The Developmental Stages of Constitution Author: Ayushi Pandey | Volume II Issue II |

The developmental stage of the constitution basically covers the three major historical judgment which has made the sign in Indian society. The constitution lays down the fundamental principle of society. The constitution is important as it safeguards individual freedom in the same way these three judgments protects individual freedom.

Research Methodology: The research is basically a comprehensive study on the extensive field of constitution highlighting the concept, purpose, legal outlook of the judgment. The primary research is done by sharing real-life cases available on a public domain. Various articles by scholars and academicians have been relied upon while writing this paper.

The objective of the paper:

• To understand the concept and purpose of the three verdicts.
• Section 497 a welcoming verdict
• Section 377 another welcoming verdict
• Abrogation of article 370

1. Issue of securitization
2. Policy inertia and policy paralysis

• Kashmiri union v. Indian union

1. Concluding by giving the ground reality

Conclusion:

The rapid evolution and growth of the constitution carry a lot of potential for a better and developed society It is an essential need of modern society as it accounts for a major cornerstone of our developing civilization. Along with the colossal advantages of three judgments, one cannot stay oblivious to the unwanted and harsh realities of the same.

INDEX

Introduction

The developmental aspect of constitution, I have chosen this topic because it covers all the historic judgment, which took place over the last few years, I feel so proud while writing this because this is a massive step towards the development of our nations as a whole. These historic judgments all are interrelated with the constitutional aspect, every judgment touches the individual freedom and equality among the different people/culture, the religion of one society. I have covered three major amendments and changes in section 497, section 377, article 370. These three verdicts have been welcomed by the majority of people; these developmental changes have in a way united us. The time has come where we are saying goodbye to irrelevant sections and articles which only acts like termites to our growing nation.

1. Section 497 a welcoming verdict

From the last 157-yearongoing criminal status of adultery has now been struck down and the verdict is welcoming as adultery has been decriminalizing, Supreme court declared that adultery is not a crime and struck down the anti-adultery law saying it as unconstitutional as it dented the individuality that treated the women as a personal possession of husbands. The decision was unanimous in striking down section 497 of the Indian penal code holding it manifestly arbitrary and archaic law which violates the right to equality and unequal opportunity towards the women. Some portions of the Indian penal code are irrelevant and it needs to be struck down and it has been rightly struck down as it treated the women as a chattel of the husband. This judgment has laid down as a path a milestone in a journey of women’s rights and recognizing the dignity of women as a strong robust and powerful notion that has been firmly grounded by many judgments but this judgment takes it forward. Today’s Indian doesn’t have a place for Victorian-era laws. Individual freedom has been given more importance while deciding such issues.

Quoting the words of Justice D.Y. Chandrachud “women after marriage does not pledge her sexual autonomy to her husband and depriving her of choice to have consensual sex with anyone outside the marriage cannot be curbed”.

Talking about the sanctity and fidelity of marriage and family which is a very important institution of the nation, the kinds of law I am talking about actually harms more than protecting it. there is a saying in family law “having criminal laws in a marriage is like having a bull in a china shop” another famous saying in one of the judgments” fundamental rights are like an empty vessel which every generation has to fill in its wisdom and this generation has filled the right wisdom”. Concluding it’s a step in the right direction, it’s a long battle for the equal opportunity of women, the beginning has been done, one thing which needs to be kept in mind that adultery continues to be a civil wrong and matrimonial law. At the end of the day, it is a patriarchal society and there need to be more justifiable changes. Laws are taking its stand but how we will be able to change the mindset of the people are the huge milestone that is yet to be achieved.

