Constitution of India
The Constitution of India is the supreme law of India. The document lays down the framework demarcating fundamental political code, structure, procedures, powers, and duties of government institutions and sets out fundamental rights, directive principles, and the duties of citizens. It is the longest written constitution of any country on earth.
- It will thus be seen that every time a proposal for the reform of the constitution comes forth, the Muslims are there, ready with some new political demand or demands. The only check upon such indefinite expansion of Muslim demands is the power of the British Government, which must be the final arbiter in any dispute between the Hindus and the Muslims. Who can confidently say that the decision of the British will not be in favour of the Muslims, if the dispute relating to these new demands was referred to them for arbitration? The more the Muslims demand, the more accommodating the British seem to become. At any rate, past experience shows that the British have been inclined to give the Muslims more than what the Muslims had themselves asked.
- B.R. Ambedkar, Pakistan or The Partition of India (1946)
- The survival of our democracy and the unity and integrity of the nation depend upon the realisation that constitutional morality is no less essential than constitutional legality. Dharma lives in the hearts of public men; when it dies there, no Constitution, no law, no amendment, can save it.
- It is characteristic of practically all texts lauding India’s “secularism” that this inconvenient truth is omitted, and secularism is attributed to the unquestionable authority of the Constitution and its supposed author, BR Ambedkar. ... “secular” was a product of the Emergency... The word “secular” was not part of India’s political parlance in the days of the Constituent Assembly, and even the Republic (let alone India itself) was not founded as a “secular” state. On the contrary, the Constituent Assembly through its chairman, BR Ambedkar, explicitly rejected the two S words. India became a “secular socialist” republic under the Emergency dictatorship (1975-77) without proper Parliamentary debate. “Secular” is one of the few words in the Constitution that was enacted without democratic basis, and this is only fitting for a “secularism” which has always and unabashedly been despotic and anti-majority. There may be many things wrong with democracy, but it is not anti-majority. Indeed, that is precisely what is wrong with democracy, according to the secularists. [...] Being naturally despotic, the Nehruvian secularists used precisely this intermezzo [the Emergency dictatorship (1975-77)] to insert “secular, socialist” into the text of the Constitution. The declaration of India as a “secular” republic, without a proper parliamentary debate, is thus the only part of the Constitution that is historically undemocratic.
- Koenraad Elst, On Modi Time : Merits And Flaws of Hindu Activism In Its Day Of Incumbency – 2015 Ch 30, 10
- The Indian State does observe and enforce discrimination on the basis of religion... It is a gross communal inequality and makes a mockery of India's claim to being a secular state.
- Koenraad Elst (2012). The argumentative Hindu. New Delhi : Aditya Prakashan.
- The Indian constitution and legislation are a major cause of religious tension precisely because they contain serious discriminations on the basis of religion.
- Koenraad Elst, in The Saffron Swastika : The Notion of "Hindu fascism" (2010), p 755
- In 1977, Prime Minister Indira Gandhi introduced an amendment to the Constitution of India whereby the word 'secular' was formally enshrined into the Preamble. The late L.M. Singhvi, who served as a consultant, refused to sign the Hindi version of the draft that translated 'secular' as 'dharma-nirapeksha' (literally meaning indifferent on dharma). Since dharma is a foundation of society, he said, the correct Hindi translation of 'secular' should be 'pantha-nirapeksha' (i.e., neutral or indifferent with reference to organized sect). Indira Gandhi agreed and (according to one anecdote) handed her pen to him, whereupon Singhvi made the correction on the final draft which is now deposited in the Rashtrapati Bhavan. This means that the government shall be neutral and even indifferent to organized religions. Indian academics, intellectuals, media personnel and politicians dismissed the fine and correct distinction on which Singhvi had insisted.
- Malhotra, R., & Infinity Foundation (Princeton, N.J.). (2018). Being different: An Indian challenge to western universalism.
- On June 26, 1975, prime minister Indira Gandhi announced on the All India Radio that “the president has proclaimed Emergency.” .... The 42nd amendment came soon after. This 20 pages long detailed document gave unprecedented powers to the Parliament. Almost all parts of the Constitution, including the preamble, was changed with this amendment. Thereafter the description of India in the preamble was changed from “sovereign, democratic republic’ to a ‘sovereign, socialist, secular, democratic republic.”
