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GS Paper: Laws, Institutions & Bodies Constituted For The Vulnerable Sections

  • A blow against social justice

    Context

    The recent verdict of a two-judge Supreme Court Bench on reservations and Scheduled Caste and Scheduled Tribes promotions — has mainly raised four constitutional questions.

    The first question-Whether reservation in promotions is a fundamental right or not. 

    • Scope for the reservation: Addressing the first question, the scope for reservation for the Backward Classes is promised in Part III of the Constitution under Fundamental Rights.
      • Articles 16(4) and 16(4A) which empowers the state to provide reservation for SCs and STs are a part of the section, “Equality of opportunity in matters of public employment”.
      • The right to equality is also enshrined in the Preamble of the Constitution. Many construe that the reservation is against Article 16 (Right to equality).
    • The basis for the reservation: One should understand that the absence of equal opportunities for the Backward Classes due to historic injustice by virtue of birth entails them reservation.
      • In other words, the right to equality is the basis of reservation as there is no level-playing field among castes.
      • Articles 16 (2) and 16(4) are neither contradictory nor mutually exclusive in nature. In fact, they are complementary to each other; even Article 16(4) is not a special provision.
    • Whether reservation should be applied in promotions?
      • The answer is yes because, in India, where there is a peculiar hierarchical arrangement of caste, it is conspicuous that SCs and STs are poorly represented in higher posts.
      • Confined to lower cadre jobs: Denying application of reservation in promotions has kept SCs and STs largely confined to lower cadre jobs. This is even seen in the higher judiciary.
      • Hence, providing reservation for promotions is even more justified and appropriate to attain equality.
      • Need of the reservation at every level: The question of law is not about enabling reservations in promotions or not, but this judgment destabilises the very basis of reservation; when there is no direct recruitment in higher posts, the implementation of the reservation is justified at every level to get a reasonable representation.
      • Subdivision of reservation not correct: It is not correct to subdivide the scope of reservation at the entry-level and in promotions; this delineation will only lead to confusion in the implementation of reservation.
      • Now, by declaring that reservation cannot be claimed as a fundamental right is a dangerous precedent in the history of social justice.

    The second question- Can a court issue a mandamus to the state for providing reservation?

    • Will it be appropriate for the courts to issue a mandamus in this regard?
      • This is inappropriate because when the court is empowered to pass orders to create extra seats every year for forward-caste students who claim to be affected by reservation, why cannot it direct the state to provide reservation in promotions?
    • Use of powers under Article 142: The Supreme Court has extraordinary powers under Article 142, which empowers the Court to pass any order necessary for doing “complete justice in any cause or matter pending before it”.

    Third question-Necessity of quantifiable data

    • Data to prove inadequate representation: The next question is about the necessity of quantifiable data to show an inadequate representation of reserved category people.
    • Article 16 addresses the question: This question has been addressed in the Constitution. Article 16(4) reads: “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.”
    • How “opinion of the State” should be construes: Here, “in the opinion of State” should not be construed as the discretion of the state to give the reservation or not; on the contrary, if the state feels that SCs and STs are under-represented, then it is in the domain of the state to provide reservation.
    • Quantifiable data for exceeding the 50% limit: In the Indra Sawhney vs Union of India case (Mandal Commission) the idea of quantifiable data on inadequate representation was applied for exceeding the 50% cap for reservation; within 50% where the existing quotas for SCs and STs are accommodated were not affected.
      • Responsibility to collect data on the State: The responsibility of collecting data on representation by the Backward Classes lies with the state.
      • Pathetically, the last caste-based census was in 1935, and in the pre-Independence era, by the British government.
      • No caste-based census in India: After Independence, no government has had the inclination to conduct a caste-based census due to political reasons.
      • Even if a caste-based census is collected, the population and proportionate representation of SCs and STs will be low. For this reason alone, a proper caste-based census has not been conducted in independent India.
      • No mention of quantifiable data: Moreover, Article 16(4) clearly mentions that if the state, in its opinion, feels that SCs and STs are not adequately represented, then it can provide reservation for them. There is no mention of “quantifiable data” in the Constitution. Even after 70 years of SC/ST reservation, their representation is as low as 3%.

