Important Judgements In News

Important Judgements In News

Allahabad HC verdict disqualifying then PM

Note4Students

From UPSC perspective, the following things are important :

Prelims level : National Emergency

Mains level : Important judgments

The 1975 verdict of Justice Jagmohanlal Sinha of the Allahabad high court, disqualifying then PM Indira Gandhi on charges of electoral malpractices was a judgment of “great courage” that “shook” the nation, said CJI in his speech.

What was the case?

  • It all started with the 1971 Lok Sabha elections, where the Congress (R), which was the newly formed faction of the Congress party floated by Indira Gandhi after her expulsion from the party in 1969, won a landslide victory securing 352 out of the 518 seats in the lower house.
  • An election petition was filed directly before a High Court challenging the election of Indira Gandhi.

What is an Election Petition?

  • Election Petition has to be filed within 45 days from the date of declaration of the election results.
  • The Representation of People (RP) Act of 1951 lists out the grounds on which the election of a candidate can be called into question.
  • Section 123 of the RP Act lists certain corrupt practices which, if proved successful, can be grounds to declare the election of a candidate void.
  • While hearing an election petition, the High Court being the court of first instance, exercises powers similar to a trial court.
  • Thus, there is cross-examination of witnesses and detailed examination of evidence which is normally employed in trial courts and not High Courts.

Findings against Gandhi

  • Use of government machinery to set up stage, loudspeakers
  • Use of gazetted officer as an election agent

A case that led to the promulgation of National Emergency

The verdict is widely believed to have led to the imposition of Emergency on June 25, 1975.

  • A vacation bench of the Supreme Court allowed a partial stay of the judgment after Gandhi had appealed against the High Court verdict.
  • Then Justice VR Krishna Iyer, said that she could continue as Member of Parliament (MP) in the Lok Sabha and could attend the House, but could not participate in its proceedings or vote as MP.
  • She also could not draw any remuneration as an MP.
  • Importantly, the apex court allowed her to continue as Prime Minister and allowed her to speak and participate in the proceedings of the House and to draw salary in her capacity as Prime Minister.
  • The order by the apex court, while not completely against Gandhi, did not satisfy her.
  • She wanted a blanket stay on the Allahabad High Court judgment.
  • Since the Supreme Court did not grant her that, National Emergency was proclaimed the very next day, June 25.

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Back2Basics: National Emergency

  • The Constitution employs the expression ‘proclamation of emergency’ to denote National Emergency under Article 352.
  • Under Article 352, the president can declare a national emergency when the security of India or a part of it is threatened by war or external aggression or armed rebellion.
  • The President can declare a national emergency even before the actual occurrence of war or armed rebellion or external aggression
  • When a national emergency is declared on the grounds of ‘war’ or ‘external aggression’, it is known as ‘External Emergency’.
  • On the other hand, when it is declared on the grounds of ‘armed rebellion’, it is known as ‘Internal Emergency’.
  • The term ‘armed rebellion is inserted from the 44th amendment. Before this term, it was known as an internal disturbance.

 

Important Judgements In News

Supreme Court strikes down part of Constitution Amendment on cooperative societies

Note4Students

From UPSC perspective, the following things are important :

Prelims level : 97th Amendment

Mains level : Paper 2- Striking down of the 97th Amendment Act

Context

In Union of India vs Rajendra N. Shah, the Supreme Court of India partially struck down the 97th Constitutional Amendment.

Background of the 97th Constitutional Amendment

  • The 97th Constitutional Amendment came into effect from February 15 2012.
  • The amendment added “cooperative societies” to the protected forms of association under Article 19(1)(c), elevating it to a fundamental right.
  • It also inserted Part IXB in the Constitution which laid down the terms by which cooperative societies would be governed, in more granular detail than was palatable.

Why was the Amendment struck down?

