The Marital Rape Exception (MRE), rooted in the doctrine of coverture from English common law, has long sparked debates about the legal autonomy of women within marriage.
Marital Rape Exception (MRE): What is it?
The MRE is found in Exception 2 to Section 375 of the Indian Penal Code (IPC), 1860, and its equivalent, Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023.
According to these provisions, sexual intercourse or sexual acts by a man with his wife do not constitute rape if the wife is above 18 years of age.
Why discuss this?
This legal immunity for husbands has been challenged for violating fundamental rights, and now, a three-judge Bench led by CJI D.Y. Chandrachud is set to examine the constitutional validity of this exception.
The outcome of this case could redefine the boundaries of consent and bodily autonomy within the institution of marriage in India.
Split Verdict by the Delhi High Court in 2022:
1. Justice Rajiv Shakdher’s Opinion:
Declared the Marital Rape Exception (MRE) unconstitutional.
Argued that the MRE violates a woman’s bodily autonomy and expression.
Criticized the exception as being rooted in patriarchy and misogyny.
Held that the classification of marital rape as different from rape outside marriage is unreasonable and arbitrary.
Emphasized that forced sex outside marriage is treated as “real rape,” while the same act within marriage is not.
2. Justice C. Hari Shankar’s Opinion:
Upheld the Marital Rape Exception, considering it legal within the framework of marriage.
Argued that sexual relations within marriage are a legitimate expectation.
Expressed concerns that allowing prosecution of husbands for non-consensual sex would be antithetical to the institution of marriage as understood in Indian society.
Believed that introducing the possibility of husbands being seen as rapists within marriage would undermine the institution of marriage.
Doctrine of Coverture from English Common Law:
The doctrine states that upon marriage, a woman’slegal existence was essentially merged with that of her husband.
The married woman was legally dependent on her husband, losing autonomy over her legal rights and property.
Impact on Women’s Rights:
Under this doctrine, a wife had no independent legal identity during marriage.
Women could not own property, enter contracts, or bring legal claims without their husband’s approval.
The husband had control over the wife’s body and actions, including sexual relations.
Influence on Marital Rape Exception:
The doctrine formed the basis for the original Marital Rape Exception in British common law.
It implied that a wife gave permanent consent to sexual relations upon marriage, which could not be withdrawn.
This legal reasoning was adopted in many British colonies, including India, and continues to influence Indian law today.
Modern Rejection:
England abolished the Marital Rape Exception in 1991 in the case of R v. R, recognizing that the doctrine of coverture no longer reflected the status of women in modern society.
Despite this, the doctrine’s influence persists in India’s legal system, particularly through the Marital Rape Exception in BNS.
PYQ:
[2024] The soul of new law, Bhartiya Nyay Sanhita (BNS) is Justice, Equality and Impartiality based on Indian culture and ethos. Discuss this in the light of major shift from a doctrine of punishment to justice in the present judicial system.
The Delhi High Court recently permitted a couple in their sixties to access their late son’s sperm sample, thus opening the door for posthumous assisted reproduction.
About the Present Case:
The Delhi HC allowed a couple in their sixties to access their deceased son’s sperm sample for posthumous assisted reproduction, marking a significant legal ruling.
The son, who passed away from cancer in 2020, had cryopreserved his sperm at a hospital. The hospital refused to release the sample without a court order since there were no guidelines for cases without a surviving spouse.
The parents sought court intervention to carry on their son’s legacy, with the assurance that they would take full responsibility for any child born through surrogacy using the sperm sample.
What is the ART Act?
The Assisted Reproductive Technology (ART) Act, 2021 regulates fertility treatments and artificial insemination procedures in India.
It provides guidelines for posthumous retrieval of sperm but is limited to cases where the deceased is married, allowing the surviving partner to seek sperm retrieval.
The Ministry of Health and Family Welfare stated that the current legislation does not account for “postmortem grandparenthood” cases, where grandparents seek to use a deceased individual’s sperm.
