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GS Paper: GS2-01.Indian Constitution-Historical underpinnings & evolution; Features, amendments, significant provisions, basic structure of Constitution

  • Manipur Riots: CJI questions HC’s power over ST List

    Central Idea

    • The Chief Justice of India has questioned why a 23-year-old Constitution Bench judgment was not shown to the Manipur High Court, which directed the state government to consider the inclusion of Meetei/Meitei community in the Scheduled Tribe list.
    • The Chief Justice observed that a High Court does not have the power to direct changes in the Scheduled Tribes List, as it is a Presidential power to designate a Scheduled Caste or Scheduled Tribe.

    What is the Scheduled Tribes List?

    • Article 342(1) of the Constitution states that it is entirely the President’s power to designate a Scheduled Caste or Scheduled Tribe.
    • It is not open to State governments, courts, tribunals, or any other authority to modify, amend or alter the list of Scheduled Tribes specified in the notification issued under clause (1) of Article 342.
    • A notification issued under clause (1) of Article 342 can be amended only by law to be made by Parliament.

    Notable Judgements:

    (1) The State of Maharashtra vs. Milind verdict

    • The five-judge Constitution Bench in State of Maharashtra versus Milind, in November 2000, held that a notification issued under clause (1) of Article 342, specifying Scheduled Tribes, can be amended only by law to be made by Parliament.
    • Any tribe or tribal community or part of or group within any tribe can be included or excluded from the list of Scheduled Tribes only by Parliament by law and by no other authority.

    (2) FCI vs. Jagdish Balaram Bahira

    • The settled law in the Milind verdict was referred to by a July 2017 judgment authored by Justice Chandrachud for a three-judge Bench of the Supreme Court in CMD, FCI versus Jagdish Balaram Bahira to note that the Presidential Order under Article 342 regarding Scheduled Tribes was always “final”.

    Back2Basics: Scheduled Tribes

    • The term ‘Scheduled Tribes’ first appeared in the Constitution of India.
    • Article 366 (25) defined scheduled tribes as “such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of this constitution”.
    • Article 342 prescribes procedures to be followed in the matter of specification of scheduled tribes.
    • Among the tribal groups, several have adapted to modern life but there are tribal groups who are more vulnerable.
    • The Dhebar Commission (1973) created a separate category “Primitive Tribal Groups (PTGs)” which was renamed in 2006 as “Particularly Vulnerable Tribal Groups (PVTGs)”.

    How are STs notified?

    • The first specification of Scheduled Tribes in relation to a particular State/ Union Territory is by a notified order of the President, after consultation with the State governments concerned.
    • These orders can be modified subsequently only through an Act of Parliament.

    Status of STs in India

    • The Census 2011 has revealed that there are said to be 705 ethnic groups notified as Scheduled Tribes (STs).
    • Over 10 crore Indians are notified as STs, of which 1.04 crore live in urban areas.
    • The STs constitute 8.6% of the population and 11.3% of the rural population.

     

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  • What does the Constitution say about the sovereignty of India?

    Central Idea

    • The article revolves around the issue of a political party filing a complaint against a politician of foreign origin with the Election Commission of India (ECI).
    • She had allegedly been advocating the secession of Karnataka from India in her election speeches.

    Definition of sovereignty

    • Sovereignty is the idea of having supreme authority over a defined territory.
    • In Western philosophy, the concept is used to describe the supremacy of the state over the people being governed.
    • The state has a legitimate claim to sovereignty in exchange for providing protection to its citizens, keeping society cohesive and at peace, and controlling law and order.

    Sovereignty in India’s Constitution

    • The word sovereignty appears in the beginning of the Preamble to the Constitution of India as the first attribute of the independent republic of India.
    • Its placement as the first among the core principles of the republic underlines its importance in the Constitution.
    • Sovereignty is invoked in the Indian Constitution to “declare the ultimate sovereignty of the people of India and that the Constitution rests on their authority.”
    • It is mentioned in the Constitution under Fundamental Duties, and citizens have a duty to uphold and protect the sovereignty, unity, and integrity of India.

    Relationship of Indian states with the sovereign Union

    • The Indian political system is described as “quasi-federal.”
    • India is a Union of States, and the component units have no freedom to secede or break away from it.
    • The Indian setup is more unitary in nature than the federal one, and the central government has more powers than the states.
    • The choice of a unitary bias that the Constitution makers made was possibly rooted in the difficulty of getting around 600 princely states to accede to India.