    Fourth question-Whether it is the obligation of the state to give reservation?

    • Obligatory on the government: Finally, if the argument is that it is not binding on the state to give reservation, it must be noted that when reservation rights are in Part III as Fundamental Rights, it is the obligation of the state to ensure reservation to the underprivileged.
    • Interpretation as obligatory provisions: This judgment has interpreted Articles 16 (4) and 16(4A) only as enabling provisions.
    • Enabling provisions mean that these provisions empower the state to intervene; it does not mean the state is not bound to provide it.
    • Interpreting the Constitution by paraphrasing and selective reading is dangerous.

     Administrative efficiency

    • Reservation should not affect the efficiency of administration: More importantly, this judgment has raised a new point — that the decision of the State government to provide reservation for SC/STs should not affect the efficiency of administration.
      • This implies that the entry of SC/STs in the job market can reduce the quality of administration; this by itself is discriminatory.
    • No evidence to support the claim: There is no evidence that performance in administration is affected on account of caste.
    • There have been many attempts to dilute reservation in the past. But, this judgment appears to be debatable in the larger context and should be challenged in a constitutional bench.

    Conclusion

    In a country of parliamentary democracy, even the Constitution of India can be amended. If the government at the Centre has a genuine concern for SC/STs, it can amend the Constitution using its political majority.

  • A just verdict

    Context

    SC ruling in favour of women officers in the Army is pathbreaking, extends arc of equality.

    What is said in the significance of the judgement?

    • The judgement took many constitutional steps further
    • First, the judgement said “engagement of women officers in the Army” has been an “evolutionary process”.
      • It acknowledges that the “physiological features of a woman have no significance to her equal entitlements under the Constitution”.
    • Second, it indicates “a need for change in attitudes and mindsets to recognise the commitment to the values of the Constitution”.
      • The judgement said that reliance on the “inherent physiological differences between men and women” rests on a deeply entrenched stereotypical and constitutionally flawed notion.
      • The above-flawed notion fails to ignore “the solemn constitutional values which every institution in the nation is bound to uphold and facilitate”.
    • Third, this change has to be based on “the right of women officers to equality of opportunity”, which has two “facets”:
      • Non-discrimination on the grounds of sex and-
      • Equality of opportunity for all citizens in employment.
      • State and civil society have to firmly internalise these rights to achieve even the minima of gender justice.
      • Fundamental fallacy: Removal of the “fundamental fallacy” demands non-discrimination and affirmation of the equality of opportunity in public employment. To rule otherwise will constitute “a travesty of justice”.
      • What does this mean for women? This means women now have the same terms of employment as men.
      • No longer will women be forced to retire after 14 years in service, irrespective of their record.
      • They will also have a full pension and other financial benefits.
    • Fourth, Article 14 of the Constitution has been pressed into service as prescribing “a right to rationality” that forbids any “blanket” and “absolute”
      • The burden to justify differentiation on Army: The burden to justify the differentiation between women and men falls “squarely on the Army”, which has to “justify such differentiation with reason”

    Judicial consciousness of policy consciousness

    • Achilles’ heel of the judgement: In fact, the brief remark outlining the judicial consciousness of policy limitations may well prove to be the proverbial Achilles’ heel in future courts.
    • One hopes that the stoic and heroic endeavours of the petitioner army officers and their counsel, will not be visited with the constitutional fates in which the judgement is reversed.
      • And this path-breaking judgment will forever vindicate gender equality and justice.

    Conclusion

    Making gender justice less contingent on the executive’s mood swings is the primary task of the judiciary. Making it immune from judicial re-visitations remains the paramount constitutional duty of all citizens, but more particularly of feminist citizens’ crusade for judicial consistency as a badge for constitutional rights and justice.

  • Reservation as right: on Supreme Court judgment

    Context

    The recent Supreme Court judgment, that there is no fundamental right to claim reservation in promotions, has caused some political alarm.

    Received wisdom in affirmative action jurisprudence

    • Presence of sound legal framework for a reservation: The received wisdom in affirmative action jurisprudence is that a series of Constitution amendments and judgments have created a sound legal framework for reservation in public employment, subject to the fulfilment of certain constitutional requirements.
    • Solidification of reservation as an entitlement: It is also accepted that the framework has solidified into an entitlement for the backward classes, including the SCs and STs.

