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Long-Term Potentiation Research Paper

Introduction

Long-Term Potentiation (LTP) is a process, which is mainly attractive for the contemporary neuroscience. In fact, this branch of science is relatively new, but at the same time, it is essential and profound research in this field is nowadays fundamental since they contribute significantly to better understanding of many processes traditionally hidden from a naked eye but which can define the life and normal functioning of a living being.

writing-research-brief383109052In this respect, it is particularly noteworthy to discuss the presynaptic and postsynaptic mechanisms which are integrally involved in the maintenance of LTP, and one of the primary goals of this paper would be to find out the role of these two different processes in the maintenance of LTP across different time periods and stages.

The essence of LTP

Before discussing presynaptic and postsynaptic mechanisms and their role and impact on LTP, it is primarily necessary to briefly define LTP and find out the core of this notion because it will naturally help to better understand the role of both mechanisms in the maintenance of LTP.

First of all, it should be said that LTP is traditionally defined as the long-lasting strengthening connection between two nerve cells (Westbrook and Guthrie 1984). Naturally, such a definition seems to be quite simple, but at the same time, it is insufficient for the profound understanding of the essence of LTP. This is why it is necessary to explain the nature of this notion mostly.

In this respect, it is possible to refer to practice. To put it more precisely, it should be said that the recent experiments have revealed the fact that “a series of short, high-frequency stimulations to a nerve cell synapse can strengthen, or potentiate, the synapse for minutes to hours” (Bliss and Lomo 1973:354). In other words, it is possible to estimate that the time of the strengthening of the synapse may last from several minutes to hours under the impact of specific stimulation on a nerve cell.

However, it should be pointed out that these results were received in the temporary situation while in nature, in living cells, LTP may occur readily under the impact of natural mechanisms and can last much longer than experiments showed. Notably, it can last not only for hours but even for days, months, and years.

Probably, it is necessary to briefly the mechanism of LTP to understand better its significance and the significance of period for which it lasts in nature. So, it should be said that LTP occurs in the result of the interplay of protein kinases, phosphatases, and gene expression. Eventually, this gives rise to “synaptic plasticity and provides the foundation for highly adaptable nervous system” (Otmakhova 2000:4451). Nowadays many specialists working on neuroscientific learning theories estimate that long-term potentiations along with its opposing process, long-term depression, are the cornerstone, the cellular basis of learning and memory.

It is why it is hardly possible to underestimate the value of this process and consequently the importance of further research in this filed, which is relatively new for the modern science because LTP was initially discovered in the mammalian hippocampus by Terje Lomo in 1966. In such a way, the research in this field has lasted even for less than a half of a century, but it does not make these investigations any less significant. It is not a secret that LTP remains in the focus of attention of many specialists.

In this respect, it is necessary to point out that the modern LTP studies seek to “better understand its biology, while other research aims to develop drugs that exploit these biological mechanisms to treat neurodegenerative diseases such as Parkinson’s and Alzheimer’s disease” (Rogan et al. 1997:607). It is why the role of research concerning LTP is vital and, in such a situation, it is particularly important to find out the role of presynaptic and postsynaptic mechanisms in the maintenance of LTP across different time periods.

The role of presynaptic and postsynaptic mechanisms in the maintenance of LTP

Speaking about the impact of presynaptic and postsynaptic mechanisms on the support of LTP, it is necessary to underline from the beginning that there are defined two main phases. The first stage is an early phase which is traditionally defined as protein-synthesis independent phase (E-LTP). Remarkably, specialists note that this step may last for a relatively short period from one to five hours. The second stage is entirely different and, to a certain extent, contrary to the previous one. This phase is traditionally defined as the late phase (L-LTP), and it is a protein synthesis-dependent phase, which lasts for quite a long time from several days to months (Otmakhova 2000).

Speaking E-LTP, as it has been just mentioned above, produces a potentiation of a few hours duration. Specialists explain that it occurs in the result of “making the postsynaptic side of the synapse more sensitive to glutamate by adding additional AMPA receptors into the postsynaptic membrane” (Weisskopf 1999:10514).

In stark contrast, L-LTP results in “a pronouncing strengthening of the postsynaptic response largely through the synthesis of new proteins” (Weisskopf 1999:10515). These proteins include glutamate receptors, for instance, AMPAR, transcription factors, and structural proteins that enhance the existing synapses and form new connections.

Furthermore, it is also necessary to point out that some of the recent researches revealed that “late LTP prompts the postsynaptic synthesis of a retrograde messenger that diffuses to the presynaptic cell increasing the probability of neurotransmitter vesicle release on subsequent stimuli” (Otmakhova 2000:4449). At the same time, it should be pointed out that the conclusions made in the results of the researchers are highly hypothetical since they are obviously insufficient and need to be continued. In fact, it is really hardly possible to estimate that the researches that have been held in recent years are absolutely reliable because firstly, certain time is needed to provide sufficient pieces of evidence of the conclusions of the researches and, secondly, it is necessary to take into consideration the conclusions and results of further researches. To prove the low reliability of the researches, it should be said that the mechanism of L-LTP, which has been just proposed above, are only weakly supported by existing data. Moreover, some specialists in the field of neurobiology even doubt the very existing of L-LTP.

Nonetheless, to support the thesis of the significance of presynaptic and postsynaptic mechanisms in the maintenance of LTP, it is necessary to draw some practical examples of recent researches. For instance, according to the analysis of Esteban (2003) the researcher, is looking for the existence and functionality and existence of presynaptic mechanisms, arguments transmitter release in hippocampal slices. The researcher presented “simulations with a quantitative model glutamatergic synaptic transmission that includes modulation of the presynaptic fusion pore, realistic cleft geometry and a distributed array of postsynaptic receptors and glutamate transporters” (Esteban 2003:122)). Eventually, he concludes that such modeling supports the idea that “changes in the dynamic of glutamate release can contribute to synaptic silencing” (Esteban 2003:218).

At the same time, the research held by Nicoll may be summoned up as follows. First of all, paired-pulse facilitation thought to be emblematic of presynaptic change, not found in perforant path, where LTP occurs. Consequently, not presynaptic and as a researcher estimates both confirmed and challenged. Furthermore, AMPA component of glutamate response increased by LTP, consistent with the postsynaptic mechanism, whereas presynaptic would have affected both. Finally, the research showed that both failure rate and coefficient of variation of release, both consistent with presynaptic effect. By the way, it is noteworthy that Nicoll remarks that “the result is robust, but not conclusive” (2003:726).

The role of tetanic stimulation and importance of multiple systems for the control of LTP

On analyzing the research concerning LTP and both presynaptic and postsynaptic mechanisms, it should be said that tetanic stimulation can also play an essential role in this process as well as multiple control for LTP, which is also of paramount importance.

Speaking about the role of tetanic stimulation, it should be pointed out that, depending on its strength, tetanic stimulation can induce LTP and it will be either of a single pathway to a synapse, or cooperatively via the weaker stimulation of many (). Such a phenomenon may be explained by the fact that there is a stimulus threshold, which has to be reached to induce LTP.

Consequently, if one pathway into a synapse is stimulated weakly, it results in insufficient postsynaptic depolarization to induce LTP. On the other hand, when “weak stimuli are applied to many pathways that converge on a single patch of the postsynaptic membrane, the individual postsynaptic depolarisations generated may collectively depolarise the postsynaptic cell enough to induce LTP cooperatively” (Otmakhova et al. 2000:4449).

As for the importance of multiple systems for the control of LTP, it should be pointed out that such operation is needed objectively to receive reliable results of the research. Otherwise, it would be hardly possible to speak about scientific reliability of any research lacking such a system. At the same time, the development of the multiple systems for the control of LTP is another problem specialists currently face researching LTP because the development of such a system is also a severe problem since the research in this field are relatively new. Consequently, there is an absolute lack of reliable multiple methods for the control of LTP, which, as it has been just mentioned above, are essential.

Conclusion

Thus, taking into account all above mentioned, it is possible to conclude that presynaptic and postsynaptic mechanisms can play a crucial role in the process of LTP. It should be pointed out that the presynaptic mechanism’s maintenance of LTP may be defined in temporal terms as lasting from one to five hours. As for the postsynaptic mechanism, its maintenance of LTP may be defined respectively as varying from several hours to several months. However, it should be emphasized that the data of the research are still insufficient and it is still necessary to continue the investigation in this field.