    Provisions attesting to the superior position of the Centre

    • The States in India need not be consulted in the matter of amendment to the bulk of the Constitution.
    • Governors in states are appointed “during the pleasure” of the President and are seen as representatives of the Union in the States.
    • The Sixteenth Amendment of 1963 laid down that even the advocacy of succession under Article 19 (1) will not be protected under law in the name of Freedom of Speech as directed under Article 19 (2).
    • The right to alter the boundaries of states and to create new states lies with Parliament alone.
    • The Constitution offers no guarantee to the States against their territorial integrity without their consent since it was not a result of an ‘agreement’ between the States.

    These provisions demonstrate the superior position of the Centre in the Indian political system.

     

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  • Article 355 imposed in Manipur

    manipur

    Central Idea

    • Recently, unrest in the state of Manipur was triggered by a decision of the High Court to pursue a 10-year-old recommendation to grant Scheduled Tribe (ST) status to the non-tribal Meitei community.
    • In view of the prevailing unprecedented burning situation, the Centre has imposed Article 355 in the state, in an effort to control the situation, according to reliable sources.

    What is Article 355?

    • Article 355 of the Indian Constitution is a provision that empowers the Union government to protect every state in India against external aggression and internal disturbances.
    • It is a provision under Part XVIII of the Constitution, titled “Emergency Provisions”.
    • It is based on the principle of “duty to protect” enshrined in the Constitution, which makes it mandatory for the Union government to protect every state from external and internal threats.

    Restrictions under Article 355

    Under Article 355, the Union government has the power to issue directions to any state to ensure compliance with the Union’s laws and regulations. However, there are certain restrictions on this power:

    • The directions can only be given when there is a failure of the state machinery to comply with or give effect to any Union law or regulation.
    • The directions should be of an urgent nature and may not extend beyond the necessary period for remedying the failure of the state machinery.
    • The state government should be given an opportunity to submit its views before the issuance of such directions.
    • The Union government cannot use this power to intervene in the internal affairs of a state unless there is a failure of the state machinery.

    Duration of restriction

    • The duration of the assistance provided under Article 355 is not specified in the Constitution.
    • The Union government can withdraw its assistance when the situation is normalized or when the state government requests it to do so.
    • The duration of the assistance provided under Article 355 is subject to judicial review and can be challenged in court if it violates any fundamental rights or constitutional provisions.

    Circumstances of imposition

    Article 355 can be invoked by the President of India in certain circumstances, such as:

    1. When a state fails to comply with or to give effect to any of the directions given by the Union under the Constitution.
    2. When the security of India is threatened by external aggression or internal disturbance.
    3. When there is a threat to the unity and integrity of India due to any violent activities by any group or organization.
    4. When a state requests for assistance from the Union to maintain public order and the Union is satisfied that the situation in the state cannot be controlled by the state’s own forces.
    5. When a state fails to provide adequate protection to minorities, particularly in cases of communal violence.
    6. When a state government fails to ensure that the constitutional machinery is maintained in the state.

    Reasonable restrictions

    It is important to note that the use of Article 355 is subject to certain restrictions:

    1. The President cannot use this article on his/her own initiative; it must be done on the advice of the Union Council of Ministers.
    2. The use of Article 355 does not authorize the President to intervene directly in the affairs of the state.
    3. The President can use this article only to give directions to the state government, and not to the state legislature or the judiciary.
    4. The use of Article 355 should be limited in duration and scope, and should not result in the permanent erosion of the state’s autonomy or the violation of its constitutional rights.

    Centrestage of the row: Meitei Community

    • Manipur is geographically divided into the Imphal Valley and the surrounding hills.
    • The Imphal Valley is dominated by the non-tribal Meitei community, which accounts for more than 64% of the population.
    • The hills, which comprise 90% of Manipur’s geographical area, are inhabited by more than 35% recognized tribes, which are largely Christians.
    • The Meiteis are largely Hindus followed by Muslims, while the 33 recognized tribes are broadly classified into ‘Any Naga tribes’ and ‘Any Kuki tribes.’

    Behind the ST status: The Meitei Argument

    • The Manipur High Court directed the State government to submit a 10-year-old recommendation for the inclusion of the Meitei community in the Scheduled Tribe (ST) list.
    • The ST status is needed to “preserve” the community and “save the ancestral land, tradition, culture, and language” of the Meiteis.
    • The Meiteis were recognized as a tribe before the merger of the State with the Union of India in 1949.

    Tribal groups’ opposition to the ST Status

    • Advantaged community: Many tribal groups say the Meiteis have a demographic and political advantage besides being more advanced than them academically and in other aspects.
    • Benefits at others cost: They feel the ST status to the Meiteis would lead to loss of job opportunities and allow them to acquire land in the hills and push the tribals out.
    • Already benefited: The language of the Meitei people is included in the Eighth Schedule of the Constitution, and many of them have access to benefits associated with the SC, OBC, or EWS status.
    • Political vendetta: The demand for ST status is a ploy to attenuate the fervent political demands of the Kukis and Nagas, as well as a tacit strategy of the dominant valley dwellers to make inroads into the hill areas of the State.

