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GS Paper: Executive & Judiciary

  • Balancing right to be forgotten with fair criticism and accountability

    The article discusses the interplay between right to be forgotten and the right of the public to access courts of record, concepts of fair criticism and accountability.

    Context

    The Delhi High Court recently ordered the removal of one of its own judgments from easy access. The High Court recognised that the petitioner may have a right to be forgotten, which must be balanced with the right of the public to access courts of record.

    Right to be forgotten

    • In 2017, the Supreme Court recognised the right to be forgotten as being under the ambit of the right to privacy (specifically, informational privacy) under the Constitution.
    • The Supreme Court observed that a lot of personal information may serve no “legitimate interest”, was “incorrect”, or was not “necessary” or “relevant”.
    • For now, individuals may request data hosts to take down some content, and it may be taken down based on the policies of the respective hosts.
    • There is a general consensus that people should be allowed to modify or delete information uploaded by themselves.
    • However, whether this extends to information uploaded by third parties is uncertain.
    • The right to be forgotten is, generally, the right to have information about a person removed from public access.

    Balancing between right of the public

    • The Delhi High Court recognised that the petitioner may have a right to be forgotten, which must be balanced with the right of the public to access courts of record.
    • Judgments are published for good reasons.
    • Trials held under public scrutiny act as a check against judicial caprices and help in enhancing the confidence of the public in the fairness and objectivity of the administration of justice.
    • The Supreme Court has made is clear that the right to be forgotten was subject to reasonable restrictions based on countervailing rights such as free speech.

    Consider the question “What is right to be forgotten and how it is related to the right to privacy? Examine the issues related to the implementation of the right to be forgotten.”

    Way forward

    • The High Court could have ordered that the name and personal details of the petitioner be redacted while maintaining public access to the judgment itself.

    Conclusion

    The right to be forgotten needs to be studied along with the concepts of fair criticism and accountability.

  • Electoral bonds

    The article highlights the issues with the political funding through electoral bonds.

    Changes made for the electoral bond and issues with them

    • Earlier, only profit-making domestic companies could contribute to political parties; now loss-making companies can too.
    • Earlier, foreign companies or companies where the controlling stake was held by a foreign company couldn’t contribute; now they can. 
    • India’s political parties could theoretically be fully funded by a foreign company operating in India or by a foreign entity through a shell company.
    • Only the ruling party via the State Bank of India (SBI) has a full account of all donations being made via electoral bonds, to itself and to Opposition parties.

    Issues in the Supreme Court verdict

    • In March 2021, the Supreme Court refused to stay the sale of electoral bonds before the West Bengal elections.
    • Instead, the judgment listed several documents which supposedly establish a paper trail on donations and do some ‘match the following’.
    • This is impractical and plainly incorrect.
    • The Right to Information (RTI) Act of 2005 enables easier access to information held by public authorities.
    • Suggesting a “match the following” is incorrect for three reasons.

    1) Full scale of registered entities in unknown

    • If we set aside individual donors and focus just on registered entities, we will find that the full scale of registered entities is unknown. 
    • According to back-of-the-envelope calculations, there are close to 25 lakh potential donors comprising just companies and firms.
    • This includes about 12.6 lakh active private limited companies as of January 31, 2021.
    • Firms, unlike companies, have no regulatory mandate to submit their annual reports except for filing their annual tax returns, since their functioning is regulated by Acts other than the Companies Act of 2013.

    2) No disclosure by companies about donation to political parties

    • Even if registered companies filed annual financial statements, many do not disclose political donations.
    • Conveniently, the Finance Bill of 2017 amended Section 182 of the Companies Act of 2013 to remove the requirement for declaring disaggregated donations to political parties.
    • Even if registered companies filed annual financial statements, many do not disclose political donations.

    3) Political parties do not need to disclose their donor

    • Crucially, political parties do not need to disclose their electoral bond donors either.
    • Strictly speaking, political parties are not even supposed to know their electoral bond donors.
    • The only requirement is the annual audit reports with a total of all donations received via electoral bonds.
    • These reports are submitted with great delays.
    • Even if these reports are submitted on time, there is no way to match a donation of a company to that received by a political party as only aggregate amounts are available.

    Implications

    • Electoral bonds give political power to companies, wealthy individual donors, and foreign entities, thus diluting the universal franchise of one voter-one vote.
    •  Every vote is not equally valuable if companies can influence policies through hidden donations.
    •  The winner of this arrangement is the ruling party, whether at the Centre or in a State, and the loser is the average voter.

