Type: SC Judgements


Different offences cannot be boxed into one trial, rules SC

Note4students:

Not important. Just an FYI newscard. If this judgement has any far reaching effects, you will see an op-ed on it soon. That will help you to form answer pointers. UPSC tends to ask mains level question on SC judgements of past and present.

[UPSC 2016] What was held in the Coelho case? In this context, can you say that judicial review is of key importance amongst the basic features of the Constitution?

If you wish to revise important judgements of SC – click2read [mostly static theory]

We tag all SC Judgement news in this collection – click2read


Joint trial is an exception:

  1. Joint trial is an exception, the norm is separate trials for distinct offences
  2. A general conspiracy which gives birth to a cascade of distinct offences committed in various places spread over several years and involving different accused persons cannot be boxed into one trial

Case in point: The accused persons were discharged by the Jharkhand High Court, which held that since they have been convicted in one of the cases linked to the fodder scam, they need not stand trial for the others

  1. All the cases had their genesis in the same “general conspiracy” and a person cannot stand trial again for the same offence for which he has already been convicted. This, the High Court had said, would attract ‘double jeopardy’
  2. But Justice Mishra(of SC), who wrote the judgment, said, “There may be larger conspiracy and smaller conspiracy which may develop in successive stages involving different accused persons. In the instant case, defalcations have been made in various years by combination of different accused persons”
Armed Forces (Special Powers) Act Indian Polity

SC dismisses Centre’s plea against judgment for probe into encounter deaths in disturbed areas

  1. What: The SC dismissed a curative petition filed by the Centre seeking to urgently re-consider its July 2016 verdict which ripped open the cloak of immunity and secrecy provided by the Armed Forces (Special Powers) Act of 1958 (AFSPA) to security forces for deaths caused during encounters in disturbed areas
  2. Effect: With this, the court’s original judgment that encounters with security forces resulting in deaths in sensitive areas should come under investigation has attained finality
  3. The SC had held that “there is no concept of absolute immunity from trial by a criminal court” if an Army man has committed an offence
  4. The judgment had held that every death caused by security forces in a disturbed area, whether the victim is a dreaded criminal or a militant or a terrorist or an insurgent, should be thoroughly enquired into in order to address any allegation of use of excessive or retaliatory force beyond the call of duty
  5. The Centre had argued in the curative that the judgment had become a fetter against security forces involved in anti-militancy operations in sensitive and border areas of the country
  6. Argument in curative: This court ought to have appreciated that the principles of right to self defence cannot be strictly applied while dealing with militants and terrorist elements in a hostile and unstable terrain
  7. This court ought to have taken into account the complexity and the reality of the conduct of military operations and tactics especially while combating terrorists
  8. Mr. Rohatgi submitted that the July 2016 verdict cast a shadow over personnel’s morale and ability to respond to insurgent and terror situations
  9. The court had agreed to consider the curative plea
  10. The July 2016 judgment by the SC had observed that an impartial investigation and prosecution of the guilty party is the basic requirement for rule of law to prevail in a democracy
  11. It does not matter whether the victim was a common person or a militant or a terrorist, nor does it matter whether the aggressor was a common person or the state
  12. The law is the same for both and is equally applicable to both… This is the requirement of a democracy and the requirement of preservation of the rule of law and the preservation of individual liberties
  13. Background: The judgment came on a plea by hundreds of families in the north-eastern State of Manipur for a probe by a Special Investigation Team into 1,528 cases of alleged fake encounters involving the Army and the police
  14. The July 2016 judgment was based on writ petitions filed by NGOs and victims’ families seeking a fair probe into encounter deaths in the northeastern State of Manipur during the heights of insurgency
National Human Rights Commission : Important Updates Governance