    Immediate triggers of unrest

    • Some tribal groups with vested interests are trying to scuttle Chief Minister Nongthombam Biren Singh’s crusade against drugs.
    • The anti-drug drive began with destroying poppy fields and the theory that “illegal settlers” from Myanmar — ethnically related to the Kuki-Zomi people of Manipur — are behind clearing forests and government lands to grow opium and cannabis.
    • The first violent protest on March 10 was against the eviction of the residents of a Kuki village.
    • The large-scale arson and violence claiming the life of at least one person on May 3 and 4 followed a “tribal solidarity rally” against the reported move to include the Meiteis in the ST list.

     

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  • All Cantonments to be disbanded: Centre

    cantonment

    Central Idea: The Union government has kicked off a plan to abolish the 62 cantonments around the country as “archaic colonial legacies”. The first cantonment to be renamed a military station is Yol in Himachal Pradesh.

    What is the plan?

    • The plan is to carve out the military areas in all cantonments and convert them into “exclusive military stations” with the Army exercising “absolute control” over them.
    • The civilian areas, in turn, will be merged with the local municipalities, which will be responsible for their maintenance among other things.
    • The Army moved away from the concept of cantonments after independence, mainly due to the friction between military and civilian authorities.
    • But some major cantonments continued to exist. Ex. Pune Cantonment, Agra Cantonment etc.

    What are Cantonments?

    • Cantonments in India are permanent military stations where a group of military personnel are stationed for administrative purposes.
    • These cantonments are governed by the Cantonments Act, 2006 which provides for municipal administration and control of these areas.
    • There are 62 cantonments in India which are located in various states across the country.
    • These areas are maintained by the Defence Estates Organization (DEO) under the Ministry of Defence, and are distinct from military bases or barracks which are temporary locations for military personnel.
    • Cantonments are generally considered to be areas with better infrastructure and facilities compared to other parts of the country.

    Their features

    • Cantonment Boards are democratic bodies comprising elected and nominated members.
    • In terms of Entry 3 of the Union List (Schedule VII) of the Constitution of India, Urban Self Governance of the Cantonments and the Housing Accommodation therein is the subject matter of the Union.
    • The Station Commander of the Cantonment is the ex-officio President of the Board, and an officer of the IDES or Defence Estates Organisation is the Chief Executive Officer who is also the Member-Secretary of the Board.
    • They have equal representation of elected and nominated/ex-officio members to balance official representation with democratic composition.
    • They maintain ecological balance while providing better civic facilities to the residents.

    History of establishments

    • The Cantonments Act, 1924 was enacted by the British to regulate the municipal administration of Cantonments.
    • After India’s independence, the Cantonments Act, 1924, was modified to suit the democratic setup of the country.
    • The Cantonments Act, 2006, replaced the Cantonments Act, 1924, and aims to provide greater autonomy and accountability to the Cantonment Boards.

    Categories

    There are four categories of Cantonments, depending on the size of the population residing inside a Cantonment:

    1. Category I: Cantonments having a population of more than 50,000.
    2. Category II: Cantonments having a population of 10,000 to 50,000.
    3. Category III: Cantonments having a population of less than 10,000.
    4. Category IV: Industrial or training Cantonments, irrespective of their population size.

  • India drops 11 places to rank 161 in World Press Freedom Index

    Central Idea: India’s ranking in the 2023 World Press Freedom Index has slipped to 161 out of 180 countries, according to the latest report released by global media watchdog Reporters Without Borders (RSF).

    What is Press Freedom Index?

    • The PFI is an annual ranking of countries compiled and published by Reporters without Borders since 2002.
    • It is based upon the organisation’s own assessment of the countries’ press freedom records in the previous year.
    • It defines press freedom as “the ability of journalists as individuals and collectives to select, produce, and disseminate news in the public interest independent of political, economic, legal, and social interference and in the absence of threats to their physical and mental safety.”
    • It intends to reflect the degree of freedom that journalists, news organisations, and netizens have in each country, and the efforts made by authorities to respect this freedom.
    • It does not measure the quality of journalism in the countries it assesses, nor does it look at human rights violations in general.

     Irony of the rankings

    • In 2022, India was ranked at 150.
    • Pakistan has fared better when it comes to media freedom as it was placed at 150, an improvement from last year’s 157th rank.
    • Afghanistan was ranked 152nd. This raises some questions about the methodology of the index.