  • The Constitution can be amended only by the procedure provided in Article 368.
  • The amendment procedure requires a majority of the total strength of each of the Houses of Parliament and two-thirds majority of those present and voting.
  • A proviso to the Article lists out some articles and chapters of the Constitution, which can be amended only by a special procedure.
  • The special procedure requires that the amendment will also have to be ratified by the legislatures of half of the States.
  • It is precisely on the grounds of violation of this additional requirement that the 97th Constitutional Amendment was challenged.
  • The Gujarat High Court struck down the amendment in 2013 on the grounds that it had failed to comply with the requirements under Article 368(2) by virtue of not having been ratified by the States and had also given an additional finding that the 97th Amendment violated the basic structure of the Constitution.
  • The Union Government challenged the Gujarat High Court judgment before the Supreme Court, arguing that the amendment neither directly nor effectively changed the scheme of distribution of powers between the Centre and the States.
  • The court took the example of the 73rd and 74th Amendments which were similar in impact on the legislative power of the States, had been passed by the special procedure involving ratification by State legislatures.
  • Procedural lacuna: The court noted that the procedure had not been followed in this case.
  • The Supreme Court clarified that the does not go into the question of the amendment being violative of the basic structure of the Constitution.
  • The judgment makes a distinction between cooperative societies operating in one State and multi-State cooperative societies and holds that while a ratification by half the State legislatures would have been necessary insofar as it applies to cooperative societies in one State.

Increasing control of the Union government

  • Union government has been acquiring incrementally greater control of cooperative societies over the years.
  • Cooperative banks have been brought under the purview of the Reserve Bank of India.
  • Union Government recently established Union Ministry for Cooperation.

Issues with Central control over cooperative sector

  • Domain of States: The idea that the cooperative sector ought to be controlled at the State level and not at the central or Union level goes back all the way to the Government of India Act, 1919 which placed cooperatives in the provincial list.
  • Part of State list: Entry 32 of the State List in the Seventh Schedule of the Constitution confer power on the State legislatures to make laws pertaining to incorporation, regulation and the winding up of cooperative societies.
  • The cooperative sector has always been in the domain of the States or provinces.
  • Different organising principles: The organising principles and mechanism of these cooperatives differ from area to area and depend on the industry or crop which forms the fulcrum of the cooperative.
  • Homogeneity nor require: Homogeneity in this area would only result in the creation of round holes in which square pegs no longer fit.
  • They also would not really serve to break the control some political interests have taken over cooperatives.

Conclusion

It is best that the Government takes this judgment in the right spirit and stays away from further meddling in the cooperative sector, notwithstanding the creation of the new Ministry.

Important Judgements In News

Biocentric jurisprudence for nature

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Article 21

Mains level : Paper 2- Biocentric jurisprudence

Context

In a recent ruling, the Supreme Court of India has sought to move away from an anthropocentric basis of law.

Biocentrism Vs. Anthropocentrism

  • Anthropocentrism argues that of all the species on earth humans are the most significant and that all other resources on earth may be justifiably exploited for the benefit of human beings.
  • The philosophy of biocentrism holds that the natural environment has its own set of rights which is independent of its ability to be exploited by or to be useful to humans.
  • Biocentrism often comes into conflict with anthropocentrism.

Supreme Court of India upholds biocentric principles

  • The Great Indian Bustard is a gravely endangered species, with hardly about 200 alive in India today.
  • The overhead power lines have become a threat to the life of these species as these birds frequently tend to collide with these power lines and get killed.
  • Recently, the Supreme Court in M.K. Ranjitsinh & Others vs Union of India & Others, said that in all cases where the overhead lines in power projects exist, the governments of Rajasthan and Gujarat shall take steps forthwith to install bird diverters.
  • In protecting the birds, the Court has affirmed and emphasised the biocentric values of eco-preservation.
  • A noteworthy instance of the application of anthropocentrism in the legal world is in that of the “Snail darter” case in the United States.
  • The Supreme Court of the United States of America in Tennessee Valley Authority vs Hill, had held that since the “Snail darter” fish was a specifically protected species under the Act, the executive could not proceed with the reservoir project.

Human role in extinction of species

  • About 50 years ago, there were 4,50,000 lions in Africa. Today, there are hardly 20,000.
  • Indiscriminate monoculture farming in the forests of Borneo and Sumatra is leading to the extinction of orangutans.
  • Rhinos are hunted for the so-called medicinal value of their horns and are slowly becoming extinct.
  • From the time humans populated Madagascar about 2,000 years ago, about 15 to 20 species of Lemurs, which are primates, have become extinct.
  • The compilation prepared by the International Union for Conservation of Nature lists about 37,400 species that are gravely endangered; and the list is ever growing.

