UPSC Mains Daily Answer Writing (21-11-2022) - GS 2

UPSC Mains Daily Answer Writing

Questions

Q1. What do you understand about the doctrine of Harmonious Construction? How has the Supreme Court resorted to the doctrine of Harmonious Construction in balancing religious rights with other fundamental rights? (150 words)  10 marks

Q2. Indian constitutions exist not only to limit people in power but to empower those who traditionally have been deprived of it. Elaborate with examples. (250 words)  15 marks


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Model Solutions

Q1. What do you understand about the doctrine of Harmonious Construction? How has the Supreme Court resorted to the doctrine of Harmonious Construction in balancing religious rights with other fundamental rights? (150 words) 10 marks

Model Structure
Introduction:

  • The doctrine of harmonious construction is a principle used for statutory interpretation applied when provisions of two laws conflict with each other.
    • In such cases, the court gives “words” in the provisions a wide interpretation and reads the entire act/constitution as a whole which helps to avoid inconsistency between the various provisions and maintain a balance.
  • This principle was pronounced by the Supreme Court (SC) in the Commissioner of Income Tax vs Hindustan Bulk Carriers case.

Main Body:

  • The higher courts have also applied the doctrine to resolve the conflict between the right to religion and other fundamental rights as discussed below:
    • Sabarimala verdict 2018, SC gave a wider interpretation of religious freedom under article 25(1).
      • Linking rights to religion with right to equality under article 15(1). This led to the opening of Sabarimala temple for women of all ages.
    • Shayara Bano case 2017, SC held triple talaq practice unconstitutional because it is against the right to equality (article 14 & 15) and the right to life (article 21).
    • In The Venkataramana Devaru case 1957, the SC applied the rule of harmonious construction in resolving conflict between Article 25(2) (b) i.e., reasonable restrictions and right under Article 26 (freedom to manage religious affairs).
      • The court held that the right under Article 26 is subjected to law made by the state providing for social welfare and reform.
    • Maulana Mufti versus state of Bengal case 1998, Calcutta High Court tried to balance right to religion and right to life under Article 21.
      • Holding that Azan is an integral part of religion but using a loudspeaker in the early morning for Azan, violates the fundamental right of the citizens to sleep and leisure.
  • Though the doctrine of harmonious construction promotes equilibrium and helps in promoting wider constitutional principles and constitutional morality, there are some challenges in the application of the doctrine as discussed below:
    • “Essentially religious practice” test- Judges are not expert and well-versed with contours of a religion to determine essential religious practices and therefore it may lead to discretionary test.
    • Contrasting judgements - For instance, in Gulrukh Gupta case, Gujarat High Court upheld a Parsi woman losing her Parsi status if marries a non-Parsi man but it is not valid in the case of a Parsi man married to a non-Parsi.
      • This ignores fundamental rights like the right to equality.

Conclusion:

  • The rule of harmonious construction helps in simplifying complicated issues and in removing ambiguities between provisions of two or more laws. However, the above challenges need to be taken into account to make the doctrine more effective and balanced.

Q2. Indian constitutions exist not only to limit people in power but to empower those who traditionally have been deprived of it. Elaborate with examples. (250 words) 15 marks

Model Structure
Introduction:

  • The Indian Constitution not only enables Indian democracy by defining various organs of government but also by defining their powers.
  • The Constitution sets broader limits of power of government and enshrines the provisions for empowerment for the deprived.

Main Body:

  • Constitution limits people in power in the following ways:
    • Parliament and assemblies check the power of executives by various means of accountability used by legislature and committees in these houses.
    • Independent judiciary: Indian Constitution has provided for judicial independence which is very important for restriction of arbitrary use of power.
      • The SC acted as the guardian of the constitution by invalidating legislations that violate the constitutional provisions.
      • E.g., the basic structure doctrine evolved by the free judiciary has helped to limit executive powers and safeguard constitutional supremacy.
    • The Constitution put a limit on the power of government by specifying certain fundamental rights to all the citizens and which no government can violate except in certain circumstances.
      • DPSPs guide socio-economic development and conduct governance.
    • The role of President, the system of bicameral legislature acts as check and balance to the power of government.
    • Constitutional institutions -Watchdog institutions like CAG, act as guardians of the public purse, an independent Election Commission (EC) for ensuring free and fair elections.
      • EC acts as a check on the executive and legislature, while the election process through instruments like expenditure limit, model code of conduct etc.
  • Constitution empowers deprived people in the following ways:
    • Fundamental Rights: Fundamental Rights are justiciable in nature.
      • They empower the deprived through the prohibition of discrimination on certain grounds (Article 15), the right to equality (Article 16) etc.
      • Violation of any of it can be challenged in the Supreme court (SC) directly.
      • SC is empowered to do complete justice (Article 142).
    • Universal franchise: Constitution provides voting rights to all without discrimination.
      • Anyone above 18 can vote in a fair and free election conducted under the Election Commission.
    • Social justice: Through various provisions like the abolition of untouchability etc.
      • E.g., Article 23 prohibits traffic in human beings and forced labour.
      • Article 24 prohibits the employment of children in factories.
      • Article 46 talks about the promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes, and other weaker sections.
    • Political empowerment: Constitution empowers politically deprived through provisions like-
      • Article 330- Reservation of seats for SC and ST in Lok Sabha.
      • Article 243D- Reservation of seats in Panchayats etc.
    • Institutional protection: Constitution has provided for various institutions for safeguarding the interests of the deprived.
      • Article 338 provides for the National Commission for Scheduled Castes (NCSC).
      • Article 338A for National Commission for Scheduled Tribes (NCST).
      • Article 338B provides authority to the National Commission for Backward Classes (NCBC).

Conclusion:

  • The Indian constitution has acted as the bedrock of Indian democracy. It has envisioned aspirations of people in the Preamble in the form of social, secular, and democratic government with ideals of equality, fraternity, and liberty.
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