    Way forward

    • Companies and political parties could exercise moral leadership and voluntarily disclose the identity of recipients and donors, as the Jharkhand Mukti Morcha recently did.

    Conclusion

    Opacity in political funding goes against the basic tenets of democracy. What we need is a system of political funding which is transparent and fair.

  • Verdict on Maratha reservation ignores inequality within intermediate castes

    The article highlights the issues with Maratha reservation judgement delivered by the Supreme Court which rejected the positive discrimination of lower classes of dominant caste.

    About the verdict

    • The Supreme Court rendered a unanimous verdict on the validity of the SEBC Act, 2018 that was to grant reservation to Marathas.
    • The court held that the classification of Marathas as a socially and educationally backward class was unreasonable.
    • Court held that Maratha belonged to a politically dominant caste with significant economic resources.

    Justification for 50% limit

    • The court also concluded that the majority opinion in the Indra Sawhney case was correct and that the limit of 50 per cent for caste-based reservation did not need consideration by a larger bench.
    • The court justified the fixed quantitative limit on caste-based reservation by postulating that it was intrinsic to the fundamental principle of equality.
    • The court highlighted the need to safeguard the interests of unreserved sections and said that all sections have progressed after 70 years of independence.
    • Based on this, the court rejected the state’s argument that the breach of the limit was necessitated by the fact that the population of backward classes was over 80 per cent.

    Missed opportunity to acknowledge growing socio-economic differentiation within the dominant castes

    Growing income difference

    • If in 2011-12, the average per capita income of the Marathas was second only to the Brahmins at Rs 36,548, against Rs 47,427.
    • Their highest quintile -20 per cent of the caste group- got 48 per cent of the total income of the Marathas with a mean per capita income of Rs 86,750.
    • The lowest quintile earned 10 times less (Rs 7,198) and the 40 per cent poorest got less than 13 per cent of the total income of the caste — and were lagging behind the Scheduled Castes elite.
    • In fact, the mean incomes of the highest Dalit quintile, Rs 63,030, and that of the second-highest, Rs 28,897, were above those of the three lowest quintiles of the Marathas.

    What explains growing income difference

    • This is partly due to changes on the education front. 
    • The percentage of graduates among Dalits in 2004-05 was 1.9 per cent and has more than doubled to 5.1 per cent in 2011-12.
    • The corresponding figure for the OBCs was 3.5 per cent and has doubled to 7.6 per cent, while for the Marathas it was 4.6 per cent in 2004-05 and has come up to 8 per cent in 2011-12.
    • Correlatively, the percentage of salaried people among the Dalits was about 28 per cent in Maharashtra in 2011-12, as against 30 per cent among the Marathas.

    Issues with the Maratha quota judgment

    •  The Court refused to recognise the need for positive discrimination of the lower classes of the dominant castes which continue to be seen as a dominant bloc.
    • It fails to admit the complexity that the role of class has introduced in post-liberalisation India.
    • This is unequivocal confirmation of a dated approach to social realities and a purely arithmetic limit that finds no expression in the Constitution.
    • The judgement also raises the issue of judicial supremacy in the broad area of social policy as it could lead to undesirable exclusion of beneficiaries.
    • The court seems to have forgotten its own observation in NM Thomas case that functional democracy postulates participation of all sections of the people and fair representation in administration is an index of such participation.

    Conclusion

    The Supreme Court has rejected the determination of Marathas as backward by holding that their relative deprivation and under-representation with regard to other sections of the general category did not entitle them to affirmative action.

  • A national consensus on removal of sedition law is called for

    Is the government entitled to the love and affection of the citizens? Answer to this question lies in the Kedar Nath judgment recently invoked by the Supreme Court in a case against a journalist. The article deals with this issue.

    About the Kedar Nath judgement

    • A two-judge bench of the Supreme Court observed that every journalist is entitled to the protection under the Kedar Nath judgment (1962) on the petition filed by journalist Vinod Dua.
    • The court entertained Dua’s writ petition under Article 32.
    • In the Kedar Nath judgement, the apex court had held that a citizen has the right to say or write whatever he likes about the government or its measures by way of criticism so long as he does not incite people to violence against the government or with the intention of creating public disorder.
    • Section 124A read along with explanations is not attracted without such an allusion to violence. 

    Increasing use of the sedition law

    • NCRB data shows that between 2016 to 2019, there has been a whopping 160 per cent increase in the filing of sedition charges with a conviction rate of just 3.3 per cent.
    • Of the 96 people charged in 2019, only two could be convicted.
    • A number of CAA (Citizenship Amendment Act) protesters are facing sedition charges.