2. Section 377 another welcoming verdict

The LGBTQ community welcomes the verdict of the supreme court of decriminalizing the consensual gay sex this verdict not only granted them basic human rights but acknowledging that complete equality was some distance away. A historic verdict in equality, dignity, fraternity, life liberty, and non-discrimination which are the core value of dignity of India. An equality core facet of democracy. Article 377 not only talks about the sex but it talks about the guaranteed freedom to every individual. The person’s private consensual behavior as an adult is their business, not the courts which were held in right to privacy judgment. Individuality and freedom to choose their identity is the fundamental concept of the constitution that should not be ignored in any circumstance the matter of sexual orientation is natural it should never be judged on any criteria. It should be accepted with grace. with. During the judgment justice, Indu Malhotra rightly said “members of the LGBT community and their family are owed an apology from society for being denied equal rights over the years. Their struggle has not been easy it has been a bumpy ride but the perseverance they had all through the years they fought is incredible and finally, they have come one step closer to have an equal status in society.There are 72 countries and territories still continue to criminalize this section. But India is not part of these countries who criminalizes section 377. Now it’s time to say goodbye to social adamant, it’s time to accept the individuality of the LGBTQ community and accept them with great pride and honor which should have been done way back but Its better late than never to make this massive decision in favor the LGBTQ community.

3. Abrogation of Article 370 a huge paramount success

We have a hallowed principle called equality before law and article 370 is the abrogation of that it was introduced as a temporary measureand the constitution has an extraordinary provision called article 370 which title is temporary provision for the state of Jammu and Kashmir not requires the vote of parliament to abrogate it the amending power of article 368 specifies the method through which the article can be amended but, there is an exception which is article 370. Talking about the certain reason why this drastic step was supposed to be taken in detail starting with-

1. Issue of securitization:

Kashmir is becoming an issue that’s highly securitized which is a problem for peoples of Kashmir, we are concerned about the legality of Kashmir and neglecting the security of peoples of Kashmir. The issue is whether not about whether it can be done it’s about whether it should be done. We are only talking about the legality what the lawyer does what I am supposed to do as a budding lawyer but, as it’s a very sensitive topic to speak about talking only about the legality is not enough. It’s a good decision that Article 370 is abrogated the idea is Pakistan is a problem, separatism is a problem but the main problem is issues such as the armed forces special power act that the peoples of Kashmir hate, the question arises that why did it get implemented at the first place, the reason that it got implemented is because of security of Kashmir issue. It got implemented because the party’s excuses that they are not able to clear their own mess that’s where the state implements these acts. When the acts get the tag of national security to certain issues and impose certain policies it automatically reduces the power of questioning that certain policy, itgets very easy to avoid scrutiny under these circumstances. And the reason for the whole mess is Article 370.

1. Policy inertia and policyparalysis:

this is also a very important reason why article 370 should be abrogated, from a very large time people were prohibited from owning land in Kashmir valley. Which is the basis of the capitalist system and that’s how development happens. In terms of this article 370 has created a vacuum because there is a huge impediment that corporation or private individuals face in terms of investing within Kashmir, but Article 370 stops them from investing in Kashmir and that is a humongous problem in terms of building investors’ confidence in terms of building confidence in the valley. There are certainly other issuesthat need to be focused such as there isa protest by youth for unemployment, for wage hikes, forthe absence of a job, etc. these issues don’t get adequate attention but these need to be gotten attention.

• Kashmiri union v. Indian union:

 we need to remove the idea of verses here Kashmiri people has not felt at par with Indian union despite having their exclusionary autonomous status. The idea of people in general around India that Kashmir is not so active, also this entire hatred is which fosters more hatred towards the Kashmiri people and creates the worse aspect.

1. Concluding with talking about the ground reality of Article 370:

Article 370  gave an autonomy the ability to pass an own act, own penal code Ranbir penal code instead the Indian penal code, the second issue is that how dependent is Kashmir for every rupee that Kashmir spends the Indian central government gives sixty Paise of it, they get 8 times amount the Indian citizens get we are literally paying out of our teeth to make sure Kashmir stays with us, it’s like an empty threat.

 Conclusion:

Freedom of the fundamental right has a dimension and range that is vastly different from the ambit and content of other individual freedoms. individual freedom embodies the principle of accountability and thus enables the press to be an instrument of democratic control. Protection and promotion of individual freedom are substance subserves and strengthens democracy, an essential feature of democracy.

Loss of ethic humanity moral credibility and authority leads to the downfall of society, which has been present in article 370, section 497 and section 377 before the judgment, after the historic judgment it upheld the fundamental principle of the constitution and lead to the  growth of the society It is an essential need of modern society as it accounts for a major cornerstone of our developing civilization. Along with the colossal advantages of historic judgments, one cannot stay oblivious to the unwanted and harsh realities of the same which used to prevail before judgment.