directions to authorize any agency to monitor and collect traffic data or information through any computer resource for cyber security.

(e) Section 79 provides for liability of intermediary. An intermediary shall not be liable for any third party information, data or communication link made available or hosted by him in the

Section 66A of the Information Technology Act, 2000.

Of all these provisions, Section 66A has been in news in recent times, though for all the wrong reasons. Before discussing the issue in detail, it is desirable to first have a look at Section 66A, the provision itself. Section 66A of the Information Technology Act, 2000 inserted vide Information Technology (Amendment) Act, 2008 provides punishment for sending offensive messages through communication service, etc. and states:

Any person who sends, by means of a computer resource or a communication device-

(a) Any information that is grossly offensive or has menacing character;

(b) Any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently by making use of such computer resource or a communication device,

(c) Any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages shall be punishable with imprisonment for a term which may extend to three years and with fine.

Social Media and Freedom of Speech and Expression

Everybody needs a platform where he needs to express him/her and which is the fundamental right of every citizen in India in which he has the right to express oneself. Today Internet and Social Media has become an important communication tool through which individuals can exercise their right to freedom of speech and expression and exchange ideas and information with each other. However, freedom of speech and expression does not confer a right on the citizens the right to speak or publish anything and everything without responsibility. It is not an unbraided license giving immunity for every possible use of language and prevents punishment for those who abuse this freedom.

The legislature has the power to enact laws under Right to Freedom of Speech and Expression to impose restrictions on the following grounds:

·         Sovereignty and Integrity of India

·         Defamation

·         National Security

·         Public Order

·         Decency

·         Friendly relations with foreign states.

In today’s world where Internet and social media play a major role in almost everyone’s life, access to this medium has also been recognized as a fundamental human right. The state is under a constitutional obligation to ensure conditions in which all citizens can meaningfully and effectively enjoy these rights and to also prevent dominance by a few over others. In India there is no specific legislation, which deals with social media. However, there are certain provisions in the so called cyber laws that cane used to seek redressal in case of any violation of any rights in the social media including cyber space and internet. In Muzzafar Nagar Riots, through investigations it was revealed that hate contents circulated on social media has sparked communal clashes. For almost half a dozen communal clashes in India it was proved that the reason was the contents posted on social media. The present cyber laws in India are neither appropriate nor adequate in this respect. Though social media is the best platform to express yourself freely and without any fear but the content that you put on the blog or post any video or photo stays on the internet forever and can be accessible by anyone and everyone, there needs to be regulation on the social media as well. In the past few years’ social media has played an outstanding role and a suitable place for people moving towards the concept of equality, justice, and accountability of the powerful people, the social media and internet are the key sources through which there is transmission of ideas from one place to the other, an excellent opportunity for the people who want to make others aware of their rights and duties through a digital platform. Even the freedom of speech and expression is recognized by the United Nations Human Rights Council, which holds communication and internet in high esteem and also provides practical applicability of the right of speech and expression through the medium of altered media channels. LIC v Manubhai D Shah[2] the judgment held that the right to freedom of speech and expression would include the freedom of a citizen as a viewer/listener/reader to receive and to communicate or disseminate information and ideas without interference. It is the constitutional obligation of the state to ensure conditions in which these rights can be meaningfully and effectively enjoyed by all citizens and prevent its monopoly or dominance by a few. While talking about the freedom and the rights of the citizens what also needs to be focused on is that the freedom to speech and expression is not an absolute right there are certain reasonable restrictions on this right so that the state can be saved from being jeopardized, in the interest of integrity, sovereignty and security of India. But in the case of Anuraddha Bhasin v Union of India[3] in which the Supreme Court criticized the shutdown of the internet for an unjustifiable duration and said that the lockdown of the internet is to governed by different provisions like the temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017 where suspension can be utilized for a temporary duration only and rule which involves the shutdown of the internet should adhere to the principle of proportionality. Keeping in mind the accessibility of the internet in today’s world there needs to be protection and securitization of the data and the information available of our citizens on the internet, the international standards also provide for the protection of freedom of expression and right to equality the protection provided by the international standards must be the backbone of any states and response to hate speech, intolerance and discrimination. States needs to ensure that there is protection of human rights when they come in contact with private individuals it is also necessary that there is effective exercise of the rights of individuals so that they freely receive and impart ideas.

