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GS Paper: Executive & Judiciary

  • A judicial course that calls for introspection

    Context

    The recent decision of the Supreme Court of India in the case of A.G. Perarivalan has stirred up a hornet’s nest.

    Use of Article 142 to grant pardon

    • The Court has treaded the extraordinary constitutional route under Article 142.
    • The Bench decided to exercise the power of grant of pardon, remission et al., exclusively conferred on the President of India and State Governors under Articles 72 and 161.
    • Against the separation of power: Against the background of separation of powers viz. Parliament/Legislature, Executive and Judiciary, whether the course adopted by the Bench to do expedient justice is constitutional calls for introspection.

    Evaluating the constitutionality of decision

    • The power under Article 161 is exercisable in relation to matters to which the executive power of the state extends.
    • Discretionary power under Article 161: Article 161 consciously provides a ‘discretion’ to the Governor in taking a final call, even if it was not wide enough to overrule the advice, but it certainly provides latitude to send back any resolution for reconsideration, if, in his opinion, the resolution conflicted with constitutional ends.
    • In Sriharan’s case (2016 (7) SCC P.1), one of the references placed for consideration was whether the term ‘consultation’ stipulated in Section 435 Cr.P.C. implies ‘concurrence’.
    • It was held that the word ‘consultation’ means ‘concurrence’ of the Central government.
    • The Constitution Bench highlighted that there are situations where consideration of remission would have trans-border ramifications and wherever a central agency was involved, the opinion of the Central government must prevail.
    • Basing its conclusion on the legal position that the subject matter (Section 302 in the Indian Penal Code) murder, falls within Lists II and III (State and Concurrent lists) of the Seventh Schedule to the Constitution, the learned judges concluded that the State was fully empowered to take a call and recommend remission in this case.
    • If it is a simple case of being a Section 302 crime, the reason for finding fault with the Governor’s decision to forward the recommendation to the President may be constitutionally correct.
    • But the larger controversy as to whether the Governor in his exercise of power under Article 161 is competent at all, to grant pardon or remission in respect of the offences committed by the convicts under the Arms Act, 1959, the Explosive Substances Act, 1908, the Passports Act, 1967, the Foreigners Act, 1946, etc., besides Section 302, is not certain.
    • According to the decision, it is a simple murder attracting Section 302 of the IPC and therefore the Governor’s decision to forward the recommendation to the President is against the letter and spirit of Article 161 — meaning it is against the spirit of federalism envisaged in the Constitution.
    • Constitutionality use of Article 142: There are momentous issues that are flagged on the exercise of the power of remission under Article 142, by the Supreme Court in the present factual context.
    • The first is whether Article 142 could be invoked by the Court in the circumstances of the case when the Constitution conferred express power on the Governor alone, for grant of pardon, remission, etc., under Article 161.

    Way forward

    • Deeper judicial examination: Whether what the State government could not achieve directly by invoking Sections 432 and 433 of Cr.P.C, without concurrence of Centre could be allowed to take a contrived route vide Article 161 and achieve its objectives is a pertinent issue.
    • This aspect requires deeper judicial examination for the sake of constitutional clarity.
    • Timeframe for the Governor: The Constitution does not lay down any timeframe for the Governor to act on the advice of the Council of Ministers.
    • In any event, even if the delay was constitutionally inexcusable or was vulnerable to challenge, the final arbiter of the Constitution (Article 245) could not have trumped Article 161 with Article 142, which is constitutionally jarring.

    Conclusion

    To portray the remission as to what it was not in the State is a sad fallout the lawlords on the pulpit may not have bargained for. And on the constitutional plane, this verdict deserves a relook, even a review, as it stands on wobbly foundations built with creaky credence.

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  • The sedition law must go

    Context

    By order dated May 11, 2022, a Bench presided over by the Chief Justice of India, has directed that the petitions challenging the Section 124A be listed for final determination in the third week of July 2022; and that in the meantime suspend the use of Section 124A IPC.

