DIRECTIVE PRINCIPLES OF STATE POLICY
DIRECTIVE PRINCIPLES OF STATE POLICY
“DPSPs are not justifiable in court of law, but they are justiciable in court of peoples”
|BASICS AND BACKGROUND|
- Part IV, spanning from 36 – 51 of constitution.
- Non-justiciable nature on recommendations of Tej Bahadur committee Report
- Borrowed from Ireland – Irish constitution (1937).
- Positive Connotation – Establishes social and economic democracy.
- Promote concept of “Welfare State” and “Inclusive Growth.”
- Precursors of “Panchayat Raj Institution” (Art. 40- Village Panchayat)
- “Fundamental in governance” and apply in policy makings – Art. 37
- “Novel features” and “Soul of constitution” of constitution – B.R Ambedkar
- DPSP is the “Conscience of constitution” – Granville Austin
- Constitutional instructions to – Legislature, executive and administrative of state.
- Enabling in nature – Enables government for comprehensive programme of social and economic justice unlike FR.
- Non-justiciable, Non-self-executory, non-enforceable by court of law.
- Government can implement provisions of DPSP by legislative actions.
- “Instruments of instruction” resembles in GOI 1935.
|INFLUENCES ON CONSTITUTION MAKERS BEHIND SANCTIONS OF DPSPs|
- Idea of Instruments of instruction from GoI 1935.
- Division of Rights of an individual into two categories – Jjusticiable (FR) and Non-justiciable (DPSPs) – Recommended by N. Rau (Constitutional Advisor)
- Irish constitution
- Socialistic and Gandhian philosophies
- Sapru committee Report 1944 – Division of Justiciable and Non- justiciable rights.
- To fill the vacuum created by Fundamental rights (part III)- Restrictive nature.
|OBJECT AND PURPOSE BEHIND THE DIRECTIVE PRINCIPLES|
- The founding fathers were aware of the drawbacks; the country had been suffering from such as poverty unemployment, lack of education, social, economic, and political backwardness.
- They, in order to eradicate these evils, set forth in the very preamble, the ideals and objectives to be achieved. The intention of the constitution framers was to establish in India a democracy political, economic and social.
- To achieve this cherished goal, the framers were unanimous to secure to the people practically all the prevailing political social and economic rights. These rights were broadly speaking divided into two categories.
- Political and Civil Rights
- Social and Economic Rights
- The Political and Civil rights which were in opinion, with the reach of the individual were provisional as fundamental rights and the latter being considered beyond individual’s reach under the prevailing circumstances, were titled as Directive Principles of State Policy.
|NATURE OF DPSPs|
- Admixture and healthy blend of Socialist, Gandhian and Liberal principles.
- Fundamental guidelines in governance of country.
- They are fundamental principles as opposed to FR.
- Non justiciable, Non self-executory, non-enforceable by court of law.
|REASONS FOR NON-JUSTICIABILITY OF DPSPs|
Justiciable nature of rights entails that citizen can move to the courts for enforcement of the particular right. Fundamental rights have justiciable nature. However, DPSPs kept as non-justiciable in nature attributed to following reasons –
- Administrative and financial limitations at that time.
- Some principles have moral connotations.
- Inadequacy of Social development (Art. 40)
- Presence of vast diversity, illiteracy, poverty and backwardness in the country.
|RELEVANCE OF NON-JUSTICIABLE NATURE OF DPSPs IN PRESENT CONTEXT|
- DPSPs are very broad in their content and spirit.
- Different states have varying and limited resources to fulfill the aspirations of the citizens and mandates of constitution.
- DPSPs are complementary to the fundamental rights. So, although DPSPs are non-justiciable in nature, they fulfill their goals in greater way.
- However, states are also taking proactive legislative and executive measures to fulfill the goals enshrined in the DPSPs and ensuring the vision of welfare state.
|CLASSIFICATION OF DPSPs|
- Directive Principles are not classified in constitution as per their underlying philosophies.
- However, they can be classified into – socialistic, Gandhian and liberal-intellectual.
- Socialistic principles –These principles contemplate the ideology of socialism and lay down the framework of a democratic socialist state. The concept envisages providing social and economic justice, so that state should achieve the optimum norms of welfare state.
- Gandhian Principles – These principles reflect the programme of reconstruction enunciated by Gandhi during the national movement. In order to fulfil the dreams and aspirations of Gandhi, some of his ideas were included in DPSP.