- Adrija Roychowdhury. Secularism: Why Nehru dropped and Indira inserted the S-word in the Constitution. | New Delhi | August 5, 2018 
Quotes about Article 25 of the Constitution of IndiaEdit
- When Hindus believe that the place of birth of Lord Rama was within the disputed site of the Ayodhya temple, such belief partakes the nature of essential part of religion and is protected under Article 25 of the Constitution (right to profess one’s religion), the Lucknow Bench of the Allahabad High Court has held. ... Such an essential part of religion is constitutionally protected under Article 25.
- J. Venkatesan, 2 October 2010, quoting the Lucknow Bench of the Allahabad High Court. The Hindu: “Hindus’ belief about Lord Rama’s birthplace protected under Article 25”  Also quoted in Elst, Koenraad (2012). The argumentative Hindu. New Delhi : Aditya Prakashan. Chapter: Ayodhya’s three history debates.
- “The Indian Church has reason to be glad that the Constitution of the country guarantees her an atmosphere of freedom and equality with other much stronger religious communities. Under the protection of this guarantee she is able, ever since independence, not only to carry on but to increase and develop her activity as never before without serious hindrance or anxiety.”.... “The question was raised in Parliament as to whether the right to propagate religion was applicable only to Indian citizens or also to foreigners residing in India, for example, the missionaries. In March 1954, the Supreme Court of India expressed its opinion that this right was a fundamental one firmly established in the Constitution and thus applied to everyone citizen and non-citizen alike who enjoyed the protection of India’s laws. With this explanation the missionaries were expressly authorised to spread the faith, thus fulfilling the task entrusted to them by the Church.”....
- Felix Alfred Planner, The Catholic Church in India: Yesterday and Today, Allahabad, 1964, p. 6-10
- We should show how utterly false is the propaganda of the fundamentalists. “The judgment goes against Article 25 which guarantees freedom of religion,’ they said in the case of Shah Bano, they say now in the case of Justice Tilhari. In fact, Article 25 makes freedom of religion subject to public order, morality and health and the other provisions of the Fundamental Rights part of the Constitution—the right to equality and the rest—all of which are violated by the talaq-power. The same article specifically provides that nothing in regard to freedom of religion shall affect the power of the state to make any law to regulate or restrict, inter alia, any secular activity of any religious group, nor to provide for social welfare and reform. ‘But no such law can be passed because of the Shariat Act of 1937,’ they say. It isn’t just that if that Act restricts the power of the state in ways not permitted by the Constitution then that provision of the Act is ultra vires and void.’ The fact is that the Shariat Act imposes no restriction of the sort at all. As I have pointed out earlier in A Secular Agenda the original bill provided, ‘Notwithstanding any custom or usage or law to the contrary’ in matters like marriage and divorce, where the parties are Muslim, shariah shall apply. But the words ‘or law’ were specifically dropped, and so since 1937 the Act has only said, ‘Notwithstanding any custom or usage to the contrary... the Shariat shall apply.’ Wherever there is a law to the contrary, it is the law which is to prevail. That is so manifestly the position. And yet the denunciation proceeds, ‘It violates Articles 25, it is contrary to the Shariat Act.’ The liberal must nail these gross misrepresentations, so that the poor and ignorant masses are not further misled and inflamed.
- Arun Shourie - The World of Fatwas Or The Sharia in Action (2012, Harper Collins)
- This is borne out from the discussions that took place in the Constituent Assembly when this Article 25 of the Constitution (Article 19 of the Draft Constitution) was being considered. Dealing with the scope of Article 25 (then Article 19) Shri K. Santhanam, Lieut. Governor of Vindhya Pradesh, then a member of the Drafting Committee, spoke as follows:-
...“Sir, some discussion has taken place on the word ‘propagate’. After all, propagation is merely freedom of expression. I would like to point out that the word ‘convert’ is not there. Mass conversion was a part of the activities of the Christian Missionaries in this country and great objection has been taken by the people to that. Those who drafted this constitution have taken care to see that no unlimited right of conversion has been given. People have freedom of conscience and, if any man is converted voluntarily owing………… to freedom of conscience, then well and good. No restrictions can be placed against it. But if any attempt made by one religious community or another to have mass conversions through undue influence either by money or by pressure or by other means, the State has every right to regulate such activity. Therefore, I submit to you that this article, as it is, is not so much an article ensuring freedom, but toleration for all, irrespective of the religious practice or profession. And this toleration is subject to public order, morality and health. “Therefore, this article has been very carefully drafted and the exceptions and qualifications are as important as the right it confers. Therefore, I think the article as it stands is entitled to our wholehearted support.”
