2021 UPSC LAW OPTIONAL MAINS PAPER SOLVED
PAPER 1 | SECTION A
QUESTION 1 a) “Fundamental rights may be said to constitutionalise social values of existing society” Explain and illustrate
“Lx explains : Read the question twice and try to understand the statement – The statement says that fundamental rights enumerated under part 3 of our constitution try to include ( constitutionalize – to bring inside(under) constitution) social values of today’s society.
This premise must be explained with illustrations – Which clearly demands recent developments and inclusions made under fundamental rights to include social demands.”
Answer | If one reads our preamble we can rightly understand that the scheme of the Constitution is for the realisation of the socio-economic values. These values are realised by both the justiciable Fundamental Rights as well as the non-justiciable Directive Principles.
The judiciary has interpreted various fundamental rights to include existing social values to constitutionalize the same, and some are listed as follows :
ILLUSTRATION 1 : The multinational research firm Ipsos, between April 23 and May 7, 2021 conducted a survey and revealed 59% Indians accept LGBTs - "LGBT+ Pride 2021 Global Survey".
In Navjit Singh Johar v. Union of India 2018 – Section 377(unnatural offences) is unconstitutional as it infringed on the fundamental rights of autonomy, intimacy, and identity, thus legalising homosexuality in India. Note earlier section 377was upheld by Supreme Court in 2013 in Suresh Kumar Koushal vs. Naz Foundation but later overruled for constitutionalizing social values.
How this social value was constitutionalized using fundamental right ? In Puttaswamy v. Union of India right to privacy was declared to be a fundamental right under article 21, and also stated a person's sexual orientation is a privacy issue, using this premise court struct down Section 377 which intervened into sexual orientation of certain group of people.
Owing to this development recently in 2021 september Madras high Court issues directions to check harassment on LGBT couples and court stated “queerphobia” – prejudicial and abusive attitudes and behaviours directed at the LGBT community – was rampant in medical education.
ILLUSTRATION 2 | Earlier women was considered to be incompetent to do army, navy or sailor jobs thus women were allowed to join certain cadres of the army only through the Short Service Commission - no benefits like pension compared to men who get appointed by the Permanent Commission. In The Secretary, Ministry of Defence v. Babita Puniya & Ors. 2020-Women granted appointment through permanent commission.
Government contented that women would seek maternity leave and child care leave disturbing management - The court held all those submissions are assumptions based on sex stereotypes about socially recognized roles of gender which discriminate against women and it violate art 14.
The change is social attitude and value towards women has constitutionalized the right not to be discriminated based on gender roles under article 14 .
CONSLUSION | Thus fundamental rights have been used by our judiciary to constitutionalize social values that exist in the present society. If that is not done then it would result in gross injustice and it’s a measure to enable a true welfare state concept.
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