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Sex With Child Wife Is Rape: Supreme Court

 “Such a girl child has no recourse to law under the provisions of the IPC notwithstanding that the marital rape could degrade and humiliate her, destroy her entire psychology, pushing her into a deep emotional crisis and dwarf and destroy her whole personality and degrade her very soul.”

unsafe women

–     Supreme Court Bench of Justices Madan B Lokur and Deepak Gupta

                                          In a latest verdict grabbing news headlines, the Supreme Court has on October 11 criminalised sexual intercourse by a husband with his wife who is below 18 years of age. It will henceforth be considered as rape. In effect, the judgment has done away with the protection husbands enjoyed under Indian Penal Code Section 375 Exception 2 that allows a husband to have sexual intercourse with a minor wife, provided she is not below 15 years of age. This is welcome in the sense that it will certainly  discourage child marriages in India which otherwise has been rampant in India cutting across religious lines!

                                    While craving for the exclusive indulgence of my esteemed readers, let me inform them that the decision came on a Public Interest Litigation filed by NGO ‘Independent Thought’. A two-Judge Bench of Supreme Court comprising of Justices Madan B Lokur and Deepak Gupta decided to read down the above provision of IPC by inserting 18 years in place of 15 years, to make the exception to IPC Section 375 read as, “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape.”

                                          For my esteemed readers exclusive indulgence, let me also inform them that by doing so, the Supreme Court has harmonized the law under IPC with the provisions of the Protection of Children from Sexual Offences (POCSO) Act 2012 under which “penetrative sexual assault” with a girl below 18 years by a person (even if related to the child through marriage) is a punishable offence under Section 5(n), the punishment for which extends from ten years prison term to even life imprisonment. The Bench read down this exception arguing that it was inconsistent with other statutes dealing with children such as The Prohibition of Child Marriage Act (PCMA), Juvenile Justice Act and the POCSO Act as all these have fixed the minimum age of the girl child for sexual relations at eighteen.

                             To put things in perspective, the Bench of Supreme Court held categorically that, “…In our opinion, sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not. The exception carved out in the IPC creates an unnecessary distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved. The artificial distinction is discriminatory and is definitely not in the interest of the girl child.” It has thus left not even an iota of doubt that henceforth sexual intercourse with a girl who is 18 years of age shall be considered a rape. It shall make no difference whether she is married or not. Undoubtedly, this will go a long way in checking the sexual exploitation of a girl who is below 18 years of age.

                                      Not stopping here, the Bench also added that, “It was also contrary to the philosophy and ethos of Article 15(3) of the Constitution as well as contrary to Article 21 of the Constitution and our commitments in international conventions…and to the philosophy behind dome statutes, the bodily integrity of the girl child and her reproductive choices.” It must be appreciated here that the Supreme Court while rendering this landmark judgment has taken into account the principles enshrined in Article 15(3) of the Constitution as also the commitments which India gives time and again in international conventions of preserving the bodily integrity of the girl child as also her reproductive choices. The judgment added it was “dreadful” that it also “turns a blind eye to trafficking of the girl child..which is such a horrible social evil”. Very rightly said!

                                       Truth be told, the Bench noted this glaring anomaly in IPC and POCSO. It minced no words in saying that, “A married girl between 15 and 18 years of age could be a victim of aggravated penetrative sexual assault under POCSO Act but she cannot be a victim of rape under the IPC if the rapist is her husband, since the IPC does not recognize such penetrative sexual assault by a husband as rape. Such a girl child has no recourse to law under the provisions of the IPC…However such a victim could prosecute the rapist under the POCSO Act. We see no rationale for such an artificial discrimination.”

                                      One has to appreciate that this was long overdue. There can be no denying this! Supreme Court has thus, no doubt, taken a right step in the right direction. It will certainly help minor victim to pursue rape case against her husband who tend to take her for granted.

                                       Truly speaking, the order also comes as a boost to curb child marriages, as the protection for husbands under the Exception clause of IPC Section 375 was seen by the court to “encourage” child marriages. Interestingly enough, Centre sought to oppose the PIL and submitted that child marriage, though a crime, is a social reality in the country, home to 23 million child brides, with a high prevalence among Scheduled Castes (34.9 percent), followed by Scheduled Tribes (31 percent) and lower wealth index (44.1 percent). It took the plea that with marriage, the girl child consents for sexual intercourse as well. Centre too has a point which cannot be lightly dismissed.

                                             As it turned out, the Bench strongly felt that, “There is no question of a girl child giving express or implied consent for sexual intercourse…those days are long gone when a married woman or girl could be treated as subordinate to her husband or at his beck and call or as his property. Constitutionally, a female has equal rights as male…Traditions that might have been acceptable at some historical point of time are not cast in stone. If times and situation change, so must views, traditions and conventions.” The court was assisted with research by two lawyers Gaurav Aggarwal and Jayna Kothari who displayed ample material on the detrimental effects of child marriage on the girl child’s reproductive, physical and mental health. It even impacts children born of such marriages. Without doubt, this landmark judgment forcefully espouses the woman’s right to be treated on par with men and rejects outright the age old dictum that woman or girl is subordinate to her husband and is like his property. Who can question this?

                                Needless to say, Justice Lokur in his separate judgment said, “India realizes the dangers of early marriages, it is merely dishing out platitudes and has not taken any concrete steps to protect the girl child from marital rape except enacting the POCSO Act.” It is high time and Centre must take with full seriousness what Supreme Court has said and work accordingly. Leaving it to the Centre and States to proactively curb child marriages, he added, “Welfare schemes and catchy slogans are excellent for awareness campaigns but they must be backed by focused implementation programmes, other positive and remedial action so that the girl child can look forward to a better future.” Centre as well as all States must adhere to what the Supreme Court has so rightly said!

                                        It must be added here that Justice Lokur wrote in his judgment which ran into 70 pages that, “The only pragmatic opinion available was to read (this) exception to Section 375 of the IPC in a purposive manner to make it in consonance with the POCSO Act, the spirit of other pro-child legislation and the human rights of a married girl child.” Justice Gupta who wrote a separate judgment concurring with Justice Lokur said the said exception was liable to be struck down as it is “arbitrary, capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable and, therefore, violative of Article 14, 15 and 21 of the Constitution of India”.

                                  One must bring out here that Justice Lokur while pointing out the injustice and anomaly enshrined in the exception to Section 375 itself which mandated that sex with a girl below 18 years of age, with or without her consent, was statutory rape  made it clear that an unmarried girl child can prosecute her rapist but a married girl child aged between 15 and 18 could not even do that. He went on to say eloquently that, “A child remains a child whether she is described as a street child or a surrendered child or an abandoned child or an adopted child. Similarly, a child remains a child whether she is a married child or an unmarried child or a divorced child or a separated or widowed child. At this stage we are reminded of Shakespeare’s eternal view that a rose by any other name would smell as sweet – so also with the status of a child, despite any prefix”.

                                  It must also be added here that Justice Gupta also clarified that the judgment will have “prospective effect” meaning it will not apply to past cases and that cognizance of such offences can be taken only in accordance with the provisions of Section 198(6) of the Criminal Procedure Code. The provision says that court shall not take cognizance of an offence under Section 376 IPC “if more than one year has elapsed from the date of commission of the offence”. This to check the arbitrary misuse of this provision which has been rightly inserted.

                             To be sure, the Bench, however, clarified that it was not making any observation on “marital rape” of a woman who is 18 years of age and above as the issue was not before the court. The question whether marital rape should be criminalized is pending before the Delhi high Court where the Centre has filed an affidavit opposing this saying that doing so may destabilize the institution of marriage apart from being an easy tool for harassing husbands. I personally feel that marriage does not confer an unfettered licence to rape a woman and it must be punishable doubly as the husband betrays completely the unflinching trust posed by her in him by marrying him. Sex has to be with consent of a woman and not without her consent.

                                 Anyway, coming back to the main topic, this latest judgment also referred to the counter affidavit of the Government of India which drew the attention of the court to the National Family Health Survey – 3 (of 2005) which states that 46 percent of women in India between the ages of 18 and 29 were married before the age of 18 years. On PCMA which under Section 3 says that a child  marriage is not void, but only voidable at the option of any of the parties, the judgment categorically said that, “In other words a child marriage is sought to be somehow ‘legitimized’ by the Union of India and the onus for having it declared voidable or a nullity is placed on the child bride or the groom”. In fact, this Section puts the burden on the child bride or groom to seek a declaration of nullity from a court of law.

                                   In this regard, the Supreme Court lauded Karnataka for its commendable act of amending the Prohibition of Child Marriage Act (PCMA) to make child marriage automatically void. In Karnataka, the husband of a girl child would be liable for punishment for child marriage under the amended PCMA; for penetrative sexual assault or aggravated penetrative sexual assault under the POCSO Act; and if the husband and the girl child are living together in the same or shared household for rape under the IPC.