Evolution of Right of Nature laws in Constitutions

  • Pieces of legislation are slowly evolving that fall in the category of the “Right of Nature laws”.
  • These seek to travel away from an anthropocentric basis of law to a biocentric one.
  • The Constitution of India is significantly silent on any explicitly stated, binding legal obligations we owe to our fellow species and to the environment that sustains us.
  • It is to the credit of the Indian judiciary that it interpreted the enduring principles of sustainable development and read them, inter alia, into the precepts of Article 21 of the Constitution.
  • In September 2008, Ecuador became the first country in the world to recognise “Rights of Nature” in its Constitution.
  • Bolivia has also joined the movement by establishing Rights of Nature laws too.
  • In November 2010, the city of Pittsburgh, Pennsylvania became the first major municipality in the United States to recognise the Rights of Nature.
  • These laws, like the Constitution of the countries that they are part of, are still works in progress.

Conclusion

In times like this the Supreme Court’s judgment in M.K. Ranjithsinh upholding the biocentric principles of coexistence is a shot in the arm for nature conservation. One does hope that the respective governments implement the judgment of the Court.

Important Judgements In News

Speedy trial a fundamental right: HC

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Article 21

Mains level : Paper 2- Right to speedy trial

The Bombay High Court has said that speedy trial is a fundamental right highlighting the issue of people languishing in prisons waiting for the trial to begin.

Background

  • The HC was hearing a petition seeking a judicial probe into the death of a tribal rights activist.
  • The petitioner told the court that he was not looking for the cause of the death, but an inquiry into what happened in jail that ultimately led to his death.

Right to speedy trial

  • It is a right under which it is asserted that a government prosecutor may not delay the trial of a criminal suspect arbitrarily and indefinitely.
  • Otherwise, the power to impose such delays would effectively allow prosecutors to send anyone to jail for an arbitrary length of time without trial.
  • Right to speedy trial is a concept gaining recognition and importance day by day.

Its constitutional status

  • The right to speedy trial is guaranteed under Article 21 of the Constitution of India.
  • In the case Kartar Singh v. State of Punjab (1961) it was declared that right to speedy trial is an essential part of fundamental right to life and liberty.
  • Article 21 declares that “no person shall be deprived of his life or personal liberty except according to the procedure laid by law.”

What causes delay?

  • Delay in disposition of cases due to huge pendency
  • Provision for adjournment
  • Vacation of the court
  • Investigative agencies generally delay

Why speedy trial is necessary?

The right to a speedy trial serves several important purposes:

  • First, requiring a speedy trial helps to ensure that a defendant does not have to spend an unreasonable amount of time in jail.
  • It also helps to respect and protect the mental health of the defendant by making sure that the defendant is not kept in suspense or anxiety over pending criminal charges for months or years at a time.
  • The right to a speedy trial protects a defendant’s ability to gather evidence for his or her own defense.
  • Over time, physical evidence can become harder and harder to locate, and witnesses may move, lose their memories of an event, or even pass away.

Alternative solutions

  • The Law Commission of India and the Malimath Committee recommended that the system of plea bargaining should be introduced in Indian criminal justice system.
  • Plea bargaining refers to a person charged with a criminal offence negotiating with the prosecution for a lesser punishment than what is provided in law by pleading guilty to a less serious offence.
  • This will facilitate the speedy disposal of criminal cases and reduces the burden on the courts at least for some minor trials and not serious criminal offences.

Important Judgements In News

Issues with the UAPA and role of judiciary

Note4Students

From UPSC perspective, the following things are important :

Prelims level : UAPA

Mains level : Paper 2- Misuse of UAPA and role of judiciary

Context

Father Stan Swamy passed away at a private hospital in Mumbai on July 5. Fr. Swamy was arrested by the National Investigation Agency (NIA), under the Unlawful Activities (Prevention) Act (UAPA).

How Supreme Court judgment leaves the scope for misuse of UAPA

  • The Supreme Court’s April 2019 decision in National Investigation Agency vs Zahoor Ahmad Shah Watali on the interpretation of the UAPA has affected all downstream decisions involving the statute.
  • This decision has created a new doctrine.
  • According to the decision, in considering bail applications under the UAPA, courts must presume every allegation made in the First Information Report to be correct.
  • Further, bail can now be obtained only if the accused produces material to contradict the prosecution.
  • In other words, the burden rests on the accused to disprove the allegations, which is virtually impossible in most cases.
  • The decision has essentially excluded the admissibility of evidence at the stage of bail.
  • By doing so, it has effectively excluded the Evidence Act itself, which arguably makes the decision unconstitutional.
  • Due to the Supreme Court judgment, High Courts have their hands tied, and must perforce refuse bail, as disproving the case is virtually impossible.
  • The Delhi High Court recently granted bail to three young activists arrested under UAPA in a conspiracy relating to the 2020 riots in Delhi.
  • The Supreme Court reportedly expressed surprise and gave the direction that the decision will “not to be treated as precedent by any court” to give similar reliefs.