    Historical background of Section 124A

    • With effect from 1870, (as amended in 1955), Section 124A of the Penal Code read:

    “Whoever by words, spoken or written, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection, towards the Government established by law in India shall be punished with imprisonment for life…”.

    • “Sedition” is the vaguest of all offences known to the criminal law.
    •  In colonial times, it was defined expansively in order to uphold the majesty of British power in India.
    • Before 1950, there were several Court decisions in operation on Section 124A; amongst them was Bal Gangadhar Tilak’s case (1897).
    • Absence of affection: In Bal Gangadhar Tilak’s case the Privy Council declined to grant leave to appeal, affirming that “disaffection” only meant “absence of affection in any degree towards the British rule or its administration or representatives”, and that exciting of mutiny or rebellion or actual disturbance of any sort was “absolutely immaterial”.
    • With the establishment of a Federal Court by the Government of India Act, 1935, in Niharendu Dutt Majumdar And Ors. vs Emperor the Federal Court held that if the language of Section 124A were to be read literally “it would make a surprising number of persons in India guilty of sedition and that no one, however, supposes that it is to be read in this literal sense”
    • However, in 1947 it was precisely in this literal sense that the interpretation of Section 124A was reiterated by a Bench of five judges of the Privy Council (AIR 1947 P.C. 82) in which it was declared that: “If the Federal Court had given their attention to Tilak’s case (1897) they should have recognised it as an authority… by which they were bound”.
    • With the advent of the Constitution of India on January 26, 1950, this interpretation of Section 124A became “the law in force immediately before the commencement of the Constitution”.

    Section 124A after 1950

    • Article 372: It stated that all laws in force in the territory of India immediately before the commencement of the Constitution shall continue in force therein until altered or repealed or amended by a competent legislature or other competent authority.
    • Protected due to Article 19(2): In 1962, in criminal appeals arising from the states of Bihar and Uttar Pradesh, a Constitution Bench of the Supreme Court held that though Section 124A “clearly violated” the fundamental right to freedom of speech and expression in Article 19(1)(a), it was not unconstitutional only because it was protected from challenge by the words “in the interests of public order” in Article 19(2).

    Conclusion

    This background has now become pertinent and relevant, because in a fresh batch of writ petitions filed in 2021, the constitutionality of Section 124A (IPC) has been once again challenged in the Supreme Court.

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  • Digitization of Judiciary

    Context

    The Indian judiciary has increasingly started using technology and the change is reflected in the legal profession in general as well.

    Increasing use of digital technology in the judiciary

    • With the digitisation of judicial records and the establishment of e-courts, significant developments had taken place in 2020.
    • Use of technology to better utilise potential: It is imperative that the use of digital technology be discussed to better utilise its potential, particularly in terms of digitisation of court records, e-filing of cases and their virtual hearing, live streaming of court proceedings.

    Background

    • In India, e-governance in the field of administration of justice began in the late 1990s, but it accelerated after the enactment of the Information and Technology Act, 2000.
    • In the year of 2006, e-courts were launched as a part of the National e-Governance Plan (NEGP).

    Digitisation of case files

    • When he was the Chief Justice of Allahabad HC, Justice D Y Chandrachud had conceptualised and initiated the project to digitise approximately one crore case files in one year.
    • Saving of space and preservation of old documents: This was necessary as not only was a large space required to store so many files, it was also becoming difficult to manually preserve the decades-old documents.
    • Traceability: Another purpose was to ensure that these files are traceable electronically as and when required.
    • It has also been observed that cases are adjourned simply because affidavits filed several years ago were not restored with the record or were not traceable.
    • Once the documents are digitised and e-filed by counsels, at least the cases would not get adjourned by the courts on this account.
    • Reducing the risk of missing court records: In State of Uttar Pradesh v. Abhay Raj Singh, it was held by the Supreme Court that if court records go missing and re-construction is not possible, the courts are bound to set aside the conviction.
    • Saving of time: With digitisation, it will take much less time for the lower courts to transmit the records as and when called for.
    • The lawyers benefit because they or their staff are no longer required to visit the reporting sections or other sections of the court to know about the status of their cases.
    • This has been sought to be implemented by the e-Committee of the Supreme Court by issuing directions to ensure that e-filing of cases/petitions by state governments in all matters be made mandatory from January 1, 2022.