SC for broad anti-torture legislation

  1. Supreme Court: India may be finding it tough to secure extraditions because there is a fear within the international community that the accused persons would be subject to torture here
  2. It is a matter of both Article 21 (fundamental right to life and dignity) and of international reputation that the government must consider promulgating a standalone, comprehensive law to define and punish torture as an instrument of “human degradation” by state authorities
  3. The court referred to the setback suffered by the CBI in its efforts to get Kim Davy — a Danish citizen and prime accused in the Purulia arms drop case of 1995 — extradited from Denmark
  4. A Danish court had rejected the plea on the ground that he would risk “torture or other inhuman treatment” in India
  5. Convention: India has signed the UN Convention against torture way back in 1997, but has still not ratified it. The Convention defines torture as a criminal offence
  6. Petition: No steps have been taken to implement the Prevention of Torture Bill 2010 even six years after it was passed by the Lok Sabha on May 6, 2010 and recommended by a Select Committee of the Rajya Sabha
  7. Centre has also avoided an independent legislation on torture, saying that some States were not in favour of such a law and the Indian Penal Code and the Criminal Procedure Code were more than sufficient
  8. A standalone legislation will certainly go a long way in creating the necessary environment to prevent abuse of custodial torture and human dignity of citizen
  9. Support from States: 90% of the States had no objection for a special law on torture and the NHRC itself had strongly supported the need for such a law
  10. The Indian Penal Code does not specifically and comprehensively address the various aspects of custodial torture and was grossly inadequate in addressing the spiralling situation of custodial violence across the country
  11. NHRC kept count: The NHRC kept count of incidents of custodial torture only if the inhuman treatment led to death and not otherwise. So a majority of cases simply went unreported
  12. Unlike custodial deaths, the police are not required to report cases of torture which do not result in deaths to the NHRC

Note4students:

Important. For prelims- India doesn’t have such law, has signed but not ratified the convention. Mains- why we need it, lacunae in Indian system, international examples, recommendations by committees.

Freedom of Speech – Defamation, sedition, etc. Constitution

Insult to religion made ‘carelessly’ without malice is not an offence: SC

  1. SC Judgement: Insults made on the religious faith of a particular community “unwittingly or carelessly” without malice is not an offence
  2. Only an “aggravated” form of insult of a religion with a “deliberate and malicious” intent to outrage that religious faith amounts to a criminal offence
  3. Background: The court was pronouncing judgment in favour of cricketer M.S. Dhoni, who was charged under Section 295A for being portrayed as Lord Vishnu on a magazine cover
  4. The court quashed the criminal charge against Mr. Dhoni with a warning to lower courts that they should only initiate criminal proceedings in such sensitive issues after being convinced that the act satisfies all the ingredients of the offence accused of
  5. The Bench reiterated a 60-year-old Constitution Bench ruling in Ramji Lal Modi versus State of Uttar Pradesh
  6. According to it, Section 295A IPC (Deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its religion or religious beliefs) “does not penalise any and every act of insult to or attempt to insult the religion or the religious beliefs of a class of citizens but it penalises only those acts of insults to or those varieties of attempts to insult the religion or the religious beliefs of a class of citizens, which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class”
  7. Section 295A mandates that “whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both”
  8. The court observed that only a calculated act to insult religion would disrupt public order
  9. Previous HC judgements: In The Trustees of Safdar Hashmi case of 2001, the Delhi High Court said the test whether a particular act or words spoken amounts to an insult is when reasonable man finds the words or act “grossly offensive, provocative and malicious” against the religious sentiments of a community
  10. “Malice in common acceptance means ill will against a person, but in this legal sense it means a wrongful act, done intentionally, without just cause or excuse,” the High Court defined ‘malice’ used in Section 295A of the IPC

Note4students:

All SC judgments are important for mains.

Parliamentary Crisis – Ordinance Raj, Policy Paralysis, Role of Opposition, etc. Indian Polity