                                      In his separate judgment, Justice Dipak Gupta investigates the reason behind the “magic figure” of 15, the age from which a husband can have sexual intercourse with his minor wife. His research, the Judge notes, revealed that the reason dates back to 1940, when the age of consent for a girl was 16, the age of marriage 15 and the age under the exception clause 15. In 1975, the age of consent was 16, the age of marriage 18, and the age under exception 15. Today, when the age of consent and marriage of a girl are 18, the age under the exception is still 15. He said that the magic figure is based on the fact that it has been existing for a long time.

                                    As it turned out, the lawyer of Centre in August while citing tradition wanted status quo and had contended that the country’s socio-economic realities cannot be ignored and that the exception clause was necessary to “protect the institution of marriage”. To this, the Apex Court responded saying that, “Unfortunately…if a girl child between 15 and 18 years is married, her husband can have non-consensual sex with her without being penalized, only because she is married to him, and for no other reason. The right of such a girl child to bodily integrity and to decline to have sexual intercourse with her husband has been taken away”.

                                      Be it noted, Justice Gupta also answered the question whether the court by invalidating the exception will be creating a new offence which the legislature did not intend to make. He said that, “In my view, as far as this case is concerned, this Court is not creating any new offence but only removing what was unconstitutional and offensive.” It is thus clear that the Supreme Court has not created any new offence but only removed what was unconstitutional and offensive and by doing so if an offence is created, so be it. Justice Gupta also said that child marriage puts a girl’s health at risk. He said that, “When a girl is compelled to marry before she attains the age of 18 years, her health is put in serious jeopardy”.

                         Senior Supreme Court advocate Indira Jaising while calling the verdict “progressive” had said the logical outcome of the judgment was to make child marriages automatically void. However, she said the judgment should not be used to criminalise the “experimentalism of the body” seen among adolescents who are aged between 15 and 18 years. Her point is valid!

                             Another senior Supreme Court advocate Prashant Bhushan while lauding the judgment as correct and harmonizing the IPC with other anti-child abuse laws like POCSO said that, “The judgment reinforces the fact recognized by other laws that a child is not in a position to grant or not grant consent.” Advocate Gaurav Agarwal who is the counsel for the NGO – “Independent Thought” on whose petition the Supreme Court gave this landmark judgment rightly said that, “This would compel families of boys to think twice before getting their sons married to minor girls.” But what if the parents of minor girls misrepresent her age in order to marry her off early? Then certainly they are squarely responsible for it!

                                     Supreme Court advocate Aishwarya Bhati also agreed that declaration of child marriages as void or a complete ban on child marriage is the “necessary corollary” to this judgment. Swati Maliwal who is Chairperson of Delhi Child Welfare also while welcoming the judgment rightly asked that, “What is the point of a Beti Bachao Beti Padhao Andolan if the girl is married off at 15 itself?” Rightly said! Sudha Ramalingam who is a senior advocate said the judgment was rightful as it was now synchronized with POCSO but said implementation would be difficult, especially in cases of child marriage, where there would be tacit approval by the family.

                                All said and done, the Bench asked the Centre and the States to take proactive steps to prohibit child marriage across the country. Centre and States must comply accordingly. The verdict has sent a loud and clear message that, “Sanctity of marriage must not be misused to cover up rape. The government cannot be oblivious to the trauma faced by a girl child married between 15 and 18 or to pro-child statutes and other human rights  obligations.”

                      In a big embarrassment for Centre, the Supreme Court upbraided the government for failing to enforce the PCMA strictly and for not criminalizing a man’s sexual intercourse with his wife aged 18 or below. It castigated and pulled up Centre saying that, “What has the government of India done? It has persuaded Parliament to convert what is otherwise universally accepted as a heinous crime into a legitimate activity for the purposes of Section 375 of the IPC if exploiter or abuser is the husband of the girl child”.

                                 It must be mentioned here that the court was responding to a petition that was only concerned with the “violation of the rights of girls who are married between the ages of 15 and 18 years”. So the court restricted itself only to it and did not elaborate on marital rape by adult man with his major wife who is above 18 years of age.

                            Poonam Muttreja who is Executive Director of Population Foundation of India rightly said that, “While the trauma of forced sex for the minor is in itself an unfair burden, it could also jeopardize her health and that of the infant, should an untimely and unwanted pregnancy occur”. Vidya Reddy of Tulir, Centre for the Prevention & Healing of Child Sexual Abuse wonders if this would actually deny young women medical help. She said since POCSO and the Criminal Procedure Code mandated reporting of an offence and since any sexual contact below the age of 18 was an offence, the health and well being of young people seeking medical care, for a safe delivery for instance, could be compromised and they could be sucked into the criminal justice system. She rightly said that, “This, in many ways, could deny them good healthcare and they may seek alternative forms of treatment as they would not want their families broken up.” In this whole process, the very life of the minor girl can be at stake!

                               It is high time and Centre too must realize that marriage does not confer an unbridled licence to a man to trample upon a woman’s legal and human rights which includes the right to say no to sex whenever she wants with no ifs and buts irrespective of whether she is major or minor and take urgent steps to criminalise marital rape with no exceptions whatsoever! I am very clear in my mind: Sex with woman can only and only be with her consent and under no circumstances whatsoever can be without her consent even if she is above 18 years of age!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Fundamental Duties Most Unfortunately Has Become A Forgotten Chapter Of The Constitution

“The source of right is duty. If we all discharge our duties, rights will not be far to seek. If leaving duties unperformed we run after rights, they will escape us like will of the wisp, the more we pursue them, the further they will fly. I learned from my illiterate but wise mother that all rights to be deserved and preserved come from duty well done. Thus the very right to live accrues to us only when we do the duty of citizenship of the world. From this one fundamental statement, perhaps it is easy though to define duties of man and woman and correlate every right to some corresponding duty to be first performed. Every other right can be shown to be usurpation hardly worth fighting for.”

fundamental rights

                                                              –         Mahatma Gandhi when requested to give his thoughts on the Universal Declaration of Human Rights

                                                            At the very outset, let me begin by  saying that it grievously hurts me to painfully note that fundamental duties has more or less most unfortunately become a forgotten chapter of our Constitution. This most definitely should never have happened but we all have been watching this happening right before our own eyes. Communal riots breaking out on very small petty issues in which many people lose their precious lives, many children become orphan and homeless as their houses are burnt are all most painful reminders that fundamental duties have become more or less a forgotten chapter of our Constitution! Nothing on earth can be more unfortunate than this!

                                                     To say the least, burning of Indian flags, waving of Pakistani flags, ranting anti-India slogans and doing many other such anti-national acts cannot be justified under any circumstances. It is the fundamental duty of each and every citizen of India to desist from all such anti-national acts. Only then are we true citizens of India!

                                                      Needless to say, there can be no chapter in Constitution which is as important as the one on fundamental duties yet it has been mostly ignored. How often do we read articles on Constitution pertaining to fundamental duties? The obvious answer is once in a blue moon. This despite the fact that fundamental duties are most important as I have already noted above. No less than an eminent legal luminary of the stature of former Chief Justice of India – Justice RC Lahoti while delivering a guest lecture in memory of Justice KT Desai on 15 July, 2014 at Central Court Room in Bombay High Court, Mumbai on ‘Fundamental Duties – A Forgotten Chapter of the Constitution’ had himself most gracefully observed that, “I could not have chosen a subject better than the Fundamental Duties; more so, when as a student of Constitution I find that in the judicial circles and amongst the citizens, a significant provision like Article 51A is found to be conspicuous more by its absence. It is a beautifully well drafted piece of Constitutional enactment. Every word is so well chosen and placed as if a gem studded in necklace! To me, these 10 duties sound like incantations of some holy book.”

                                                     Having said this, I must now bring out here that Part IVA, Article 51A, providing for ten fundamental duties, was introduced in the Constitution not in 1950 when it was originally prepared but by the 42nd Amendment to the Constitution in 1976. Let us all read the basic text of this all important Article 51A, as enacted by 42nd Amendment pertaining to fundamental duties. It runs as follows : –

51A. Fundamental duties – It shall be the duty of every citizen of India:

(a)           to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;

(b) to cherish and follow the noble ideals which inspired our national struggle for freedom;

(c)            to uphold and protect the sovereignty, unity and integrity of India;

(d) to defend the country and render national service when called upon to do so;

(e)           to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;

(f)             to value and preserve the rich heritage of our composite culture;

(g)           to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;

(h) to develop the scientific temper, humanism and the spirit of inquiry and reform;

(i)              to safeguard public property and to abjure violence;

(j)              to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement;

(k)          who is a parent or guardian to provide opportunities for education to his child, or as the case may be, ward between the age of six and fourteen years.