- Liberal- Intellectual principles – These principles inclined towards the ideology of liberalism.
|Socialistic principles||Gandhian principles||Liberal- Intellectual principles|
|Art. 38 – State to secure a social order for the promotion of welfare of the people (Added by 44th CAA 1978)|
e.g. Nationalisation of life insurance (1956), the nationalisation of fourteen leading commercial banks (1969).
|Art. 40– Organisation of village panchayats. This provision was precursor of Panchayat Raj institution in India.|
e.g. 73rd and 74th CAA 1992
|Art. 44– Uniform civil code for the citizens.|
|Art. 39 – Certain principles of policy to be followed by the state. Art. 39 (b) and (c) are exceptions to Art. 14 and 19.||Art. 43– (Second part only)– To promote cottage industries on an individual or co- operation basis in rural areas.|
e.g. Khadi and Village Industries Commission (KVIC), National Small Industries Corporation.
|Art. 45– Provision for early childhood care and education to children below the age of six years.(42nd CAA 1976 changed subject matter of Art 45 and added Art.21A to FR)|
e.g. Right to education act 2009
|Art. 39 A– Equal justice and free legal aid. (Added by 42nd CAA 1976)|
e.g. Legal Services Authorities Act (1987)
|Art. 43 B– Promotion of co-operative societies. (Added by 97th CAA 2011)|
e.g. Multi-State cooperative societies act 2002.
|Art. 48- (Part two only)– To organize agriculture and animal husbandry on modern and scientific lines.|
e.g. providing improved agricultural inputs, seeds, fertilisers and irrigation facilities.
|Art. 41 – Right to work, education and public assistance in certain cases.|
e.g. National Rural Employment Guarantee Programme (2006), Swarnajayanti Gram Swarozgar Yojana.
|Art.46– Promotion of educational and economic interests of SC, ST and other weaker sections (Remember Harijan)|
e.g. Protection of Civil Rights Act in 1976 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989, NCSC, NCST, National Commission for Backward Classes (NCBC), 10% reservation to the Economically Weaker Sections (EWSs).
|Art. 48A-Protection and improvement of environment and safeguarding of forests and wildlife. (Added by 42nd CAA 1976)|
e.g. Wildlife (Protection) Act, 1972 and the Forest (Conservation) Act 1980, Air act, Water act.
|Art. 42- Provision for just and humane conditions of work and maternity relief.|
e.g. maternity benefits act and Equal Remuneration Act
|Art. 47 (Second part only)– To prohibit the consumption of intoxicating drinks and drugs which are injurious to health|
e.g. FSSAI regulation, Narcotics and psychotropic substances act 1985.
|Art.49– Protection of monuments and places and objects of national importance.|
e.g. Ancient and Historical Monument and Archaeological Sites and Remains Act (1951), formation of Archaeological Survey of India (ASI).
|Art. 43 (First part only)– Living wage for workers. (Living wage includes education, health and insurance etc.)|
e.g. Minimum wages act
|Art. 48 (Part one only)– Organisation of agriculture and animal husbandry by state.|
e.g. providing improved agricultural inputs, seeds, fertilisers and irrigation facilities, Laws to prohibit the slaughter of cows
|Art. 50– Separation of judiciary from executive.|
e.g. Criminal Procedure Code (1973)
|Art. 43A– Participation of workers in management of industries.(Added by 42nd CAA 1976)|
E.g. Industrial disputes act,1947
|Art.51– Promotion of international peace and security|
e.g. policy of non-alignment and panchsheel to promote international peace and security.
|Art. 47 (First part only) – Duty of the State to raise the level of nutrition, standard of living and improve public health.|
e.g. Primary health centres, special programmes to eradicate various diseases, ICDS, Mid-Day Meal schemes.
|CRITICISM OF PART-IV|
- Non-Justiciable in nature – Non-enforceable by court of law
- Some principles are reactionary – subject to interpretation (E.g. cow slaughter)
- Unsystematic enumerations and lots of overlapping.
- Lack of clarity led to different interpretations by different govt. according to prevailing circumstances.
- Non-accountability of government for non-implementation of DPSP.
- Directives are not arranged in a logical manner based on a consistent philosophy- Jennings.
- Part IV of the Constitution expresses “Fabian Socialism without the socialism” which is less relevant in contemporary world.
- Directives are like “a veritable dustbin of sentiments”- T. Krishnamachari.