SC refers anti-defection law issue to larger Bench

  1. Q: Will the anti-defection law apply to expelled members of either Houses of Parliament or Legislative Assemblies?
  2. G. Viswanathan versus Hon’ble Speaker, Tamil Nadu Legislative Assembly: In this case, 21 years ago, the Supreme Court had concluded that a legislator expelled from his party shall be deemed to have “voluntarily given up” his membership of that party who got him elected and nominated him to the House
  3. This legal fiction of deeming him to continue in the party post-election as an “unattached member” makes him therefore vulnerable to disqualification from the House on the ground of defection under the Tenth Schedule (anti-defection law) of the Constitution
  4. Issue: Under the Viswanathan judgment, the expelled legislator would still be susceptible to the “whims and fancies” of the leaders of the party which threw him out despite the fact that subsequently, after his expulsion, he had gone ahead and formed his own political party
  5. Recent issue: In August 2016, the Supreme Court refrained from adjudicating the constitutional question in expelled Samajwadi Party leaders Amar Singh and Jaya Pradha’s case
  6. The court had then found the issue ‘infructuous’ as both leaders had by that time completed their tenure in Parliament
  7. But Mr. Singh, whose political career has come a full circle with his re-induction into the Samajwadi Party and has a tenure in Parliament till July 2022, returned to the Supreme Court
  8. Q now: He asked the court to take a second look at the question of status of an expelled legislator with regards to the Tenth Schedule and lay down the law
  9. He contended that the application of Tenth Schedule to an expelled legislator is violative of the Basic Structure of the Constitution.
  10. Question still alive: SC observed that the fate of expelled legislators and the Sword of Damocles that hangs over them “remains to be dealt with as the same has not been answered with the efflux of time… the question remains alive today”
  11. Controversial: At the centre of the controversy is the Supreme Court’s interpretation of paragraph 2(1) of the Tenth Schedule in the Viswanathan judgment of 1996
  12. The court held that even if a member was thrown out or expelled from the party, for the purposes of the Tenth Schedule he would not cease to be a member of the political party that had set him up as a candidate for the election
  13. He would continue to belong to that political party even if he was treated as “unattached”
  14. The court had held that the act of voluntarily giving up the membership of the political party may be either “express or implied”
  15. When a person who has been thrown out or expelled from the party which set him up as as a candidate and got elected, joins another [new] party, it will certainly amount to his voluntarily giving up the membership of the political party which had set him up as a candidate for election as such member

The questions now referred to a larger bench are:

  1. Status in either House of Parliament or the State Legislatures of a member expelled by his party?
  2. Will the provisions of the Tenth Schedule to the Constitution apply to such a member?
  3. Was the view taken in G. Viswanathan’s case as regards expelled MPs and MLAs in harmony with the Tenth Schedule correct?
  4. Is the decision in G. Viswanathan’s case that expelled legislators must be “deemed to continue” to belong to the party which threw them out correct?
  5. Can explanation (a) to paragraph 2(1) of the Tenth Schedule be extended to include Members of the two Houses of Parliament who are expelled from their parties?
  6. When an expelled MP or MLA either joins another political party or forms his own party, can it be said that he had voluntarily given up his membership of the party in view of the legal fiction created by Explanation (a) to paragraph 2 (1) of the Tenth Schedule ?
  7. What is the status of an ”unattached” Member in either House of Parliament or in the State Legislatures ?

Note4students:

Note the contentious issue in Vishvanathan judgement and the need for reform. Also prepare the topic of anti-defection law for prelims as well as mains.

Water Security Governance

TN govt. must rise to the occasion on farmers issue: SC

  1. Context: SC order on an appeal filed by the Tamil Nadu Centre for Public Interest Litigation
  2. SC: Gave a stern message to the Tamil Nadu government- silence is not the answer to farmer suicides
  3. The Madras High Court had, without looking into the merits of the issue, simply asked the organisation to obtain information about the State’s welfare schemes for farmers through an RTI
  4. State’s obligation: Criticising the HC’s move to dispose the issue without taking into consideration its urgency, the Supreme Court agreed with the organisation’s plea that the State has an obligation to address the farmers’ distress
  5. Deaths are due to famine and other natural causes and also due to immense financial problems
  6. The State, as the guardian, is required to see how to solve these problems or to meet the problems by taking curative measures treating it as a natural disaster. Silence is not the answer
  7. Also, the State cannot always bank on the Central government for help and need to “rise up to the occasion” instead of blaming anything from drought to loan sharks

Note4students:

Very important verdict by SC clearly demarcating the obligation of state govt. Can be used in answer on farmers’ suicide issue or agrarian distress.

