The reason Prashant Bhaware, a 29-year-old from Maharashtra’s Yavatmal district, chose to study law was his admiration for the architect of the Indian Constitution and the first law minister of India, Dr Babasaheb Ambedkar. “The ideal society according to him, which is based on the values of liberty, equality and fraternity, is one for which we have to work and fight,” he says with conviction. It is the progressive nature of the document that speaks to aspiring lawyers like Bhaware the most. “Protection of rights and the welfare of an individual are at the centre of the Constitution. This gives me hope for a better democratic society,” adds the final year student, who also regularly writes on social issues with an Ambedkarite perspective.
On the occasion of 73rd Republic Day, Mid-day Online invited young lawyers to reflect on how the Constitution of India empowers citizens in recognising and fighting for their civil liberties amid conflicting times. They also talked about the ways in which the state has failed to protect constitutional rights in recent years.
Isha Singh, a lawyer turned IPS officer, has worked on issues of social justice and human rights, including securing compensation for widows of manual scavengers, tackling sexual harassment at the workplace, and challenging illegal arrests by the police. She highlights some of the essential constitutional provisions that have enabled citizens to exercise their rights. According to Singh, article 32 of the Indian Constitution which provides remedies for the enforcement of fundamental rights has opened the doors of the highest court of law, the Supreme Court of India, for all citizens. The provision of filing Public Interest Litigations (PILs) has further expanded the scope of action for the people.
“The recent protest against the farm laws is a shining example of how deeply our constitutional values are engrained in the populace. Every day we witness citizens relying on PILs and writ petitions to challenge state action and uphold their fundamental rights,” says Singh.
Integrating constitutional education with academics
The New Education Policy 2020 stresses on the need to impart constitutional values to students right from a young age, and suggests that excerpts from the Indian Constitution must be considered as essential readings for all students. While the academic curriculum currently includes a Civics textbook which outlines the fundamental rights and basic structure of the Parliament and civic administration, both Singh and Bhaware hold that it is necessary to expand the scope of teaching constitutional ethics in schools.
Singh says that the Civics textbook is an inadequate resource for generating the kind of legal awareness that must exist in a healthy democracy. There is a need, she suggests, to introduce law as a separate subject in schools where basic legal texts such as parts of the Constitution of India and the Criminal Code must be taught to students in the context of individual liberty.
“Knowing about one’s rights is not enough and people should also know the procedure to make them justiciable. Every high schooler must have practical knowledge about how to file an FIR in a police station, how to attend court proceedings, how to read case law and stay abreast with legal developments. This will also do wonders in creating a proactive civil society,” says Singh.
According to Bhaware, to counter the conservative, superstitious beliefs and hierarchical structure of the Indian society, it is necessary to inculcate progressive thoughts such as scientific temperament, constitutional morality and individual liberty that form the core of our constitution via the academic curriculum.
Issues that need attention
Despite constitutional protections, there are people that remain marginalised and vulnerable, note the three lawyers.
Disha Wadekar, a lawyer practicing at the Supreme Court of India who specialises in criminal and anti-discrimination laws, brings attention to the criminalisation of communities classified as denotified tribes (DNT), who constitute roughly 10 percent of the total population of the country. Tribal communities, who fought back the usurpation of their resources by the British rulers, were previously listed under ‘The Criminal Tribes Act’ 1871. After independence, they were classified under various acts of habitual offenders since 1959. Hundreds of youth from these communities are often arrested under charges of burglary, dacoity or robbery and are languishing in jails with little recourse to justice.
Most of these communities were officially listed under the SC, ST and nomadic tribes’ categories despite them having distinct cultures and way of living, which is why official records do not provide a complete nuanced understanding of the crimes against several DNT communities. According to an analysis by Nikita Sonavane and Ameya Bokil, both associated with the Criminal Justice Accountability Project, the Wildlife Protection Act, cattle slaughter laws, excise laws and anti-beggary laws are some of the main laws under which the communities have been penalised for practising their traditional occupations.
In the pre-independence times, these communities were treated as criminals by the colonial rulers and the mainstream Hindu communities that thrived on caste hierarchies and Brahmanical practices, says Wadekar. The situation, she adds, remains the same today.
“Not enough is said about this section of the population which still faces community criminalisation. The presence of police in their lives has claimed the lives of hundreds of youngsters who spend their lives in jails, most of the time merely on suspicion. And the state has still not addressed this.” “When we say ‘we the people’ in the preamble, they are still not a part of it. While these communities are hyper visible in the criminal justice system, they are invisible in the republic,” the lawyer observes.
Bhaware points to the violence perpetrated towards the historically marginalised and the increasing intolerance towards minority communities, citing that the state has failed to provide security to Scheduled Castes, Scheduled Tribes and Muslims. According to the National Crime Records Bureau (NCRB), a total of 50,291 and 8,272 crimes were registered against the SC and ST communities respectively in 2020. This indicated a 9.4 per cent and 9.3 per cent increase in the crimes against the two communities from the year 2019 to 2020. A number of cases of communal violence, killings and attacks on mosques reported in recent years indicate the rising hostility towards religious minorities; issues that have gained international attention. The most recent case in point is the Udupi incident, where eight Muslim students were denied entry into the classrooms for wearing hijab. The students, who are protesting since a month, have alleged discrimination against Muslims on the campus.
This is in sharp contradiction to the constitutional values of liberty, equality and fraternity. “The Indian society is caste-oriented and patriarchal in nature. Caste system and patriarchy go hand in hand, which further suppress the rights of the citizens such as access to justice and resources,” says Bhaware.
According to Singh, the rising number of false cases against citizens, often implicated by other citizens or by the state agencies themselves, is a dangerous trend. The unaccountability of the judiciary in the face of rising pendency of cases, corruption and abdication is another important issue that needs attention.
“Misuse of the law by anybody should be heavily penalised. This requires greater transparency and meting out of strong punishments against errant judges. Till date, not a single judge has been impeached by the Parliament. This speaks volumes,” concludes Singh.
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