- Directives are “Manifesto of aims and aspirations” – K C Wheare
- “A cheque on a bank, payable only when the resources of the bank permit”– K.T Shah.
Article 39 (b) and 39 (c)
- Article 39(b) – The State shall, in particular, direct its policy towards securing: that the ownership and control of the material resources of the community are so distributed as best to subserve the common good.
- Article 39(c) – The State shall, in particular, direct its policy towards securing: that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment.
|DPSPs COULD INVOKE CONFLICT IN FOLLOWING WAYS:|
- Governor could reserve the bill of state on the pretext of violation of provisions of the DPSPs.
- President and Union Council of ministers on reservation of the bill or giving directions.
- Union and State governments – Over implementation of provisions.
- Could invoke conflict on giving directions to the states for implementation of provisions. However, non-implementation and non-observance could result into imposition of President’s rule.
- Directions from centre to the state could also strain the fiscal position of the state which have lesser economic resources for implementation of schemes an programmes to give practical shape to DPSP.
|SIMILARITIES BETWEEN FR AND DPSP|
- Both are borrowed features of constitution.
- Both are directed to achieve inclusive and equitable growth of nation.
- Both are backed by broader constitutional provisions.
- Both are critical for strengthening democratic setup in India.
- Both acts as guiding light for judiciary to determine the constitutionality of act or order.
- The genesis and objectives underlying part III and part IV have common desideratum in responding to the social consciousness rest with the constitution making force.
|FR borrowed from constitution of USA||DPSPs borrowed from constitution of Ireland.|
|Covered in Part III spanning Art. 12 – 35||Covered in Part IV spanning Art. 36 – 51|
|Justiciable and legally enforceable by the courts of law.||Non-justiciable and not legally enforceable by the courts.|
|Negative connotation– Prohibit the state from doing certain things.||Positive connotation – Enables the state to do certain things.|
|Entails establishing political democracy in the country.||Entails establishing social and economic democracy in the country.|
|Driving force – Legal sanctions.||Driving force – Moral and political sanctions.|
|Focus – Welfare of the individual. personal and individualistic in spirit.||Focus – welfare of the community; societarian and socialistic in spirit.|
|Automatically enforced– Legislation not require for enforcement. (Exception-Art.17)||Automatically not enforced– Legislation require for enforcement of provisions.|
|Violation of FR could amount to invalidation of any law by Judiciary. Such law becomes null and void.||Violative of any of the Directive Principles not amount to invalidation of such law. Moreover, judiciary can uphold the validity of a law on the ground that it was enacted to give effect to a directive|
|DISTINCTION BETWEEN FR AND DPSP|
CONFLICT BETWEEN FR AND DPSP – PRIMACY FOR FR or DPSP?
- Champakam Dorairajan Case (1952)– Court asserted that all Fundamental Rights are superior over DPSP. FR can be amended to give effect to DPSP.
- Kerala Education Bill (1957)- Supreme Court had propounded the Doctrine of Harmonious Constructionto avoid a situation of conflict while enforcing DPSPs and the FR.
- Golak Nath Case (1967)- Court asserted that FR cannot be abridged or diluted. FR are sacrosanct and absolute in nature.
- Kesavananda Bharathi Case (1973)- Court asserted that Parliament can amend any part of constitution, subject to Basic Structure of the Constitution. This led to evolution of Doctrine of Basic Structure of the Constitution.
- Minerva Mill Case (1980)- Court asserted that a law made Parliament by under Article 31C would be protected only if it is made to implement directives in Art 39(b) and 39 (c) and not any other DPSPs.
|EXCEPTIONS TO DPSPs (GOLAKHNATH CASE 1967)|
- Laws giving effect to Art 39(b) and (c) of DPSPs should not be declared as unconstitutional and void on ground of violation or contravention of Art 14 and 19.
- Any such law which gives effect to provisions of Art 39(b) and (c) of DPSPs shall not be questioned in a court of law.
- NOTE – Art.39 (b) and (c) can be given precedence over Art.14 (Right to Equality), Art.19 (Freedom of Speech and Expression) and not all the Directive Principles.
|DIRECTIVE OUTSIDE DPSPs|
- Art. 335– Claims of SCs and STs to services in consistently with the maintenance of efficiency.
- Art. 350-A – Instruction in mother tongue at the primary stage of education to children belonging to linguistic minority groups.