Freedom of Speech – Defamation, sedition, etc. Constitution

Right to access Internet cannot be curtailed, says SC

  1. Context: SC hearing a petition for strict adherence by search engines to Section 22 of PCPNDT Act
  2. Supreme Court: Citizens have the right to access the Internet to gain information, wisdom and knowledge and their right cannot be curtailed unless it encroaches into the boundary of illegality
  3. Called the Internet a “virtual world” and a “world which is invisible in a way”
  4. The fundamental right of expression includes “the right to be informed and the right to know and the feeling of protection of expansive connectivity” the Internet offers on the click of a button
  5. Clarified that a general prohibition on all online content about pre-natal sex determination will curtail the fundamental right to know of a genuine information-seeker
  6. PCPNDT Act: The prohibition should kick in only if the content found online is violative of Section 22 (prohibition of advertisement relating to pre-natal determination of sex) under the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) (PCPNDT) Act of 1994
  7. Example- if somebody intends to search for ‘medical tourism in India’, he is entitled to search as long as the content does not frustrate or defeat the restriction postulated under Section 22 of the Act
  8. Govt: The prohibition under Section 22 should be only on paid ads for sex determination or online advertisements masquerading as information
  9. Assurance: The three Internet search engines — Microsoft, Google India and Yahoo! India — gave their assurances to the Supreme Court that they would neither advertise nor sponsor advertisements violative of the PNPCDT Act
  10. The trio said they had already appointed ‘in-house’ experts to spot illegal content and pull them down
  11. Nodal officers: Have been appointed at State levels to keep tabs on the Net for offensive material contravening Section 22 of the Act
  12. In case the nodal officers detect illegal online content, they would communicate with the search engine’s experts, which would take it off within the next 36 hours of receiving the information
  13. These experts would then follow it up by providing the nodal officers concerned with an action taken report

Note4students:

Note the SC verdict. It is relevant in issues of freedom of using internet under constitution and the PCPNDT Act.

Armed Forces (Special Powers) Act Indian Polity

Centre files curative plea on AFSPA

  1. Govt asked the Supreme Court to urgently reconsider its July 2016 verdict which ripped open the cloak of immunity and secrecy provided by the Armed Forces (Special Powers) Act of 1958 (AFSPA) to security forces for deaths caused during encounters in disturbed areas
  2. 2016 verdict: SC had held that “there is no concept of absolute immunity from trial by a criminal court” if an Army man has committed an offence
  3. Every death caused by security forces in a disturbed area, even if the victim was a dreaded criminal or a militant or a terrorist or an insurgent, should be thoroughly inquired into to address any allegation of use of excessive or retaliatory force
  4. Govt (Curative petition): The judgment has become a fetter on security forces involved in anti-militancy operations
  5. The court ought to have appreciated that the principles of right to self-defence cannot be strictly applied while dealing with militants and terrorist elements in a hostile and unstable terrain
  6. The court ought to have taken into account the complexity and the reality of the conduct of military operations and tactics, especially while combating terrorists

Note4students:

Note the 2016 judgement on AFSPA. Also note counter arguments by govt. Read about AFSPA here. Read about the curative petition in b2b for prelims. If you click on the AFSPA story and see our list of news summaries, you will quickly locate the relevant July 2016 SC judgment.

Back2basics:

The curative petition:

  1. It is fairly a new concept in the Indian legal system
  2. It is the last judicial resort available for redressal of grievances in court which is normally decided by judges in-chamber
  3. It is only in rare cases that such petitions are given an open-court hearing
  4. The concept of curative petition was first evolved by the Supreme Court of India in the matter of Rupa Ashok Hurra vs. Ashok Hurra and Anr. (2002)
  5. Here the question was whether an aggrieved person is entitled to any relief against the final judgement/order of the Supreme Court, after dismissal of a review petition
  6. The Supreme Court in the said case held that in order to prevent abuse of its process and to cure gross miscarriage of justice, it may reconsider its judgements in exercise of its inherent powers
  7. For this purpose the Court has devised what has been termed as a “curative” petition
  8. No time limit is given for filing Curative petition
  9. Conditions: To entertain the curative petitions, the Supreme Court has laid down certain specific conditions
    • The petitioner will have to establish that there was a genuine violation of principles of natural justice and fear of the bias of the judge and judgement that adversely affected him
    • The petition shall state specifically that the grounds mentioned had been taken in the review petition and that it was dismissed by circulation
    • The petition is to be sent to the three senior most judges and judges of the bench who passed the judgement affecting the petition, if available
    • If the majority of the judges on the above bench agree that the matter needs hearing, then it would be sent to the same bench (as far as possible)
    • The court could impose “exemplary costs” to the petitioner if his plea lacks merit
Health Sector – UHC, National Health Policy, Family Planning, Health Insurance, etc. Health