RESTRICTIONS ON SOCIAL MEDIA AND FUNDAMENTAL RIGHTS

There is imposition of restrictions both on social media and the fundamental guaranteed to us by the Constitution, in social media there is restriction in the form that pornographic material and obscene content is banned and is not shown on the internet comparing it to the restriction imposed under article 19 (2) which says that there is reasonable restriction on the fundamental right given under article 19 (1) (a). Rather than defining and introducing new ‘objectionable speech’ despite what should be assessable is India’s laws and policies as they relate to freedom of expression which might be against the standards set by the Constitution. Considering this there would be an ensurance that there is distinction between socially objectionable and legally objectionable it remains at its place as it should be. Since this is followed there would be assurance that Constitution is being operationalized as intended by its authors. In Secretary, Ministry of Information And Broadcasting, Government of India and Others v Cricket Association of Bengal and Others[4], the Supreme Court held that to ensure there is freedom of speech, it is necessary that the citizens have the benefit of plurality of views and range of opinions on all public issues. Considering all the points about the restrictions imposed on social media and rights of the citizens it can be stated that rather than banning and censoring of social media it would be much better if there is better surveillance and regulation it would be desirable that it protects the rights of the citizens. T is the need of the hour that the hate content which is a despair of our country should be removed and blocked and the culprits who create such discord should be punished for the same according to the laws mentioned, on the other hand there should not be complete surveillance of the content being constantly posted on the internet because then that would get between the way of expressing oneself and putting out to the public their thoughts and ideas. There is a very thin line between regulation and hindrance, if there is over regulation on the social media then that would by intolerable for the citizens and would lead to the hindrance of their private fundamental rights which is guaranteed to them by the Constitution of India.

CONCLUSION

Social Media is a very powerful source of expressing the feeling of agitation, happiness and various other human emotions but there should be control on everything and everything has to be done in a regulated manner, Since the past few years there has been a constant increase in the ill utilization of the social media which has given the government to regulate social media where it can censor all the illegal acts. In both directions there need to be a stoppage on the objectionable and illegal content which is being uploaded on the internet and also there can be violation of civil rights of people as an inevitable consequence of censorship. The current IT laws are inadequate and insufficient to cope up with the dynamic changes around the globe, therefore there should be a midway of solving things there should be regulation of social media in such a way that it does not violate the fundamental right of the citizens what is desirable is a specific regulation which regulate social media. The need of the hour is that the government should form a regulatory committee specifically for this purpose and frame laws which seem to be fulfilling in the respect of regulating social media and our freedom of speech and expression.

On seeing the present scenario we can say that yes, social media has been a provider of a platform for people to express and present emotions like rage, grief, opinions and feelings. It not only has made citizens more woke and informed but has even helped in shaping the government according to the needs of the public. As there is bane so is boon, Social media has been blamed at points for forging identities, cyber bullying, intolerant opinions and even on moral grounds such as slut-shaming, fat-shaming. There are few provisions which guide the control of social media in terms of speech and expression but no formal legislation that contributes towards it. In conclusion, it is a gift if used as a means of expression, knowledge and presentation and may turn it way upside down if used otherwise.

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The Article 32 read as follows:

32. Remedies for enforcement of rights conferred by this Part

The State cannot place hindrance in the way of an aggrieved person seeking to approach the Supreme Court. This is logical enough for it is against State action that fundamental rights are claimed. But, the guarantee goes no further at least on the terms of Article 32. Having reached the Supreme Court, the extent or manner of interference is for the court to decide. It is clear that every case doesn’t merit interference. That must always depend upon the facts of the case. In dealing with cases which have come before it, the Supreme Court has already settled many principles on which it acts.