- 351 – Development of the Hindi Language by Union to promote the spread of the Hindi language and to develop it so that it may serve as a medium of expression for all the elements of the composite culture of India.
|IMPORTANCE OF DPSP FOR CITIZEN|
- Helps citizen to assess the work done and policies implemented by incumbent government.
- Ensures welfare of the citizens in particular and society at large.
- Ensures inclusive, equitable growth and helps in reducing inequality among citizens.
- Provides framework for enactment of various legislations which benefits citizens in various ways. E.g. MGNREGA, Panchayati raj system, Maternity Benefit Act.
- It ensures progressive development and fulfilment of aspirations of the citizens.
|SIGNIFICANCE OF DPSP|
- Helps courts as Guiding Light in determining and examining constitutional validity of act/rules/regulation.
- Symbolizes idea of welfare state and amplifies social and economic justice as entailed in Preamble.
- They impose a moral obligation on the state authorities for their application, however, public opinion is real force behind them.
- Serves as moral precepts for – Legislature, executive and administrative of state
- They serve as Common Minimum Programme for every government irrespective of their manifestos and political ideologies.
- The Directives are the life-giving provisions of the Constitution. They constitute the stuff of the Constitution and its philosophy of social justice. – L. M Singhvi
- Directives lay down that the goal of Indian polity is ‘economic democracy’ as distinguished from ‘political democracy’ (Fundamental rights) – R. Ambedkar
- Provides stability and continuity in policies despite change in governments.
- Supplements and complements Fundamental Rights (Part III).
- Serves as benchmarks and yardstick for peoples to gauge performance of govt.
- DPSPs are intended to be a guide, friend and philosopher of ruling party in legislative and executive acts.
- Serves as important tool for opposition parties to ensure accountability of executive and exercise influence and control over the government.
|MATERNITY BENEFIT ACT 2017|
- The Maternity Benefit (Amendment) Act 2017 had received Presidential assent on 27 March 2017 after being passed by the Parliament. The Act has made amendments to the Maternity Benefits Act, 1961.
- This act has bearing upon 42 in DPSP – Provision for just and humane conditions of work and maternity relief.
Aim – To regulate the employment of women during the period of child birth. It has amended the provisions related to the duration and applicability of maternity leave, and other facilities.
|MAJOR CHANGES IN MATERNITY BENEFITS ACT 1961|
- The Maternity Benefit (Amendment) Act 2017 has increased the duration of paid maternity leave available for women employees to 26 weeks from 12 weeks.
- However, for those women who are expecting after having 2 children, the duration of the leave remains unaltered at 12 weeks.
- The paid maternity leave can be availed 8 weeks before the expected date of delivery. Before the amendment, it was 6 weeks.
- The Maternity Benefit (Amendment) Act 2017 has extended the benefits applicable to the adoptive and commissioning mothers and provides that woman who adopts a child will be given 12 weeks of maternity leave from the date of adoption.
- The Act has introduced an enabling provision relating to “work from home” that can be exercised after the expiry of 26 weeks leave
- The amended Act has mandated crèche facility for every establishment employing 50 or more employees. The women employees should be permitted to visit the facility 4 times during the day.
- The amended act makes it compulsory for the employers to educate women about the maternity benefits available to them at the time of their appointment.
- The act is applicable to all those women employed in factories, mines and shops or commercial establishments employing 10 or more employees.
|SIGNIFICANCE OF THE AMENDMENT|
- The amended act has raised the maternity benefits from 12 weeks to 26 weeks. This is significant and is in line with the recommendation of the World Health Organisation which says that children must be exclusively breastfed by the mother for the first 24 weeks.
- The extension in the maternity leave will help in improving survival rates of children and healthy development of both mother and child.
- This will also reduce the instances of women dropping out of the labour force due to absence of adequate maternity leave.
- The amended act also falls in line with international best practices such as the Maternity Protection Convention, 2000 (No 183) which calls for at least 14 weeks of mandatory maternity benefit.
- Another significant feature is the introduction of 12 weeks of maternity benefits to the adopting and commissioned mothers.
- The amended provisions have placed India third worldwide only behind Canada and Norway globally in the amount of maternity benefits being made available to the women workers.
- The increase in the maternity leave could also have adverse impact on the job opportunities for women.
- The requirement of full payment of wages during maternity leave could increase costs for employers and could result in increased preference for hiring male workers.