- Shri K. Santhanam, in Madhya Pradesh (India), Goel, S. R., Niyogi, M. B. (1998). Vindicated by time: The Niyogi Committee report on Christian missionary activities. ISBN 9789385485121 (citing Religious Liberty, pp. 267-268: Bates.) PART III CHAPTER I. – RELIGIOUS LIBERTY IN OTHER COUNTRIES
- The interpretation of Article 25 of the Constitution came before the High Court of Bombay in a different context. And it may not be out of place to quote the following observation from their judgment in Civil Application No. 880 and Miscellaneous Application No. 212 of 1952, dated the 12th September 1952, reported in A.I.R. 1953, Bombay, page 242. Chagla, Chief Justice says:-
“(4) It may be said that both Articles 25 and 26 deal with religious freedom, but, as I shall presently point out, religious freedom, as contemplated by our Constitution, is not unrestricted freedom. The religious freedom which has been safeguarded by the Constitution is religious freedom which must be envisaged in the context of a secular State. It is not every aspect of religion that has been safeguarded nor has the Constitution provided that every religious activity cannot be interfered with.” (page 244).
“Article 25 protects religious freedom as far as individuals are concerned. The right is not only given to the citizens of India but to all persons, and the right is to profess, practise and propagate religion. But here again the right is not an unrestricted right. It is a right subject to public order, morality and health, and further it permits the State to make any law regulating or restricting any economic, financial, political or other secular activity, although it may be associated with religious practice, and there is a further right given to the State and that is that the State can legislate for social welfare and reform even though in doing so it may interfere with the profession, practice and propagation of religion by an individual.” (page 244.)
In the same judgment, Justice Shah says -
“Article 25 has conferred upon the citizens and others residing within the State freedom to profess, practise and propagate religion. That is subject to the legislative power of the State Legislature to legislate so as to regulate or restrict the activity of any person which may be associated with religious practices. The right, therefore, which is conferred by Article 25 is not an absolute or unfettered right of freedom of professing or practising or propagating religion, but it is subject to legislation by the State limiting or regulating any activity, economic, financial, political or secular, associated with religious practice. Similarly, that right is also subject to the social welfare and reform legislation of the State. Therefore, Article 25, while conferring a right upon the citizens and other freely to profess, practise, and propagate their religion, does not confer upon the citizens and others an unfettered right to carry on economic, financial, political or secular activities in association with religious practices, nor does it prevent the State from passing any legislation for purposes of social welfare and reforms, even though such legislation might directly or indirectly be inconsistent with the religious beliefs of some of the religious denominations.” (page 252-A).
- Justice Shah, in Madhya Pradesh (India), Goel, S. R., Niyogi, M. B. (1998). Vindicated by time: The Niyogi Committee report on Christian missionary activities. ISBN 9789385485121 (citing Religious Liberty, pp. 267-268: Bates.) PART III CHAPTER I. – RELIGIOUS LIBERTY IN OTHER COUNTRIES
- “We have no doubt that it is in this sense that the word ‘propagate’ has been used in Article 25(1), for what the Article grants is not the right to convert another person to one’s own religion, but to transmit or spread one’s religion by an exposition of its tenets. It has to be remembered that Article 25(1) guarantees “freedom of conscience” to every citizen, and not merely to the followers of one particular religion, and that, in turn, postulates that there is no fundamental right to convert another person to one‘s own religion because if a person purposely undertakes the conversion of another person to his religion, as distinguished from his effort to transmit or spread the tenets of his religion, that would impinge on the “freedom of conscience” guaranteed to all the citizens of the country alike... “We find no justification for the view that if Article 22 grants a fundamental right to convert a person to one’s own religion, it has to be appreciated that the freedom of religion enshrined in the Article is not guaranteed in respect of one religion only, but concerns all religions alike, and it can be properly enjoyed by a person, if he exercises his rights in a manner commensurate with the like freedom of persons following other religions. What is freedom for one is freedom for the other in equal measure, and can therefore be no such thing as a fundamental right to convert any person to one’s own religion.”
