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INDIAN EXPRESS EDITORIALS AND EXPLAINED 11TH FEBRUARY 2020

ISSUE: UNIFORM CIVIL CODE 

WHY IN NEWS?

Last week, while hearing a matter relating to properties of a Goan, the Supreme Court described Goa as a “shining example” with a Uniform Civil Code, observed that the founders of the Constitution had “hoped and expected” a Uniform Civil Code for India but there has been no attempt at framing one.

What is a Uniform Civil Code?

A Uniform Civil Code is one that would provide for one law for the entire country, applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption etc. Article 44 of the Constitution lays down that the state shall endeavour to secure a Uniform Civil Code for the citizens throughout the territory of India.

Article 44 is one of the directive principles. These, as defined in Article 37, are not justiciable (not enforceable by any court) but the principles laid down therein are fundamental in governance. Fundamental rights are enforceable in a court of law. While Article 44 uses the words “state shall endeavour”, other Articles in the ‘Directive Principles’ chapter use words such as “in particular strive”; “shall in particular direct its policy”; “shall be obligation of the state” etc. Article 43 mentions “state shall endeavour by suitable legislation” while the phrase “by suitable legislation” is absent in Article 44. All this implies that the duty of the state is greater in other directive principles than in Article 44.

What are more important — fundamental rights or directive principles?

There is no doubt that fundamental rights are more important. The Supreme Court held in Minerva Mills (1980): “Indian Constitution is founded on the bed-rock of the balance between Parts III (Fundamental Rights) and IV (Directive Principles). To give absolute primacy to one over the other is to disturb the harmony of the Constitution”. Article 31C inserted by the 42nd Amendment in 1976, however, lays down that if a law is made to implement any directive principle, it cannot be challenged on the ground of being violative of the fundamental rights under Articles 14 and 19.

Does India not already have a uniform code in civil matters?

Indian laws do follow a uniform code in most civil matters – Indian Contract Act, Civil Procedure Code, Sale of Goods Act, Transfer of Property Act, Partnership Act, Evidence Act etc. States, however, have made hundreds of amendments and therefore in certain matters, there is diversity even under these secular civil laws. Recently, several states refused to be governed by the uniform Motor Vehicles Act, 2019.

If the framers of the Constitution had intended to have a Uniform Civil Code, they would have given exclusive jurisdiction to Parliament in respect of personal laws, by including this subject in the Union List. But “personal laws” are mentioned in the Concurrent List. Last year, the Law Commission concluded that a Uniform Civil Code is neither feasible nor desirable.

religion?

Article 25 lays down an individual’s fundamental right to religion; Article 26(b) upholds the right of each religious denomination or any section thereof to “manage its own affairs in matters of religion”; Article 29 defines the right to conserve distinctive culture. An individual’s freedom of religion under Article 25 is subject to “public order, health, morality” and other provisions relating to fundamental rights, but a group’s freedom under Article 26 has not been subjected to other fundamental rights

In the Constituent Assembly, there was division on the issue of putting Uniform Civil Code in the fundamental rights chapter. The matter was settled by a vote. By a 5:4 majority, the fundamental rights sub-committee headed by Sardar Vallabhbhai Patel held that the provision was outside the scope of fundamental rights and therefore the Uniform Civil Code was made less important than freedom of religion.

ISSUE: SURROGACY BILL

WHY IN NEWS?

In a recent report, a Select Committee of Parliament has recommended that the contentious clause limiting surrogacy only to “close relatives” be removed from the Surrogacy (Regulation) Bill, 2019, to make the benefits of modern technology more easily available to infertile couples. A look at the genesis of the Bill, its provisions and why the current report could signal some progressive amendments in the Bill:

What are the provisions of the Surrogacy (Regulation) Bill?

The Surrogacy Bill proposes to allow altruistic ethical surrogacy to intending infertile Indian married couples in the age groups 23-50 years (women) and 26-55 years (men). The couple should have been legally married for at least five years and should be Indian citizens. They cannot have a surviving child, either biological or adopted, except when they have a child who is mentally or physically challenged or suffers from a life-threatening disorder with no permanent cure. The Bill has already been scrutinised once earlier by the Standing Committee on Health and Family Welfare. It requires surrogacy clinics to be registered, and national and state surrogacy boards to be formed, and makes commercial surrogacy, and abandoning or disowning a surrogate child punishable by imprisonment up to 10 years and a fine up to Rs 10 lakh.

It was first mooted in 2016 in the wake of repeated reports of exploitation of women who were confined to hostels, not provided adequate post-pregnancy medical care and paid a pittance for repeatedly becoming surrogate mothers to supplement family income.

Explained: Fine-tuning the Surrogacy Bill Bhupender Yadav at Parliament House in New Delhi. (Express Photo: Anil Sharma)

What changes has the Select Committee suggested?

The Select Committee chaired by BJP Rajya Sabha MP Bhupender Yadav recommended that the “close relatives” clause should be removed, and any “willing” woman should be allowed to become a surrogate mother provided all other requirements are met and the appropriate authority has cleared the surrogacy. It has strongly backed the ban on commercial surrogacy.

It has also recommended that divorced and widowed women aged between 35 and 45 years should be able to be a single commissioning parent, and the need for a five-year waiting period for childless married couples could be waived if there is a medical certificate that shows that they cannot possibly conceive. It has recommended that persons of Indian origin should be allowed to avail surrogacy services.

The committee has not, however, recommended expanding the definition of commissioning parent to include singles, either men or women.

The Select Committee also recommended that the ART Bill (which deals with assisted reproductive technologies) should be brought before the Surrogacy (Regulation) Bill, 2019, so that all the highly technical and medical aspects could be properly addressed in the Surrogacy (Regulation) Bill, 2019.

ISSUE: SUPER CAM

In its mission to Mars this summer, NASA is sending a new laser-toting robot as one of seven instruments aboard the Mars 2020 rover. Called SuperCam, the robot is used for studying mineralogy and chemistry from up to about 7 metres away. It might help scientists find signs of fossilised microbial life on Mars.

SuperCam packs what would typically require several sizable pieces of equipment into something no bigger than a cereal box. It fires a pulsed laser beam out of the rover’s mast to vaporise small portions of rock from a distance, providing information that will be essential to the mission’s success.

NASA lists five things to know

* From more than 7 m away, SuperCam can fire a laser to study rock targets smaller than a pencil point. That lets the rover study spots it can’t reach with its arm.
* SuperCam looks at rock textures and chemicals to find those that formed or changed in water on Mars long ago.
* SuperCam looks at different rock and “soil” types to find ones that could preserve signs of past microbial life on Mars — if any ever existed.
* For the benefit of future explorers, SuperCam identifies which elements in the Martian dust may be harmful to humans.
* Scientists can learn about how atmospheric molecules, water ice, and dust absorb or reflect solar radiation. This helps predict Martian weather better.

 

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