- Moreover, various provisions of the amended act lack clarity. For instance, there is no clarity in the act regarding the time period up to which the crèche facility could be extended to the employee and also regarding the aspect of availability, frequency and extent of nursing breaks.
- The provisions regarding the applicability of the Act to the unorganised sector also remain unclear. The provisions did not clarify whether the act is applicable to the women employees in those enterprises having less than 10 employees. This is disturbing as over 90% of the working women are employed in unorganised sector in India.
- Increasing maternity benefit is a welcome step but the government should devise some mechanism to ensure that competitiveness of the private sector is not affected.
- The government should try to bring about uniformity in labour laws about maternity benefits. The acts like Employees State Insurance Act, 1948, All India Services (Leave) Rules, 1955, Central Civil Services (Leave) Rules, 1972, Factories Act, 1948, and the Unorganized Workers Social Security Act, 2008 have differences in coverage, benefits and financing. All these laws must be amalgamated to uniformly disseminate the benefits across various sectors in India.
- Amendments are silent on provisions regarding paternity benefits. At present, paternity benefits are permitted in government jobs as a part of leave rules and in private organizations as a matter of internal policy. In this regard, ILO has recognised men’s right to parenthood.
- Expediting implementation of labour code to reduce complexity and simplification of the regulation.
- The Mahatma Gandhi National Rural Employment Guarantee Act, earlier known as the National Rural Employment Guarantee Act was passed on 7th September 2005 to augment employment generation and social security in India.
- It covers all districts of India except the ones with 100% urban population.
- This act envisage to give shape to Art. 41 (DPSP) – Right to work, education and public assistance in certain cases.
- Recently, Finance Minister announced on March 26th, 2020, the workers under the MGNREGA would get a hike of Rs. 2000 each on an average. This announcement was made as an initiative towards the loss caused by the Covid-19 outbreak.
- In 1991, the P.V Narasimha Rao government proposed a pilot scheme for generating employment in rural areas with the following goals:
- Employment Generation for agricultural labour during the lean season.
- Infrastructure Development
- Enhanced Food Security
- This scheme was called the Employment Assurance Scheme which later evolved and shaped into the MGNREGA after the merger with the Food for Work Programme in the early 2000s.
|OBJECTIVES OF MGNREGA:|
- Provide 100 days of guaranteed wage employment to rural unskilled labour
- Increase economic security
- Decrease migration of labour from rural to urban areas
- MGNREGA differentiates itself from earlier welfare schemes by taking a grassroot – driven approach to employment generation.
- The programmes under the act are demand driven and provide legal provisions for appeal in case, work is not provided or payments are delayed.
- The scheme is funded by the central government which bears the full cost of unskilled labour and 75% of the cost of material for works undertaken under this law.
- The central and state governments audit the works undertaken under this act through annual reports prepared by CEGC (Central Employment Guarantee Council) and the SEGC (State Employment Guarantee Councils).
- These reports have to be presented by the incumbent government in the legislature.
|A FEW SALIENT FEATURES OF THE SCHEME ARE:|
- It gives a significant amount of control to the Gram Panchayats for managing public works, thus strengthening Panchayati Raj Institutions.
- Gram Sabha’s are free to accept or reject recommendations from Intermediate and District Panchayats.
- It incorporates accountability in its operational guidelines and ensures compliance and transparency at all levels.
|CATEGORY OF WORK INCLUDED AS PER SCHEDULE-1, MGNREGA|
- Union Rural Development Ministry has notified works under MGNREGA, majority of which are related to agricultural and allied activities, besides the works that will facilitate rural sanitation projects in a major way.
- The works have been divided into 10 broad categories like Watershed, irrigation and Flood management works, Agricultural and Livestock related works, Fisheries and works in coastal areas and the Rural Drinking water and sanitation related works.
- Category A: Public works relating to natural resources management
- Category B: Community assets or individual assets
- Category C: Common infrastructure including for NRLM compliant self-help groups
|ISSUES WITH MGNREGA|
- Non revision of payment and based upon CPI-AL indicator (based upon 1980s data)
- Wages varies across state to state, lacks uniformity. In some states its even less than minimum wages act.
- Lack of regular social audit by independent auditors/agency.
- Payments are long pending plagued with corruption.
- Quality of assets created not enough durable to sustain.
- Poor monitoring and evaluation mechanism to assure quality of work and proper implementation of scheme.
- Issue of fake and proxy beneficiary.
- Conducting regular and independent audit of the scheme.