                                                             No doubt, it is pertinent to mention here that it was in 2002 and by the 86th Amendment to the Constitution that one more fundamental duty was added as clause (k) in Article 51A and very rightly so. The basic education of children is most imperative and must always be provided to children between the age of 6 to 14 as very rightly provided in clause (k). There can be no two opinions on this.

                                            A moot question arises here : Why it never occurred to the founding fathers of our Constitution of the dire need to include fundamental duties also in it? Most certainly, this was because the founding fathers had unflinching faith in all Indians that they would themselves voluntarily do their fundamental duties on their own without their mentioning it specifically in the Constitution. They were not wrong in doing so. It is the people themselves who have not risen to the occasion and abdicated from discharging their fundamental duties due to which it had to be specifically inserted in the Constitution in 1976 by the 42nd Amendment.

                                            All said and done, we must also not forget here that there some provisions which are implicit like all the fundamental rights have corresponding duties also like Article 17 implies a duty not to practice untouchability and same goes the case with other fundamental right. Similarly Article 14 which deals with right to equality also implies a duty to treat all others equally. What is most hurting to note is that while most of us always remember by heart our fundamental rights, we very rarely bother about fundamental duties which are equally as important rather more important but whom we very conveniently ignore blithely for preserving our own vested interest! This is the most sad part which is just not done!

                                            What most of us tend to ignore is that our rich Indian culture never believed in duties being imposed on us as our forefathers always believed in sacrifice and this alone explains that why fundamental duties and directive principles of state policy are not binding on citizens and no penalty is imposed on anyone for not performing them. We must be always grateful to the founding fathers of our Constitution for this but we hardly care for it! Here is where we have gone grievously wrong which we must be honest enough to at least admit.

                                           Truth be told, it is most unfortunate to note that the chapter on fundamental duties even after being inserted has been most blatantly disregarded and very conveniently overlooked everywhere. This alone explains why the former CJI – Justice RC Lahoti had to observe most painfully that, “The chapter on fundamental duties, inspite of having been introduced in the Constitution, is more neglected than noticed. I have not come across any textbook of schools incorporating the text of fundamental duties much less any discussion thereon. The commentaries on Indian Constitution which I have come across, do not deal with this chapter with any emphasis. Eminent jurists writing commentaries on Constitution have not written much on fundamental duties. The apex court of the country and the High Courts have also not much utilized the Article 51A while dealing with other constitutional provisions.”

                                           Truly speaking, HM Seervai who is one of the most eminent legal luminary and jurist that India has ever produced in his monumental work on Constitutional law of India has written just a para on fundamental duties which I feel it obligatory to mention here. I must go on to say here that two notable observations made by the eminent jurist Seervai deserves to be quoted here. He says most eloquently that, “[Article 51A] has been enacted under the mistaken belief that if Articles 14 to 32 confer fundamental rights on citizens, and Articles 38 to 51 impose ‘duties’ on the State, fundamental duties ought to be imposed on citizens…. If the directive principles are violated or ignored nothing happens; equally if fundamental duties are disregarded nothing happens. It is unnecessary to deal with Article 51A beyond saying that they are innocuous”. What Seervai has observed can under no circumstances be ignored. Centre must ponder most seriously on this and do what is best suited to meet the present circumstances. The eminent legal luminary Seervai further goes on to say that clauses (b) and (j) must appear ludicrous to people outside India and even to people within India.

                                                    Having said this, now let me turn my attention on how fundamental duties came into existence. It was during the term of former PM late Mrs Indira Gandhi that it was decided that certain fundamental duties must be incorporated in the Constitution so that all citizens remain conscious of it and not think that they have no duty at all to perform. On February 26, 1976 the All India Congress Committee appointed Swaran Singh Committee to suggest certain changes in the Constitution to meet the changed circumstances. Swaran Singh Committee consisted of 12 members with former External Affairs Minister, Sardar Swaran Singh as its Chairman and Congress Secretary, AR Antulay, MP, as its Secretary.

                                                      While craving for my esteemed readers exclusive indulgence, let me point out here that it is interesting to note here that the Swaran Committee said nothing about the fundamental duties but in its supplementary report, it listed the fundamental duties, which had to be incorporated as a separate chapter in the Constitution. This Committee also laid special emphasis on the dire need of making people more aware of the duties they must perform along with enjoying rights. This is how fundamental duties were inserted in our Constitution.

                                                  For my esteemed readers exclusive benefit, I must mention here that actually the Swaran Committee had recommended only 8 fundamental duties but the Congress government in Centre headed by late Mrs Indira Gandhi decided to include 10 duties as fundamental duties. I must also mention here that some suggestions made by Swaran Committee were not accepted by Centre. As for instance, it was suggested by the Committee that there should be a penalty or punishment for non-compliance of the fundamental duties but these were not accepted. The other suggestions made but not accepted were : –

  1. PK Deo (Kalahandi) suggested that, “Every young person, before graduation in any University or before being eligible for any employment in any service, shall serve in the Territorial Army or work in any factory, or farm, or irrigation project, at least for one year”.
  2. Smt Maya Ray made a notable suggestion that payment of taxes be included as one of the fundamental duties.
  3. Bibhuti Mishra suggested, “To observe celibacy in the interest of family planning and to abstain from excessive consumption of alcohol”. He had also suggested Article 51B and Article 51C being included in the Amendment, as under –

“51B Special duty of holders of public offices – It shall be the special duty of every member of the Council of Ministers either of the Union or of the States, and every person holding an office under the Government or every member or office bearer of any public institution to protect and safeguard interests of the country and abstain from doing anything which jeopardises or is likely to jeopardise the economic, social or political interests of the country in any manner whatsoever.”

“51C – It shall be the duty of every member of the Council of Ministers and every officer of the Government responsible for taking decisions in matters relating to policy of the Government or internal administration of the Government or Departments to abstain from consuming alcohol in any public place whether called as such or private.”

  1. Sardar Swaran Singh Sokhi suggested, “To have ceiling on expenditure and to have compassion for living creatures”.
  2. Dr Karan Singh suggested, “A duty to sustain the unity and integrity of the nation.”; “A duty to act in accordance with the Constitution and laws of the land.” and “A duty to perform public duties and safeguard public property.”
  3. Kartik Oraon suggested, “A duty to undergo compulsory military training for two years at the age of eighteen or on completion of education”.
  4. Jambuwant Dhote suggested, “A duty to use swadeshi and indigenously manufactured goods only.”; “A duty to undergo military training in the armed forces for one year in case of a student/youth who attains the age of seventeen years.”; “A duty to learn how to read, write and speak ‘Hindustani language’.”; “A duty not to have either in cash or in a bank (Indian or foreign) an amount exceeding Rs 25,000.”; “A duty not to keep cash, jewellery, gold, silver, diamonds, pearls, jewels etc., in safe deposit vault either in his name or in the name of a member of his family.”; “A duty not to keep gold exceeding ten tolas in the form of ornaments or in any other form in case of a female and not to wear any ornaments made of gold in case of a male.”; “A duty to surrender to the Government cash, gold and jewellery in excess of the ceilings.”; “A duty to transfer immovable property exceeding the ceiling to the Government through a testament or any other instrument.”; “A duty to abjure vice.”; and “A duty to consider his foremost duty to build a clean, perfect and ideal character while translating into practice the aforesaid ten duties of a citizen and family.”
  5. Priya Ranjan Das Munshi suggested, “A duty to get pass marks in the history of national struggle for independence in respective stages and volumes as specified by the legislation or guidelines of the Education Ministry, in all academic examinations and in all faculties from minor to graduate degree and in all competitive examinations like PSC, UPSC and IAS.”; “A duty to set compulsory military training in school and college level for able young men.”; “A duty to get compulsory physical culture and sports in all spheres of the youth and students”.
  6. Dr Paras Diwan suggested, “A duty to work.”; “A duty to pay taxes.”; “A duty to maintain discipline at work and public order.”; “A duty to participate in public life.”; “A duty not to spread hatred, contempt or provoke strife on account of national, regional, lingual, racial and religious differences.”; “A duty to be vigilant against the enemies of the state.”; “A duty to discharge any public or social office vested in him conscientiously.”; and “A duty to receive education”.