- The Supreme Court of India in 1977. as quoted in : Shourie, A. (2006). Harvesting our souls: Missionaries, their design, their claims. New Delhi: Rupa. p 52-3
Quotes about Article 30 of the Constitution of India (educational institutions)Edit
- The Indian Constitution has in effect given less rights to the Hindus ... in several matters. Under Article 30 of the Constitution, minorities have got the most precious right of running educational institutions in accordance with their own cultures and values, but Hindus have been denied this right. ... You cannot find such a perverse provision in the constitution of any independent nation of the world. ... If anybody wants to run in India today a school that imparts education in Islamic or Christian theology, the Central and State Governments will be giving it grants, maybe they would even meet the entire expenses of the school.... But start a school where you want to educate ... about Hindu Dharma and culture ... the burden of funding your school will have to be shouldered by ... voluntary organizations.
- Swaminathan Gurumurthy explains:... I am convinced that the Hindus are politically discriminated against. I can prove this with reference to our Constitution. .... Article 30 says that every minority group has the right to establish and run educational institutions of its choice. (...) Jagmohan... sees a 'need for having a close look at the unhealthy and unwholesome implications of Article 30', at the 'disintegrative impact which Article 30 could have on the Indian state in general and Hindu society in particular'.
- Hindu [educational] institutions have no fundamental right to compensation in case of compulsory acquisition of their property by the state... a lasting solution to this problem lies only in amending Article 30 of the Constitution...
- Especially the CPM government in West Bengal has been ruthlessly using the constitutional discrimination against Hindu schools for justifying take-overs... Article 30 is far more unjust and harmful than Article 370 which gives a special status to Kashmir. You can better lose that piece of territory than to lose your next generations. It is also a good exercise in separating the genuine secularists from the Hindu-baiters. The demand for equality between all religions in education merely seeks the abrogation of an injustice against the Hindus, so it cannot be construed as directed against the minorities. It wants to stop a blatant case of discrimination on the basis of religion, so everyone who comes out in support of the present form of Article 30, will stand exposed as a supporter of communal discrimination. It is truly a watershed issue.
- I have said many times in my talks that Ramakrishna Mission is the real crest jewel of Hinduism.... But if the other religious minorities are allowed to run their educational institutions, why are Hindus being discriminated against? My view is that there should be no reverse discrimination on the basis of religion. It should be uniform.
- Karan Singh quoted from Ram Swarup, (1986). Ramakrishna Mission: In search of a new identity.
- An active communalism not only postulates that people who share a religion, have common secular interests ; it also grants them (or withholds from them) secular rights on the basis of their belonging to a given religion. Therefore, it is certainly a case of active communalism when we find the secular Constitution of India (which limits its own authority to secular matters), in its Article 30, guaranteeing the secular right to set up educational institutions of their choice exclusively to minorities, including religious minorities. This case of discrimination against the majority community is outright communalism. Yet, no secularist raises his voice against it. On the contrary, when pressed for an opinion, they support it.
- Quoted from Elst, Koenraad (1991). Ayodhya and after: Issues before Hindu society.
- No state-subsidized school teaches Hindu religion... By contrast, state-subsidized schools can be Christian or Muslim in character, both in their selection of teachers and students and in their curriculum.
- Elst, Koenraad (2012). The argumentative Hindu. New Delhi : Aditya Prakashan. 290-303
- With government money comes government control” is an axiom in any country. But the situation in India is unique with regard to minority religions. Under Article 30 of the constitution, “minority” religions are allowed to run educational institutions free from government control, but remain equally eligible for government funding as are institutions run by members of the “majority” religion. For the purposes of the constitution, Jains, Buddhists and Sikhs are considered “Hindus” and hence part of the majority religion. Effectively the provision applies only to Muslims, Christians, and anyone who can get themselves declared a minority religion. One strange consequence of this is that the Vira Saivites of South India successfully argued earlier this century for minority status...
- Ramakrishna Mission. (1986). Ramakrishna Mission: In search of a new identity.
- Hindu society is guilty of trying to manage its own affairs at its own sacred site, so it deserves to be punished with administrative restrictions on its access to the Rama-Janmabhoomi, and perhaps with further judicial restrictions later. The judges simply confirm what is explicitly laid down in article 30 of the Constitution: minorities enjoy privileges which are denied to Hindus, including the non-interference by the government in the affairs of their places of worship. Hindus have no right to complain when the government takes over Hindu temples, nor when it works hand-in-glove with Islamic activists trying to take over a Hindu sacred site. They should be satisfied with the status of second-class citizens, to which they have been so well accustomed by centuries of colonial rule, Islamic as well as Christian.