The Supreme Court refrains from acting under Article 32 of the Constitution of India, if the party has already moved to the High Court under Article 226. This constitute a comity between the Supreme Court and High Court. Similarly, when a party had already moved High Court with a similar complaint and for the same relief and failed, the Supreme Court insisted on an appeal to be brought before it and does not allow fresh proceedings to be started.

Another restraint the Supreme Court puts on itself is that it doesn’t allow a new ground to be taken in appeal, In the same way, Supreme Court has refrained from taking action when a better remedy is to move High Court under Article 226 which can go into the controversy more comprehensively than the Supreme Court can under Article 32 of the Constitution of India. It follows, therefore, that the Supreme Court puts itself to restraint in the matter of petitions under Article 32 and this practice has now become inveterate.[1]

Article 32 is not to be invoked for infringement of a personal right of contract, nor is to be invoked for agitating questions which are capable of disposal under special enactments.[2]

A writ petition cannot be filed under Article 32 to enforce right under Article 265 of the Constitution, as the right conferred by Article 265 is not a right conferred by Part III of the Constitution.[3]

In Rudul Sah v. State of Bihar[4] added a new dimension to judicial activism and raised a set of vital questions, such as, liability of State to compensate for unlawful detention, feasibility of claiming compensation from the State under Article 32 for wrongful deprivation of fundamental rights, propriety of the Supreme Court passing an order for compensation on a habeas corpus petition for enforcing the right to personal liberty.

The Supreme Court in the above case observed: (SCC p. 147, para 9)

“9. It is true that Article 32 cannot be used as a substitute for the enforcement of rights and obligations which can be enforced efficaciously through the ordinary processes of courts, civil and criminal. A money claim has therefore to be agitated in and adjudicated upon in a suit instituted in a court of lowest grade competent to try it. But the important question for our consideration is whether in the exercise of its jurisdiction under Article 32, this Court can pass an order for the payment of money if such an order is in the nature of compensation consequential upon the deprivation of a fundamental right.”

The Court further observed: In the circumstances of the case the refusal of this Court to pass an order of compensation in favour of the petitioner will be doing mere lip service to his fundamental right to liberty which the State Government has so grossly violated. Article 21, which guarantees the right to life and liberty, will be denuded of its significant content if the power of this Court were limited to passing orders of release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation.

The Supreme Court had taken a different view in Jiwan Mal Kochar v. Union of India[5] by holding that the petitioner could not be granted the damages and compensation under Article 32 of the Constitution when the writ petition was filed challenging certain remarks made against him by the Supreme Court behind his back at the instance of Respondents 3 to 10 in the writ petition and requested awarding of damages and compensation against the Union of India and other respondents including the State of Madhya Pradesh for all losses, direct or indirect, and humiliations and indignity suffered by him.

In Naresh v. State of Maharashtra[6], it was held that a judicial order passed by the High Court in or in relation to proceedings brought before, it for its adjudication, cannot become the subject-matter of writ jurisdiction of the Supreme Court of India under Article 32(2) of the Constitution. If a judicial order like the one in the present proceedings made by the High Court binds strangers, the strangers may challenge the order by taking appropriate proceedings in appeal under Article 136. It would, however, not be open to them to invoke the jurisdiction of the Supreme Court under Article 32 and contend that a writ of certiorari should be issued in respect of it. The impugned order is passed in exercise of the inherent jurisdiction of the court and its validity is not open to be challenged by writ proceedings.

In the hands of the Supreme Court public interest litigation in India has taken multidimensional character. The age-old adversarial system has been given a go-by. With the advent of judicial activism, letters, newspaper reports, complaints by public-spirited persons, social action groups bringing to the notice of the Court regarding violation of fundamental rights were dealt with treating them as writ petitions and the relief of compensation was also granted through writ jurisdiction under Article 32 of the Constitution.