                                                 As it turned out, it was on 1-9-1976 that finally the 42nd Amendment was introduced in the Parliament as Constitution 44th Amendment Bill by HR Gokhale who was the then Law Minister. The debate on the Bill which included Article 51A was a long debate and the motion was adopted with certain amendments on November 2, 1976. The reason why I mentioned above even those suggestions which were not accepted is that most of these suggestions are really laudable and we all must try and do our best to follow them to the best of our ability keeping our national interests above everything else.

                                            As things stand, there are many like me who very strongly feel that fundamental duties are mere “show pieces” or you may say more directly – “dead letters”. This is so because they are neither justiciable nor judicially enforceable unlike fundamental rights. There is no direct or even indirect provision in our Constitution or any other law for the time being in force in our country by which we can get fundamental duties enforced. There must be some penalty or punishment to ensure that fundamental duties are properly enforced.

                                                    Needless to say, this alone explains why most of the citizens care the least to ensure that they are discharging their fundamental duties properly! This alone explains why it was a “grave mistake” on the part of the Congress government led by Mrs Indira Gandhi to not accept the landmark suggestion of imposing penalty or punishment for non-compliance of fundamental duties! Under the Constitution of Greece and Cyprus, there is a fundamental duty, cast upon the citizens to exercise his right of franchise, founded on the doctrine of compulsory voting. A failure to exercise the right to vote is an offence punishable under the law.

                                             Let me bring out here that the American Constitution does not enumerate any fundamental duties of an individual and the UK does not have any written Constitution. But in general, the common law duties of a citizen are the same in USA and UK and they are as follows : –

  1. Allegiance to the State,
  2. To disclose any treason or felony of which he has the knowledge, and
  3. To assist in the detection and suppression of a crime.

There are more than 35 nations whose Constitution contain specific provisions on fundamental duties. Chapter II of the Chinese Constitution of 1982 clubs “fundamental rights and duties” of citizens together. It merits attention to note here that Article 33(3) makes the performance of the duties an enabling condition for enjoyment of the rights. It would be worth recalling here some of the duties enjoined by Chinese Constitution and they are as follows : –

  1. Duty towards motherland – to safeguard the security, honour and interest of the motherland; to defend the motherland and resist aggression; to maintain national unity and integrity,
  2. To abide by the Constitution;
  3. To protect public property;
  4. To respect social ethics;
  5. To pay taxes; and
  6. To work etc.

                                       Let me also bring out here that the 1977 Constitution of the erstwhile USSR  too places rights and duties on the same footing and this is best evident by Article 59 which says that, “Citizens exercise of their rights and freedoms is inseparable from the performance of their duties and obligations.” Article 61 lays down that every citizen of the USSR is obliged to preserve and protect socialist property. Persons encroaching in any way on socialist property shall be punished by law.

                                              Going forward, the Yugoslavian Constitution of 1963 also assigns a high priority to the duties of citizen. Article 32 states that, “The freedom and rights shall be achieved in solidarity among the people by the fulfillment of their duties towards each other”. Article 36 says that, “The right to work and the freedom to work are guaranteed and whoever will not work, though he is fit to do so, shall not enjoy the rights and the social protection that man enjoys on the basis of work”. Article 61 further envisages that, “Every citizen shall conscientiously discharge any public or social office vested in him and shall be personally accountable for discharging it”.

                                                  To put things in perspective, Chapter III of the Japanese Constitution, 1946, is titled “Rights and Duties of the People” which clearly indicates that rights and duties are clubbed together and not separately thus clearly conveying that duties are as important as rights. Under Article 26, the parents have the obligation to send the children to receive the compulsory free education provided by the State and under Article 27, all people shall have the obligation to work.

                                          There can be no gainsaying the indisputable fact that Justice JS Verma, former CJI, has emphasized that discourse on fundamental rights and fundamental duties cannot be divorced from each other or else we do a dis-service to both. Eminent legal jurist DD Basu says that the fundamental duties can monitor fundamental rights. For instance, a person who burns the Constitution, in violation of the duty in Article 51A(a), cannot assert that the meeting or assembly at which it was burnt, by way of demonstration against the government, should be protected by the freedom of expression or assembly guaranteed by Article 19.

                                     Be it noted, it was as early as in 1969 that the Supreme Court of India in Chandra Bhavan Boarding and Lodging, Bangalore v The State of Mysore, (1969) 3 SCC 84 had stated most categorically that, “It is a fallacy to think that under our Constitution there are only rights and no duties. While rights conferred under Part III are fundamental, the directives given under Part IV are fundamental in the governance of the country. We see no conflict on the whole between the provisions contained in Part III and Part IV. They are complimentary and supplementary to each other. The provisions of Part IV enable the legislatures and the government to impose various duties on the citizens. The provisions therein, are deliberately made elastic because the duties to be imposed on the citizens depend on the extent to which the directive principles are implemented. The mandate of the Constitution is to build a welfare society in which justice – social, economic and political, shall inform all institutions of our national life. The hopes and aspirations aroused by the Constitution will be belied if the minimum needs of the lowest of our citizens are not met.” In this case, the court also held that freedom of trade does not mean freedom to exploit, nor do the provisions of the Constitution act as barriers to progress. They provide a balance for orderly progress towards the social order contemplated by the Preamble of the Constitution. Workers were held entitled to minimum rates of wages. In Municipal Council, Ratlam v Vardhichand, (1980) 4 SCC 162, the Supreme Court ruled that paucity of funds shall not be a defence to not carry out the basic duties by the local authorities.

                                                Let me also mention here that in Rural Litigation and Entitlement Kendra, Dehradun v State of Uttar Pradesh, (1985) 2 SCC 431, a Bench of Chief Justice PN Bhagwati and Justice Ranganath Mishra in order to prevent imbalance in ecology and hazard to healthy environment being created due to working of lime-stone quarries, directed the cancellation of the leases which resulted in permanent closure of lime-stone quarries. These directions were issued in face of the fundamental right to trade and business and the right to earn livelihood assigning paramount significance to fundamental duties and rather placing the fundamental duties, owing to people at  large, above the fundamental right of a few individuals. The court held that such closure would undoubtedly cause hardship, “but it is a price that has to be paid for protecting and safeguarding the right of the people to live in healthy environment with minimal disturbance of ecological balance and without avoidable hazard to them and to their cattle, homes and agricultural land and undue affectation of air, water and environment”. Similarly in Rural Litigation and Entitlement Kendra v State of Uttar Pradesh, 1986(Supp) SCC 517, it was held by Apex Court that, “Preservation of the environment and keeping the ecological balance unaffected is a task which not only governments but also every citizen must undertake. It is a social obligation and let us remind every Indian citizen that it is his fundamental duty as enshrined in Article 51A(g) of the Constitution.”

                                        It must be added here that in Shri Sachidanand Pandey  v State of West Bengal, (1987)2 SCC 295, the Apex Court held that whenever a problem of ecology is brought before the court, the court is bound to bear in mind Article 48A of the Constitution and Article 51A(g) which proclaims the fundamental duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures. Policy decisions taken by State are not ordinarily to be interfered with by the courts. But if it is the question of giving effect to the directive principle and the fundamental duty, the court is not to shrug its shoulders and say that priorities are a matter of policy not to be touched by the court; the court may always give necessary directions.

                                  It must also be added here that in MC Mehta v Union of India, (1988) 1 SCC 471, Article 51A, enacting fundamental duties of citizens, was read as casting duties on the government and for issuing certain directions consistently with Article 51A. The directions to be issued by government were –

  1. The Central Government shall direct to the educational institutions throughout India to teach at least for one hour in a week, lessons relating to protection and the improvement of the natural environment including forests, lakes, rivers and wild life in the first ten classes;
  2. The Central Government shall get text books written for the said purpose and distribute them to the educational institutions free of cost;
  3. The children shall be taught about the need for maintaining cleanliness, commencing with the cleanliness of the house, both inside and the outside and with the street in which they live;
  4. The Central Government shall consider training of teachers who teach this subject by the introduction of short-term courses for such training;
  5. The Central Government, the Governments of the States and all the Union Territories shall consider desirability of organizing “Keep the city/town/village clean” week;
  6. To create a national awareness of the problems faced by the people by the appalling all-round deterioration of the environment.

On this, the former CJI, Justice RC Lahoti rightly said that, “The logic behind the approach adopted by the Supreme Court seems to be that if Constitution ordains the citizens to perform certain duties then the State is equally ordained to perform all such functions as would enable the citizens to perform their duties.

