Friday, January 25, 2013

Queries on the Fundamental Rights

While I am yet to read the whole thing and grasp it, I shall nevertheless jot down some observations and my doubts and opinions on the Fundamental Rights section. Please note, the opinions below are mine and I do not wish to force them on anyone even if the language suggests otherwise. Further, any offence is unintentional since the idea of the blog is to ask certain questions (backed by a fundamental right).

A short list below:

1)    Point (3) of article 15 (Right to Equality: Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) allows for making special provision for women and children. It is unclear here as to how the law treats other members, other than the binary, of the gender continuum. In a simple interpretation, it seems like the intersex and/or the hermaphrodites have no constitutional support for any separate provisions. I think it was in 2009, that the government did recognise the third gender (something to do with voting cards, as far as I can remember). It is my opinion that the members of the third gender generally get a raw deal (I could be wrong), and might qualify for special provisions (not necessary if I am wrong). Since I haven’t read the whole thing, if anyone can clarify the doubt above, I would be obliged.

2)      Article 18 (Right to Equality: Abolition of titles) states, amongst others, that
a.       No title, not being a military or academic distinction, shall be conferred by the state
b.      No citizen of India shall accept any title from any foreign state.
Based on the above, it is unclear to me if religious titles (like Bishop, Sri Sri, Swami, Guru, Maulvi etc.), while clearly not conferred by the state, ought to or ought not to be allowed. Article 26 goes on to say that, subject to public order, morality and health, every religious denomination or any section thereof have the right to manage its own in matters of religion. The above make a case for use of such titles, but the significant word, morality, might undo the case. Morality has been constantly changing over years and will continue to do so since there seems to be no absolute. I submit that equality is an important requirement of morality. And hence, such titles cannot be, in my opinion, justified. While it is clear that all are equal before law, why must inequality of any form be allowed? Hypothetically, if person X were to put a case against any religious leader for disrupting the right to equality by taking on a title, would the verdict be for or against X?

Also, what is the verdict on default titles such as Mr., Mrs. etc? And of titles such as Rani, Chatrapati etc.?

Further, in-case a citizen dies and receives a title posthumously from foreign states/institutions, can/should the Indian state allow such a title? (example: Blessed Teresa of Calcutta). Also, from above clearly, Mahatma is not a title conferred by the state, hence one may think that the eponymous roads and other items, including monuments and notes, bearing such name may not be backed by law.

I suspect I could be wrong about my conclusions above. If so, I request anyone who knows about this to enlighten me too.

3)  Point (2) of Article 23 (Right against exploitation) allows the state to impose compulsory service for public purposes. If I am not wrong, it implies that in a situation like war, the state may ask a person to compulsorily take up arms (Conscription) or risk going to jail. This could actually open a Pandora’s Box by leading to questions regarding pacifism, disarmament etc. While I myself do not yet know how I would react in such a situation, I do have a feeling that a good number of people would neither want to take up arms nor want to go to jail. How then can this be addressed?

4)  Article 24 (Right against exploitation: Prohibition of employment of children in factories etc.) states that no child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment. The wording seems to be excluding children working in hotels, households and other places since these places/jobs are not hazardous. While I am not against employment of children below the age of fourteen for certain jobs, I am against the exploitation and labour components of certain jobs. A child trying to make some money on the side to assist in funding of his education or other needs, such as food/shelter or a bicycle, can obviously be employed for certain jobs. However, if the job exploits (exploit is a word that needs to be defined thoroughly by experts on this field lest it turns out that every job with a capitalist intent includes exploitation) or causes excessive physical labour, even though it is not hazardous in nature, then people should be prohibited from employing children below the age of fourteen. It is of course possible that “hazardous” might be an all-encompassing term for such types of jobs. However, going by the context, I have a feeling that hazardous here only refers to health aspects, without any consideration on mental impact of such jobs. In case anyone has a clearer idea, I’d be glad to hear from you.

5) Article 25 (Right to Freedom of Religion: Freedom of conscience and free profession, practice and propagation of religion) states that one has the right to freely profess, practise and propagate religion. While I have, over time, accepted that some people are yet unwilling to be free from religion and are yet to admire the results and ponderings of modern science and logic, and hence may freely profess and practise a religion, I do have some reservations about the word “propagate”. Perhaps the word “propagate” also needs to be thoroughly defined so as include only those actions by an individual or group that perform the function of information dissemination and allows people to make up their minds on their religious inclinations only after deliberation of all choices available. For example, as Richard Dawkins says, a child of parents of X and Y religions, should not be called an X child or a Y child. Rather, at the age of reason, the child must be allowed to choose his religion based on all the information available through the dissemination mentioned above. Further, children must not be affected in any way till the age of reason and/or without their consent by any prescriptions of the parents’ religion. This includes activities such as piercing/mutilation of any sort, initiation rituals of any sort, etc. Any action/method of propagation, apart from information dissemination, should be, in my opinion, not backed by the constitution. Enforcing one’s religious prescriptions on one’s child should be seen as a form of forceful propagation and hence must be restrained / prohibited. Perhaps the rights of children are covered elsewhere and I may be ignorant of the same. If so, I request you to guide me to the relevant article. In any event, the point regarding the definition of “propagate” remains.

While I shall continuing reading our constitution, I, firstly, urge anyone with responses to the above to convey the same to me and secondly, for everyone to take some time out on this Republic Day and read up the ideas upon which our nation has been built. 

1 comment:

  1. Hi kashikar here are some of my observations

    1. What you said in point 1 regarding the transsexual populations is correct and there is no constitutional support for special privileges. And do not see it happening in foreseeable future due to absence of any strong movement for their rights.

    2. Article 18 strictly talks about the titles conferred by the state. For example 'SIR' in case of UK. It is silent about other forms of titles. The religious titles are conferred by individual religious group and state does not interfere in that matter. Conferring a religious title does not nullify the equality in the eyes of the state or that of law. So constitution by deliberately being silent on the non-state type of titles gives the religions freedom to manage its hierarchy. And this hierarchy does not breech the right of equality (as its same on the lines of other hierarchy like that in the government President --> PM etc).

    Even if a person receives a title posthumously the state cannot allow it to be used in the official communication. But in case of Mother Teresa again it is not conferred by a state.

    In case of title of Mahatma I also feel that it is a grey area. The only explanation can be it is not conferred by the state but by the people.

    Regarding other titles like Rani,Nawab they have long been abolished but are sadly still in use.

    3. Article 23(2) does confer state right to force an individual to perform public service but this article has to be read with article 19 and 21. In case of unforeseen situation the above mentioned forceful act of government will violate both the articles. So I strongly feel government won't be able to do that.

    4. Your observation regarding article 24 is perfectly valid. The same concern has been raised by many child rights activists. This is being addressed not by a constitutional amendment but amendment to the protection of child rights bill which is currently tabled in the parliament.

    5. Your first concern about the forceful conversions is addressed in the same article itself. Part (1) of the article emphasizes on public order, health and morality thus restricting coercive propagation while part (2) confers additional powers to state to regulate in certain matters.

    About the second concern I strongly feel it is impracticable. A child at any age has freedom to practice his/her own religion so is not restricted by the state. In this case the restriction is put by the society. And as a matter of fact imparting of religious teachings on the child comes under the societal norms which are beyond the states control (hence beyond the constitution). And as the religious philosophy forms the core of nearly all the moral teachings all over the world I do not see this norm changing at least in near future.

    Hope our discussion will continue