    Global scenario

    • Sri Lanka also made significant improvement on the index, ranking 135th this year as against 146th in 2022
    • Norway, Ireland and Denmark occupied the top three positions in press freedom, while Vietnam, China and North Korea constituted the bottom three.

    Back2Basics: Freedom of Press and Constitutional Provisions

    • The Supreme Court in Romesh Thappar v. the State of Madras, 1950 observed that freedom of the press lay at the foundation of all democratic organisations.
    • It is guaranteed under the freedom of speech and expression under Article 19, which deals with ‘Protection of certain rights regarding freedom of speech, etc.
    • Freedom of the press is not expressly protected by the Indian legal system but it is impliedly protected under article 19(1) (a) of the constitution.
    • The freedom of the press is also not absolute.

    Reasonable restrictions

    • A law could impose only those restrictions on the exercise of this right, it faces certain restrictions under Article 19(2), which are as follows:
    1. Sovereignty and integrity of India
    2. Security of the State,
    3. Friendly relations with foreign States
    4. Public order, decency or morality
    5. Contempt of court
    6. Defamation
    7. Incitement to an offence

     

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  • Central Committee to find alternative for Death by Hanging

    Central Idea: The government informed the Supreme Court that it is considering the formation of a committee to examine the need for a painless and more dignified alternative to death by hanging.

    Background Information

    • Death by hanging is a mode of execution in India.
    • In March, the Supreme Court had asked the government to provide data on a more acceptable method of executing prisoners other than death by hanging.
    • A petition was filed challenging the constitutionality of death by hanging as a mode of execution.

    death

    Death Sentences imposed so far

    • 539 prisoners were on death row in India at the end of 2021, the highest since at least 2016.
    • In 2022, trial courts imposed 165 death sentences, the highest in over two decades.
    • Gujarat courts imposed 51 death sentences in 2022, the highest among all the States.
    • Uttar Pradesh and Jharkhand also recorded significant increases in death sentences imposed by trial courts in 2022.
    • From the 67 decided cases by the High Court’s involving 101 prisoners in 2022, three prisoners had their death sentences confirmed, 48 prisoners saw their death sentences commuted to life imprisonment, 43 were acquitted of all charges and six had their cases remitted to the trial court.
    • In the 11 cases decided by the Supreme Court involving 15 prisoners in 2022, 5 prisoners were acquitted of all charges; the death sentences for eight were commuted to life imprisonment; and the death penalty was confirmed for two.

    Death Penalty by Hanging: Present Status

    • Section 354 (5) of the Code of Criminal Procedure mandates that a person sentenced to death shall “be hanged by the neck till he is dead”.
    • In India, the Air Force Act, 1950, the Army Act 1950, and the Navy Act 1957 say that execution has to be carried out either by hanging by the neck until death or by being shot to death.
    • In 2018, the Centre had filed an affidavit supporting death by hanging as a mode of execution.
    • The Centre had not found the method of execution “barbaric, inhuman and cruel” compared to firing squads and lethal injections.

    Various initiatives to alter death by hanging

    • Ensuring dignified death: The government is considering the formation of a committee to examine the need for a painless and more dignified alternative to death by hanging.
    • Panel formation: The Chief Justice of India had suggested the formation of a committee with experts from national law universities, professors of law, doctors, and scientific persons.
    • Humane and painless method: The court indicated that it may even direct an alternative method of executing capital punishments if it was proved that there was a more “humane” method of execution.
    • Voices for psychological tests: The SC has asked for psychological evaluation of condemned prisoners by expert doctors, and access for them by mitigating investigators.

    Concerns raised by Judiciary

    • The Chief Justice had observed that better data was needed to relook at death by hanging.
    • The court wanted to know the-
    1. Impact of the sentence of death by hanging
    2. Pain caused
    3. Period of actual death, and
    4. Availability of resources for hanging a person

    Judiciary at loggerheads

    • The court clarified that it was not questioning the constitutionality of the death penalty, which was well-settled in Deena versus Union of India Case judgment and the Bachan Singh case reported in 1980.
    • The government argued that the mode of execution is a “matter of legislative policy” and the death penalty is awarded only in the rarest of rare cases, with only three executions between 2012 and 2015.