    Scope for virtual hearing in certain cases

    • Cases related to matrimonial issues and domestic violence bounced cheques, motor accident compensation referred to mediation centres and lok adalats could be included in the list of cases fit for disposal through the virtual hearing.
    • The hearing of matrimonial cases through video-conferencing was approved by the Supreme Court in the matter of Krishna Veni Nagam v Harish Nagam (2017).
    • The direction was short-lived and a coordinate bench of the Supreme Court in the case of Santhini v Vijaya Venkatesh (2018) referred the matter for reconsideration before a larger bench.
    • Virtual hearings cannot be a substitute for physical court hearings in all cases.
    • However, in appropriate cases and certain categories of cases as identified by the court administration in consultation with the members of the Bar, virtual hearing should be made mandatory.

    Live streaming of cases

    • In 2018, the Supreme Court allowed the live-streaming of cases of constitutional and national importance on the basis of the judgment in Swapnil Tripathi.
    • Step towards transparency: The livestreaming of court proceedings is a step towards ensuring transparency and openness.
    • While several reservations were expressed against it, the Gujarat HC in July 2021 became the first court in the country to livestream its proceedings.
    • Its example was followed by other HCs like Karnataka, Odisha, Madhya Pradesh and Patna.

    Challenges

    • Internet connectivity issues and the need for a well-equipped space where lawyers can conduct their cases are some of the major problems requiring attention.
    • Political will and the support of judges and lawyers are also necessary.
    • Awareness and training: Judges, court staff and lawyers are not well-versed with digital technology and its benefits.
    • The need of the hour is for them to be made aware of these and receive adequate training.

    Conclusion

    Adoption of technology will bring drastic changes in the field of law and will transform the Court system.

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  • Why transfer of case to district judge by Supreme Court sends the wrong signal

    Context

    The Supreme Court order of May 20, transferring the suit on the Gyanvapi Masjid dispute from the civil judge (senior division) Varanasi to the district judge casts aspersion, though unintended, on the competence of civil judges in general.

    Background

    • The matter had reached the Supreme Court on a petition filed by the Mosque Management Committee, which challenged the civil judge’s orders.
    • The order permitted inspection, survey, and videography of the mosque’s complex to collect evidence about the alleged existence of idols of Hindu deities inside the mosque, which is adjacent to the Kashi Vishwanath Temple.
    • The Mosque Management Committee had filed an application before the civil judge seeking the rejection of the plaint on the ground that it was barred by the Places of Worship (Special Provisions) Act, 1991.
    • Places of Worship (Special Provisions) Act, 1991 prohibits individuals and groups of people from converting, in full or in part, a place of worship of any religious denomination into a place of worship of a different religious denomination, or even a different segment of the same religious denomination.
    • It was argued before the SC that given the said Act, the suit was liable to be rejected at the threshold as the civil judge had no jurisdiction to entertain the same, much less to pass the aforesaid interim orders.
    • The SC has not found any fault with the order of the civil judge, though there is also a view that it was mandatory on the part of the civil judge to have first passed an order on whether he had the jurisdiction to entertain the suit.
    • However, it appears that in the SC’s view, this was not a serious infraction.
    • So, in a way, the SC has affirmed the orders of the civil judge.
    • The civil court had territorial and pecuniary jurisdiction to deal with the matter.
    • The question that arises is: Why has the Supreme Court transferred the matter to the court of the district judge?

    Issues with the SC transferring the case to the district judge

    • The SC has seemingly declared civil judges to be not competent to decide a matter alleged to be complex.
    • When the Civil Procedure Code, the High Court Rules and Orders invest a civil judge with jurisdiction, why take it away merely on the plea that the matter is complex?
    • Unhealthy precedent: Fransfer of the case to the district judge has set an unhealthy precedent and will have a demoralising effect on the subordinate judiciary.
    • In the recent past, many lower-level judicial officers have passed outstanding orders in matters concerning the liberties of the citizens, which are under threat as never before.
    • The subordinate judiciary provides the foundation of our judicial system.

