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Sedition in democracy, CAA Struct Down, DNA and Law

Updated: Apr 22, 2023

Sedition and democracy

Sedition law in India has been subject to a greater scrutiny due to its increased misuse in recent time. Time and again it has been held constitutional by supreme courts even though court have watered it down by creative interpretation. This article traces the history of sedition laws from colonial era to recent decades. Sedition law is at crossroads with democratic tradition. It have renewed call for declaring it unconstitutional by many eminent jurist. A great article which answers any question in optional as to relevance of sedition law in democracy. perhaps gandhi's view of this law is more apt in today's context. when charged with sedition law he thundered.

“…Section 124 A under which I am happily charged is perhaps the prince among the political sections of the IPC designed to suppress the liberty of the citizen. Affection cannot be manufactured or regulated by the law. If one has no affection for a person, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence…. I consider it a privilege, therefore, to be charged under that section.”

Constitutional amendment Struck Down

Constitutional amendments has been a bone of contention between parliament and judiciary since long. Ever since evolution of Doctrine of basic structure by the supreme court, parliament has seen it an irritant and challenge to its misconceived notion that it is sovereign as its british counterpart. This constitutional amendment was however struck down on the basis of basic structure doctrine but of legislative competency.

The 97th constitutional amendment, which dealt with issues related to effective management of cooperative societies in the country, was passed by parliament in December 2011 and had come into effect from February 15, 2012.

The change in the constitution has amended Article 19(1)(c) to give protection to the cooperatives and inserted Article 43 B and Part IX B, relating to them.

While Article 19(1)(c) guarantees freedom to form association or unions or cooperative societies subject to certain restrictions, Article 43 B says that states shall endeavour to promote voluntary formation, autonomous functioning, democratic control and professional management of cooperative societies.

The Part IX B of the constitution inserted by the 97th amendment deals with incorporation, terms of members of the board and its office bearers and effective management of cooperative societies.

Supreme Court have struck down the amendment related to cooperative society on the ground that it have by this amendment, parliament has altered the legislative field for states. While parliament can do so but that would require amending subject in different list, as per article 368, any such amendment to constitution has an additional requirement i.e consent of at least 50 percent of state legislature. It was not done in the case.

Justice nariman held The 97th Amendment which inserts the chapter dealing with co-operative societies has not been so ratified… Though an amendment of the Constitution is the exercise of constituent power which differs from ordinary legislative power, such constituent power does not convert Parliament into an original constituent assembly. Parliament being the donee of a limited power may only exercise such power in accordance with both the procedural and substantive limitations contained in the Constitution of India,”

.Two judge struck down amendment in partially by applying doctrine of severability and Justice joseph struck it down in its entirety dissenting that such doctrine is not applicable to this amendment.

Law and DNA Technology

Technology and law has been always in race against each other. Law often tries to control technology and technology always improves making law redundant. States desire to control various aspect of society including technology is often outpaced by slowness of law making, while a law takes anywhere from 2-3 year, from its shaping to finally passing it by legislature, we have new generation of technology each year.

DNA technology is new area where legislature has proposed a law to regulate it. With recent advancement in technology, it is possible to create new human being out of laboratory alone without any parents per se. It creates a problem as concept of citizenship requires proving parentage or descent.

DNA technology can also been misused in creating viruses through genome sequencing. The use of DNA technology, while not infallible, will minimise errors in criminal investigations and “improve the justice delivery system,” said Jairam Ramesh, head of the parliamentary committee that examined the bill.

The bill is based on Law Commission Report, which is worth the read. DNA test is different from DNA profiling which this bill seeks to regulate. Justice Ranjana desai clearing differentiated between two when its constitutional aspect was probed.

The Court held that taking such test would not violate the mandate of Article 20(3) of the Constitution as has been held by the Supreme Court in Selvi case. However, there had been different views on the second question.

''In light of this attempted analogy, we must stress that the DNA profiling technique has been expressly included among the various forms of medical examination in the amended explanation to Sections 53, 53A and 54 of the Cr. P.C. It must also be clarified that a `DNA profile' is different from a DNA sample which can be obtained from bodily substances. A DNA profile is a record created on the basis of DNA samples made available to forensic experts.

Creating and maintaining DNA profiles of offenders and suspects are useful practices since newly obtained DNA samples can be readily matched with existing profiles that are already in the possession of law-enforcement agencies. The matching of DNA samples is emerging as a vital tool for linking suspects to specific criminal acts. It may also be recalled that the as per the majority decision in Kathi Kalu Oghad, (State of Bombay v. Kathi Kalu Oghad & Ors., AIR 1961 SC 1808) the use of material samples such as fingerprints for the purpose of comparison and identification does not amount to a testimonial act for the purpose of Article 20(3).

Hence, the taking and retention of DNA samples which are in the nature of physical evidence does not face constitutional hurdles in the Indian context. However, if the DNA profiling technique is further developed and used for testimonial purposes, then such uses in the future could face challenges in the judicial domain.''

There is growing criticism, as this bill could be used for harassing unsuspecting minorities and members of scheduled caste and tribes. Also have a look at PRS report on various provision of the Bill.

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