                                               Also, let me hasten to add here that in Vellore Citizens’ Welfare Forum v Union of India, (1996) 5 SCC 647 and MC Mehta v Union of India, (1997) 3 SCC 715, the Supreme Court recognized ‘The Precautionary Principle’ and ‘The Polluter Pays Principle’ as essential features of ‘sustainable development’ and part of the environmental law of the country. It is worth mentioning here that Article 21, directive principles and fundamental duty clause (g) of Article 51A were relied on by the Supreme Court for spelling out a clear mandate to the State to protect and improve the environment and to safeguard the forests and wild life of the country. The Apex Court held it mandatory for the State Government to anticipate, prevent and attack the causes of environmental degradation. In AIIMS Students Union v AIIMS, (2002) 1 SCC 428, while striking down the institutional reservation in AIIMS as violative of Article 14, the Supreme Court has drawn liberal support and backing of the fundamental duties, giving them paramountcy of consideration with other provisions of Constitution to test the Constitutional validity of such reservation in AIIMS.

                                       Having said this, let me reiterate here that just a few landmark Apex Court rulings even though laudable are woefully inadequate to deal with the endless number of cases of fundamental duties being thrown to the garbage! There are some more rulings which I have not mentioned but they are simply not enough.

                                                      Let me be direct in asking: Why can’t we fulfill our fundamental duties? Why can’t we be loyal to the nation? Why can’t we perform our fundamental duties with the same passion with which we claim time and again our fundamental rights? Why can’t we respect our national song, national anthem, national flag and everything else which is associated directly or indirectly with our nation’s pride? Why can’t we refrain from all such acts which directly or indirectly are inimical to the long term interests of our great nation? How can we claim to be Indians if we don’t perform our fundamental duties and just keep waxing eloquent on fundamental rights alone? There are many more such thought provoking questions which we must ponder over and answer honestly so that there is no fog of doubt left in our mind whatsoever of any kind!

                                                        No prizes for guessing that it is high time and now India too must seriously ponder over the dire need of clubbing duties and rights together so that duties are accorded the same high position as that of rights and to enjoy rights it must be obligatory that citizens discharge responsibly some duties also and not just keep enjoying fundamental rights and keep moving courts for enforcement of fundamental rights as we have been seeing happening in our country since independence till now! Also, it must be obligatory to render some basic fundamental duties and those not doing must be made to face punishment or penalty or both! Those who indulge in blatant anti-national acts by ranting anti-Indian slogans, burning national flag or any other similar act and abdicate their fundamental duty of respecting our national flag, national anthem, national song and unity and integrity of India have no right to claim fundamental rights and they have no right to claim Indian citizenship!

                                                      On a concluding note, let me say this most politely but at the same time most firmly: You cannot have it both ways! This is what most unfortunately is not being conveyed by Government to all such people who wantonly indulge in anti-national acts and yet are not ready to abdicate their fundamental rights and privileges associated with Indian citizenship! Fundamental duties most unfortunately has become a forgotten chapter of the Constitution. This must change now for the better and we all must fulfill our fundamental duties if we earnestly love our motherland otherwise we have just no right to stay in India or just keep claiming fundamental rights without performing any of the fundamental duties enshrined in our Constitution! The biggest tribute that we can pay to the founding fathers of our Constitution is to perform our fundamental duties with the same diligence with which we claim relentlessly our fundamental rights!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

SC Rightly Annuls Unconstitutional And Arbitrary Instant Divorce

Let me begin at the very beginning by pointing out that in a landmark judgment, the Supreme Court on August 22 rightly annulled the 1,400 year old reprehensible practice of instant triple talaq (talaq-e-biddat) among Muslims terming it unconstitutional and sending out a strong message that religious practices which are arbitrary and discriminatory have no place in a constitutional democracy. A historic 3:2 majority judgment by a multi-faith Constitution Bench set aside instant talaq as a “manifestly arbitrary” practice not protected by Article 25 (freedom of religion) of the Constitution. The triumvirate of Justices Kurian Joseph, UU Lalit and Rohinton F Nariman overwhelmed the minority verdict pronounced by Chief Justice of India JS Khehar and endorsed by Justice S Abdul Nazeer who is the juniormost Judge on the Bench.

triple talaq.JPG

                                     Be it noted, in talaq-e-biddat, divorce becomes immediately effective. Unlike the other two categories, it is irrevocable from the moment it is pronounced. In talaq-e-ahsan, the husband pronounces talaq once followed by abstinence or ‘iddat’ of 90 days or 3 menstrual cycles. If couple resumes intimacy in ‘iddat’ period, talaq is revoked, else it is final.

                                          To put things in perspective, in talaq-e-hasan, husband pronounces talaq 3 times over 3 months with ‘iddat’ of one month each. If intimacy is resumed in ‘iddat’, talaq is considered revoked. If it is not, the divorce becomes binding after third talaq. Supreme Court has declared illegal only “talaq-e-biddat” and Muslim men can still divorce their wives by “talaq-e-ahsan” and “talaq-e-hasan”.

                                   All credit to Shayara Bano – the 35-year-old Muslim woman from a remote hamlet – Hempur Daya in Kashipur in Uttarakhand. She was arbitrarily divorced in a letter by her husband in 2015 that contained the letter “talaq” thrice” and her husband also refused to give her two kids! She strongly stood up against fundamentalists, clerics and the glare of media and reiterated her firm determination to root out this regressive malpractice by filing PIL in Supreme Court on February 23, 2016. Now she stands totally vindicated as Supreme Court rightly upheld her contention!

                                                 But having said this, I must also mention here that along with Shayara Bano, the other key parties who were instrumental in drawing the attention of Supreme Court towards triple talaq were Ishrat Jahan, Aafreen Rehman, Atiya Sabri, Gulshan Parween and Bharatiya Muslim Mahila Andolan. Ishrat Jahan is a resident of West Bengal who was divorced by her husband Murtaza through a phone call from Dubai in April 2015. Murtaza married another woman and took away their four children with him leaving her totally helpless!

                                       Aafreen Rehman who got married in 2014 was first harassed for dowry and even beaten regularly. Later in September 2015 they asked her to leave their house. In her parents house she received a letter via speed post announcing triple talaq in January 2016.

                               Gulshan Parween of Rampur in UP filed a petition in Supreme Court asking for abolishing triple talaq in 2015. She alleged her husband sent her a talaqnama on a Rs 10 stamp paper when she was at her parents house. She alleged she was subjected to domestic violence by him for 2 years for dowry!

                                         Supreme Court made the Bharatiya Muslim Mahila Andolan (BMMA) a party in the case after taking cognizance of a survey which said 92% of Muslim women want abolition of triple talaq. Led by Zakiya Soman, the Mumbai-based autonomous body has been fighting for citizenship rights of Muslims since it was formed in January 2007. Naseem Akhtar who is BMMA’s Jaipur convener said: “It’s a balanced decision. Now we expect government to make a law against triple talaq the soonest.”

                                  Atiya Sabri of Uttar Pradesh is the last petitioner in this case. Her husband Wajid Ali and she were married since 2012 but in November 2015 her husband sent to her brother’s office a note of triple talaq. She alleged that as she had two daughters, aged three and four, her in-laws were not happy and they had tried to poison her. She approached the Supreme Court in January 2017 challenging the divorce and said that triple talaq violates fundamental rights of women.

                                                As we all know, the Supreme Court on August 22 declared triple talaq as void, illegal and unconstitutional. It is important to understand the entire sequence of events in which this landmark case proceeded. To make this task easier, here’s the chronology of events in this landmark case –

October 16, 2015: Supreme Court Bench asks Chief Justice of India to set up an appropriate Bench to examine if Muslim women face gender discrimination in divorce cases while dealing with a case of Hindu succession.

February 5, 2016: Supreme Court asks the then Attorney General Mukul Rohatgi to assist it on the pleas challenging constitutional validity of ‘triple talaq’, ‘nikah halala’ and ‘polygamy’.

March 28, 2016: Supreme Court asks Centre to file report of a high-level panel on ‘Women and the law: An assessment of family laws with focus on laws relating to marriage, divorce, custody, inheritance and succession’.

June 29, 2016: Supreme Court says ‘triple talaq’ among Muslims will be tested on “touchstone of constitutional framework”.

October 7, 2016: For the first time in India’s constitutional history, Centre opposes in Supreme Court these practices and favours a relook on grounds like gender equality and secularism.

February 14, 2017: Supreme Court allows various interlocutory pleas to be tagged along with the main matter.

February 16, 2017: Supreme Court says a five-Judge Constitution Bench set up to hear and decide the challenge to ‘triple talaq’, ‘nikah halala’ and ‘polygamy’.

March 27, 2017: AIMPLB tells Supreme Court that pleas were not maintainable as the issues fall outside the judiciary’s realm.

March 30, 2017: Supreme Court says these issues are “very important” and involve “sentiments” and says a Constitution Bench would start hearing it from May 11.