    What does the judgement mean?

    • Reservations are not rights: The latest judgment is a reminder that affirmative action programmes allowed in the Constitution flow from “enabling provisions” and are not rights as such.
    • Not a new legal position: This legal position is not new. Major judgments- these include those by Constitution Benches-note that Article 16(4), on the reservation in posts, is enabling in nature.
    • The state is not bound to provide reservation: In other words, the state is not bound to provide reservations. But if the state provides reservations, it must satisfy the following two criteria-
      • For the backward class: It must be in favour of sections that are backward.
      • Inadequately represented: And inadequately represented in the services based on quantifiable data.
    • What happened in the Uttarakhand case? The Court set aside the Uttarakhand High Court order directing data collection on the adequacy or inadequacy of representation of SC/ST candidates in the State’s services.
      • What was the reasoning? Its reasoning is that once there is a decision not to extend reservation — in this case, in promotions — to the section, the question whether its representation in the services is inadequate is irrelevant.

    Question of government obligation

    • The idea in consonance with the Constitution: The idea that reservation is not a right may be in consonance with the Constitution allowing it as an option.
    • The larger question of the government obligation: But a larger question looms is there no government obligation to continue with affirmative action if-
      • The social situation that keeps some sections backwards.
      • And at the receiving end of discrimination persists?

    Why reservation matters for equality?

    • Reservation as a faced of equality-the SC: Reservation is no more seen by the Supreme Court as an exception to the equality rule; rather, it is a facet of equality.
    • Completion of equality norm: The terms “proportionate equality” and “substantive equality” have been used to show that the equality norm acquires completion only when the marginalised are given a legal leg-up.

    What may be the consequences of this judgement?

    • Possibility of the unequal system: Some may even read into this an inescapable state obligation to extend reservation to those who need it, lest its absence renders the entire system unequal.
    • Possibility of perceptible imbalance: For instance, if no quotas are implemented and no study on backwardness and extent of representation is done, it may result in a perceptible imbalance in social representation in public services.

    Conclusion

    Ensuring adequate representation to disadvantaged sections is a state obligation and the state must play its role in ensuring their representation by appropriate legislation.

     

  • [op-ed of the day] Preventing mob lynching

    Context

    The spate of incidents of lynching over the past few years has led to a heightened sense of insecurity among the marginalised communities. The Centre should specify penal action against officials and doctors accused of dereliction of duty.

    2018 Supreme Court Judgement

    • In 2018, the Supreme Court described lynching as a “horrendous act of mobocracy”.
    • The Court exhorted the Centre and State governments to frame laws specifically to deal with the crime of lynching.
    • The SC laid down certain guidelines to be incorporated in these laws including
      • Fast-track trials.
      • Compensation to victims, and
      • Disciplinary action against lax law-enforcers.

    The State laws

    • Manipur bill for the law against lynching:  The Manipur government came up first with its Bill against lynching in 2018, incorporating some logical and relevant clauses.
      • Provision of nodal officer: The Bill specified that there would be nodal officers in each district to control such crimes.
      • Compensation to the victim: The law provides for adequate monetary compensation to the victims or their immediate kin.
      • Punishment for failure to enforce the law: Police officers who fail to prevent the crime of lynching in their jurisdiction are liable to be imprisoned for a term that may extend from one to three years with a fine limit of ₹50,000.
      • No concurrence of state for the prosecution of the police: No concurrence of the State government is required to prosecute them for dereliction of duty.
    • Rajasthan bill: The government has accepted only a few guidelines issued by the apex court.
      • No action against police officers: The bill is also silent on any action to be initiated against police officers who may be accused of dereliction of duty.
    • West Bengal bill: Most other guidelines of the Supreme Court have been adopted by the State.
      • Stringent punishment: Punishment for lynching to death is punishable with the death penalty or life imprisonment and a fine of up to ₹5 lakh.