    Background of Section 124-A

    • Section 124-A was not a part of the original Indian Penal Code drafted by Lord Macaulay and treason was confined just to levying war.
    • It was inserted in 1870 in response to the Wahabi movement that had asked Muslims to initiate jihad against the colonial regime.
    • It was argued that Wahabis are going from village to village and preaching that it was the sacred religious duty of Muslims to wage a war against British rule.

    Way forward

    • In 2018, the Law Commission had recommended that the sedition law should not be used to curb free speech.
    •  Let the criminal law revision committee working under the Ministry of Home Affairs make the bold recommendation of dropping the draconian law.
    • A political consensus needs to be forged on this issue.

    Conclusion

    No government, as Mahatma Gandhi told Judge R S Broomfield, has a right to love and affection and people in a free country committed to the liberty of thought and freedom of expression should not be criminally punished for expressing their opinion about the government.

  • App to view live proceedings of SC launched for media persons

    App to view virtual proceedings

    • Chief Justice of India launched a mobile app that would allow media persons to view the Supreme Court’s virtual proceedings live on their mobile phones.
    • The role of the media assumes importance in the process of disseminating information.
    • Justice A.M. Khanwilkar said the facility, which is now temporary, could be made permanent in the future depending on the operational issues.

    ‘Indicative Notes’ on the SC website

    • The CJI also launched a new feature in the Supreme Court’s official website called ‘Indicative Notes’.
    • This feature is aimed at providing concise summaries of landmark judgments in an easy-to-understand format.
    • This will serve as a useful resource for media persons and the general public who wish to be better informed about the rulings of the court.

  • Reading Maratha quota verdict

    • A five-judge Constitution Bench of the Supreme Court on Wednesday struck down the Maharashtra law granting reservation to the Maratha community.
    • The court had framed six questions of law on the issue.
    • The court unanimously agreed on three of those issues, while the verdict was split 3:2 on the other three.

    Issue 1:  Whether Indra Sawhney judgment needs to be revisited

    • One of the key issues was to examine whether the 1992 landmark ruling by the nine-judge bench in Indra Sawhney v Union of India had to be revisited.
    • First, it said that the criteria for a group to qualify for reservation is “social and educational backwardness”.
    • Second, it reiterated the 50% limit to vertical quotas reasoning that it was needed to ensure “efficiency” in administration.
    • However, the court said that this 50% limit will apply unless in “exceptional circumstances”.
    • The Maratha quota exceeded the 50% ceiling. 
    • The arguments by state governments before the court was that the Indra Sawhney verdict must be referred to a 11-judge Bench for reconsideration since it laid down an arbitrary ceiling which the Constitution does not envisage.
    • The court said that the 50% ceiling, although an arbitrary determination by the court in 1992, is now constitutionally recognized and held that there is no need to revisit the case.

    Issue 2 and 3: Does Maratha quota law come under exceptional circumstances

    • The state government’s argument was that since the population of backward class is 85% and reservation limit is only 50%, an increase in reservation limit would qualify as an extraordinary circumstance.
    • All five judges disagreed with this argument.
    • The bench ruled that the above situation is not extraordinary.

    Issue 4,5 and 6: Validity of 102nd Amendment

    • The Constitution (One Hundred and Second Amendment) Act, 2018 gives constitutional status to the National Backward Classes Commission.
    • The Amendment also gives the President powers to notify backward classes.
    • The Bench unanimously upheld the constitutional validity of the 102nd Amendment but differed on the question of whether it affected the power of states to identify socially and economically backward classes (SEBCs).
    • Attorney General, appearing for the central government, clarified that this was not the intention of the law.
    • The Attorney General argued that it is inconceivable that no State shall have the power to identify backward class”.
    • The Attorney General explained that the state government will have their separate list of SEBCs for providing reservations in state government jobs and education.
    • The Parliament will only make the central list of SEBCs which would apply for central government jobs.
    • However, the Supreme Court held that “the final say in regard to inclusion or exclusion (or modification of lists) of SEBCs is firstly with the President, and thereafter, in case of modification or exclusion from the lists initially published, with the Parliament”.
    • This raises a question: How does this impact interventions by other states to provide reservations for other communities, for example Jats in Haryana and Kapus in Andhra?
    • The majority opinion essentially says that now the National Backward Classes Commission must publish a fresh list of SEBCs, both for states and the central list.
    • The Supreme Court also issued a direction under Article 142 of the Constitution of India which says that till the publication of the fresh list the existing lists will continue to operate.