    Conclusion

    Supreme Court order inadvertently casts aspersions on competence of subordinate judiciary. District court should not be weighed down by SC observation.

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  • India needs parliamentary supervision of trade pacts

    Context

    India is negotiating and signing several free trade agreements (FTAs) with countries like Australia, the UK, Israel, and the EU. While the economic benefits of these FTAs have been studied, there is very little discussion on the lack of parliamentary scrutiny of these treaties.

    Provisions in the Constitution

    • In the Constitution, entry 14 of the Union list contains the following item — “entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries”.
    • According to Article 246, Parliament has the legislative competence on all matters given in the Union list.
    • Thus, Parliament has the power to legislate on treaties. 
    • This power includes deciding how India will ratify treaties and thus assume international law obligations.
    • Article 253  elucidates that the power of Parliament to implement treaties by enacting domestic laws also extends to topics that are part of the state list.

    Lack of parliamentary oversight and its implications

    • No law laying down the process: While Parliament in the last seven decades has passed many laws to implement international legal obligations imposed by different treaties, it is yet to enact a law laying down the processes that India needs to follow before assuming international treaty obligations.
    • Given this legislative void, and under Article 73(the powers of the Union executive are co-terminus with Parliament), the Centre has been not just negotiating and signing but also ratifying international treaties and assuming international law obligations without much parliamentary oversight.
    • Arguably, Parliament exercises control over the executive’s treaty-making power at the stage of transforming a treaty into the domestic legal regime.
    • However, this is a scenario of ex-post parliamentary control over the executive.
    • In such a situation, Parliament does not debate whether India should or should not accept the international obligations; it only deliberates how the international law obligations, already accepted by the executive, should be implemented domestically.
    • Against the practice in other liberal democracies: This practice is at variance with that of several other liberal democracies.
    • In the US, important treaties signed by the President have to be approved by the Senate.
    • In Australia, the executive is required to table a “national interest analysis” of the treaty it wishes to sign in parliament, and then this is examined by a joint standing committee on treaties – a body composed of Australian parliamentarians.

    Way forward

    • Indian democracy needs to inculcate these healthy practices of other liberal democracies.

    Conclusion

    Effective parliamentary supervision will increase the domestic acceptance and legitimacy of international treaties, especially economic agreements, which are often critiqued for imposing undue restraints on India’s economic sovereignty.

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  • The constitutional battle between governor and government

    Context

    The Supreme Court’s action in ordering the release of A G Perarivalan, a convict in the Rajiv Gandhi assassination case, has resulted in mixed reactions.

    Background

    • After the assassination of Rajiv Gandhi, the assailants were tried under the notorious Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA).
    • All 26 accused were given the death sentence by the Special Court for various offences, including under TADA (1998).
    • Fortunately, the SC held that the offences under TADA were not made out since there was no case to proceed for acts of terrorism.
    • It also modified the death penalty for 22 persons and confirmed the same only for Nalini, Perarivalan, Murugan and Santhan (1999).
    • Petition for mercy under Article 161: They petitioned the governor of Tamil Nadu for mercy under Article 161.
    • The then governor of Tamil Nadu dismissed their petition without any advice from the cabinet.
    • The Madras High Court ruled that the governor cannot exercise the power of pardon without the advice of the council of ministers.
    • The cabinet advised the governor to give reprieve only to Nalini Sriharan and rejected the case of the other three, including Perarivalan.
    • Perarivalan and the two other convicts appealed to the president with a mercy plea under Article 72. 
    •  Two successive presidents of India – K R Narayanan and APJ Abdul Kalam — did not pass any mercy orders.
    • But all of a sudden, their mercy pleas were rejected after a delay of 11 years by President Pratibha Patil.
    • When they were about to be executed, the convicts moved the Madras HC challenging the execution of the death warrant issued against them.
    • The cases were transferred to the SC, which decided that the president’s action in not considering the mercy plea within a reasonable time was improper and since the three prisoners had been on death row for 11 years, it was a fit case for commuting their sentence to life imprisonment.
    • Meanwhile, on February 19, 2014, the TN cabinet advised the governor to grant reprieve to all seven accused.
    • Once again, all of them applied for remission from the governor.
    • The state cabinet also advised the governor to grant pardon.
    • WhenPerarivalan’s mother, filed a case for parole, the court noting the inordinate delay observed: “the Governor of T N, a constitutional authority, cannot sit on the state’s recommendation on the release of all seven life convicts in the Rajiv Gandhi assassination case for so long” (July 2020).
    • The court was informed that the governor was awaiting the final report of the CBI’s Multi-Disciplinary Monitoring Agency (MDMA).

