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GS Paper: Seperation Of Power

  • Mining Sector Reforms: Special Assistance to States 

    Why in the News?

    The Ministry of Mines has issued operational guidelines for a ₹5,000 crore incentive package under the Scheme for Special Assistance to States for Capital Investment (SASCI) for FY 2026-27. This initiative aims to accelerate mineral production and improve governance across India.

    What is the Scheme Component?

    A dedicated financial incentive mechanism designed to reward States and UTs (with legislatures) for implementing structural reforms in the mining sector.

    • Nodal Ministry: Ministry of Mines.
    • Total Outlay: ₹5,000 crore.
    • Core Objective: Expedite mine operationalization, increase mineral production, and enhance state revenue through better governance.
    Reform AreaSpecific RequirementsPotential Incentive
    I. Implementation of Mining Reforms1. Integration with Unified Mining Portal.2. Setup Pre-Auction Committee (land issues).3. Setup State-level Coordination Committee.4. Issue annual auction calendar.5. Adopt tech to prevent grade misclassification.₹100 crore (if all 5 are met by Dec 15, 2026)
    II. Mine OperationalizationA. Pre-embedded Clearances: Auctioning blocks with forest/env clearances already in place.B. Production Kickstart: Operationalizing at least 10% of blocks auctioned prior to March 2026.A. ₹20 crore per block (Max ₹200cr/state).B. ₹250 crore per state.
    III. SMRI-based ReformsRewarding top performers in the State Mining Readiness Index (SMRI) 2026-27 across three categories (A, B, and C).1st: ₹100 crore2nd: ₹75 crore3rd: ₹50 crore
    [2025] Consider the following statements: 
    Statement I: In India, State Governments have no power for making rules for grant of concessions in respect of extraction of minor minerals even though such minerals are located in their territories. 
    Statement II: In India, the Central Government has the power to notify minor minerals under the relevant law. 
    Which one of the following is correct in respect of the above statements? 
    [A] Both Statement I and Statement II are correct and Statement II explains Statement I 
    [B] Both Statement I and Statement II are correct but Statement II does not explain Statement I 
    [C] Statement I is correct but Statement II is not correct 
    [D] Statement I is not correct but Statement II is correct

  • Pennaiyar River Inter State Water Dispute

    Why in the news?

    The Supreme Court of India has directed the Union Government to constitute an Inter State River Water Disputes Tribunal within one month to resolve the Pennaiyar water dispute between Tamil Nadu and Karnataka. The case was filed by Tamil Nadu under Article 131 of the Constitution, invoking the Inter State River Water Disputes Act, 1956.

    About Pennaiyar River

    • Also known as Thenpennai / Ponnaiyar in Tamil and Dakshina Pinakini in Kannada
    • A major east flowing inter state river of southern India
    • Crucial for irrigation, drinking water, and water security

    Origin

    • Originates in the Nandi Hills, Chikkaballapura district, Karnataka
    • Part of the Eastern Ghats system

    States Through Which It Flows

    • Karnataka as the upper riparian state
    • Tamil Nadu as the lower riparian state
    • Tamil Nadu is more dependent on downstream flows, making the dispute politically and economically sensitive

    Major Tributaries

    • Markandeya River
    • Varaha Nadhi
    • Pambar River
    • Pampar River
    • Markandeya River is central to the present inter state dispute
    [2014] The power of the Supreme Court of India to decide disputes between the Centre and the States falls under its: (a) advisory jurisdiction 

    (b) appellate jurisdiction 

    (c) original jurisdiction 

    (d) writ jurisdiction

  • Recusal of Judges

    Why in the News?

    A Madhya Pradesh High Court judge has recused himself from hearing a petition in an alleged illegal mining case, saying that a MLA had “attempted to call him” to have a discussion regarding the matter.