What are present International practices?
Uruguay: Allows posthumous reproduction with written consent valid for one year.
Belgium: Permits posthumous reproduction after a six-month waiting period following death, and the request must be made within two years.
Victoria, Australia: Requires written or oral consent before witnesses, approval from a “patient review panel,” and counseling for the parent.
Canada and the UK: Both require written consent for posthumous reproduction.
Israel: Limits the use of a deceased individual’s sperm to the female partner, with some exceptions allowing parents to use it. The Delhi High Court ruling referenced a similar case in Israel involving a 19-year-old soldier.
Precedents and Concerns:
Legal Precedent for Non-Spousal Claims: The Delhi High Court’s ruling sets a precedent where parties other than a spouse, such as parents, can claim the right to access a deceased individual’s cryopreserved reproductive material.
This expands the legal interpretation beyond the scope typically covered by existing laws, which usually prioritize the spouse’s consent.
Ethical and Consent Issues: Posthumous reproduction raises ethical concerns, particularly regarding the presumed consent of the deceased individual.
Determining whether the deceased intended for their reproductive material to be used after death can be complex, especially when explicit written consent is not available.
Child Welfare Considerations: The ruling highlights concerns about the future child’s welfare, who would grow up without one genetic parent.
Way forward:
Establish Clear Legal Guidelines: Develop comprehensive legal frameworks for posthumous reproduction, addressing scenarios beyond spousal claims and ensuring explicit consent requirements to guide such cases.
Prioritize Child Welfare and Ethical Considerations: Implement safeguards like mandatory counseling, ethical review panels, and consideration of the child’s best interests in decisions involving posthumous assisted reproduction.
At the National Conference of the District Judiciary, President Droupadi Murmu emphasized the problem of court delays. She pointed out that these delays are causing people to hesitate in approaching the courts.
What are the primary causes of delays in the Indian judicial system?
Ineffective Case Management: The lack of proper scheduling and timelines for filing documents, examining witnesses, and scheduling hearings leads to inefficiencies and prolonged delays.
Lawyers often seek adjournments due to unpredictable scheduling or strategic reasons, leading to repeated postponements of hearings.
Overburdened Judges: District court judges are often under pressure to prioritize cases based on higher court directives, skewing case management in favor of meeting deadlines rather than ensuring timely justice.
Incentive Structure for Judges: The “units system” rewards judges for disposing of simpler cases, often causing more complex cases to be delayed or neglected.
Extended Stays and Interim Orders: Litigants may use stays as a strategic delay tactic, reducing the urgency to resolve cases quickly.
Unpredictable Witness Testimonies: Disruptions in the court schedule and procedural delays make it difficult for witnesses to attend court, further contributing to trial delays.
Status of the case pending in India:
Total Pending Cases: As of 2024, there are over 58.59 lakh cases pending in high courts alone, with a staggering total of more than 51 million (5.1 crore) cases across all court levels, including district and Supreme Court.
Long-standing Cases: Nearly 62,000 cases have been pending for over 30 years, with some dating back to 1952. In high courts, about 23% of cases have been pending for over ten years2.
High Court Breakdown: The Allahabad High Court has the highest backlog, with over seven lakh cases pending as of 2018. Meanwhile, the Supreme Court currently has around 83,000 cases pending, marking a significant increase over the past decade despite an increase in the number of judges
What impact do these delays have on public perception and access to justice?
Erosion of Trust: Delays make the judicial process appear slow and ineffective, leading to public hesitation in approaching courts, fearing that litigation will complicate their lives.
Increased Legal Costs: Prolonged cases escalate legal costs for litigants, making justice unaffordable for many.
Reluctance to Seek Justice: The “black coat syndrome” highlights how people avoid courts due to the fear of endless adjournments and delays, diminishing access to timely justice.