    Debate over Death Penalty

    Arguments in favor of death penalty Arguments against death penalty
    – Forfeiture of life: Supporters of the death penalty believe that those who commit murder, because they have taken the life of another, have forfeited their own right to life. – Eye for an eye: Reformative justice is more productive, that innocent people are often killed in the search for retribution, and that “an eye for an eye makes the whole world blind.
    – Moral indignation of the victim: It is a just form of retribution, expressing and reinforcing the moral indignation not only of the victim’s relatives but of law-abiding citizens in general. – Deterrence is a myth: Death penalty is not a deterrent to capital crimes state that there is no evidence to support the claim that the penalty is a deterrent.
    – Highest form of Justice: For heinous crimes such as the Nirbhaya Gangrape Case, no other punishment could have deterred the will of the convicts. – Political tool of suppression: The authorities in some countries, for example Iran and Sudan, use the death penalty to punish political opponents.
    – Deterrent against crime: Capital punishment is often justified with the argument that by executing convicted murderers, we will deter would-be murderers from killing people. – Reverence for life’ principle: Death penalty is an immoral punishment since humans should not kill other humans, no matter the reasons, because killing is killing.
    – Proportional punishment: The guilty people deserve to be punished in proportion to the severity of their crime. – Stigma against killing: With the introduction of lethal injection as execution method, medical professionals participate in executions. Many professionals have now refused to administer such deaths.
    – Prevailing lawlessness: The crimes we are now witnessing cannot be addressed by simple punishments. We are seeing horrific attacks on women, young girls, minority communities and Dalits etc. – Skewed justice systems: In many cases recorded by Amnesty International, people were executed after being convicted in grossly unfair trials, on the basis of torture-tainted evidence and with inadequate legal representation.
    – Prevention of crime is non-existent: Despite of stringent regulations, it is certainly visible that some crimes can never be prevented in our society. – Discriminatory nature: The weight of the death penalty is disproportionally carried by those with less advantaged socio-economic backgrounds or belonging to a racial, ethnic or religious minority.

     

    Other issues with such executions

    (a) Socio-Economic Factors

    • The recent statistics shows that the death row prisoners in India are more from the backward classes of the society.
    • The death row prisoners belong to backward classes and religious minorities and the majority of convicts’ families are living in adjunct poverty.
    • These people who are backward both in economic and social respects, are not in a position to here expensive lawyers and get proper representation in the Court.

    (b) Delayed Execution

    • The law provides for a long process before the execution of the convicts actually takes place.
    • The unexplained delay in execution can be a ground for commutation of death penalty, and an inmate, his or her kin, or even a public-spirited citizen could file a writ petition seeking such commutation.
    • Their trials are often cruelly forced to endure long periods of uncertainty about their fate.

    Way forward: Law Commission recommendations on death penalty

    The Law Commission of India in its 262nd Report (August 2015) recommended that:

    • Death penalty be abolished for all crimes other than terrorism-related offences and waging war.
    • Measures such as police reforms, witness protection scheme and victim compensation scheme should be taken up expeditiously by the government.
    • It felt that time has come for India to move towards abolition of the death penalty. However the concern is often raised that abolition of death penalty for terrorism-related offences and waging war, will affect national security.

     

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  • Re-examination of Sedition Law in motion: Govt informs SC

    Central idea: The Centre has informed Supreme Court that it has initiated the “process of re-examination” of Section 124A (sedition) of the Indian Penal Code and consultations are in its “final stage”.

    What is the Sedition Law?

    • Section 124A of the Indian Penal Code lays down the punishment for sedition. The IPC was enacted in 1860, under the British Raj.
    • The then British government in India feared that religious preachers on the Indian subcontinent would wage a war against the government.
    • Particularly after the successful suppression of the Wahabi/Waliullah Movement by the British, the need was felt for such law.
    • Throughout the Raj, this section was used to suppress activists in favor of national independence, including Tilak and Mahatma Gandhi, both of whom were found guilty and imprisoned.

    Do you know?

    Queen-Empress v. Bal Gangadhar Tilak (1897) was the first case in which Section 124A was defined and applied. Again in 1908, when Tilak was tried under same section, then young barrister and a staunch protagonist Mohammed Ali Jinnah defended Tilak.

    What is Sedition?

    • The Section 124A defines sedition as:

    An offence committed when “any person by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India”.

    • Disaffection includes disloyalty and all feelings of enmity.
    • However, comments without exciting or attempting to excite hatred, contempt or disaffection, will not constitute an offense.
    • Sedition is a non-bailable offense.
    • Punishment under Section 124A ranges from imprisonment up to three years to a life term with/without a fine.

    Sedition as a cognizable offense

    • Sedition was made a cognizable offense for the first time in history in India during the tenure of Prime Minister Indira Gandhi in 1973, that is, arrest without a warrant was now permissible.
    • In 1962 the Supreme Court of India interpreted the section to apply only if there is, say, “incitement to violence” or “overthrowing a democratically elected government through violent means”.

    Is it constitutionally valid?