- K. Elst, Ayodhya: The Case Against the Temple (2002) ====
- In the 1980s, when the Ramakrishna Mission deemed it necessary to declare itself a non-Hindu minority (a self-definition challenged in court by its own members and struck down) in order to prevent the West Bengal government from nationalizing its schools. Art.30 constitutes a very serious discrimination on grounds of religion, and is in conflict with the professed secular character of the Indian Republic. In no democratic country would a majority community tolerate such discrimination, and it says a lot about the stranglehold which the secularist intelligentsia has on public discourse that this article hardly ever figures in debates on secularism and communalism. It also says a lot about the meekness of the Hindus in general and about the incompetence of the Hindutva movement in particular. Amending Art.30 to extend the privileges of the minorities to every community including the Hindus would benefit Hindu society as a whole, would terminate a humiliating and damaging inequality, but would not affect the minorities; they retain the rights conceded to them in the present version of Art.30... Article 30 is the Constitutional bedrock of a considerable list of similar anti-Hindu discriminations. Among them is the unequal treatment of Hindu and non-Hindu places of worship. Muslims have full control of their mosques, Christians have full control of their churches, but Hindus are systematically deprived of the control of their temples. Recently the authorities tried (unsuccessfully) to have the Shirdi Sai Baba temple in Hyderabad declared a Hindu temple, because that would allow them to take it over and do what they have been doing everywhere to Hindu temples: siphon the income off to their own pockets or to other non-Hindu purposes. This is a major factor in the dire poverty which Hindu temple priests (whose wages have not been adjusted for decades) and their families suffer.
- Elst, Koenraad. (1997) BJP vis-à-vis Hindu Resurgence
- This situation is simply not right, and should be redressed. Now that there is a government claiming some kind of commitment to Dharma, or even just to genuine secularism and fairness, nothing should stand in the way of amending the laws and the articles of the Constitution that stifle dharmic education. These are particularly Art. 28, which prohibits the imparting of “religion” by schools or institutions partly or wholly subsidized by the state and Art. 30, which ensures the “right of minorities to establish educational institutions”. It doesn’t mention the majority but is usually interpreted as withholding the same right from the majority. This is the main reason why the Arya Samaj, the Ramakrishna Mission, the Lingayats and the Jains have demanded (and usually acquired) minority status, so as to immunize their institutions from interference by the authorities. The article as it stands or as it is usually interpreted in the most tangible reason for Sampadayas to leave the Hindu fold. It is by definition anti-secular. ... Or if you prefer a Vedic myth: the waters were withheld by a dragon, who imposed increasing drought on suffering humanity, but then Indra slew the dragon and released the waters. Can a BJP Prime Minister become this Indra and release the waters of educational rights, withheld by the secularist dragon, over the Hindus?
- Koenraad Elst, On Modi Time : Merits And Flaws of Hindu Activism In Its Day Of Incumbency – 2015 Ch 28
- Instead, the BJP ought first of all to take up an issue which really matters for Hindu communal life abolishing the legal and constitutional discriminations against the Hindu majority, most urgently those in education and temple management. The constitutional bedrock of these discriminations is Article 30, which accords to the minorities the right to set up and administer their own schools and colleges, preserving their communal identity (through the course contents and by selectively recruiting teachers and students), all while receiving state subsidies. That right is not guaranteed to the majority, but should be.... The BJP does not deserve to get a single Hindu vote if it doesn't address to this injustice.
- Elst, K. BJP Retreat from Ayodhya. The Observer Of Business And Politics(New Delhi, December, 1996.)
- Article 30 gives minorities the right to set up and administer their own government-aided educational institutions, whereas Hindus can only have secular schools... This blatant discrimination exists not only in the cold print of the Constitution, but is also an undeniable fact of life. Hindu organizations like the Arya Samaj and the Ramakrishna Mission have had to go to court to ask recognition as religious minorities in order to gain rights denied to them as Hindu bodies.
- Koenraad Elst, in The Saffron Swastika : The Notion of "Hindu fascism" (2010), p 755
Quotes about Article 44 of the Constitution of India (Uniform civil code)Edit
- See also Uniform civil code
- One wonders how long it will take for the Government of the day to implement the mandate of the framers of the Constitution under Article 44. ... There is no justification in delaying indefinitely the introduction of a uniform personal law.