[1] Tilokchand Motichand v. H.B. Munshi, Commissioner of Sales Tax, AIR 1970 SC 898

[2] C.K. Achuthan v. State of Kerala, AIR 1959 SC 490

[3] Laxmanappa v Union of India, AIR 1955 SC 3

[4] (1983) 4 SCC 141

[5] (1984) 1 SCC 200

[6] AIR 1967 SC 1

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The whole observation was made by a bench of Justices A.K. Goel and U.U. Lalit and represented by Attorney General K.K. Venugopal to put a stay on the Supreme Court order and also critically pointed out that the SC/ST verdict which had resulted to loss of life so it must be addressed to the larger bench for the reason to satisfy the principle of equity and conscience. By justifying its March 20^th order the bench acclaimed that meanwhile, they were coming up to a pivotal decision on the verdict on this issue have mostly considered all the aspects dealt with this act before coming to any conclusion.

The review petition was followed up after protests and Bharat Bandh across the country; it was foremost essential for the government to file for Review Petition to have an over-look over this matter. Attorney General K K Venugopal who have appeared on behalf of centre mentioned that supreme court should not make any rules or guidelines in conflict with the law passed by the legislature but the supreme court have rejected the demand of staying order and pointed out that the judgement was not in conflict with any law and doesn’t lead to the deaths of innocent and it aimed at immediate arrest already and will like to continue in this matter on May 16^th, 2018.

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There have been other recommendations that will likely to backfire on those who are seeking information. Eg, the proposal mandates more documents than before while applying under RTI. If they are found unsuitable, the appeal can be returned. “They have made the process more cumbersome.” The appellant has to file complaints within 90 days of the cause. Afterward, a special request has to be made to accept the delay and explain the cause of it. However, in most cases, violation of RTI Act by officials, such as providing false information, comes to light much later.

The very important proposal which is been made is that complaints must be accompanied by a copy of the RTI application which needs to be submitted to the Public Information Officer.However, often, the PIO refuses to accept an application and  Even then, or in complaints related to non-appointment of PIOs, the appellant has to submit the PIO-approved RTI application copy, a mandatory requirement or else need to struggle through the end for completing the required routine cycle. This is certainly in direct violation of SC orders.

RTI Officials agrees that there is a huge scope of some improvements. A stronger mechanism needs to be introduced to deal with non-compliance of information commissioners’ orders, which is a common complaint But the overall situation is worrying, especially because the RTI Act is currently the world’s most widely used transparency law: as many as 4-6 million people use it annually.

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The Standing Committee’s report:

The Bill which was introduced in parliament, November 2016 which was later referred to a Standing Committee, in its report in August 2017, where there was they reversed every key feature of the SRB. Extraordinarily, it was stated that imposing altruism on women was a paternalistic form of exploitation and these surrogates suffered from the lack of proper regulation of the surrogacy sector and from the even lower-paying alternatives they had to commercial surrogacy. It insisted to propose a model whereby women’s reproductive labor would be compensated at a rate fixed by the state taking into consideration numerous factors. Only gestational surrogacy would be permitted; the surrogate need not be related to the commissioning parents and would be empaneled. The surrogate was to receive extensive counseling to ensure informed consent; she was entitled to substantial insurance cover.

The committee liberalized the eligibility criteria for commissioning parents extending the surrogacy option to live-in couples, divorced women, widows, NRIs, PIOs and OCIs but not other foreign nationals. Also, one year of proven infertility was sufficient to avail of surrogacy. Instead of a parentage order, the committee proposed a comprehensive, legally binding agreement between the commissioning parents, the surrogate and the clinic, to be registered with the state.Counteracting the SRB’s carceral approach, the committee called for punishments to be proportionate to the nature of the infraction, always keeping in mind the best interests of the child born through surrogacy. Finally, it suggested that an independent agency with quasi-judicial powers resolves disputes between parties and that the ART Bill be passed prior to the SRB.