- Revising payments time to time along with contemporary inflationary trends.
- Enhancing durability and sustainability of the assets.
- Enhancing monitoring with technology driven solutions such as – drones, satellites, geofencing and geotagging.
- Clearance of payment on regular basis.
- Ever since the scheme was implemented, the number of jobs has increased by 240% in the past 10 years.
- The scheme has been successful in enhancing economic empowerment in rural India and helping overcome the exploitation of labour.
- The scheme has also diminished wage volatility and the gender pay gap in labour.
|LIQUOR PROHIBITION – CRITICAL ANALYSIS|
- Prohibition is the illegality of the manufacturing, storage in barrels or bottles, transportation, sale, possession, and consumption of alcohol including alcoholic beverages, or a period of time during which such illegality was enforced.
- In India, Alcohol consumption has always been overshadowed by a sense of moral judgment that has driven the demands for prohibition.
- Consequently, policies related to the consumption of alcohol are generally shaped by this moral ambiguity rather than a comprehensive liquor policy.
- In the aftermath of Independence, the Indian government did not impose a centralized regulation regarding alcohol consumption.
- Under 7th schedule it is a subject of state list (entry 51) – “Alcohol for human consumption” a subject matter of states. This provides states the power to make laws and charge duties on alcoholic liquors for human consumption.
- 47 under DPSP directs the states to take measures to raise the level of nutrition and the standard of living and to improve public health.
- 47 directs that the state shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.
- Most liquor ban policies are justified on the basis of this article.
|PROHIBITION IN INDIA|
- At the moment, complete prohibition is enforced in the states of Gujarat, Bihar, Nagaland, and the union territory of Lakshadweep.
- In Gujarat, prohibition is implemented since its formation in 1960.
- In Nagaland, Nagaland Liquor Total Prohibition Act (NLTP) banned the sale and consumption of alcohol in 1989.
- Bihar government has put a complete prohibition of alcohol in the state in 2016
- Gujarat and Bihar are the states that prescribe death penalty for manufacturers, suppliers and sellers of hooch in cases of death due to spurious liquor consumption.
- Kerala currently allows alcohol to be served in three star hotels and above, bars and airports.
- In 2014, congress government in Kerala advocate for total prohibition in phased manner.
- But, ban was eased when left government came in power in 2016 citing loss in revenue and tourism Industry.
- In Manipur there is a partial ban in a few districts.
- Andhra Pradesh, Haryana, Tamil Nadu, and Mizoram are states that have experimented with partial or complete ban on liquor.
- In 2016, Supreme Court banned the sale of all liquor within 500m of highways to counter drunken driving.
- However, SC later clarified that high way liquor ban imposed by it is not applicable to licensed bars and beverages outlets within municipal area.
|ARGUMENTS IN FAVOUR OF PROHIBITION|
- To reduce crime and corruption – ADRI report on prohibition in Bihar noted there was a 6% dip in cases of kidnapping for ransom, followed by 28.3% dip in murder cases and 2.3% in dacoity.
- To reduce the state’s expenditure otherwise spend on public health and law & order.
- To improve health and hygiene – ADRI report finds an impressive rise in sale of honey (380%), cheeses (200%), butter milk (40%), flavoured milk (28.4%) and lassi (19.7%)
- To bring positive impact on women and families – ADRI report observed that 58% women feel they were given more respect and played a better role in making household decisions
- Prohibition helps money to get directed towards health and education in family. It paves way for development – ADRI study on Prohibition in Bihar pointed out that 19% of households acquired new assets from the money they earlier splurged on alcohol.
- In India, the common mass is generally occasional drinker. Curtailing alcohol supply will in hand curtail their drinking behaviour.
- According to NCRB data, 15 people die every day – or one every 96 minutes – from the effects of drinking alcohol.
- Many accidents are fuelled by alcohol.
- Many a times it leads to sexual harassment of women and robberies.
|ARGUMENTS AGAINST PROHIBITION|
- Revenue from excise meant for welfare schemes to vulnerable sections is reduced.
- Prohibition is contrary to fundamental right of freedom of choice and right to privacy as well.
- It is against the customary culture and tradition of many societies.
- It impacted the tourism and hospitality
- It may lead to loss of business & investment opportunities from the states – Carlsberg which had agreed to setup breweries plant in Patna had to relocate owing to Bihar liquor prohibition law.
- It causes unemployment and adversely affects livelihoods of many.