Banning online pre-natal sex determination content dangerous

  1. Question: SC asked A-G to effectively address the court on the question as to whether the ban on sex determination advertisements under Section 22 of the Pre-Natal and Pre-Conception Sex Diagnostic Techniques Act is restricted only to paid advertisements
  2. Supreme Court: A general prohibition on all online content about pre-natal sex determination will curtail the fundamental right to know of a genuine information-seeker who is driven by curiosity
  3. Pre-natal sex determination ads is an offence. But a general prohibitory order against all online information pertaining to sex determination is dangerous
  4. It will be curtailing the right to know under Article 19 (1) (a) of the Constitution
  5. Attorney-General: There is a distinction between the right to know of an information seeker and the purely commercial objectives of those who post online sex determination ads to make money

Note4students:

For mains- a link in SC ban on sex-selective ads on internet under PCPNDT Act. The issue that arises now is- curbing practice of sex selection versus the fundamental right to know under article 19 (1) (a).

Policy Wise: India’s Power Sector Energy

SC sets aside compensatory tariff to Tata Power, Adani Power

  1. The Supreme Court set aside an Appellate Electricity Tribunal decision allowing power generator giants Adani Power and Tata Power to charge compensatory tariff from their consumers spread across States including Gujarat and Haryana
  2. Background: The tribunal, in a judgment on April 7 last year, permitted the companies to hike the tariff
  3. This was allowed because, Indonesia — where they source coal from to power their plants — decided in 2010 to align its coal export prices to international market prices instead of what they have been charging for the past 40 years
  4. The companies had argued that the increased coal prices was a ‘force majeure’ event (an unforeseen situation) provided for in the power purchase agreements (PPAs) entered into between them and distributors
  5. The tribunal had then remanded the case to the Central Electricity Regulation Commission to find out the impact of the ‘force majeure’ event to grant compensatory tariff
  6. On December 6, 2016, the Commission had arrived at a certain determination as to compensatory tariff to be granted on account of force majeure
  7. Supreme Court: Setting aside all past orders of the tribunal and the commission, SC held that a change in Indonesian coal export regulations does not measure up to be a force majeure event for which the consumers have to compensate for
  8. The fundamental basis of the PPAs remains unaltered
  9. Nowhere do the PPAs state that coal is to be procured only from Indonesia at a particular price
  10. In fact, it is clear on a reading of the PPA as a whole that the price payable for the supply of coal is entirely for the person who sets up the power plant to bear
  11. It is clear that an unexpected rise in the price of coal will not absolve the generating companies from performing their part of the contract for the very good reason that when they submitted their bids, this was a risk they knowingly took
  12. The court held that “changes in the cost of fuel, or the agreement becoming onerous to perform, are not treated as force majeure events under the PPA itself”
  13. The court further held that force majeure clause cannot be claimed for change in foreign laws, but only for Indian laws
  14. The court ordered the Central Electricity Regulatory Commission to go into the matter afresh and determine what relief should be granted to the power generators

Note4students:

Important decision which would influence business ecosystem as well as consumer rights and power sector. Note the highlighted terms. Keep track of the developments in the issue. Also dwell on the issues related to tribunals which have come up in recent past like- reorganisation of tribunals, judiciary v/s tribunals conflict.

Back2basics:

1. Central Electricity Regulatory Commission (CERC), a key regulator of power sector in India, is a statutory body functioning with quasi-judicial status under sec – 76 of the Electricity Act 2003.

2. CERC was initially constituted on 24 July 1998 under the Ministry of Power’s Electricity Regulatory Commissions Act, 1998 for rationalization of electricity tariffs, transparent policies regarding subsidies, promotion of efficient and environmentally benign policies, and for matters connected Electricity Tariff regulation.

3. CERC was instituted primarily to regulate the tariff of Power Generating companies owned or controlled by the government of India, and any other generating company which has a composite scheme for power generation and interstate transmission of energy, including tariffs of generating companies.