May 11, 2017: Supreme Court says it would examine whether the practice of triple talaq among Muslims is fundamental to their religion.

May 12, 2017: Supreme Court says the practice of triple talaq was the “worst” and “not desirable” form of dissolution of marriages among Muslims.

May 15, 2017: Centre tells Supreme Court that it will bring new law to regulate marriage and divorce among the Muslim community if triple talaq struck down. Supreme Court says it would examine whether triple talaq was an essential part of religion under Article 25 of Constitution.

May 16, 2017: AIMPLB tells Supreme Court that matters of faith cannot be tested on grounds of constitutional morality and also emphasized that triple talaq is a matter of faith for last 1400 years.

May 17, 2017: Supreme Court asks AIMPLB whether a woman can be given an option of saying ‘no’ to triple talaq at the time of execution of ‘nikahnama’. Centre tells Supreme Court that triple talaq is neither integral to Islam nor a “majority versus minority” issue but rather an “intra-community tussle” between Muslim men and deprived women.

May 18, 2017: Supreme Court reserves judgment on triple talaq.

May 22, 2017: AIMPLB files affidavit in Supreme Court saying it would issue an advisory to ‘Qazis’ to tell bridegrooms that they will not resort to triple talaq to annul their marriage.

August 22, 2017: Supreme Court by majority judgment of 3:2 rules that divorce through triple talaq is void, illegal and unconstitutional and against basic tenets of Quran.

                                              No doubt, this landmark judgment seeks to overturn the conventional belief that it is the community itself, not Parliament or courts, which should reform religious or personal laws. In a split verdict, three of the five all-male Judges on the case said the practice of saying “talaq” or divorce three times in one go sometimes even over email and Whatsapp violated women’s right to equality and was not integral to Islam. The dissenting note came from CJI JS Khehar and Justice S Abdul Nazeer who argued instant talaq should be suspended and the government asked to bring a law to regulate the practice within six months.

                                                    The CJI JS Khehar writing for himself and Justice Nazeer said the practice was part of Muslim personal law and, therefore protected by the Constitution from judicial review. He said that triple talaq cannot be declared unconstitutional and the “gender discriminatory practice can be done away by way of legislation. CJI Khehar said: “Personal law has a constitutional protection. This protection is extended to ‘personal law’ through Article 25 of the Constitution. It needs to be kept in mind that the stature of ‘personal law’ is that of a fundamental right… ‘personal law’ of every religious denomination is protected from invasion and breach, except as provided by and under Article 25.”

                                                   Both Khehar and Nazeer concluded that The Muslim Personal Law (Shariat) Application Act, 1937 was not a law in force within the meaning of Article 13(3)(b) of the Constitution but was made to “preserve Muslim personal law – Shariat, as it existed from time immemorial.” The order sought to explain how the customary practice was “integral” to the Sunni sect, saying it had “been in vogue since the period of Caliph Umar (a senior companion of Prophet Mohanned) which is roughly more than 1400 years ago”.

                                              Justice Kurian Joseph in his separate judgment along with the majority stated that the practice of triple talaq does not have the protection of Article 25 of the Constitution guaranteeing freedom of religion. He very rightly said “Merely because a practice has continued for long, that itself cannot make it valid if it has been expressly declared to be impermissible. The whole purpose of the 1937 Act was to declare Shariat as the rule of decision and to discontinue anti-Shariat practices with respect to subjects enumerated in Section 2 which include talaq. Therefore, in any case, after the introduction of the 1937 Act, no practice against the tenets of Quran is permissible. Hence, there cannot be any Constitutional protection to such a practice and thus, my disagreement with the learned Chief Justice for the constitutional protection given to triple talaq. I expressly endorse and reiterate the law declared in Shamim Ara. What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.”

                                             Truth be told, malpractices like Sati, human sacrifice, polygamy etc prevailed in Hinduism since many thousand of years till they were finally outlawed! Lord Krishna it is said had married 16,108 women but did that stop Jawaharlal Nehru from forbidding Hindus to marry more than once? Even the father of Lord Rama had many wives! Shivaji who is the greatest Maratha hero too had many wives and his chief queen was Sai Bai Nimbalkar!

                                           Truly speaking, all Hindus must be grateful to Nehruji for the great courage he showed in outlawing polygamy among Hindus! He exempted Muslims because they were then still heeling from the fresh wounds of partition. But now 70 years later Muslims too must be covered and malpractices like Halala whereby if a Muslim man divorces her wife and if he wants to marry her again after realizing his mistake he cannot do so until she marries another man and then obtain divorce from him!

                                            In other words, Nikah halala is the practice that requires divorced Muslim women to marry another men and consummate the marriage with him and then seek divorce from him in order to make her eligible to remarry her previous husband who gave her talaq! This is certainly most reprehensible! It makes a complete mockery of the dignity of Muslim women and does not affect Muslim men in any manner even though it is Muslim men who arbitrarily divorces her!

                                           Let me be direct in asking: Does this malpractice not make a complete mockery of women? Why then should it not be outlawed? This is exactly what Shayara Bano has very rightly prayed in her petition wherein she also wants an end to polygamy and halala!

                                           Even the majority opinion in this landmark case took two different approaches to reach the conclusion that talaq-e-biddat is unconstitutional. While Justice Nariman and Justice Lalit tested the constitutional validity of triple talaq on the touchstone of Article 14 (equality and non-discrimination), Justice Kurian put triple talaq to the theological test! Justice Kurian said: “On the pure question of law that a legislation, be it plenary or subordinate, can be challenged on the ground of arbitrariness. I agree with the illuminating exposition of law by Justice Nariman. I am also of the strong view that the constitutional democracy of India cannot conceive of a legislation which is arbitrary.”

                                       Justice Kurian also underlined that the court cannot direct lawmakers to pass a legislation. The common judgment of Justice Nariman and Justice Lalit stated after quoting religious texts and scholarly interpretations that, “Triple talaq was an irregular and heretical form of talaq”. They also made it clear that, “Given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place. Also, as understood by the Privy Council in Rashid Ahmad (supra), such Triple Talaq is valid even if it is not for any reasonable cause, which view of the law no longer holds good after Shamim Ara (supra). This being the case, it is clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India. In our opinion, therefore, the 1937 Act in so far as it seeks to enforce Triple Talaq is within the meaning of the expression “laws in force” in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq.”

                                          Justice RF Nariman and Justice UU Lalit also concluded that, “As we have concluded that the 1937 Act is a law made by the legislature before the Constitution came into force, it would fall squarely within the expression “laws in force” in Article 13(3)(b) and would be hit by Article 13(1) if found to be inconsistent with the provisions of Part III of the Constitution, to the extent of such inconsistency. It is thus clear that it is this view of the law which the 1937 Act both recognizes and enforces so as to come within the purview of Article 13(1) of the Constitution. Applying the aforesaid tests, it is clear that Triple Talaq is only a form of Talaq which is permissible in law, but at the same time, stated to be sinful by the very Hanafi school which tolerates it. According to Javed (supra), therefore, this would not form part of any essential religious practice.”

                                        They also rightly pointed out that, “The thread of reasonableness runs through the entire fundamental rights Chapter. What is manifestly arbitrary is obviously unreasonable and being contrary to the rule of law, would violate Article 14.”  It also cannot be lost upon us that Muslim theologists have themselves dubbed it as sinful, inviting the wrath of God! Many have even called for social boycott of those who indulge in triple talaq.

                                                 But Shahi Imam Bukhari of Jama Masjid, New Delhi rightly asked just recently in a newschannel  that how many have been socially boycotted till now? Therefore, it was imperative that this evil practice of triple talaq be ended once and for all! That is exactly what the Supreme Court has done in this landmark case! It rightly said that the practice violated women’s right to equality and was not integral to Islam.

                                          All political parties and leaders have welcomed the Supreme Court order. Kapil Sibal who is the lawyer for the All India Muslim Personal Law Board (AIMPLB) which argued against judicial intervention in triple talaq said that, “We hail the judgment, it protects personal laws and at the same time deprecates the practice of triple talaq.” Randeep Surjewala who is Congress’s chief spokesperson said: “This verdict is an affirmation of the rights of women and gives relief to them against being subjected to discrimination by a practice that had been perverted over the years.”

                                       Congress party leader and senior lawyer P Chidambaram while hailing the landmark judgment said that, “The judgment was a resounding affirmation of gender justice and equality of spouses. Triple talaq was a distortion of original Quranic legal principles. Good it has been declared unconstitutional.” Former Chief Election Commissioner SY Qureshi said: “AIMPLB lost an opportunity to introduce this reform itself.” Pinky Anand who is Additional Solicitor General says “It is a very progressive judgment. Triple talaq is something which is being looked down upon as derogatory within the entire community.”