- Instead of decreasing corruption, prohibition became a basis for corruption and black marketing in public life.
- The problem of adulterated and methanol related consumption of liquor increases.
- It may lead to consumption of other unregulated drinks and drugs like taadi and mahua.
- An additional expenditure in terms of investment in the personnel required to implement prohibition.
|ASPECTS THAT NEED TO BE CONSIDERED WHILE FRAMING A LIQUOR POLICY|
- The principal reason why many prohibition strategy fail is because they seem to be based on the simplistic assumption that cutting off the supply impacts effective demand for alcohol.
- Increase legal age of drinking and bring about uniformity in the same across all the states.
- Ban marketing and advertisement of all kinds so as to contain its reach and spread.
- De-addiction and rehabilitation centers should be made easily and widely accessible and be fully functional before any decision on prohibition is taken.
- A stronger rule to monitor the use of methanol and frame policies that award a severe penalty for its diversion towards uses other than those for which it was acquired. Governments could consider linking de-addiction centers with primary health centers in rural areas.
- Invest in creating better awareness among citizens about the negative impact of alcohol consumption.
- Document good practices tried and tested by NGOs and other institutions for managing alcohol problems not only within the country but also outside the country.
- Community based approach should be adopted to tackle the problem of alcoholism.
- A pragmatic approach that accepts drinking as part of the social culture and aims to regulate it is likely to be a more effective stance rather than taking a moralistic or emotional view that views drinking as the purveyor of all evils.
|BAN ON LIQUOR VENDORS ON HIGHWAYS|
- In December 2016, the Supreme Court banned States and UTs from granting licences for the sale of liquor along National and State highways across the country.
- The judgment ordered that the prohibition on sale of liquor alongside highways would extend to stretches of such highways that fall within limits of municipal corporations, city towns and local authorities.
- It also ordered that no shop for sale of liquor should be visible from the National and State highways and noted that the visibility is the first temptation.
- Neither should they be directly accessible from the highways nor should they be situated within a distance of 500 metres from the outer edge of the highways or service lanes.
- It gave the Chief Secretaries and the State police chiefs a month’s time to chalk out a plan for enforcement of the judgment.
- India being a signatory to the Brasilia Declaration on Road Safety,it is imperative that policy guidelines are framed to control road accidents. Also, the excise policies of Indian states and UTs should be amended to conform to the spirit of 47 & Art. 21 of the Constitution of India.
|COURT’S RATIONALE BEHIND MOVE|
- SC noted that drunken driving was the main culprit behind a large number of road accidents in the country – 400 deaths take place every day on Indian roads due to accidents.
- The judgment is a result of the deep concern the court had expressed recently on the 5 lakh fatalities annually in road accidents and about 15,000-16,000 deaths were caused because of driving under the influence of alcohol.
- The court said revenue generation could not be a “valid reason” for a state or a UTs to give licence for liquor shops on highways.
|UNIFORM CIVIL CODE (UCC) – CRITICAL ANALYSIS AND WAY AHEAD|
|Goa has a common civil code called Portuguese civil code 1867, whereby:|
§ A Muslim man whose marriage is registered in the State cannot practice polygamy.
§ A married couple share property equally, pre-nuptial agreements are the order of the day and assets are divided equally between the man and woman on divorce.
Uniform Civil Code seeks to replace personal laws based on the scriptures and customs of each major religious community in India with a common set of rules governing every citizen.
CONTEXT – Recently, the Supreme Court in a case concerning the question of whether succession and inheritance of a Goa domicile is governed by the Portuguese Civil Code, 1867 or the Indian Succession Act of 1925, held that:-
- The Constitution in 44requires the State to strive to secure for its citizens a Uniform Civil Code(UCC) throughout India, but till date, no action has been taken in this regard.
- Hindu personal lawswere codified in the year 1956. However, there has been no attempt to frame a Uniform Civil Code applicable to all citizens of the country.
- Despite exhortations of this Court in the case of Shah Bano in 1985, the government has done nothing to bring the Uniform Civil Code.
- The Supreme Court hailed the State of Goa as a “shining example” where “uniform civil code” is applicable to all, regardless of religion except while protecting certain limited rights.
|STATUS OF PERSONAL LAW IN INDIA|
- Personal law subjects like marriage, divorce, inheritance come under Concurrent list.
- Hindu personal laws have been by and large secularized and modernizedby statutory enactments.