    About Recusal:

    • Overview: Recusal is the act of a judge or official abstaining from a case due to conflict of interest or a possible perception of bias.
    • Legal Basis:
      • There are no codified laws, but multiple Supreme Court rulings provide guiding principles.
      • In Ranjit Thakur v. Union of India (1987), SC held that the test of bias is the reasonableness of the apprehension in the mind of the affected party.
    • Grounds for Recusal:
      • Prior personal/professional association with a party.
      • Having appeared for a party in the case earlier.
      • Ex parte communications with parties involved.
      • Cases where a judge may be reviewing his own earlier judgment (e.g., SC appeals against HC orders delivered by the same judge earlier).
      • Financial or personal interests (e.g., shareholding in a company party to the case).
    • Underlying Principle: Rooted in the maxim “nemo judex in causa sua” — no one should be a judge in their own cause.

    Process of Recusal:

    • Judge’s Discretion:
      • Decision usually rests with the judge’s conscience and discretion.
      • Judges may orally inform the parties, record it in the order, or sometimes recuse silently without explanation.
    • On Request:
      • Lawyers or parties may request recusal; final decision still rests with the judge.
      • Some judges have recused even without conflict, merely to avoid doubt. Others refuse if no genuine bias exists.
    • Procedure: Once recusal is declared, the case is placed before the Chief Justice for reassignment to another Bench.

    Concerns Related to Recusal:

    • Judicial Independence at Risk: Can be misused by litigants to bench hunt (cherry-pick a judge), undermining judicial impartiality.
    • Lack of Uniform Standards: Absence of formal rules might lead to inconsistent approaches by different judges.
    • Potential for Abuse:
      • Requests for recusal may be used to delay proceedings, intimidate judges, or obstruct justice.
      • This undermines both the integrity of courts and timely justice delivery.
    [UPSC 2019] With reference to the Constitution of India, prohibitions or limitations or provisions contained in ordinary laws cannot act as prohibitions or limitations on the constitutional powers under Article 142. It could mean which one of the following?

    Options:

    (a) The decisions taken by the. Election Commission of India while discharging its duties cannot be challenged in any court of law.

    (b) The Supreme Court of India is not constrained in the exercise of its powers by the laws made by Parliament.

    (c) In the event of grave financial crisis in the country, the President of India can declare Financial Emergency without the counsel from the Cabinet.

    (d) State Legislatures cannot make laws on certain matters without the concurrence of Union Legislature.

     

  • Making a Law cannot amount to Contempt of Court: Supreme Court

    Why in the News?

    The Hon’ble Supreme Court has ruled that any law passed by Parliament or a State Legislature cannot be considered an act of contempt of court.

    Supreme Court’s Verdict on the Issue:

    • Context: The Court heard a 2012 contempt plea, alleging that the Chhattisgarh government violated its 2011 ruling against supporting Salwa Judum and arming tribals as SPOs.
    • Disputed Law: Petitioners argued the Chhattisgarh Auxiliary Armed Police Force Act, 2011 violated the earlier ruling.
    • Court’s Clarification: Passing a new law is within the plenary powers of legislatures and cannot be treated as contempt unless declared unconstitutional.
    • Proper Remedy: The correct approach is to challenge the law’s validity, not to file for contempt.
    • Separation of Powers: The Court upheld that legislature can modify or override judgments through new laws, if they respect constitutional boundaries.

    About Contempt of Court:

    • Purpose: Contempt of court refers to actions or behaviors that are disrespectful to, or that obstruct or interfere with, the administration of justice by a court. It protects the authority and dignity of the judiciary from acts that obstruct or interfere with justice.
    • Constitutional Basis:
      • Article 129 allows the Supreme Court to punish for its own contempt.
      • Article 215 grants the same power to High Courts.
      • Article 19(2) permits reasonable speech restrictions for contempt cases.
    • Legal Definition: The Contempt of Courts Act, 1971 defines contempt; the 2006 amendment allows truth and good faith as defences.
    • Types:
      • Civil Contempt is the wilful disobedience of court orders.
      • Criminal Contempt involves actions that scandalise the court, interfere with proceedings, or obstruct justice.
    • Punishment: Offenders may face up to 6 months imprisonment, or a ₹2,000 fine, or both.
    • What Is Not Contempt: Fair reporting and genuine criticism of judgments after disposal are not considered contempt.
    [UPSC 2022] Consider the following statements:

    1. Pursuant to the report of H.N. Sanyal Committee, the Contempt of Courts Act, 1971 was passed.

    2. The Constitution of India empowers the Supreme Court and the High Courts to punish for contempt of themselves.

    3. The Constitution of India defines Civil Contempt and Criminal Contempt.

    4. In India, the Parliament is vested with the powers to make laws on Contempt of Court.

    Which of the statements given above is/are correct?