J&K- The issues around the state Governance

Why mobs have children, asks SC

  1. Context: SC reacting to arguments by the J&K High Court Bar Association, which has filed a public interest litigation petition for a ban on pellet guns
  2. PIL: Security forces’ indiscriminate use of pellet guns against mobs in Jammu and Kashmir is creating a “nation of blind people”
  3. Supreme Court: Retorted by questioning the sense of humanity of the very people who form the mob and use children as cover while engaging security forces in pitched street battles
  4. What are children aged seven, nine and 14 years doing in a mob? Why are they placed in front of the mobs who confront security forces
  5. The age-group of those injured are from 13 to 20 and 20 to 24 years. Young students are the ones most injured
  6. SC advised the Bar Association against taking side
  7. Attorney General: About a 100 security personnel within the distance of two to three booths. Why do they do it on polling day? Election is a symbol of democracy

Note4students:

Note the arguments and counter arguments; issues like obstructing democratic process of elections and ethical dimensions like using youth or children as a cover.

Judiciary Issues – Judicial Pendency, Judicial Activism, Judicial Overreach, etc. Constitution

Use restraint in using Article 142

  1. Article 142: Empowers the SC to pass any decree or order necessary for doing “complete justice” in any matter pending before it
  2. Criticisms: Use of Article 142 should be in accordance with law and due process of law as guaranteed in Article 21. A recent order on the highway liquor ban under A142 has rendered lakhs jobless
  3. Lawyers are also against a proposal to employ extraordinary powers under Article 142 to order a joint trial of the two Babri Masjid demolition cases pending for the past 25 years
  4. Article 142 is not a source of unlimited power for SC to go far ahead. There should be self-restraint

Note4students:

Issue over use of Article 142 coming forth. Keep track of the issue for mains. Also know about related provisions in Constitution for prelims.

Liquor Policy of States: A New Era of Prohibition Governance

Ban was based on Centre’s studies: SC

  1. Issue: The Supreme Court’s ban on liquor vends along National and State Highways
  2. SC: “This court, while exercising its jurisdiction, has neither formulated policy nor has it assumed a legislative function”
  3. Rationale for intervention: The basis and foundation for the ban is derived entirely from studies done by the Central government over the past decade
  4. Official data produced by the MoRTH show the extent of road accidents caused by drunken driving
  5. Also, the Centre has pledged its unequivocal support to such a ban

Note4students:

This is not only an issue of liquor ban but one of judicial activism. Note it for mains. Also note the difference between judicial activism and judicial overreach.

Back2basics:

Judicial Review:

  1. The process by which the Judiciary review the validity of laws passed by the legislature
  2. This power originates from Article 13 of the Constitution
  3. Example- The striking down of the Section 66A of the IT Act as it was against the Fundamental Rights guaranteed by the constitution

Judicial activism:

  1. A more active role taken by Judiciary to dispense social justice
  2. It has no constitutional articles to support its origin. Indian Judiciary invented it. There is a similar concept in the United States of America
  3. Examples- Invention of the ‘basic structure doctrine’ in the ‘Keshavanad Bharati case’ (1973) by which Supreme Court further extended the scope of Judicial Review, incorporation of due process of law instead of procedure established by law, institutionalization of PIL

Judicial Overreach:

  1. The line between Judicial activism and Judicial Overreach is very narrow
  2. When Judicial activism crosses its limits and becomes Judicial adventurism it is known as Judicial Overreach
  3. When the judiciary oversteps the powers given to it, it may interfere with the proper functioning of the legislative or executive organs of government
  4. It is undesirable in any democracy
  5. Examples- What makes any action activism or overreach is based upon the perspective of individuals
  6. But in general, striking down of NJAC bill and the 99th constitutional amendment, the order passed by the Allahabad High Court making it compulsory for all Bureaucrats to send their children to government school, misuse the power to punish for contempt of court etc. are considered as Judicial Overreach
Liquor Policy of States: A New Era of Prohibition Governance

[op-ed snap] My way on the highway

Context:

  1. The Supreme Court’s order on December 15, 2016 prohibiting the sale of alcohol within 500 metres of National and State highways highlights the perils of polycentric adjudication
  2. The stated reason for this order is the overriding imperative of preventing road accidents due to drunken driving
  3. There are reports about the collateral consequences: lost livelihoods and a substantial hit in tourism for States such as Goa
  4. The court’s clarification — that its initial order applied not merely to “liquor vends”, but also to bars, hotels, and restaurants — has led to the paradoxical consequence of even members-only clubs being forced to go dry because of their proximity to a highway

Overreaching justice:

  1. It has been argued that banning alcohol — and micromanaging the distance from the highways where alcohol cannot be sold — is a classic example of policymaking, and that the Supreme Court has indulged in “judicial overreach”