Backlog of Cases: The increasing backlog due to delays creates further congestion in the judicial system, perpetuating a cycle of inefficiency.
How can reforms improve the efficiency of the judiciary? (Way forward)
Improved Case Management Systems: Implementation of Case Flow Management Rules with a focus on enforcing timelines for hearings and case disposal can streamline the process.
Reformed Incentive Structures: Reform the “units system” to incentivize judges to handle complex cases more efficiently rather than prioritizing simpler ones.
Predictable Scheduling for Lawyers: Providing clear scheduling information to lawyers can reduce unnecessary adjournments and improve case flow.
Review of Stay Orders: Limiting the duration of stay orders and making them subject to regular review can discourage their misuse as delay tactics.
Introducing real-time case management systems to track case progress and monitor delays could enhance judicial efficiency.
Support for Witnesses: Offering financial compensation and providing predictability in court appearances can encourage witnesses to testify without unnecessary delays.
Q). Discuss the role of the Election Commission of India in the light of the evolution of the Model Code of Conduct. (UPSC CSE 2022)
Q. (a) State the three basic values, universal in nature, in the context of civil services and bring out their importance. (150 words) (b) Distinguish between “Code of ethics” and “Code of conduct” with suitable examples. (UPSC CSE 2018)
Q. (a) Which eminent personality has inspired you the most in the context of ethical conduct in life? Give the gist of his/her teachings. Giving specific examples, describe how you have been able to apply these teachings for your ethical development. (b) There is a heavy ethical responsibility on the public servants because they occupy positions of power, handle huge amounts of public funds, and their decisions have wide-ranging impacts on society and the environment. What steps have you taken to improve your ethical competence to handle such responsibility? (UPSC CSE 2014)
Mentor’s Comment: Gurmeet Ram Rahim Singh is a prominent Indian spiritual leader and the head of the Dera Sacha Sauda sect. In January 2019, he was sentenced to life imprisonment for the murder of journalist Ram Chander Chhatrapati, who had reported on the rape allegations against him. Additionally, he was convicted in October 2021 for the murder of Ranjit Singh, a former Dera manager.
Despite his criminal convictions, Singh maintains a significant following. These challenges are reflected while maintaining law and order in governance and administration. In today’s editorial, we will study the same case and its impacts on democratic values of the Society.
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Let’s learn!
Why in the News?
Gurmeet Ram Rahim Singh, a convicted rapist and murderer, was released on parole just days before the Haryana Assembly elections.
This is his 15th parole, which is often coinciding with elections, raising concerns from the opposition party about electoral conduct violations.
A parole is a conditional release of a prisoner before they have completed their full sentence.
What legal challenges have been raised against this Parole?
Violates Model Code of Conduct: The Haryana Congress has formally petitioned the Election Commission of India to prevent Singh’s parole, arguing that it could influence voters during the upcoming assembly elections affecting democratic values.
Even if granted parole, he needs to face stringent conditions, including a ban on entering Haryana, delivering public speeches, or engaging in any political activities.
Public Opposition and Legal Scrutiny: There is significant public outcry with groups like the Shiromani Gurdwara Parbandhak Committee. Concerns have been raised about potential law and order issues stemming from his influence
Judicial Oversight: The state government has assured that all parole applications are processed legally, adhering to the Haryana Good Conduct Prisoner (Temporary Release) Act, 2022. The frequent granting of parole has led to calls for reforms in the system to prevent misuse.
What role needs to be played by the Political Parties and the ECI?
Political Parties: The ruling party in Haryana defends the decision to grant parole to Gurmeet Ram Rahim Singh, claiming due process was followed. While the opposition party opposes the parole, their previous activities had similar views.
Political parties need to learn from former personalities like PM Atal Bihari Vajpayee and Manmohan Singh, who prioritized the ‘Rule of Law’ over political gain.
Election Commission’s Scrutiny: The Election Commission of India (ECI) needs to intervene and cancel Singh’s parole, arguing it undermines democratic values, especially before elections.