    Options: (a) 1 and 2 only (b) 1, 2 and 4* (c) 3 and 4 only (d) 3 only

     

  • Is India witnessing judicial despotism?

    Why in the News?

    Recently, a number of court rulings have led many people to question the powers and intentions of the Supreme Court. Although criticism of the judiciary is not new, it has increased.

    What is the significance of judicial review in the Indian Constitution?

    • Upholds Constitutional Supremacy: Judicial review ensures that all laws and actions by the government are in line with the Constitution. Eg: In Kesavananda Bharati v. State of Kerala (1973), the Supreme Court held that Parliament cannot alter the basic structure of the Constitution, reinforcing constitutional supremacy.
    • Protects Fundamental Rights: It provides a mechanism for individuals to challenge laws or executive actions that violate their fundamental rights. Eg: In Maneka Gandhi v. Union of India (1978), the court ruled that the right to life and personal liberty under Article 21 cannot be violated without just, fair, and reasonable procedure.
    • Maintains Checks and Balances: Judicial review prevents arbitrary use of power by the legislature or executive, maintaining the balance of power among the three branches of government. Eg: In Minerva Mills v. Union of India (1980), the court struck down parts of the 42nd Amendment that tried to limit the power of judicial review itself, preserving the judiciary’s role as a check on Parliament.

    How is it related to Article 13?

    • Declares Inconsistent Laws Void: Article 13(1) & (2) state that any law that violates Fundamental Rights is void to the extent of the violation. This empowers the judiciary to review and strike down such laws. Eg: In A.K. Gopalan v. State of Madras (1950), although the court upheld the Preventive Detention Act, the case established the judiciary’s power to examine laws under Article 13.
    • Forms the Basis for Judicial Review: Article 13 acts as the foundation for judicial review by mandating that all laws (past and future) must conform to Fundamental Rights. Eg: In Kesavananda Bharati v. State of Kerala (1973), the court used Article 13 to assert that even constitutional amendments are subject to judicial review if they violate the basic structure or Fundamental Rights.
    • Ensures Protection Against State Actions: Article 13 defines “law” to include ordinances, orders, bye-laws, rules, regulations, etc., thereby subjecting all state actions to judicial scrutiny. Eg: In State of West Bengal v. Committee for Protection of Democratic Rights (2010), the court affirmed that Article 13 covers all state actions, ensuring their consistency with Fundamental Rights.

    How did the Supreme Court’s activism during the Emergency impact its role in protecting democracy?

    • Judicial Abdication in the ADM Jabalpur Case: The Court failed to protect civil liberties by ruling that even the right to life could be suspended during the Emergency. Eg: ADM Jabalpur v. Shivkant Shukla (1976) – The majority held that citizens had no remedy if the state detained them illegally during Emergency, weakening democratic safeguards.
    • Erosion of Public Faith in Judiciary: The decision in ADM Jabalpur was widely criticized and seen as the Court yielding to executive pressure, leading to a decline in public confidence. Eg: Justice H.R. Khanna’s lone dissent defending civil liberties became a symbol of judicial integrity, but the majority judgment damaged the Court’s image.
    • Shift Towards Judicial Activism Post-Emergency: In response to its failure, the Court later adopted a more proactive role in defending rights through Public Interest Litigations (PILs). Eg: Maneka Gandhi v. Union of India (1978) – The Court expanded the scope of Article 21 (Right to Life and Personal Liberty), overturning its narrow view in earlier cases.
    • Strengthening of Basic Structure Doctrine: After the Emergency, the judiciary reinforced its role as a guardian of the Constitution, making it clear that even Parliament cannot amend the basic structure. Eg: Minerva Mills v. Union of India (1980) – The Court reaffirmed that judicial review is a part of the basic structure and cannot be taken away.
    • Restoration of Accountability and Civil Rights: The Court became more vigilant in ensuring that executive actions respect democratic principles and individual freedoms. Eg: The growth of PILs in the 1980s allowed the judiciary to directly address the grievances of the marginalized and hold the state accountable.