    ————————————————-//————————————-

    BACK2BASICS

    • National Commission for Backward Classes is a constitutional body (102nd amendment 2018 in the constitution to make it a constitutional body) (Article 338B of the Indian Constitution).
    • It was constituted pursuant to the provisions of the National Commission for Backward Classes Act, 1993.
    • According to Article 338B, Commission shall consist of a Chairperson, Vice-Chairperson and three other Members and the conditions of service and tenure of office of the Chairperson, Vice-Chairperson and other Members so appointed shall be such as the President may by rule determine. The Chairperson, Vice-Chairperson and other Members of the Commission shall be appointed by the President by warrant under his hand and seal.

  • Supreme Court struck down law for reservation to Maratha community

    About the judgment

    • The Supreme Court on Wednesday struck down the provisions of a Maharashtra law providing reservation to the Maratha community.
    • It rejected demands to revisit the verdict or to refer it to a larger Bench for reconsideration.

    What the Supreme Court said

    • The Bench said that “providing reservation for the advancement of any socially and educationally backward class in public services is not the only means and method for improving the welfare of backward class”
    • The 50% rule is to fulfill the objective of equality as engrafted in Article 14 of which Articles 15 and 16 are facets.
    • To change the 50% limit is to have a society that is not founded on equality but based on caste rule.
    • If the reservation goes above the 50% limit, it will be a slippery slope, the political pressure, make it hard to reduce the same.
    • It added that “the Constitution (Eighty-first Amendment) Act, 2000 by which sub-clause (4B) was inserted in Article 16 makes it clear that ceiling of 50% “has now received constitutional recognition”
    • The Supreme Court disapproved the findings of the Justice M G Gaikwad Commission on the basis of which Marathas were classified as a Socially and Educationally Backward Class.
    • It said that “the data collected and tabled by the Commission as noted in the report clearly proves that Marathas are not socially and educationally backward class”.

    SC upheld 102nd Constitution amendment

    • The SC also upheld the 102nd Constitution amendment, saying it does not violate the basic structure of the Constitution.
    • The bench, by 3:2 majority, held that after the amendment, only the President will have the power to identify backward classes in a state or Union Territory.
    • The amendment inserted Articles 338B and 342A in the Constitution.
    • Article 338B deals with the structure, duties and powers of the National Commission for Backward Classes.
    • Article 342A speaks about the power of the President to notify a class as Socially and Educationally Backward (SEBC) and the power of Parliament to alter the Central SEBC list. He can do this in consultation with Governor of the concerned State. However, law enacted by Parliament will be required if the list of backward classes is to be amended.

    ————————————//————————————————-

    BACK2BASICS

    • 102nd Constitution Amendment Act, 2018 provides constitutional status to the National Commission for Backward Classes (NCBC).
    • The Commission consists of five members including a Chairperson, Vice-Chairperson and three other Members appointed by the President by warrant under his hand and seal. It has the authority to examine complaints and welfare measures regarding socially and educationally backward classes.
    • Previously NCBC was a statutory body under the Ministry of Social Justice and Empowerment.

     

  • Judicial federalism

    The article discusses the idea of judicial federalism and autonomy of the High Courts.

    Issue of transfer of cases from High Courts to Supreme Court

    • Under Article 139A of the Constitution, the Supreme Court does have the power to transfer cases from the High Courts to itself if cases involve the same questions of law.
    • In Parmanand Katara v. Union of India (1989), the Supreme Court underlined that the right to emergency medical treatment is part of the citizen’s fundamental rights.
    • As such, constitutional courts owe a duty to protect this right.
    • In the face of a de facto COVID-19 health emergency, the High Courts of Delhi, Gujarat, Madras and Bombay, among others, have done exactly that.
    • These High Courts among others have directed the state governments on various issues related to COVID-19 health emergency.
    • However, Supreme Court issued an order asking the State governments and the Union Territories to “show cause why uniform orders” should not be passed by the Supreme Court.
    • Therefore, the Supreme Court indicated the possibility of the transfer of cases to itself.