    • Violative of FRs: Two high courts had found it unconstitutional after Independence, as it violated the freedom of speech and expression.
    • Reasonable restrictions: The Constitution was amended to include ‘public order’ as one of the ‘reasonable restrictions’ on which free speech could be abridged by law.
    • Kedar Nath Case: Thereafter, the Supreme Court, in Kedar Nath Singh v. State of Bihar (1962) upheld its validity.
    • Limited use: At the same time, it limited its application to acts that involve “intention or tendency to create disorder” or incitement to violence.
    • Strong criticism doesn’t amount to sedition: Thus, even strongly worded remarks, as long as they do not excite disloyalty and enmity, or incite violence, are not an offence under this section.

    sedition

    Why the controversy now?

    • Frequent use: In recent times, the resort to this section is seen as disturbingly frequent.
    • Curbing dissent: Activists, cartoonists and intellectuals have been arrested under this section, drawing criticism from liberals that it is being used to suppress dissent and silence critics.
    • Misuse for propaganda: Authorities and the police who invoke this section defend the measure as a necessary step to prevent public disorder and anti-national activities.
    • Irrelevance: Many of them have also been detained under the National Security Act and UAPA.

    What is being debated about it?

    • Demand for its scrapping: Liberals and rights activists have been demanding the scrapping of Section 124A.
    • Provision is outdated: It is argued that the provision is “overbroad”, i.e., it defines the offence in wide terms threatening the liberty of citizens.
    • Various calls for its reconsideration: The Law Commission has also called for a reconsideration of the section.
    • Tyranny of the law: It has pointed that Britain abolished it more than a decade ago and raised the question of whether a provision introduced by the British to put down the freedom struggle should continue to be law in India.
    • Doctrine of severability: Some argue that a presumption of constitutionality does not apply to pre-constitutional laws as those laws have been made by foreign legislature or bodies.

    Need for such law

    • There are some tendencies exist even today who wish to overthrow the state apparatus and constitutional scheme of India.
    • It falls on the judiciary to protect Articles 19 and Article 21 of the Constitution.
    • Undue exercise of free speech has led to overture of ordinary dissent into an anti-national insurrection or uprising.
    • There are areas in the country that face hostile activities and insurgencies created by rebel groups, like the Maoists.
    • There must be restrictions on expressing unnecessary contempt or ridiculing of the Government beyond certain limits.

    Way forward

    • India is the largest democracy in the world and the right to free speech and expression is an essential ingredient of democracy.
    • The sedition law should not be abolished as some measures are needed to check communal violence & insurgency activities like Naxals.
    • The definition of sedition should be narrowed down, to include only the issues pertaining to the territorial integrity of India as well as the sovereignty of the country.
    • Section 124A should not be misused as a tool to curb free speech.

     

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  • 50 years of Kesavananda Bharati Case

    kesav

    Fifty years ago, on April 24, 1973, the Supreme Court delivered its judgment in Kesavananda Bharati Sripadagalvaru and Ors vs. State of Kerala and Anr, the landmark case that redefined the relationship between Parliament and the Constitution.

    Kesavananda Bharati Case (1973)

    • The Kesavananda Bharati judgement, was a landmark decision of the Supreme Court that outlined the basic structure doctrine of the Indian Constitution.
    • The case is also known as the Fundamental Rights Case.
    • The SC in a 7-6 decision asserted its right to strike down amendments to the constitution that were in violation of the fundamental architecture of the constitution.
    • The Court asserted through the Basic Structure doctrine that the constitution possesses a basic structure of constitutional principles and values.
    • Key outcomes were:
    1. Basic Structure Doctrine: It is a principle that limits Parliament’s power to amend the Indian Constitution. It holds that certain fundamental features of the Constitution, such as the principle of separation of powers, cannot be amended by Parliament.
    2. Judicial Review: The Court partially cemented the prior precedent Golaknath v. State of Punjab, which held that constitutional amendments through Article 368 were subject to fundamental rights review, but only if they could affect the ‘basic structure of the Constitution’.
    3. Exceptions to Judicial Review: At the same time, the Court also upheld the constitutionality of the first provision of Article 31-C, which implied that amendments seeking to implement the Directive Principles, which do not affect the ‘Basic Structure,’ shall not be subjected to judicial review.

    Criticism of the doctrine

    • Dilution of powers: The basic structure doctrine has been criticized for diluting the principle of separation of powers and undermining the sovereignty of Parliament.
    • Ambiguous nature: It has also been criticized as a vague and subjective form of judicial review.