    What the Centre can do

    • Adoption of the SC guidelines: The Centre should adopt the guidelines provided by the SC to deal with the crime.
    • Action against doctors: Centre would do well to incorporate sections in the law for penal action against doctors who stand accused of-
      • Dereliction of duty.
      • For delay in attending to victims of lynching.
      • For submitting false reports without carrying out a proper and thorough medical examination of the victims.
    • The compensation scheme for victims: Under the compensation scheme for the victims, the amount to be paid to the victims should be recovered from the perpetrators of the crime.
      • Collective fines: Collective fines should be imposed on the villagers where the lynching takes place.
    • Punishment for a political leader for inciting the mob: Centre could even provide for punitive action against political leaders found guilty of inciting mobs.
    • Punitive action against police: Punitive action to be taken against police officers accused of dereliction of duty, as incorporated in the law enacted by Manipur government, could be replicated in the Central law too.
      • Punitive action as a deterrent: It would deter police officials acting in a partisan manner in favour of the lynch mob.

    Conclusion

    Until a zero-tolerance attitude is adopted in dealing with mob lynching, this crime will continue to show a rising trend.

     

  • [op-ed of the day] Human rights are not solely an ‘internal matter’

    Context

    The human rights situation in Jammu and Kashmir following the dilution of Article 370 and the passage of the Citizenship (Amendment) Act (CAA) have brought renewed international focus on India’s human rights practice.

    Evolution of the modern Human Rights

    • Classical approach: Countries made agreements on the premise that a sovereign state had the exclusive right to take any action it thought fit to deal with its nationals.
      • No recognition of individuals’ rights:  Classic international law governed the conduct between states and did not recognise the rights of individuals.
    • The classical notion was challenged in the 19th century.
    • Modern Human Rights:  Slavery Convention adopted by the League of Nations prohibiting the slave trade heralded the first human rights treaty.
      • It was based on the principle of dignity of a human being.
    • The Universal Declaration of Human Rights: Adopted in 1948 by the United Nations, was the first comprehensive international human rights document.
    • The weakening of Unrestricted sovereignty: The evolution of international human rights law is also about the gradual weakening of the concept of unrestricted sovereignty.

    India and Human Rights

    • Unwarranted international scrutiny: The Indian government’s response to its human rights practice has always been that international scrutiny is unwarranted.
      • Why India claims so?: Since the country is the largest democracy in the world with an independent judiciary, free media, and an active civil society no international scrutiny is required.
      • Indian has always assured the international community that the judiciary (the SC) would provide adequate remedies to victims of human rights violations.
      • These claims sound less credible after the recent developments in J&K and the passage of the CAA.
    • Human rights and Discriminatory nature of CAA: Non–discrimination is a fundamental principle of human rights.
      • The Office of the High Commissioner for Human Rights (OHCHR) said that CAA is fundamentally discriminatory in nature”.

    Role of Civil Society and Media

    • Media’s questionable role: Responding to international concerns the Indian government also refers to the role of free media and civil society in protecting human rights.
      • However, the media’s role in J and K and after CAA is questionable.
    • Weakened Civil Society: The government has imposed various curbs on it since 2014.
      • It has become difficult for it to receive foreign contribution.
      • Use of FRCA: Since 2014, the government has canceled the registration of about 14,000 NGOs under the Foreign Contribution Regulation Act (FCRA).

    Conclusion

    • It is possible for the Indian government, due to its diplomatic clout, to avoid robust intervention by the UN Human Rights Council and other UN human rights mechanisms.
    • But it would be difficult to avoid scrutiny by the international community. So, the government must take steps to allay international concerns and avoid situations where it is seen as a violator of human rights.

  • Human Rights Issues

  • Women empowerment issues – Jobs,Reservation and education

  • LGBT Rights – Transgender Bill, Sec. 377, etc.

    IPC & the need for modernisation

     

    The promise of criminal law as an instrument of safety is matched only by its power to destroy. It is arguably the most direct expression of the relationship between a state and its citizens.