- Hindu personal laws (that apply also to the Sikhs, Jains and Buddhists) have been codified by the Parliament in 1956.
- This Code Bill has been split into four parts:
- The Hindu Marriage Act, 1955
- The Hindu Succession Act, 1956
- The Hindu Minority and Guardianship Act, 1956
- The Hindu Adoption and Maintenance Act, 1956
- On the other hand, Muslim personal laws are still primarily unmodified and traditional in their content and approach.
- The Shariat law of 1937 governs the personal matters of all Indian Muslims in India.
- It clearly states that in matters of personal disputes, the State shall not interfere and a religious authority would pass a declaration based on his interpretations of the Quran and the Hadith.
- Apart from it, Christians and Jews are also governed by different personal laws.
|NEED FOR A UNIFORM CIVIL CODE IN INDIA|
- Different personal laws promote communalismand it leads to discrimination between people of different religions and between the two sexes.
- UCC will provide women with the right to equality and justice in courts of law-irrespective of their religion in matters pertaining to marriage, divorce, maintenance, custody of children, inheritance rights, adoption, etc.
- The Supreme Court for the first time directed the Parliament to frame a UCC in the year 1985 in the case of Mohammad Ahmed Khan v. Shah Bano Begum , popularly known as the Shah Bano case.
- However, government overturned the Shah Bano case decision by way of Muslim Women (Right to Protection on Divorce) Act, 1986which curtailed the right of a Muslim woman for maintenance under Section 125 of the Code of criminal Procedure.
- The Supreme Court in Shayara Banocase (2017) had declared the practise of Triple Talaq (talaq-e-biddat) as unconstitutional and void.
|CHALLENGES ASSOCIATED WITH UCC|
- Constitutional challenges
- Freedom of religion gets into conflict with the right to equality.
- 25 – lays down an individual’s fundamental right to religion.
- 26(b) – upholds the right of each religious denomination or any section thereof to “manage its own affairs in matters of religion”
- 29 – defines the right to conserve distinctive culture.
- These rights gets into conflict with the equality before law enshrined under 14 and 15.
- Moreover, an individual’s freedom of religion under 25 is subject to “public order, health, morality”.
- In 2018, a report by the Law Commission of India stated that the UCC is“neither necessary nor desirable at this stage” in the country.
- The Commission also said “secularism cannot contradict the plurality” prevalent in the country.
- Freedom of religion gets into conflict with the right to equality.
- Social-political challenges
- In the name of uniformity, the minorities fears that the culture of the majority is being imposed over them.
- Given vast cultural diversity in India, bringing uniformity among all such people will be a huge challenge.
- Patriarchal mindset of Indian society poses a big challenge in implementation of UCC.
|MERITS OF UNIFORM CIVIL CODE|
- National Integration
- A unified code is imperative, both for the protection of the vulnerable sections in Indian society (women and religious minorities) and for the promotion of national unity and solidarity.
- Simplification of laws
- Presence of so many laws creates confusion, complexity and inconsistencies in the adjudication of personal matters, at times leading to delayed justice or no justice.
- UCC will eliminate this overlapping of laws.
- Simplification of Indian legal system:
- UCC will lead to reduction in litigation emanating from multiple personal laws.
- Establishing a secular society:
- UCC will de-link law from religion which is a very desirable objective to achieve in a secular and socialist pattern of society.
- Moreover, it fulfils constitutional mandates under Art. 44 of DPSP.
- Gender justice:
- The rights of women are usually limited under the patriarchal discourse through religious laws.
- UCC will liberate women from patriarchal domination and provide them with right to equality and liberty.
- In the long term, UCC would lead to the defeat of the communal and the divisionist forces.
- The social transformation from diverse civil code to uniformity shall be gradual and progressive. Therefore, the government must adopt a “Piecemeal” approach.
- Government must emulate Goa practice of a common civil code, which has been the law since 1867, when the state was under the Portuguese colonial rule.
- Moreover, when constitution espouses the cause of UCC in its Art. 44, it shouldn’t be misconstrued to be a “common law” –
- The word uniform here means that all communities must be governed by uniform principles of gender justice and human justice.
- It will mean modernization and humanization of each personal law.
- It would mean, not a common law, but different personal laws based on principles of equality, liberty and justice.
- Government has to take steps towards increasing the awareness among the public, especially minorities, about the importance of having a UCC.
- The UCC must carve a balance between the protection of fundamental rights and religious dogmas of individuals.