Need for Judicial Oversight: The judiciary has previously played a crucial role in addressing Singh’s crimes, and there is hope for continued judicial vigilance against unjust paroles.
Conclusion: The ongoing saga of Singh’s crimes and convictions reflects a broader societal struggle against superstition and injustice, as emphasized by the late rationalist Narendra Dabholkar. ECI should establish stricter guidelines and oversight mechanisms regarding parole applications, particularly for individuals convicted of serious crimes.
On Monday, September 24, the Karnataka High Court permitted an investigation into Chief Minister Siddaramaiah in connection with the alleged Mysore Urban Development Authority (MUDA) scam.
What was the MUDA scam case?
The Allegations: In July 2023, anti-corruption activists approached Karnataka Governor Thawarchand Gehlot, alleging that Chief Minister Siddaramaiah’s wife, Parvathi, received 14 housing sites from the Mysore Urban Development Authority (MUDA).
This was allegedly in exchange for a 3.16-acre plot of land that MUDA illegally acquired in 2021, during the tenure of the BJP-led government. The scam allegedly caused a loss of ₹55.80 crore to the state.
Governor’s Action: In response, the Governor issued a show-cause notice to Siddaramaiah and later sanctioned an investigation under the Prevention of Corruption Act, 1988 (PCA) and the Bharatiya Nyaya Sanhita, 2023.
What were the grounds for Siddaramaiah’s challenge?
Council of Ministers’ Advice: The Chief Minister argued that the Governor was bound by the Council of Ministers’ August 1, 2023 resolution, advising withdrawal of the show-cause notice.
Governor’s Discretion: Siddaramaiah contended that the Governor’s sanction was unjustified, biased, and exceeded his discretionary powers, which could only be invoked if the Council’s decision was irrational.
What did the court decide?
The Karnataka High Court upheld the Governor’s sanction for the investigation, stating that the circumstances justified the Governor’s actions under “exceptional circumstances.”
The court observed that the Governor’s decision was not made in haste but after careful consideration of the allegations and relevant facts.
The court clarified that private individuals (complainants) can seek approval to investigate public officials under the Prevention of Corruption Act, and the Governor’s approval can be granted even in such cases.
The court lifted the interim embargo on the investigation against Siddaramaiah, allowing the inquiry to continue into the alleged MUDA scam.
Conclusion: The Karnataka High Court upheld Governor Gehlot’s sanction for an investigation into the alleged MUDA scam, rejecting Siddaramaiah’s challenge. The court ruled that exceptional circumstances justified the Governor’s actions, allowing the inquiry to proceed.
The perception of justice is as vital as justice itself, with unelected constitutional institutions expected to uphold transparency and exercise restraint in engaging with elected authorities.
Relationship between Public Perception and the Actual Functioning of the Justice System:
Role of Perception in Justice: Perception of justice is critical because it shapes public trust in institutions. Even if the justice system functions properly, if it is perceived as biased or ineffective, it erodes confidence. The system must not only deliver justice but also be seen as just.
Moral Authority: When unelected constitutional bodies, like the judiciary, demonstrate transparency and accountability, they build moral authority.
Perception vs Reality: Public perception can sometimes be more influential than the actual functioning of the system. Institutions like the judiciary must work to balance delivering justice and managing public perception to maintain credibility.
How Do Systemic Biases Affect Perceptions of Justice Among Marginalized Communities:
Historical and Structural Biases: These perceptions arise when the system disproportionately impacts certain communities, whether through discriminatory practices or unequal access to legal representation.
Erosion of Trust: When systemic biases are evident, marginalized groups may become cynical or disengaged from legal processes, believing that the system is not designed to serve their interests. This creates a widening gap between these communities and the justice system.
Impact on Public Discourse: Systemic biases fuel narratives that the justice system is rigged or unfair. In the long term, this can lead to public apathy, where marginalized groups may stop engaging with the system, assuming that it will not provide them justice.