    Amid the debate on the archaic sedition law that should have no place in democratic India, President Pranab Mukherjee said that the IPC, 1860 requires a thorough revision to meet the needs of the 21st century. Click here to know everything about sedition law

    History:

    • The code was drafted in 1860 on the recommendations of first law commission of India established in 1834 under the Government of India Act 1833 under the Chairmanship of Thomas Babington MacaulayAnswer in comments.>
    • It came into force in British India(but not princely states) during the early British Raj period in 1862
    • After the partition of the British Indian Empire, the Indian Penal Code was inherited by its successor states, the Dominion of India and the Dominion of Pakistan, where it continues independently as the Pakistan Penal Code and later in B’desh also
    • Jammu and Kashmir does not follow IPC but has enacted a separate code known as Ranbir Penal Code (RPC) which is based on IPC

    Some notable points:

    • The IPC replaced Mohammedan Criminal Law, which had a very close relationship with Islam. Thus, the IPC laid the foundation of secularism
    • It was widely appreciated as a state-of-the-art code and was, indeed, the first codification of criminal law in the British Empire
    • Today, it is the longest serving criminal code in the common-law world
    • Today, most of the commonwealth follows the IPC

    Law Commission on IPC:

    • 42nd Report (1971)– Law Commission of India for the first time had recommended the repeal of Section 309 (criminalization of suicide)
    • 172nd Report (2000)– Recommended deletion of Section 377 (criminalization of unnatural sexual offences)
    • 210th Report (2008)– Recommended Humanization and Decriminalization of Attempt to Suicide under Section 309

    Past attempts at amendment:

    • Even though the IPC has been haphazardly amended more than 75 times, no comprehensive revision has been undertaken in spite of the 42nd report of the Law Commission in 1971 recommending it
    • Also the amendment bills of 1971 and 1978 lapsed due to the dissolution of the Lok Sabha
    • As a result, largely the courts have had to undertake this task, with unsatisfactory outcomes at times
    • Most amendments have been ad hoc and reactive, in response to immediate circumstances like the 2013 amendment after the Delhi gangrape case

    Why amend IPC?

    • The philosophical stance and fundamental principles of Macaulay’s code were the product of imperialist policy <designed to meet colonial needs to subjugation and exploitation of India and Indians, sedition law for instance>
    • Some of the concepts underlying the code are either problematic or have become obsolete
    • there are many new offences, which have to be properly defined and incorporated in the code
    • Macaulay had himself favoured regular revision of the code whenever gaps or ambiguities were found or experienced
    • In 1860, the IPC was certainly ahead of the times but has been unable to keep pace since then

    Specific cases or problems:

    1. Sedition law, inserted in 1898: It is legitimate to ask whether we need a law on sedition that we ourselves condemned during the Raj. Learn more about sedition law here
    2. Section 295A, The offence of blasphemy: It should have no place in a liberal democracy
    3. Criminal conspiracy: It can be invoked merely when two people agree to commit an offence without any overt act following the agreement.
      It was added in 1913 by the colonial masters to deal with political conspiracies.
      Kehar Singh etc were convicted and sentenced to death under the offence of conspiracy ,, though none of them participated in the actual crime or were present at the scene of the crime.
    4. Section 149, Unlawful assembly: The principle of constructive liability under this law is pushed to unduly harsh lengths.
      Mere membership of the assembly without any participation in the actual crime is sufficient for punishment.
      Several persons have been sentenced to death and hanged though they were not even present near the scene of the actual crime.
    5. The distinction between “culpable homicide” and “murder” is criticised as the “weakest part of the code”, as the definitions are obscure
    6. Sexual offences under the code reveal patriarchal values and Victorian morality.
    7. Section 377:  Unnatural sexual offences (LGBT right). Want to know about argument of Delhi high court in decriminalizing homosexuality, click here to read about Naz Foundation case

     

    Contrarian view point of Justice Hegde

    We should not repeal something just because it’s 150 years old.

    On Sedition: He favours the sedition law as some restrictions are needed to stop people from abusing and talking against the country. “I believe in sedition law. I am a patriot. Any patriot cannot go on abusing the country. There are certain parameters.” He points to distinction b/w criticizing the person (prime minister), policies, system v/s abusing the state

    On IPC:  We can not just scrap Indian Penal Code because somebody is involved in a crime (and wants it to be scrapped)

    We can not just ape west. Ground realities in India and west are very different and they demand different levels of freedom of expression and religious freedom.

  • Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

  • Child Rights – POSCO, Child Labour Laws, NAPC, etc.