- Para 30 of the verdict in Supreme Court in the case of Sarla Mudgal vs. Union of India (1995), quoted in Habibullah Badshah Uniform Civil Code - chasing a mirage, quoted from Elst, Koenraad (2001). Decolonizing the Hindu mind: Ideological development of Hindu revivalism. New Delhi: Rupa. p. 551
- As a group, the secularists, especially the Leftists, have not summoned the courage to insist that in order to ensure the survival of the secular India state, Muslims should accept one common civil code, and that Article 370 of the Constitution, which concedes special rights to Jammu and Kashmir mainly because it is a Muslim-majority state, should be scrapped... Even so I find it extraordinary that those who call themselves modernizers and secularists-the two terms are interchangeable-should shirk the logic of their philosophy of life.
- Girilal Jain, App. 1, Limits of the Hindu Rashtra, in : Elst, Koenraad: Ayodhya and after, Appendix I
- An Anti-Common Civil Code Convention was held by Muslims at the Talkatora Indoor Stadium in New Delhi on July 4, 1995. The Convention demanded that the Muslims should be exempted from the purview of Article 44 of the Constitution which envisages such a code. Asad Madani, the chief of the Jamiat, called the demand for a common civil code a conspiracy to finish off the Muslims in India. He advised all Muslims to have four wives to increase the Muslim population and to enhance their influence with the Government. Zafaryab Jilani described the move for a common civil code as anti-Islamic and aimed at finishing Islam in India. Mufti Abdul Razzaq of Bhopal wanted Muslims to wage jihad against the Government and to kill those who opposed Muslim Personal Law. Many more separatist statements were made. If the Muslims were concerned about equality with devotees of other faiths, they would not oppose a common civil code meant for and applicable to all Indians. Instead of opposing it they should grab this opportunity to get into the proposed code all the good things in the Shariat concerning the "high status of women in Islam" about which Muslims are so vociferous.
- Lal, K. S. (1999). Theory and practice of Muslim state in India. New Delhi: Aditya Prakashan. Chapter 7
- Many a time aggrieved parties (like divorced Muslim women) have approached the courts for redressal and many a time the Supreme Court has asked the government to explain the steps it has taken for securing uniformity in the personal laws, particularly those of the Muslims, leading to the enactment of a common civil code for all Indians.
- Lal, K. S. (1999). Theory and practice of Muslim state in India. New Delhi: Aditya Prakashan. Chapter 6
Quotes about Article 51 of the Constitution of IndiaEdit
- Fifty-three years after India adopted a Constitution which calls on all citizens to “develop the scientific temper” (Art. 51.A.h), the country’s academic positions are occupied by crackpots.
- Elst, Koenraad. Ayodhya, the Finale (2003)
- The recent five-judge bench Supreme Court judgment in Chebrolu Leela Prasad Rao and Ors v State of AP and Ors, shows us once again how little the 5th Schedule of the Indian constitution which is meant to protect adivasi rights is understood. The reasoning in the judgment – which struck down an Andhra Pradesh government order from 2000 providing 100% reservation for Scheduled Tribe teachers in Scheduled Areas of the state – moves perilously close to dismantling the entire edifice of the 5th Schedule. If 100% reservation for teaching jobs is not permissible, the next step will be for someone to argue against the ban on alienation of tribal land, or overturn the Samata judgment prohibiting mining leases being given to non-tribals in 5th Schedule Areas in undivided Andhra Pradesh. After all, both these ‘discriminate’ against non-tribals. As non-adivasis from other districts flood scheduled areas leading to clear demographic change, the clamour to do away with the protective provisions of the 5th Schedule is only getting louder.
- The Supreme Court judgment came in response to an appeal by non-tribals against the majority 2001 high court judgment, which upheld the G.O. of 2000. The Supreme Court verdict essentially replicates the minority view in the high court in favour of non-tribals. The court framed four questions for itself:
• the first deals with the power of the governor in 5th Schedule areas to make laws, and whether this can override Part III of the constitution or fundamental rights;
• the second, whether 100% reservation is constitutionally permissible;
• the third, whether the GO involves a classification under Article 16 (1) dealing with equal access to state employment, rather than under 16 (4) which provides for reservation;
• the fourth, to do with the reasonableness of the eligibility requirement for reservation, i.e. continuous residence in the area since 1950.