                                  Union Law Minister Ravi Shankar Prasad while welcoming the landmark judgment said “The issue is not of faith, religion or worship; it is solely about gender justice, dignity and equality. It is a great dawn for women in the country. More than 22 countries have either abolished triple talaq or regulated it or laid down stringent pre-conditions.” He also said that the government strongly backs the judgment and will “consider the issue in a structured manner”.

                                       A top government source told the media that the government will not bring any legislation to ban triple talaq as the five-Judge Supreme Court Bench by a majority verdict had held instant divorce as unconstitutional and illegal. Anyone continuing with the practice of instant talaq by uttering the word thrice can be subjected to domestic violence laws and can be sent to jail if a woman approaches the police for harassment on these grounds. From now onwards Muslim men cannot arbitrarily pronounce triple talaq and will always have to keep this landmark ruling in mind which palpably completely bans instant triple talaq!

                                       Speaking for myself, no religion and no tradition can ever justify social malpractices like child marriages, Sati, triple talaq, human sacrifices, nikah halala, polygamy etc. Just because a malpractice has thrived for more than 1400 or 1500 years in any particular religion or tribal group or any other group or community is no ground to make it final! In a democratic country like ours all such malpractices must be shown the outdoor!  In 22 countries triple talaq has been completely banned and this includes Pakistan, Syria, Qatar, Iran, Iraq, Turkey, Sudan, Malaysia, Jordan, Egypt, Bangladesh, Indonesia which has maximum Muslims among others! Needless to say, Supreme Court in this landmark case very rightly annuls unconstitutional and arbitrary instant divorce by pronouncing triple talaq in one go!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

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Impact of Goods and Service Tax (GST) in Indian economy

Saakshi singhal

 Ph.D, Research scholar, Department of commerce, MDU, Rohtak

gst in India

Abstract

GST (Goods and Services Tax) is defined as a uniform indirect tax levied on goods and services across a country. More than 160 countries have implemented GST. The GST rolled out from July 1, 2017. GST, as an umbrella tax has replaced central taxes such as Central Excise Duty, Service Tax, Additional Duties of Excise & Customs, Special Additional Duty of Customs, and cesses and surcharges on supply of goods and services. There was a huge hue and cry against its implementation. In present paper it has been shown that which sectors are positively or negatively affected by GST.

Keywords

Goods and service tax, Indian economy, GST

Introduction

The Rajyasabha unanimously passed the constitution (22nd amendment) bill 2014, on 3rd August 2016 with 203 votes in this bill’s favour. All parties, except the AIADMK, backed the bill. GST is an indirect tax on the consumption and production of sales of goods and services throughout India, to replace taxes levied by central Govt. and state Govt. GST is levied and collected at each stage of sale or purchase of goods and services. It has a system of Input Tax Credit which will allow sellers to claim the prepaid tax so that the final liability on the end consumer is reduced. It is the biggest tax reform in 70 years after independence of India, the Goods and Services Tax (GST) was finally launched on the midnight of 30 June 2017, though the process of forming the legislation took 17 years (since 2000 when it was first proposed). It was launched at midnight 30 June – 1 July 2017 session in both the houses of parliament convoked at the Hall of the Parliament, but which was immediately boycotted by the opposition by staging a walk out to show their disapproval of the same.

Before 1st July 2017, some taxes were levied by the state Govt. and some were levied by central Govt. Govt. levied only one unified tax rate instead of all different types of taxes, GST is applied on goods and services at the place where actual consumption happens. It is based on the Destination Principle. GST levied and collected at each stage of sale or purchase of goods and services. Goods and services are not distinguished and are taxed at single rate in supply chain till the goods and services reach consumer. It is the consumer of goods and services who bears the tax. The manufacture/wholesaler/retailer pays the applicable GST rate but can claim back through tax credit mechanism.

The current taxes like excise duties, service tax, custom duty etc. have been merged under GST. The taxes like sales tax, entertainment tax, VAT, and other state taxes will be included in GST.

How GST is levied

GST is levied on the place of consumption of goods and services. It can be levied on following states:

  • Intra-state supply and consumption of goods and services.
  • Inter-state movement of goods.
  • Import of goods and services.

 Impact of GST on Prices of Goods and Services

Tax experts claimed that the previous practice of tax on tax – for example, VAT was being charged on not just cost of production but also on the excise duty that was added at the factory gate leading to production cost building up but now all had been gone when GST is rolled out. The prices of consumer durables, electronic products and ready-made garments will be available at low price after rolled out GST. In other aspects, for goods which were taxed at low rate, the impact of GST brings price increment. Services bearing essential ones like ambulance, cultural activities, pilgrimages etc. were exempted from levy are same. India has seen the strongest tax reform that aims to do away with various – tax system on goods and services and bring them under one rate. We can draw the following impact of GST on prices:

 The government rolled out the much talked about Goods and Services Tax (GST) on the midnight of June 30. The GST Council has fixed the tax rates, keeping a view on all goods and services; they are classified under tax slabs 0 % (exempted ones), 5%, 12%, 18% & 28%.

Here is a list of some items which are completely exempt from the GST regime:

  • The unprocessed cereals, rice & wheat etc.
  • The unprocessed milk, vegetables (fresh), fish, meat, etc.
  • Unbranded Atta, Besan or Maida.
  • Kid’s colouring book/drawing books.
  • Sindoor/Bindis, bangles, etc
  • Below is a list of the sectors which are negatively or positively affected by GST.

Sector wise positively impact of GST

Sectors Tax Implications under GST
Auto Commercial Vehicle (CV)/Two wheelers (2W) To marginally reduce by 1% compared to the existing tax structure.  Positive
Auto – Small cars Small cars which less than 4 meter length and more than 1500 cc engine tax rates to reduce by 2-2.5% compared to the existing tax structure.  Positive
Auto – Midsized cars and SUV Midsized cars <1500 cc &<4 meters in length and SUV rates would come down by 8% and12% respectively.  Positive
Consumer goods – essential items Effective tax rate in essential goods (soaps, toothpaste, edible oil and hair oils) under various tax slabs – Positive
Consumer goods – Footwear Footwear tax rates (<Rs 500) to reduce to 5% from 9.5% and <Rs500 to reduce to 18% from 24-30%– Positive
Consumer goods – Cigarettes Effective tax under GST would be 28% along with additional Cess and other taxes. GST rate in cigarettes according to the current rate will gradually increase over the next 5-6 years – Positive
Building Materials Organised players to benefit from higher tax rate in the long term, as they gain market share on reduced pricing spread between organised and unorganised players. However, higher tax rate may lead to tax evasion through loopholes, which is a concern from organised players.
Logistics In Consolidation of warehouses across the country with free movement of goods will lead to higher volumes for logistic companies. Execution of the same, however, might take some time as unorganised players will have to adapt to new systems under GST.

Sectors negatively effected by GST

Sectors Tax Implications under GST
Hotel more than Rs 5000 room rental Tax rate on fine dining restaurants increased to 28% from 15%. This will result in room rentals hikes, with consequent impact on hotel occupancies.- Negative
Restaurants & fine dinning Tax increased to 18% from 15%. This tax revision will affect the fine dining restaurant industry which has already seen significant pressure on its sales due to macro environment slowdown. – Negative
Branded Apparels Garments >Rs 1000 will be taxed at 12% instead of 7%. This will adversely impact business as price hikes would lead to late recovery in sales.

 

Conclusion

At the end we can say clearly with no doubt that it is the biggest ever change in tax structure of India. There is a fall in prices of Auto Commercial Vehicle, Two wheelers, Small cars, Midsized cars and SUV, essential items, Footwear, Building Materials etc. and education, healthcare are going to be exempted from GST but on the other hand, price of some other goods and services increased after GST like Hotel room rental, Restaurants & fine dining and Branded Apparels. There was threat of inflation before GST rolled out.  It can be concluded that GST has been going to be an historical record for its full fledge implementation and hopefully this biggest historical reform will result in ease of doing business in India.

References

  1. http://economictimes.indiatimes.com
  2. The Tribune, 2016.
  3. ey.com>Home>Service>Tax
  4. http://www.quora.com
  5. com>business>Economy.
  6. economics.com
  7. http//hindustantimes.com
  8. http://M.rediff.com
  9. relakhs.com
  10. mapsofindia.com
  11. gstindia.com
  12. http://en.m.wikipedia.org.

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Essay_Writing_Tips

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