Broader Reflections on Democracy and Institutions:
Information and Discourse: The explosion of media and social media has blurred the lines between personality-driven and issue-based politics. This shift has led to heightened cynicism, where the focus on individuals overshadows serious discourse on public issues.
Restoring Institutional Integrity: For democracies to thrive, institutions must maintain boundaries defined by constitutional mandates. When constitutional organs exhibit higher standards of probity and transparency, they inspire trust, which is vital for democracy.
Responsibility of Constitutional Institutions: Independent constitutional bodies, like the judiciary, are expected to rise above partisan politics and protect democratic values.
The example of T.N. Seshan, former Chief Election Commissioner of India, exemplifies how individuals can enhance institutional integrity by adhering to constitutional principles and maintaining public confidence.
Conclusion:
The functioning of the justice system, while critical, is deeply influenced by public perception, especially among marginalized communities. Systemic biases create barriers to justice for these communities, reinforcing negative perceptions. Constitutional organs must hold themselves to higher standards, as public trust in these institutions is vital for the health of democracy.
President Droupadi Murmu unveiled the new flag and insignia of the Supreme Court of India during the National Conference of District Judiciary in New Delhi.
AboutNew Flag and Insignia of the Supreme Court of India:
Details
Designed by
National Institute of Fashion Technology (NIFT), Delhi
Flag Design
Blue flag featuring three symbols:
Ashoka Chakra (Symbol of India’s legal and cultural heritage)
Supreme Court Building (Represents the institution of justice in India)
Constitution of India (Highlights the role of the Supreme Court as the guardian of the Constitution)
Insignia
Includes the Sanskrit phrase “Yato Dharmastato Jayah“ inscribed in Devanagari script.
Translates to “Where there is Dharma, there is victory“, symbolizing the Supreme Court’s dedication to justice and righteousness.
Occurs 13 times in the epic the Mahabharata.
Flag Formats
Available in cross table flat, single table flag, pole flag, and wooden frame versions
PYQ:
[2023] Consider the following statements in respect of the National Flag of India according to the Flag Code of India, 2002:
Statement-I: One of the standard sizes of the National Flag of India is 600 mm * 400 mm.
Statement-II: The ratio of the length to the height (width) of the Flag shall be 3:2.
Which one of the following is correct in respect of the above statements?
a) Both Statement-I and Statement-II are correct and Statement-II is the correct explanation for Statement-I
b) Both Statement-I and Statement-II are correct and Statement II is not the correct explanation for Statement-I
c) Statement-I is correct but Statement-II is incorrect
d) Statement-I is incorrect but Statement-II is correct
According to a report by the Ministry of Law and Justice, only 0.11% of cases were settled through “plea bargaining” in 2022.
Key Findings of the Report:
In 2022, only 19,135 out of 1,70,52,367 cases (about 0.11%) in Indian courts were disposed of through plea bargaining, indicating its minimal use.
Despite legal restrictions, 119 cases of crimes against women and only4 cases under the Protection of Children from Sexual Offences Act (POCSO) were resolved through plea bargaining in 2022, showing a deviation from the intended exclusions.
What is Plea Bargaining?
Details
Definition
Plea bargaining allows an accused person to negotiate with the prosecution for a lesser punishment by pleading guilty to a less serious offence.
This involves pre-trial negotiations on the charge or the sentence.
Provision in India
• Introduced in 2006 as part of the Criminal Law (Amendment) Act, 2005 under Chapter XXI-A (Sections 265A to 265L).
• Limited to offences thatdo not attract the death sentence, life sentence, or a term above seven years.• Not applicable to offences affecting socio-economic conditions or committed against women or children under 14. (applies only to offences punishable by up to seven years of imprisonment)
Procedure in India
• Only the accused can initiate plea bargaining.