    Landmark cases of the doctrine

    • Indira Gandhi v Raj Narain (1975): The Supreme Court applied the principle laid down in the Kesavananda ruling for the first time in this case. It struck down The Constitution (39th Amendment) Act, 1975, which barred the Supreme Court from hearing a challenge to the election of President, Prime Minister, Vice-President, and Speaker of Lok Sabha.
    • Minerva Mills Ltd vs. Union of India (1980): The Supreme Court struck down a clause inserted in Article 368, which said “there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution.”
    • P Sambamurthy v State of Andhra Pradesh (1986): The Supreme Court struck down a portion of the 32nd Amendment (1973), which constituted an Administrative Tribunal for Andhra Pradesh for service matters, taking away the P jurisdiction of the High Court.
    • L Chandra Kumar v Union of India (1997): The Supreme Court struck down a portion of the 42nd Amendment, which set up administrative tribunals excluding judicial review by High Courts.

    Significance of the Judgment and the doctrine

    • Strengthen judicial review: The doctrine forms the basis of the power of the Indian judiciary to review and override amendments to the Constitution of India enacted by the Parliament.
    • Clarification about Article 368: Article 368 postulates only a ‘procedure’ for amendment of the Constitution. The same could not be treated as a ‘power’ vested in the Parliament to amend the Constitution to alter the ‘core’ of the Constitution, which has also been described as the ‘basic structure’ of the Constitution.
    • Not antithetical to legislative authority: Justice Shastri said Judicial Review was undertaken by the courts “not out of any desire to tilt at legislative authority in a crusader’s spirit, but in the discharge of a duty laid down upon them by the Constitution”.
    • A system of checks and balances: The Kesavananda Bharati verdict (1973) made it clear that judicial review is not a means to usurp parliamentary sovereignty. It is a “system of checks and balances” to ensure constitutional functionaries do not exceed their limits.

     

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  • The Caste Census and Mandal Politics: Analysis

    Caste Census

    Central Idea

    • The demand for a caste-based census in India has once again brought Mandal politics to the forefront. Mandal politics has succeeded in capturing political power in large parts of India and has shifted the political discourse towards a universal acceptance of OBC reservations. However, the movement has weakened in recent years, and the demand for a caste census is seen as a way for Mandal parties to regain their hold in the public discourse.

    What do you understand by mean Mandal Politics?

    • Mandal politics refers to a political movement initiated by historically marginalized Other Backward Classes (OBCs) or Bahujan caste groups in India in the late 1980s and 1990s.
    • The movement sought to secure a greater share of political and economic power through reservation in the public sector for the OBCs who had been historically excluded from such opportunities.
    • The movement derived its name from the Mandal Commission, a committee appointed by the Indian government in 1979 to identify the socially and educationally backward classes of India and recommend measures for their advancement.
    • The Mandal Commission report in 1980 recommended that 27% of jobs in the public sector be reserved for OBCs, a recommendation that was later implemented by the Indian government in 1990.

    The outcomes of Mandal politics

    Positive outcomes:

    • Increased representation: One of the main positive outcomes of Mandal politics is the increased representation of OBCs and other marginalized groups in the political sphere. This has led to greater inclusivity and diversity in government and a more balanced distribution of power.
    • Reservation policies: Mandal politics has also led to the introduction and expansion of reservation policies, which aim to provide equal opportunities to marginalized groups in education and employment.
    • Recognition of social justice: Mandal politics has brought the issue of social justice to the forefront of political discourse and has highlighted the need for policies that address historic discrimination and disadvantage.

    Negative outcomes:

    • Caste-based politics: One of the negative outcomes of Mandal politics is the perpetuation of caste-based politics. This has led to the further entrenchment of caste divisions and has hindered the development of a more inclusive and egalitarian society.
    • Polarization and conflict: Mandal politics has also led to polarization and conflict between different caste groups, as each group seeks to secure its own interests.
    • Resentment and backlash: The policies introduced by Mandal politics have also led to resentment and backlash from certain upper-caste groups, who view the policies as discriminatory and unjust. This has sometimes led to violent protests and social unrest.

    What is Caste Census?

    • A caste census is basically the counting of people belonging to different castes in a particular marked area.
    • With this two-phase exercise, the Bihar government will try to get numbers of people belonging to SC, ST, and OBC communities and their financial status among other important things.
    • The exercise is termed ‘Jaati Aadharit Ganana’. People belonging to every religion and caste will be covered during the exercise.

    Arguments for caste census

    • Enumerating the marginalized: A caste census would actually bring to the particular the number of people who are at the margins, or who are deprived, or the kind of occupations they pursue, or the kind of hold that institutions like caste have on them. The caste census opens up to enumerating Dalits who are not Hindus, such as Dalit Christians and Muslims.
    • Data for Policymaking: This information is absolutely necessary for any democratic policymaking. The census will be able to answer real public policy questions and direct policies more effectively towards those who most need state assistance and affirmative action policies.
    • Judicial backing: The courts in India have often emphatically said that it is important to have adequate data with regard to the reservation.
    • Caste offers privilege: Caste is not only a source of disadvantage; it is also a very important source of privilege and advantage in our society.
    • Rids away caste rigidities: Counting of caste doesn’t necessarily perpetuate caste or the caste system. Myths of caste elitisms can be debunked through a caste census.

