Sociology of Democratic Rights

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by Himanshi Arora


Our personal lives were shared by public issues. Our entire lives were actually governed by social factors. The core issue in the film Phir milenge was the sense of injustice. It was a personal fight as well as a public fight because she was fighting in the public domain. The fight was against classes, but in the public. In the film ‘Phir milenge’ the entire fight was a social fight against injustice. Wherever we go and everything we do is solidly influenced by the social, political and cultural factors. In the film the protagonist has challenged the wrongful termination and proves that the termination was illegal. Lawyers were scared of social stigma and they were not taking her case. The so-called good lawyers do not want to be associated with HIV patients. All our life chances are dictated by the social activity, by the social conditions, by the material conditions, by the political conditions and by the cultural conditions.


WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a [SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC] and to secure to all its citizens: 

JUSTICE, social, economic and political; 

LIBERTY of thought, expression, belief, faith and worship; 

EQUALITY of status and of opportunity; and to promote among them all 

FRATERNITY assuring the dignity of the individual and the [unity and integrity of the Nation];

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION. 


The Preamble talks about justice in terms of the social, economical and political, equality in terms of the status of the people, liberty it talks about beliefs and expressions and fraternity. The Constitution of India has granted us some rights which we enjoyed but our entire existence is with society at large. 

Article 12 – Definition 

In this part, unless the context otherwise requires, “ the state” includes the government and Parliament of India and the government and the legislature of each of the states and all local or other authorities within the territory of India or under the control of the government of India

The state is anything which is operating under this constitution is a state. That is to say that the entire structure or entire political structure. So it is the entire structure of the state whereas Government is a particular government which can change but state means whatever is there around us.

Article 14: Equality before law

The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

Here, Shall means necessary, mandatory and certainly and this will be beyond question. It’s an expression of solidarity.  

Equal protection of law means any legal action that requires equality. It means that the state can provide reasonable protection. For instance, Women are given reservation but it is a discrimination against men, men can argue. Ideally, it should not be there but it is the equal protection of the law because historically women have been marginalized. In recognition of that this provision is being made. So this is called positive sanction or positive discrimination. Therefore the state can provide this reasonable protection. This reasonableness of positive sanction will be ultimately judged by the court and the court will ultimately decide whether any law is constitutional or unconstitutional.

Article 13:  Laws inconsistent with or in derogation of the fundamental rights

(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Pan shall, to the extent of such inconsistency, be void. 

(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. 

(3) In this article, unless the context otherwise requires,- 

(a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law; made 

(b) “laws in force” includes laws passed or by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.

Anything in derogation of your rights, whether any law which exists before the commencement of the constitution of India, or after the commencement of the Constitution of India and the definition of law is pretty large. It is not about laws only but includes custom. Anything which is not in accordance with the spirit of the fundamental rights will be in the teeth of the constitution of India. Let it be said that it will be illegal. For example, hindu man can have multiple wives. This was against the Article 14 right to equality because women are not allowed to marry multiple wives. 

Section 497: Adultery

Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.

Under this section women were rendered as property of men. This section was applicable only on women. If you are having any sexual relation with a married woman you are committing a crime because that particular woman is a property of her husband. Ultimately this Section 497 IPC was rendered illegal by the courts. Constitutional courts have the right to decide what is legal and what is illegal.
 

How many kinds of courts do we have? 

Constitutional courts are referred to high courts and supreme court of India. Constitutional courts can actually interpret the laws made by the governments and the judicial power comes from Article 13 and Article 368. The Supreme Court of India has extraordinary power and this power was given under Article 142 in order to have complete justice, it can pass any order, but it has to be reasonable. So this constitution works actually under the scheme of capitalism. Capitalism requires the rule of the law. 

CrPC 

For any criminal action by the state, a procedure is followed. Police can arrest someone but within the four corners of the law. This procedure is mentioned in Code of Criminal Procedure (CrPC)  of the procedure which is now BNSS (Bharatiya Nagarik Suraksha Sanhita).

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