    Why is the Supreme Court’s power under Article 142 considered essential?

    • Ensures Complete Justice in Exceptional Situations: Article 142 empowers the Supreme Court to pass any decree or order necessary for doing “complete justice” in any case before it, even if no specific law exists. Eg: Union Carbide Case (Bhopal Gas Tragedy, 1989) – The Court invoked Article 142 to ensure compensation for victims, overriding procedural hurdles.
    • Fills Legislative or Procedural Gaps Temporarily: It allows the Court to address legal voids until Parliament or the executive acts, ensuring justice is not delayed due to technicalities. Eg: Supreme Court guidelines on sexual harassment at workplaces (Vishaka v. State of Rajasthan, 1997) – The Court framed guidelines under Article 142 in absence of legislation.

    What are the concerns surrounding its misuse?

    • Overreach and Violation of Separation of Powers: There is a risk that the Court might overstep its boundaries, encroaching on the domain of the executive or legislature, thus undermining the principle of separation of powers.Eg: Judicial intervention in policy matters – If the Court starts making decisions on matters that should be left to the government, like executive policies, it can be seen as an overreach.
    • Potential for Arbitrary Decisions: The broad discretion granted by Article 142 can sometimes lead to arbitrary decisions, which may not align with established legal principles or may be seen as politically motivated. Eg: Judgment in the Babri Masjid Case (2019) – The Court’s intervention in the Babri case was criticized for favoring peace over legal principles, potentially opening doors for biased interpretations.

    How does the judiciary uphold the Constitution without overstepping the separation of powers between the legislature and the executive?

    • Judicial Review with Restraint: The judiciary exercises judicial review carefully, ensuring it only intervenes in cases where constitutional violations or fundamental rights are at stake, and refrains from delving into policy decisions better left to the executive or legislature. Eg: Right to Privacy Case (2017) – The Supreme Court upheld the right to privacy as a fundamental right, checking executive overreach but refraining from interfering with legislative or executive policy decisions.
    • Respect for Legislative and Executive Domains: The judiciary respects the roles and powers of the legislature and executive, ensuring that it does not encroach on their function while interpreting the law within its constitutional framework. Eg: Constitutionality of the GST (2017) – The Supreme Court reviewed the constitutional validity of the Goods and Services Tax (GST) but did not interfere with the operational execution, leaving implementation to the executive.

    Way forward: 

    • Ensure Judicial Independence: Strengthen mechanisms to safeguard the judiciary from executive and legislative influence, ensuring impartiality and constitutional integrity.
    • Foster Collaborative Governance: Encourage constructive dialogue between the judiciary, legislature, and executive to maintain balance and prevent unnecessary judicial overreach.

    Mains PYQ:

    [UPSC 2015] Starting from inventing the ‘basic structure’ doctrine, the judiciary has played a highly proactive role in ensuring that India develops into a thriving democracy. In light of the statement, evaluate the role played by judicial activism in achieving the ideals of democracy.

    Linkage: In this article, evaluate judicial activism. Some people see it as essential for protecting the Constitution, while others think it goes too far, interfering with the roles of the legislature and executive, and might even lead to judges having too much power.

  • SC stays Lokpal order on power over judges

    Why in the News?

    The Supreme Court recently halted a Lokpal order that sought to include High Court judges under its jurisdiction, calling the anti-corruption body’s interpretation “very disturbing.”

    Why did the Supreme Court stay the Lokpal order?

    • Violation of Judicial Independence (Article 50 & Article 121): The Supreme Court held that bringing High Court judges under Lokpal’s jurisdiction undermines judicial independence, which is a part of the Basic Structure Doctrine.
      • Article 50 mandates the separation of the judiciary from the executive, preventing interference in judicial functioning.
      • Article 121 prohibits Parliament from discussing the conduct of judges except in matters of impeachment, reinforcing judicial autonomy.
    • Judges Are Appointed Under the Constitution (Article 124 & Article 217): The Supreme Court rejected Lokpal’s argument that High Courts were created by British laws, emphasizing that all judges are appointed under the Constitution.
      • Article 124 establishes the Supreme Court, while Article 217 governs the appointment of High Court judges, ensuring their independence from executive control.
    • Judicial Oversight Is an Internal Process (Article 124(4) & Article 217(1)(b)): The Supreme Court reaffirmed that judicial misconduct should be handled internally, either through the in-house procedure or the impeachment process.
      • Article 124(4) (for Supreme Court judges) and Article 217(1)(b) (for High Court judges) provide for removal only through Parliamentary impeachment, making external investigations by the Lokpal unconstitutional.