• The accused must apply to the court to start the process. If permitted, a meeting involving the prosecutor, investigating officer, and victim (if any) is held for a satisfactory case disposition.
• Includes possible reduced sentences and compensationpayments to the victim by the accused.
Benefits Offered
• Speeds up trials, reduces litigation costs and ends uncertainty over case outcomes.
• Helps reduce prison overcrowding and the number of prolonged imprisonments of undertrials.
• Offers a chance for offenders to make a fresh start.
• Could improve conviction rates, as seen in the USA.
• Recommended by the Malimath Committee (2000) for its potential to dramatically impact conviction rates and ensure a speedy trial.
PYQ:
[2021] With reference to India, consider the following statements:
1. Judicial custody means an accused is in the custody of the concerned magistrate and such accused is locked up in police station, not in jail.
2. During judicial custody, the police officer in charge of the case is not allowed to interrogate the suspect without the approval of the court.
Which of the statements given above is/are correct?
Delhi Deputy Chief Minister Manish Sisodia was arrested in early 2023 by the CBI and ED in the Delhi liquor policy case. After nearly a year and a half in prison, the Supreme Court of India granted him bail, underscoring that bail should not be used as a form of punishment.
Previous judgments on the ‘Right to Speedy Trial’:
The Supreme Court referenced its earlier judgments, including Kashmira Singh (1977), P. Chidambaram (2020), and Satender Kumar Antil (2022), which establish that the right to a speedy trial is fundamental under Article 21 of the Constitution.
The Court’s decision in Arnab Manoranjan Goswami vs The State of Maharashtra and Ors. (2020) was cited, reinforcing that liberty is a core component of constitutionalism.
In recent scenario, the SC relied on its earlier order dated October 30, 2023, in Manish Sisodia vs Central Bureau of Investigation, which highlighted concerns about the large volume of evidence (56,000 pages of documents and 456 witnesses) potentially causing significant delays in trial proceedings.
What are the present limitations?
Prolonged Incarceration: The ruling pointed out that the legal system often leads to excessive delays, which can result in individuals being punished without trial.
Dependence on Prosecutorial Statements: A concern was raised about the reliance on the prosecution’s assurances regarding the timeline for trial completion.
‘Guarantee of Civil Liberties’:
Constitutional Foundation: The Supreme Court emphasized that individual liberties should not be contingent on the discretion of the prosecution.
In judgments like Maneka Gandhi v. Union of India (1978), the Court expanded the understanding of due process, emphasising that any deprivation of liberty must follow fair, just, and reasonable procedures.
Judicial Responsibility: The judgment aims to prevent the misuse of stringent laws like the Prevention of Money Laundering Act (PMLA) and to uphold the dignity and rights of individuals.
In Rana Ayyub v. Directorate of Enforcement (2023), the Supreme Court emphasized judicial oversight in PMLA enforcement while ensuring trials follow underlying offenses.
Public’s trust on Judiciary: Presently, the Apex Court pointed out the flawed tendency of some judges to deny bail unnecessarily, ignoring the principle of timely trials. This may lead to loss of public trust in the judiciary.
Call for Systemic Change: The ruling urges a reevaluation of the political and legal systems to prioritize justice and individual rights over personal vendettas.
State of Maharashtra v. Rani Kusum (2005) underscores the necessity for reforms to address delays in the judicial process.
Bail is the Rule, Not the Exception: The Supreme Court’s decision in granting bail to Manish Sisodia reinforces the principle that bail is the rule, not the exception.
Way forward:
Adherence to procedural deadlines: In this situation, courts should enforce stricter adherence to procedural deadlines and prioritize cases involving prolonged incarceration to safeguard the right to a speedy trial.
Independent oversight committees: Need to establish independent oversight committees to regularly review cases of prolonged incarceration without trial, ensuring accountability and reducing reliance on prosecutorial assurances alone.