Proposed laws over the past 15 years have gone from being highly favorable to fertility clinics (and less so to surrogates) to protecting surrogates and punishing clinics. Over this time, categories of who could avail of commercial surrogacy progressively narrowed, excluding gay, lesbian and transgender individuals and couples in 2012, then foreigners, including even those of Indian origin in 2015. The 2016 SRB went a step further to prohibit commercial surrogacy altogether and replace it with a familial model of altruistic surrogacy.The Standing Committee’s compensated surrogacy model meanwhile liberalizes access to surrogacy and provides for compensation for the surrogate under the watchful eyes of the state. The state will set the compensation levels and even impanel surrogates. The regulator’s imagination has thus traversed from a medico-liberal model in 2005 to a socially conservative prohibitionist model in 2016 to a proto-socialist model in 2017 placing faith in turn in the market, family and the state, respectively, to protect the interests of surrogates and children born out of surrogacy.

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Definitions by various authors:

1. George Bernard Shaw: “There is only one religion, though there are hundreds of versions of it.”
2. Sigmund Freud : “Religion is comparable to childhood neurosis.”
3. Rudolph Otto : Religion is that which grows out of, and gives expression to, experience of the holy in its various aspects.”

The Indian Constitution guarantees various fundamental rights to the citizens. One of the fundamental rights guaranteed by the constitution also includes right to freedom of religion. India is a secular nation and therefore every citizen residing within the territory of India has the right to follow the religion he believes in . A secular State is one where the State has no official religion. In S. R Bommai v. Union Of India[1] , the Supreme Court has held that “Secularism is a basic feature of the Constitution.” The State treats equally all religions and religious denominations. Religion is a matter of individual faith and cannot be mixed with secular activities.

 This right basically entitles every Indian citizen and gives him the liberty to preach, practice and propagate the religion of his choice . This right also provides him the leisure to  sermonize about his religion , gives the opportunity to spread it among everyone without any fear of governmental intervention. But at the same time the State expects that the citizens practice it amicably within the jurisdiction of the country[2] .

When we talk about India, we can say that it is the land of diversity be it in terms of race, religion, creed, community ,caste etc. It is a country where millions of people belonging to different caste, sub –caste, race, dialects ,and also those practicing different religions have been residing since times immemorial. The differences when it comes to communities or religion or caste are not at all looked upon as a drawback or impediment when it comes to development but it is considered to be a crucial factor which serves as a helping hand in enriching the culture not only in the society but also in the nation as a whole[3].

India is absolutely neutral, unbiased and impartial when it comes to exercising ones religious beliefs. The Constitution ensures that no citizen is deprived of this right to profess the religion of his choice peacefully within the Indian territory. The Constitution has high regard and gives utmost importance to the concept of Secularism. Secularism has great significance and also enjoys dignified recognition in the eyes of law. The 42^nd Amendment of the constitution inserted the word ‘ Secular’ in the preamble.[4]