    What is suo motu case? 

    Suo motu (Latin: on its own motion) refers to the Supreme Court or High Courts taking up a case on their own initiative, without a formal petition being filed.

    In which circumstances do courts in India exercise suo motu powers?

    • Constitutional Concerns (Separation of Powers, Judicial Independence): Courts intervene suo motu when an issue threatens constitutional principles like the separation of powers or judicial independence.
      • Example: In re: Article 370 of the Constitution (2023) – The Supreme Court took up the matter of abrogation of Article 370 to examine whether the Union government’s decision upheld constitutional principles.
    • Fundamental Rights Violations: Courts act suo motu when fundamental rights under Articles 14 (equality), 19 (freedom), and 21 (right to life) are violated.
      • Example: Suo Motu Writ Petition (Criminal) No.1 of 2020 – The Supreme Court intervened during COVID-19 migrant crisis, directing the government to provide food, shelter, and transport to stranded workers.
    • Public Interest or Institutional Integrity: Courts take suo motu cognizance to protect public interest and prevent harm to democratic institutions.
      • Example: Suo Motu Cognizance of Lakhimpur Kheri Violence (2021) – The Supreme Court intervened to monitor the UP government’s investigation into the killing of protesting farmers, ensuring transparency and accountability.

    Why did the Lokpal order bring High Court judges under its jurisdiction?

    • Interpretation of ‘Public Servants’ Under Lokpal Act: The Lokpal classified High Court judges as public servants under the Lokpal and Lokayuktas Act, 2013, making them subject to its jurisdiction.
    • Reliance on Section 14(1)(f) of the Lokpal Act: This section grants Lokpal jurisdiction over any body or authority established by an Act of Parliament.
      • The Lokpal argued that High Courts were established by British Parliamentary Acts (Indian High Courts Act, 1861 & Government of India Act, 1935), making them fall within this clause.
    • Distinction Between High Courts and Supreme Court: The Lokpal reasoned that Article 124 of the Constitution explicitly established the Supreme Court, but Article 214 only recognized High Courts, implying that High Courts were not directly created by the Constitution.
      • Based on this, the Lokpal ruled that Supreme Court judges were outside its jurisdiction, but High Court judges were not.
    • Lack of Explicit Exemption for Judges: The 2013 Lokpal Act does not explicitly exclude High Court judges from its jurisdiction, which the Lokpal interpreted as allowing it to investigate them.
    • Case-Specific Justification: The complaint involved a High Court judge allegedly influencing judicial decisions for personal benefit. The Lokpal argued that since the judge was serving in a High Court of a State reorganized by an Act of Parliament, it had jurisdiction over the matter.

    Way forward: 

    • Judicial Accountability Within Constitutional Framework: Strengthen in-house mechanisms for judicial oversight while ensuring compliance with constitutional provisions like Articles 124(4) and 217(1)(b), which mandate impeachment as the sole removal process for judges.
    • Clarify Lokpal’s Jurisdiction Through Legislative Review: Amend the Lokpal and Lokayuktas Act, 2013, to explicitly define its jurisdiction, ensuring it does not encroach upon judicial independence while maintaining transparency in the judiciary.

    Mains PYQ:

    Q Judicial Legislation is antithetical to the doctrine of separation of powers as envisaged in the Indian Constitution. In this context justify the filing of large number of public interest petitions praying for issuing guidelines to executive authorities. (UPSC IAS/2020)

  • SC upholds State legislatures’ right to regulate Industrial Alcohol as an ‘Intoxicant’

    Why in the News?

    A nine-judge Constitution Bench, with an 8:1 majority, affirmed the authority of State legislatures to regulate industrial alcohol.

    What is the definition of “intoxicating liquor” with industrial alcohol?