    Role of MDMA

    • The role of MDMA itself came up for criticism by the SC in January 2018 and it observed that the agency did not appear to have made “much headway”.
    • The court observed that the question of reopening the case against them will not arise as they had been already convicted for murder and conspiracy.
    • Article 20(2) of the Constitution guarantees that no person can be prosecuted and punished for the same offence more than once.

    Use of powers under Article 142 by the Supreme Court

    • Once again, the process of granting mercy to the seven accused began with a resolution passed by the T N Assembly on September 9, 2018.
    • On the same day, the state cabinet advised the governor to give reprieve to all seven prisoners.
    • On being compelled by the court, the governor stated that the matter was to be dealt with by the President.
    • It was at this stage the matter went back to the SC.
    • It was finally decided that the authority to grant pardon is with the governor and he is bound by the advice of the state government.
    • The court also ruled that the action of the governor in delaying the matter for more than 2.5 years was unacceptable.
    • Exercising its power under Article 142 as well as considering all the relevant circumstances, the SC ordered Perarivalan’s release.

    Limitations on governor’s power

    • Giving reprieve to persons sentenced to the death penalty, even in the exercise of the plenary powers by a governor, has limitations.
    • In 1978, Parliament amended the Criminal Procedure Code and introduced Sec 433A by which in such cases, prisoners cannot be released from prison unless they had served a minimum of 14 years in prison. 

    Reformatory penal system of India

    • India’s penal system is undoubtedly reformatory and not retributive.
    • The SC ruled on this issue by stating “a barbaric crime does not have to be visited with a barbaric penalty.”
    • It is also surprising that the successive governments at the Centre appeared to be guided in this case by geopolitical considerations rather than this country’s laws.

    Conclusion

    The question now is whether the six other prisoners will receive the same relief or will there be a confrontation between the state government and governor once again. Let us hope that wisdom prevails and the governor’s office is not manipulated for narrow political considerations.

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  • On Section 124A Supreme Court has aligned itself with the collective conscience

    Context

    The Supreme Court’s seminal intervention in a batch of petitions challenging the constitutional validity of section 124A of the Indian Penal Code is a watershed moment in the progressive expansion of human rights jurisprudence.

    Abuse of sedition law

    • The slapping of sedition charges against political opponents and others in Maharashtra, Punjab, Rajasthan, Chhattisgarh, Tamil Nadu, Andhra Pradesh and Madhya Pradesh have confirmed that the abuse of the sedition law is no longer an aberration.
    • It has become a norm that has hollowed out the constitutional guarantee of fundamental rights and exposed individuals to the rigour of draconian laws unjustly invoked, outraging national sensitivities as never before.

    Significance of the move

    • In what is seen as a first in judicial history, the Supreme Court has virtually rendered redundant the provision of a criminal law without expressly declaring it as unconstitutional.
    • In an example of judicial statecraft, the court has shielded individuals against a harsh law without trenching on Parliament’s legislative remit or the executive’s command over policy decisions.
    • Plenary jurisdiction: Exercising plenary jurisdiction, the Supreme Court is expected to see through its suggestions/orders to the government, particularly when these concern the non-negotiable fundamental rights of citizens.
    • Suggestive jurisdiction: As an organ of the state, the Supreme Court’s suggestive jurisdiction is clearly in accord with its declared law (Nagaraj, 2006) that the state (of which the court is an integral constituent), is under a duty not only to protect individual rights but is also obliged to facilitate the same.
    • Validating the nations role: The court-inspired initiatives would also validate the nation’s preeminent role in the shaping of a new world order.