Every person has the freedom to have faith in the religious beliefs of any particular cult or denomination. The allocation of this right according to the constitution is mainly to provide every person with an occasion to declare in open and without any hesitation what he truly feels about his respective religion. This right  also helps  him to be vocal about  his conceptions and ideologies relating to the religious practice he indulges himself into. The right to profess a particular religion means enabling a person to communicate his thought process , mindset and viewpoints to some other people with an intention to spread his religion and make them well versed with the concept and theory of his religion. Though every person is entitled to the right to preach and expand the religion of his own wish  and desire but it is also to be taken into account that this right shouldn’t be taken for granted, that means  , the freedom allotted should not be abused . The person while exercising this right should ensure that he is not indulging in any sort of criminal or other anti- social activities. One needs to always bear in mind that, in the process of  utilizing this freedom for one’s own personal good or benefit the societal peace is not at all hampered and no harm or any kind of pain is inflicted upon any member in the society[5]. He needs to confirm that while exercising this right given to him by the constitution he does not hurt the religious sentiments of the other devotees. Everyone has a different approach when it comes to practicing their religion but at the same time  it is disallowed to practice it in a manner which will incite violence and encourage hatred among the masses. It is important for every citizen to respect the religion as well as the religious feelings of others prevailing in the society at large. The law does not permit any citizen to impose his religious views or opinions on other individuals . Every citizen is expected to preach his religion in a rational manner .Immersing into immoral and illegal activities in the name of religion and disturbing the order and unity of the country is not permissible. No citizen would go scot free if he is found guilty of committing any kind of evil or dishonest activities in the name of following the norms and rituals of his religion. The law does not sanction any person to conduct his religious practices pertaining to his own whims and fancies and leading to create a situation of outrage , chaos and animosity .  It is an undeniable fact that every individual has its own ways and means to practice his religion , but it shouldn’t proceed in an arbitrary fashion. An individual is not answerable to State for the variety of his religious views. The right of worship was granted by God for man to worship as he pleased. Law cannot compel any individual to practice a particular form of worship.[6] But undoubtedly the law has the right to cease the practice of any kind of malicious and corrupt religious activities being carried on, for the purpose of maintaining order and discipline in the country. When a person adopts an illegal way of practicing or promoting his religion, it sets a bad example for the existing masses as it conveys to them that everyone is entitled to exercise the freedom of religion allocated to them , in any manner even though it might be unlawful and unethical in the eyes of law. Every religion has its own code of conduct, rituals, ceremonies  modes of worship etc, but while following and obeying the same an individual should take into account that decency and  morality is maintained .  He needs to be aware that  the religious activities he resorts to does not give rise to any kind of conflict and cause destruction of the property and life of the people in the society. Law will take the requisite steps and measures if at all any acts endangering the safety and unity of the country is projected in its eyes.

Article 25 to Article 28 of the Indian Constitution guarantees the right to freedom of religion to all the citizens residing  within the territorial boundaries of the country.

1. Freedom of conscience and free profession of religion.( Article 25)
2. Freedom to manage religious affairs (Article 26)
3. Freedom from payment of taxes for promotion of any particular religion( Article 27)
4. Freedom to attend religious instructions ( Article 28)

In Mohd . Hanif Quareshi v  State of Bihar[7] the petitioner claimed that the sacrifice of cows on the occasion of Bakri-Id was an essential part of his religion and therefore the State law forbidding the slaughter of cows was violative of his right to practice religion. The Court rejected this argument and held that the sacrifice of cow on the Bakri-Id day was not an essential part of the Mohammedan religion and hence could be prohibited by State under clause (2) (a) of Article 25.

In L. T .Swumiar v Commr. H.R.F . Madras[8]  it has been held that even if a tax is imposed on persons belonging to a particular religion, in order to meet the expenses of that particular religion , such tax is void.

Religious Conversion

The Court agreed with the law laid down by J. Chagla , in Robasa Khanum vs. Khodabad Irani’s [9]case , wherein the learned judge has held that the conduct of a spouse who converts to Islam has to be judged on the basis of the rules of justice equity and good conscience.

It was further observed that , looked from another angle , the second marriage of an apostate – husband would be in violation of the rules of natural justice . Assuming that a Hindu husband has a right to embrace Islam as his religion , he has no right under the Act, to marry again without getting his marriage under the Act dissolved. The second marriage after conversion to Islam , would, thus , be in violation of the rules of natural justice and as such would be void.  The Court remarked that all the ingredients of Section 494 IPC were satisfied in this case, and therefore the offence of bigamy had been committed.

The Court was of the opinion that many Hindus have changed their religion and have become converts to Islam only for the purposes of escaping the consequences of bigamy. Since monogamy is the law of the Hindus whereas the Muslim law permits  as many as four wives , errant Hindu husbands embrace Islam to circumvent the provisions of the Hindu law and to escape from penal consequences. A marriage solemnized under a particular statute and according to one personal law cannot be dissolved according to another personal law , simply because one of the parties has changed his or her religion.

In Sarla Mudgal V. Union Of India[10], the questions which had come up for consideration of the Supreme Court , where four petitions were filed under Art 32 of the Constitution Of India were:

1. Whether a Hindu husband who has been married under the provisions of the Hindu Marriage Act, by embracing Islam is in a position to solemnise a second marriage?
2. Whether such a marriage without even having the first marriage dissolved, can be said to be a valid marriage under law, when the first wife continues to be a Hindu?
3. Whether the husband can be charged with the offence of bigamy under Section 494  of the Indian Penal Code?