Mains PYQ:
Q 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? (UPSC IAS/2016)
Q) Money laundering poses a serious security threat to a country’s economic sovereignty. What is its significance for India and what steps are required to be taken to control this menace? (2013)
Q) Discuss how emerging technologies and globalisation contribute to money laundering. Elaborate measures to tackle the problem of money laundering both at national and international levels. (2021)
Note4Students:
Mains: Issues related to Section 70 of the PMLA;
Mentor comments: Two recent Supreme Court observations in the bail petitions of Delhi CM Arvind Kejriwal and ex-Deputy CM Manish Sisodia highlight significant legal issues. Justice Sanjiv Khanna’s Bench questioned the role of the Aam Aadmi Party (AAP) in a PMLA case involving its leaders, asking if the party itself could be made an accused. This led the Enforcement Directorate to include AAP as an accused in Mr. Kejriwal’s case, marking the first time a political party is implicated under PMLA. This raises serious concerns given the pivotal role of parties in a parliamentary democracy.
Let’s learn!
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Why in the News?
Two Supreme Court Benches questioned the role of political parties under the PMLA, leading to AAP being accused, which raises important constitutional issues.
About PMLA:
The Prevention of Money Laundering Act, 2002 (PMLA) is a significant piece of legislation in India aimed at combating money laundering and related financial crimes.
Objectives: 1. The PMLA is designed to prevent the process of money laundering, which involves concealing the origins of illegally obtained money. 2. The Act provides for the confiscation of properties derived from or involved in money laundering activities.It establishes mechanisms for the detection and investigation of money laundering offenses.
Issues related to Section 70 of the PMLA:
Application of Section 70 of PMLA to Political Parties: The legal question arises whether political parties can be categorized under the definition of “company” or “association of individuals” as per Section 70 of the PMLA. The law typically applies to bodies corporate or firms, which are transactional entities, unlike political parties.
Distinction in Definitions: Section 29A of the Representation of the People Act (RPA), 1951, defines a political party as an association of citizens that calls itself a political party. This specific designation creates a legal distinction between general associations of individuals and political parties, it means political parties may not be intended to fall under the scope of Section 70 of the PMLA.
Ejusdem Generis Interpretation: The legal principle of ejusdem generis suggests that “association of individuals” under Section 70 should be interpreted as entities similar to bodies corporate or firms. Since political parties are not engaged in business or transactional activities like these entities, their inclusion under Section 70 is legally questionable.
Issues related to Policy and criminality
Cabinet Decision-Making and Accountability: The cabinet, as the highest decision-making body in a parliamentary democracy, is collectively responsible for policy decisions. The judiciary typically does not examine the motives or correctness of cabinet policies, focusing instead on the process and legality. Charging individual ministers with criminality for collective cabinet decisions undermines the collective principle.
Ivor Jennings’ View on Cabinet Role: Constitutional authority Ivor Jennings describes the cabinet as the “directing body of national policy,” emphasizing that it is accountable to the legislature and ultimately to the people, who can disapprove of policies through democratic processes.
Policy vs. Criminality in Judicial Interpretation: The observation by the Bench in Mr. Sisodia’s case highlights the difficulty in drawing a line between policy decisions and criminal actions. Criminal charges against individual ministers for decisions made by the cabinet may disrupt the functioning of the cabinet and are legally unsustainable in a parliamentary democracy.
Way forward:
Clarification through Legislative Amendment: To address the ambiguity surrounding the applicability of Section 70 of the PMLA to political parties, the legislature could consider amending the PMLA to explicitly clarify whether political parties fall under the definition of “association of individuals.” This would provide legal certainty and prevent potential misuse or misinterpretation of the law.
Judicial Guidelines on Policy and Criminality: The judiciary could establish clear guidelines on the distinction between policy decisions made by the cabinet and criminal actions taken by individual ministers. These guidelines would help ensure that the cabinet’s collective responsibility is preserved while allowing for accountability in cases of individual misconduct that fall outside the scope of legitimate policy-making.
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