    • The SC’s ruling established that the term “intoxicating liquor” in Entry 8 of the State List should be interpreted broadly to include not only potable alcohol but also industrial alcohol, such as rectified spirit, extra neutral alcohol (ENA), and denatured spirit.
      • This definition extends beyond the popular meaning of “intoxicating liquor” as alcoholic beverages meant for consumption.
    • Public Health Consideration: The ruling emphasized that alcohol, in any form, is a noxious substance prone to misuse. Hence, industrial alcohol, which can potentially be diverted for the production of illicit or harmful alcoholic beverages, falls under the regulatory domain of the States to protect public health and safety.
    • Legal Precedent: The Court cited previous decisions where the interpretation of “intoxicating liquor” was not confined to just alcoholic beverages but also included forms of alcohol that could be detrimental to health if used improperly.

    How does this ruling impact the balance of power between state and central governments?

    • Strengthening State Autonomy: The ruling affirms that States have the legislative competence to regulate industrial alcohol according to Entry 8 of the State List.
      • By upholding the States’ right to regulate industrial alcohol, the judgment reinforces federalism and the autonomy of State legislatures in matters that fall within the ambit of their constitutional authority.
      • This challenges the Centre’s claim to exclusive control over industrial alcohol under Entry 52 of the Union List, which pertains to industries regulated by the Union for public interest.
    • Restriction on Centre’s Authority: The judgment limits the Union government’s power and clarifies that Parliament’s control over industries under Entry 52 is limited and does not extend to regulating industrial alcohol in its entirety.

    How does it impact the state revenues and public health?

    • State Revenues: The ruling potentially enhances States’ power to levy taxes and fees related to the production, manufacture, and sale of industrial alcohol. This could result in increased revenue generation from excise duties on alcohol-based products and licensing fees.
    • Public Health Regulation: Having greater regulatory control over the production and distribution of industrial alcohol will help the states curb the misuse of substances like rectified spirit and ENA in the production of illicit liquor. This can improve public health outcomes by reducing instances of alcohol poisoning and illicit liquor-related deaths.
    • Policy Formulation: The judgment may prompt States to strengthen policies and enforcement mechanisms regarding alcohol regulation, ensuring that industrial alcohol is not diverted for unauthorized uses.

    Way forward: 

    • Strengthen Regulatory Framework: States should enhance monitoring and enforcement mechanisms to prevent the diversion of industrial alcohol for illicit uses, ensuring strict compliance with safety standards and public health protections.
    • Collaborative Policy Development: The Centre and States should work together to harmonize regulations, balancing State autonomy with national interests, while focusing on safeguarding public health and optimizing revenue generation from alcohol-related activities.

    Previous Year Question:

    Q) It is a State where prohibition is in force. You are recently appointed as the Superintendent of Police of a district notorious for illicit distillation of liquor. The illicit liquor leads to many deaths, reported and unreported, and causes a major problem for the district authorities. The approach till now had been to view it as a law and order problem and tackle it accordingly. Raids, arrests, police cases, and criminal trials – all these had only limited impact. The problem remains as serious as ever. Your inspections show that the parts of the district where the distillation flourishes are economically, industrially, and educationally backward. Agriculture is badly affected by poor irrigation facilities. Frequent clashes among communities gave a boost to illicit distillation. No major initiatives had taken place in the past either from the government’s side or from social organizations to improve the lot of the people. Which new approach will you adopt to bring the problem under control? (UPSC CSE 2018)

  • Public opinion cannot influence jurisprudence

    Context

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

    Background of the US Supreme Court

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

    Paying attention to the public opinion

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

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

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

    Conclusion

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

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  • Surveillance reform is the need of the hour

    Context

    The ‘Pegasus Project’ report says that over “300 verified Indian mobile telephone numbers, including those used by ministers, opposition leaders, journalists, the legal community, businessmen, government officials, scientists, rights activists and others”, were targeted using spyware made by the Israeli firm, NSO Group.