    Issues with the SC’s move

    • According to the Seventh Schedule of the Constitution, public health and hospitals come under the State List as Item No. 6.
    • There could be related subjects coming under the Union List or Concurrent List.
    • Also, there may be areas of inter-State conflicts.
    • But as of now, the respective High Courts have been dealing with specific challenges at the regional level, the resolution of which does not warrant the top court’s interference.
    • In addition to the geographical reasons, the constitutional scheme of the Indian judiciary is pertinent.
    •  In L. Chandra Kumar v. Union of India (1997), the Supreme Court itself said that the High Courts are “institutions endowed with glorious judicial traditions” since they “had been in existence since the 19th century”.
    • Even otherwise, in a way, the power of the High Court under Article 226 is wider than the Supreme Court’s under Article 32.
    • This position was reiterated by the court soon after its inception in State of Orissa v. Madan Gopal Rungta (1951).
    • Judicial federalism has intrinsic and instrumental benefits which are essentially political.
    • The United States is an illustrative case.
    • The U.S. Supreme Court reviews “only a relative handful of cases from state courts” which ensures “a large measure of autonomy in the application of federal law” for the State courts.
    • The need for a uniform judicial order across India is warranted only when it is unavoidable — for example, in cases of an apparent conflict of laws or judgments on legal interpretation.
    • Otherwise, autonomy, not uniformity, is the rule.
    • Decentralisation, not centrism, is the principle.

    Consider the question “Under Article 139A of the Constitution, the Supreme Court does have the power to transfer cases from the High Courts to itself if cases involve the same questions of law. However, transferring such cases should not impinge on judicial federalism. Comment.”

    Conclusion

    In the COVID-19-related cases, High Courts across the country have acted with an immense sense of judicial responsibility. This is a legal landscape that deserves to be encouraged. To do this, the Supreme Court must simply stay away.

  • Centre notifies GNCT Act that gives more powers to Delhi L-G

    GNCT Act comes into effect

    • The Ministry of Home Affairs (MHA) issued a gazette notification stating that the provisions of the Government of National Capital Territory (GNCT) of Delhi (Amendment) Act, 2021, would be deemed to have come into effect from April 27.
    • The Act defines the responsibilities of the elected government and the L-G along with the “constitutional scheme of governance of the NCT” interpreted by the Supreme Court in recent judgements regarding the division of powers between the two entities.

    What the Amendment seeks to achieve

    • The Act will clarify the expression Government and address ambiguities in legislative provisions.
    • It will also seek to ensure that the L-G is “necessarily granted an opportunity” to exercise powers entrusted to him under proviso to clause (4) of Article 239AA of the Constitution.
    • Clause (4) of Article 239AA provides for a Council of Ministers headed by a Chief Minister for the NCT to “aid and advise the Lieutenant Governor” in the exercise of his functions for matters in which the Legislative Assembly has the power to make laws.
    • Now Act will also provide for rules made by the Legislative Assembly of Delhi to be “consistent with the rules of the House of the People” or the Lok Sabha.

  • Need for diversity and propriety in judiciary

    The article highlights the issue of women representation and its implications for the role of the judiciary.

    Improving representation of women

    • Presently, the Supreme Court is left with only one woman judge, who is also going to retire next year, after which, the SC will be left without a woman judge.
    • The collegium failed to take timely steps to elevate more women judges in the SC.
    • In the 71 years of history of the SC, there have been only eight women judges — the first was Justice Fathima Beevi, who was elevated to the bench after a long gap of 39 years from the date of establishment of the SC.
    • In the submissions filed by the AG on the issue states that improving the representation of women in the judiciary could go a long way towards attaining a more balanced and empathetic approach in cases involving sexual violence.
    • The AG also brought up the fact that there has never been a woman Chief Justice of India (CJI).

    Women representation in developed countries

    • The situation is not any different in developed countries such as the US, UK, Ireland, France and China.
    • According to the data collected by Smashboard, a New Delhi and Paris-based NGO, not only has no woman ever been appointed as the CJI, the representation of women across different courts and judicial bodies is also abysmally low.

    Way forward

    • In the last few meetings of the collegium, there has been some talk of promoting women to the apex court.
    • In this regard, if Justice B V Nagaratha of the Karnataka High Court is elevated to the Supreme Court, she could become the first woman CJI in February 2027.
    • But her elevation will lead to the supersession of 32 senior judges.
    •  Supersession itself is perceived as a threat to an independent judiciary
    • Seniority combined with merit is the sacrosanct criteria for promotion in the judiciary.
    • New CJI should secure the trust of members of his collegium to fill the backlog of 411 vacancies across high courts and six vacancies in the SC.

    Consider the question “What are the various structural issues faced by the judiciary in India? Suggest the measures to deal with them.”

    Conclusion

    A greater number of women in the Supreme Court would eventually lead to a woman CJI. This would be a gratifying change, which may mark the beginning of a new era of judicial appointments.