The court’s reasoning:

  1. Unlike many other cases in which the Supreme Court has passed far-reaching orders in the course of “public interest litigation”
  2. In this case, the court has gone to some lengths to defend its alcohol-banning order against claims of judicial overreach
  3. In its December 15 order the court referred to a number of government policy documents that drew a correlation between alcohol consumption and road accidents
  4. The Central government had issued circulars “advising” State governments not to grant any new licences to liquor shops along the highways
  5. On this basis, the court observed: “The issue is whether such liquor licences should be granted on national and state highways at the cost of endangering human lives and safety. In our view, which is based on the expert determination of the Union government, we hold that the answer should be in the negative”

Who should do what:

  1. There are two different questions: what should be done about a problem, and who should do it
  2. In this case, the question of whether the government should grant liquor licences in the proximity of highways — should not be answered by a court, whatever the answer may be
  3. The question is not whether the government’s determination is correct or incorrect, but which body is authorised to act upon that determination
  4. The court observed that it was “not fashion[ing] its own policy but enforc[ing] the right to life under Article 21 of the Constitution based on the considered view of expert bodies”

Article 21 and weak evidence:

  1. It may be argued that Article 21 is not merely a right against state action that deprives an individual of her life, but also against state inaction that results in loss of life
  2. In other words, the argument might be that road deaths could be prevented if the state was to refuse to grant liquor licences in the proximity of highways
  3. The state’s failure to do so is a breach of its obligations under Article 21, and the court’s order merely enforced a fundamental right by requiring the state to act
  4. If this is the legal foundation of the judgment, however, then it misses two crucial building blocks
  5. First, the court ought to have provided a test for the degree of proximity between state (in)action and loss of life, for a finding that Article 21 had been breached
  6. There are a lot of things that the state does, or does not do, which ultimately affect peoples’ lives
  7. For instance, people would probably live longer, and there would be fewer deaths by heart attacks, if the state was to ban all junk food
  8. That, however, would not justify the court invoking Article 21 and directing the state to ban all junk food, on the ground that it was failing in its obligations under Article 21 through its inaction
  9. And second, the court’s conclusion ought to have rested on firmer evidentiary foundations than it did

Complete justice:

  1. The court concluded by clarifying that it was passing orders under Article 142 of the Constitution
  2. Article 142 empowers the Supreme Court to do “complete justice” in any case before it
  3. However, this power is bounded by the further requirement that the court act “within its jurisdiction”
  4. Article 142, therefore, is not a carte blanche for the Supreme Court to implement its vision of justice, without regard to issues of institutional competence and legitimacy

Note4Students:

In the liquor ban case, despite its efforts to do so, the court has failed to make out a compelling case for why its orders do not encroach upon the executive’s domain of policymaking. Its polycentric consequences — which are only now emerging — lend further credence to the view that the court has, indeed, overreached. Read how the Court has interpreted Article 21.

Parliamentary Crisis – Ordinance Raj, Policy Paralysis, Role of Opposition, etc. Indian Polity

Can’t ban MPs from other professions: SC

  1. Petition: Beedi or liquor barons eventually become MPs and sit on committees to influence the destiny of their businesses & this is a serious conflict of interest
  2. Many legislators who doubled up as advocates were even retainers of big corporate bodies’ entities
  3. It thus giving rise to a situation of conflict of interest between their constitutional duties as legislator and lawyer meant to vouchsafe the private interests of their clients
  4. The restriction imposed on public servants and judges against engaging in other professions should apply to lawmakers
  5. With 543 Lok Sabha MPs representing more than 1.3 billion people, a Member of Parliament on an average represents more than 2.25 million people
  6. Similarly, a Rajya Sabha MP is the voice of his State in Parliament and, as such, has a very important role in our federal political system
  7. The primary role of an MP is as a legislator
  8. Thus, MPs must attend Parliament every day and dedicate themselves full-time for the welfare of people
  9. SC verdict: Found no merit in a petition to ban legislators from practising other professions, especially law
  10. There are doctors who became IAS officials and engineers who are diplomats
  11. Petitioner has a valid point, but the court cannot not frame policies

Note4students:

Note the arguments by petitioner and the SC. Can be used in mains. As a conflict of interest point it can be used in GS2 (governance etc) or GS4 (ethics) papers.

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