    Threat to press freedom

    • Revelations highlight a disturbing trend with regard to the use of hacking software against dissidents and adversaries.
    • A significant number of Indians reportedly affected by Pegasus are journalists.
    • This is not surprising since the World Press Freedom Index produced by Reporters Without Borders has ranked India 142 out of 180 countries in 2021. 
    • The press requires (and in democracies is afforded) greater protections on speech and privacy.
    • Privacy and free speech are what enable good reporting.
    • This has been recognised in Supreme Court decisions.
    • In the absence of privacy, the safety of journalists, especially those whose work criticises the government, and the personal safety of their sources is jeopardised.
    • Such a lack of privacy, therefore, creates an aura of distrust around these journalists and effectively buries their credibility.

    Issues with the legal provision

    • Provisions of law under the Indian Telegraph Act of 1885 and the Information Technology (IT) Act of 2000 are used by the government for its interception and monitoring activities. 
    • While the provisions of the Telegraph Act relate to telephone conversations, the IT Act relates to all communications undertaken using a computer resource.
    • Both provisions are problematic and offer the government total opacity in respect of its interception and monitoring activities.
    • Section 69 of the IT Act and the Interception Rules of 2009 are even more opaque than the Telegraph Act, and offer even weaker protections to the surveilled.
    • No provision, however, allows the government to hack the phones of any individual since the hacking of computer resources, including mobile phones and apps, is a criminal offence under the IT Act.

    Issues with surveillance system

    • Surveillance itself, whether under a provision of law or without it, is a gross violation of the fundamental rights of citizens.
    • Violation of freedom of speech: The very existence of a surveillance system impacts the right to privacy and the exercise of freedom of speech and personal liberty under Articles 19 and 21 of the Constitution, respectively.
    • It prevents people from reading and exchanging unorthodox, controversial or provocative ideas.
    • No scope for judicial scrutiny: There is also no scope for an individual subjected to surveillance to approach a court of law prior to or during or subsequent to acts of surveillance since the system itself is covert.
    • No oversight: In the absence of parliamentary or judicial oversight, electronic surveillance gives the executive the power to influence both the subject of surveillance and all classes of individuals, resulting in a chilling effect on free speech.
    • Against separation of power: Constitutional functionaries such as a sitting judge of the Supreme Court have reportedly been surveilled under Pegasus.
    • Vesting such disproportionate power with one wing of the government threatens the separation of powers of the government.
    • The existing provisions are insufficient to protect against the spread of authoritarianism since they allow the executive to exercise a disproportionate amount of power.

    Way forward

    • There needs to be oversight from another branch of the government.
    • Judicial oversight: Only the judiciary can be competent to decide whether specific instances of surveillance are proportionate, whether less onerous alternatives are available, and to balance the necessity of the government’s objectives with the rights of the impacted individuals.
    • Surveillance reforms: Not only are existing protections weak but the proposed legislation related to the personal data protection of Indian citizens fails to consider surveillance while also providing wide exemptions to government authorities.
    • Surveillance reform is the need of the hour in India.

    Consider the question “Discuss the threats posed by the use of surveillance systems by the government. Suggest the measures to deal with these threats.”

    Conclusion

    The only solution to the problem of spyware is immediate and far-reaching surveillance reform.

  • Issues with suspension of the Farm laws

    The article deals with the recent Supreme Court order in which it suspended the implementation of the Farm Acts. This order gives rise to several issues. The article deals with these issues.

    What is the issue

    • The Supreme Court has suspended the implementation of the farm laws.
    • The court created a committee to ascertain the various grievances of the farmers.
    • But the Supreme Court has not clarified the legal basis of this suspension.

    What are the issues with the suspension?

    • The court’s action, at first sight, is a violation of separation of powers.
    • It also gives the misleading impression that a distributive conflict can be resolved by technical or judicial means.
    • It is also not a court’s job to mediate a political dispute.
    • Its job is to determine unconstitutionality or illegality.
    • Even in suspending laws there needs to be some prima facie case that these lapses might have taken place.
    • It has set a new precedent for putting on hold laws passed by Parliament without substantive hearings on the content of the laws.
    • Also in appointing the committee, the court has violated the first rule of mediation: The mediators must be acceptable to all parties and appointed in consultation with them.

    Conclusion

    The Supreme Court order has given the government a setback while not addressing the concerns of the protesting farmers. The court needs to consider these facts and mend its implications.