    Implications of the law

    • Nudging the government towards anti-lynching law: As with the sedition law, it can nudge the government to enact an anti-lynching humanitarian law as suggested by it and a comprehensive law against custodial torture.
    •  Law against custodial torture: The absence of an anti-custodial torture law, a glaring gap in the architecture of the criminal justice system, is inexplicable considering the command of Article 21, recommendations of the Select Committee of Rajya Sabha (2010), the Law Commission of India (2017) and the Human Rights Commission and the judgments of the Supreme Court (Puttaswamy, 2017; Jeeja Ghosh, 2016; and Shabnam, 2015).
    • Implications for the UAPA: It is expected likewise from the court to intervene suitably and read down the UAPA and other criminal laws that have been repeatedly misused to trample upon the civil liberties and rights of the people.

    Conclusion

    This is indeed the moment to seize, as the government reviews the nation’s legal structures. The initiatives suggested above are in aid of democracy anchored in the inviolability of human rights and would enhance India’s soft power in our engagement with the international community.

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  • In abeyance of Section 124A, a provisional relief

    Context

    In a brief order delivered in S.G. Vombatkere vs Union of India, a three-judge Bench of the Supreme Court of India effectively suspended the operation of Section 124A of the Indian Penal Code.

    What was the basis for the reconsideration?

    • This direction was issued after the Union government filed an affidavit informing the Court that it had decided to re-examine the law.
    • The Bench believed that the offer to reconsider the provision, if nothing else, showed that the Government was in broad agreement with the Court’s prima facie opinion on the matter, that the clause as it stands “is not in tune with the current social milieu, and was intended for a time when this country was under the colonial regime”.

     Section 125A and issues with it

    • Section 124A defines sedition as any action — “whether by words, signs, or visible representation” — which “brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards the Government established by law in India”.
    • The word “disaffection”, the provision explains, “includes disloyalty and all feelings of enmity”.
    • The adopted Constitution did not permit a restriction on free speech on the grounds of sedition. 
    • In the 1950s, two different High Courts struck down Section 124A as offensive to freedom.
    • But, in 1962, in Kedar Nath Singh vs State of Bihar, a five-judge Bench of the Supreme Court reversed these verdicts.
    • The Court paid no heed to the debates that informed the Constituent Assembly.
    • Instead, it found that Section 124A was defensible as a valid restriction on free speech on grounds of public order.
    • However, while upholding the clause, the Court limited its application to “acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence”.
    • Vague terms: The decision failed to recognise that terms such as “disaffection towards the government”, which are fundamentally vague.
    • Marginalised sections affected: Since then, in its application by law enforcement, the limitations imposed in Kedar Nath Singh have rarely been observed.
    •  As is often the case with abuses of this kind, it is the most marginalised sections of society that have faced the brunt of the harm.
    • Reading of fundamental rights changed: Since 1962, when the judgment was handed out, the Supreme Court’s reading of fundamental rights has undergone a transformative change.
    • Time to reconsider Kedar Nath: This altered landscape meant that when fresh challenges were mounted against Section 124A, the time to reconsider Kedar Nath Singh had clearly arrived. 
    • In the long run, the decision in Kedar Nath Singh will require a clear disavowal.
    • But in nullifying Section 124A, albeit for the present, the Court has provided provisional relief — allowing those accused of the offence to both seek bail in terms of the order, and to have their trials frozen.

    Conclusion

    To protect our democracy, we must ensure that the constitutional guarantees to personal liberty and freedom do not go in vain. For that, each of our penal laws must be animated by a concern for equality, justice, and fairness.

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  • Public opinion cannot influence jurisprudence

    Context

    On May 5, 2022, the current affairs site politico.com obtained the draft opinion of Justice Samuel Alito, apparently speaking for the majority of the judges of the Supreme Court of the United States (SCOTUS) overruling Roe v Wade (1973) and Planned Parenthood v Casey (1992). These two previously decided cases enable women in the US to access abortions, albeit with some restrictions.