In answering each of the questions, sadly, the court shows itself unmindful of the realities of the country and the history of the constitution it has inherited. [...] It is important to remember that when the law-making power of the governor under the 5th Schedule was discussed in the constituent assembly’s Sub-Committee on Excluded and Partially Excluded Areas, the concern raised was not whether s/he could or should make fresh law, but that this power should not be used undemocratically, exercised over and above the elected legislature. It is for this reason that a Tribes Advisory Council was created and the governor was required to refer matters to it. (Para 11b of the sub-committee report). In this case, the Tribes Advisory Council had concurred with the 100% rule. On the question it posed to itself – of whether the legislative powers of the governor under Section 5 of the 5th Schedule could override fundamental rights – the Supreme Court answered in the negative.
Article 343 and 351 of the Constitution of India (Hindi)Edit
- Article 351 of Constitution of India reads “It shall be the duty of the Union to promote the spread of the Hindi language, to develop it so that it may serve as a medium of expression for all the elements of the composite culture of India and to secure its enrichment by assimilating without interfering with its genius, the forms, style and expressions used in Hindustani and in the other languages of India specified in the Eighth Schedule, and by drawing, wherever necessary or desirable, for its vocabulary, primarily on Sanskrit and secondarily on other languages."
- Article in: Background, Central Hindi Directorate
- The official language of the Union shall be Hindi in Devanagari script... for a period of fifteen years from the commencement of this Constitution, the English language shall continue to be used for all the official purposes of the Union...
- Constitutional provision, Constitution of India, Part XVII - 343, quoted in Elst, Koenraad (2014). Decolonizing the Hindu mind: Ideological development of Hindu revivalism. New Delhi: Rupa, p.6
Quotes about Article 370 of the Constitution of India (Jammu and Kashmir)Edit
- Equal status to all states and equal rights to all citizens is the BJP secularism.
- BJP spokesman K. L. Sharma. Reported in Indian Express, 21/12/1990. Quoted from Elst, Koenraad (1991). Ayodhya and after: Issues before Hindu society.
- The separate status for the state of Kashmir (Article 370) is again a discrimination in secular matters on the basis of religion, viz. its being a state with a Muslim majority. Nehru sycophants have tried to explain this irresponsible and communalist Article as follows:
"The special problems of Jammu and Kashmir do not arise only out of the fact of its being a Muslim-majority state. It is also a state coveted by a foreign power which has thrice gone to war with India to capture the state,... whose territory is partly under hostile foreign occupation,... which is geopolitically located in the cockpit of international intrigue." ... But our Nehruvian knows it all better: "It is with a view to addressing ourselves to these very special problems... that the constitutional device of Article 370 was evolved." If that is true, then we must recognize in all sincerity that this device has been ineffective. It has not stopped the Chinese from annexing parts of Karakoram and Ladakh, it has not stopped Pakistan from invading it twice more, it has not prevented the ongoing skirmishes over the Siachen glacier, it has not prevented the general spread of secessionism, it has not prevented the Kashmiri Muslims from practicing majorityism at the expense of the Hindu and Buddhist areas of Jammu and Ladakh and from hounding out the Hindu minority of the Kashmir valley, and it has not given private investors the confidence to go in and bring some genuine economical development. Short, in every geopolitical, communal and even economical respect, it has been an outrageous failure.
- Mani Shankar Aiyar in Illustrated Weekly of India, 29/7/1990, Quoted from Elst, Koenraad (1991). Ayodhya and after: Issues before Hindu society.
- The question, however, is whether Modi had any choice in Kashmir and whether, over time, the revocation of an article conceived as temporary breaks the Kashmiri logjam, pries open the stranglehold of corrupt local elites and offers a better future. I think it might. .... “We revoked a temporary constitutional provision that slowed down development, created alienation, led to separatism, fed terrorism and ended up as a deadly national security problem,” Subrahmanyam Jaishankar, the external affairs minister of India, told me. “We know the last 70 years did not work in Kashmir. It has bled us. It would be Einsteinian insanity to do the same thing and expect a different result.”... Modi will not turn back from his elimination of Kashmir’s autonomy. That phase of Indian history is over. Trump and Modi are both forceful, media-savvy politicians. But they are not alike. Modi, a self-made man from a poor family, is measured, ascetic, not driven by impulse. Trump was born on third base. He’s erratic, guided by the devouring needs of his ego. I’d bet on Modi to transform India, all of it, including the newly integrated Kashmir region.
- Roger Cohen, Don’t Mess With Modi in Texas , NYT, Sept. 22, 2019