Section 494 IPC

Marrying again during lifetime of husband or wife.—Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

After hearing the arguments the Court observed that, under the traditional Hindu Law the doctrine of indissolubility of marriage  gave absolutely no recognition to the fact that conversion would have the effect of dissolving a Hindu marriage. Conversion to any other religion by either one or both the spouses is not at all a ground to have the marriage dissolved.

 The Court took into account that the Hindu Marriage Act envisages only monogamy and clearly states that a person married under the act in no way can escape the provisions by merely changing the religion. Such a person is held guilty of having committed the offence of bigamy if he marries again during the lifetime of his spouse, and it matters not what religion he professes at the time of the second marriage.

“The Constitution provides for Freedom Of Religion, Not Freedom From Religion.”

Section 17 in The Hindu Marriage Act, 1955

Punishment of bigamy :Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of sections 494 and 495 of the Indian Penal Code (45 of 1860), shall apply accordingly.

Conclusion

Religion occupies a vital place in the human lives. Granting  religious freedom permits different beliefs, opinions, deductions that people have in accordance to their own religion, to bloom as well as develop in the society[11] . It plays an integral part in influencing the minds of the people. It also plays an indispensable role especially in the Indian society in governing the conduct as well as the behaviour of the people. Indians are extremely possessive when it comes to their religion and they become alert as soon as any person tries to hinder it or create an obstacle in their journey of religious worship.

But also at the same time while discharging this fundamental right given to us, it is essential to take under advisement that it should not interfere with the peace and harmony of  the society . It is important to take into consideration the repercussions that will take place if this right is taken for granted .To avoid any kind of future jeopardy or conjecture among our fellowmates it is pivotal to maintain some decorum while exercising this right, to understand the underlying importance and the reason for the allocation of this right, which is mainly to maintain the unity and togetherness in the country and avoid any kind of hassle on the ground of religion between our own brothers and sisters.  At times citizens showing an extreme level of concern towards their religion in the due course of professing it ,end up in making the people around feel offended, which in turn might aggravate or provoke them to take steps  which may also result in breach of public peace and lead to consequences creating enmity among everyone in the society. It is undoubtedly a fundamental right which the constitution guarantees for the smooth working and progress of the country, so that all the citizens have the liberty to practice the theories and tenets they believe in , and is also a right which they at any cost cannot be deprived of, but it is  at the same time necessary to ensure that we act in a feasible and to be precise humane manner. Law gives all the Indian citizens the sanction to practice this right in order to strengthen the harmony and oneness in the country, but at the same time the State has the right to interfere when the abuse or any kind of wrong usage of this right takes place in the society.

“We, the citizens of India are under a constant obligation to utilize this  Freedom Of Religion in a civilized manner for having been provided with a Right to preach it.”

“Right to freedom of religion is not only a right guaranteed by the constitution , but also at the same time is a duty expected to be followed, for the betterment and overall growth of the society.”

Citation/References:

[1] AIR 1994 SC 1918

[2] http://www.iloveindia.com/constitution-of-india/right-to-religion.html

[3] http://www.importantindia.com/270/article-on-unity-in-diversity-in-india/

[4] ww.importantindia.com/2025/right-to-freedom-of-religion-in-indian-constitution/

[5] http://courses.cs.vt.edu/cs3604/lib/Freedom.of.Speech/International/india.secularism.html

[6] Constitutional Law Of India- Dr J. N Pandey

[7] AIR 1958 SC 731

[8] A.IR 1952 Mad. 613

[9] Equivalent citations: (1946) 48 BOMLR , AIR 1947 Bom 272

[10] https://indiankanoon.org/doc/733037/.Citation AIR 1995 SC 1531

[11] http://www.mormonnewsroom.org/article/why-religious-freedom

About Author:

Nirali Parekh,

B.LS.LL.B Student at Pravin Gandhi College of Law

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