    Background of the US Supreme Court

    • SCOTUS was established on March 4, 1789.
    • The almost 225-year-old court, founded to interpret the American constitution that was adopted in 1789, has a long history of being an ideologically divided court, hearing deeply contentious political issues.
    • Within both the polity and law in the US, no issue is as emotive and divisive as matters related to abortion.
    • At present there is the 6-3 divide in the SCOTUS, with the conservatives constituting the majority.
    • Paying attention to the public opinion: Conservative judges also frame the regulation of abortion as a state legislative rights issue, giving enormous weight to the apparent public opinion within those states.

    Paying attention to the public opinion

    • In the draft opinion that was leaked, after being circulated to the other eight judges of SCOTUS, Justice Alito writes “We hold that Roe and Casey must be overruled,” adding, “it is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.
    • Here is how the issue is initially framed: Legislatures in states must be able to adopt laws on abortion as they see fit.
    • The justification offered is in the context of the legitimacy of such laws being made by the will of the people, through their representatives.
    •  Justice Alito clearly sees this an issue for the legislature to decide based on the will of the voters.

    Why public opinion is not a legitimate parameter for adjudicating issues of rights

    • Against the separation of power: Across jurisdictions, in the constitutional scheme of separation of powers, the executive, legislature and judiciary are expected to play different roles.
    • The executive to govern using the rule of law, the legislature to make law and the judiciary to ensure that those laws are in consonance with constitutional values.
    • The introduction of public opinion and deference to the legislature as a valid basis for adjudication by constitutional courts leads to extraordinary conclusions.
    • The virtue of constitutional courts is that they are expected to be insulated from public opinion.
    • In that regard, they are freed from the vagaries of the will of the voters and enjoy the quiet introspection and justification through legal reasoning that the law creates space for.

    Conclusion

    The notion that constitutional courts should take  the will of voters into account is at odds with the understanding of courts elsewhere, like in India.

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  • Sedition law

    Context

    On May 11, the Supreme Court directed the Union government and the states to refrain from using the law of sedition and keep all previous cases under 124A in abeyance till the matter is reconsidered in a comprehensive way.

    Data on Section 124A and UAPA about pendency and conviction rates

    • The data on draconian laws like 124A or UAPA exposes their untenability.
    • According to the National Crime Records Bureau data, a total of 156 cases of sedition were pending in 2017.
    • In that year, only 27 cases could be disposed of at the police level by withdrawing the case or submitting a chargesheet.
    • In courts, out of the 58 cases on trial, only one conviction could be obtained and the pendency rate for the cases of sedition was close to 90 per cent.
    • The number of cases increased in 2020, the year for which the latest NCRB data is available, but with the same results.
    • Of the total 230 cases registered, only 23 were chargesheeted.
    • Pendency in court reached close to 95 per cent for the sedition cases in 2020.
    • The abysmally low rate of conviction and disposal of these cases make it clear that these charges are slapped with very flimsy or no evidence to intimidate or harass those who question the government’s fiat.
    • The picture is no different for the UAPA.
    • Cases under it have increased by about 75 per cent between 2017-2020.
    • A total of 4,827 UAPA cases were pending in 2020 —of them, only 398 could be chargesheeted in that year.
    • The pendency rate in court remained 95 per cent, indicating harassment and violation of the right to life and liberty for a great number of people who are suffering because of the diabolical prison conditions in India.

    Recommendations and measures

    • A consultation paper on sedition circulated by the Law Commission of India on August 30, 2018, found many issues that need addressing around the working of Section 124A.
    • Most recently, on May 11, the Supreme Court directed the Union government and the states to refrain from using the law of sedition.

    Conclusion

    Dissent, criticism and differences of opinion are vital for the functioning of any democracy. The witch-hunting of those who question the government of the day reminds us of medieval times and totalitarian rulers. It is time we usher in an era of free speech. For that, the sedition law must go.

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