    Arguments against caste census

    • 50% breach of reservation cap: It is argued that a Socio-Economic Caste Census is the only way to make a case to breach the 50% cap on reservation and rationalize the reservation matrix in the country.
    • Caste within Caste: Given the differences in caste hierarchies across various regions of the country, a comparative reading along with generating a common hierarchy may be a challenge.
    • Caste over occupation linked predicaments: Caste linked deprivation or adversity may not be as common as occupation linked predicaments, which become easier to compare across states/regions.
    • Anonymity and bias: An intimate and personalised attribute like caste may have its differential exposition between urban and rural residents. Urban residents’ need for anonymity can always bias the reporting on caste.
    • Identity crisis: Recognition and adherence to caste identity is to a large extent shaped by progressive ideals, cosmopolitanism and education, which has its own regional divide in the country between the north and the south.
    • Hurdle to casteless society: The idea of a national caste census is abhorrent when the stated policy is to strive for a casteless society.

    The Impact of a Caste Census: Analysis In brief

    Positive impact

    • Accurate data: A caste census can provide accurate data on the caste demographics of India, which is necessary for effective policy-making and affirmative action programs.
    • Better targeting of government policies: The data from a caste census can help the government target policies and programs more effectively towards the marginalized and disadvantaged sections of society.
    • Improved representation: A caste census can help improve representation of underrepresented castes in government bodies and institutions.
    • Empowerment of marginalized communities: A caste census can help empower marginalized communities by giving them a voice and recognition in the political and social systems.

    Negative impact

    • Polarization: A caste census can lead to polarization and tensions between different castes, especially if the data is used to allocate resources or benefits based on caste.
    • Stigma and discrimination: There is a risk that the caste census data can be used to further stigmatize and discriminate against marginalized communities.
    • Misuse of data: The data from a caste census can be misused by politicians and other groups to further their own agendas, leading to potential conflicts and social unrest.
    • Privacy concerns: Some people may be hesitant to disclose their caste, leading to concerns about privacy and data protection.

    Conclusion

    • The caste census is seen as a way for Mandal parties to regain their hold in the public discourse and direct policies more effectively towards those who most need state assistance and affirmative action policies. However, the demand for a caste census is a double-edged sword that may create conflicts and shift the discourse from historical injustices to distribution. The Mandal movement faces challenges but remains relevant in the ongoing struggle for social justice.

  • What is Civil Union, how is it different from Marriage?

    Central idea

    • The Indian judiciary is currently hearing arguments about the legal recognition of same-sex unions under the Special Marriage Act.
    • The Centre has contested the maintainability of the petitions, and the judiciary’s right to confer legal recognition on the “socio-legal institution” of marriage.
    • However, the CJI has clarified that the scope of the hearing would be limited to developing a notion of a Civil Union that finds legal recognition under the Act.
    • This article explains what civil unions are, how they differ from marriage, and which countries allow them.

    What is a Civil Union?

    • A civil union is a legal status that allows same-sex couples specific rights and responsibilities normally conferred upon married couples.
    • Civil unions resemble marriages and bring with them employment, inheritance, property, and parental rights, among other things.

    How is a civil union different from marriage?

    • In the US, prior to the Supreme Court’s landmark ruling in “Obergefell v. Hodges” in 2015, a majority of the states had civil union laws that allowed same-sex couples to marry without providing them formal recognition of the same.
    • Civil unions were recognised solely by issuing states and not by federal law, which meant that such couples could not enjoy the benefits of being in a civil union uniformly across all states.
    • After the legalisation of same-sex marriages, several civil unions were converted into marriages.

    What other countries allow civil unions?

    • Several countries allow civil unions.
    • Before Sweden legalised same-sex marriages in 2009, LGBTQ couples there could apply for civil unions and enjoy benefits such as the right to adopt.
    • In Norway, couples could enter into civil unions from 1993, which gave way to a new law 15 years later allowing such couples to marry, adopt, and undergo state-sponsored artificial insemination.
    • In Austria, same-sex couples could form civil partnerships between 2010-2017 until a court ruling deemed civil unions discriminatory, and such marriages were legalised.
    • Similarly, countries like Brazil, Uruguay, Andorra, and Chile recognised the right of same-sex couples to enter into civil unions even before they formally recognised their legal right to marriage.

     

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