Misuse of the UAPA

  • With such high barriers of proof, it is now impossible for an accused to obtain bail, and is in fact a convenient tool to put a person behind bars indefinitely.
  • This is being abused by the government, police and prosecution liberally: now, all dissenters are routinely implicated under charges of sedition or criminal conspiracy and under the UAPA.
  •  In multiple instances, evidence is untenable, sometimes even arguably planted, and generally weak overall.
  • But as a consequence of UAPA being applied, the accused cannot even get bail.

Way forward

  • If we want to prevent the misuse, the decision in the Watali case must be urgently reversed or diluted, otherwise, we run the risk of personal liberties being compromised very easily.

Conclusion

The provision of the act leaves the scope for misuse and therefore judiciary and legislature need to take steps to provide safeguards to prevent the misuse.

Important Judgements In News

Taking note of the Delhi High Court’s judgment on ‘defining terrorism’

Note4Students

From UPSC perspective, the following things are important :

Prelims level : UAPA

Mains level : Paper 2- Misuse of anti-terror laws

The recent Delhi High Court order granting bail to the student activists charged with the UAPA has brought into focus the issue of misuse of anti-terror laws by the policy. The article deals with this issue.

Misuse of anti-terror laws

  • In the period 2015-2019, as many as 7,840 persons were arrested under the UAPA (Unlawful Activities (Prevention) Act) 1967 but only 155 were convicted by the trial courts.
  • Under TADA, till 1994, though 67,000 people were detained, just 725 were convicted in spite of confessions made to police officers being made admissible.
  • In Kartar Singh (1994), the Supreme Court of India had observed that in many cases, the prosecution had unjustifiably invoked provisions of TADA.
  • It added that such an invocation of TADA was ‘nothing but the sheer misuse and abuse of the Act by the police’.

 The definition of terrorism

  • There is no universal definition of the term ‘terrorism’ either in India or at the international level.
  •  Accordingly, neither TADA nor UAPA has a definition of the crucial terms ‘terror’ and ‘terrorism’.
  • Section 15 of UAPA merely defines a terrorist act in extremely wide and vague words: ‘as any act with intent to threaten or likely to threaten the unity, integrity, security, or sovereignty of India or with intent to strike terror or likely to strike terror in the people….’.
  • In Yaqoob Abdul Razzak Memon (2013), the Supreme Court said that terrorist acts can range from threats to actual assassinations, kidnappings, airline hijacking, car bombs, explosions, mailing of dangerous materials, use of chemical, biological, nuclear weapons etc.
  • In Hitendra Vishnu Thakur (1994), the Supreme Court had defined terrorism as the ‘use of violence when its most important result is not merely the physical and mental damage of the victim but the prolonged psychological effect it produces … on the society as a whole’.
  • In Kartar Singh (1994), the Supreme Court held that a mere disturbance of public order that disturbs even the tempo of the life of community of any particular locality is not a terrorist act.
  • By this interpretation, the CAA protests in a few localities of Delhi cannot be termed as terrorist activity.
  • In the PUCL judgment (2003), the Supreme Court included within its meaning amongst other things the ‘razing of constitutional principles that we hold dear’, ‘tearing apart of the secular fabric’ and ‘promotion of prejudice and bigotry.
  • Accordingly, in the CAA protest case the Delhi High Court concluded that since the definition of a ‘terrorist act’ in UAPA is wide and somewhat vague, it cannot be casually applied to ordinary conventional crimes.
  • The Delhi High Court said that the act of the accused must reflect the essential character of terrorism.

Distinction between ‘law and order’, ‘public order’ and ‘security of state’

  • In Ram Manohar Lohia (1966), the Supreme Court explained the distinction between the above three terms.
  • Law and order represents the largest circle within which is the next circle representing ‘public order’, and the smallest circle represents the ‘security of state’.
  • Accordingly, an act may affect ‘law and order’ but not ‘public order’.
  • Similarly, an act may adversely affect ‘public order’ but not the ‘security of state.’
  • In most UAPA cases, the police have failed to understand these distinctions and unnecessarily clamped UAPA charges for simple violations of law and order.

Conclusion

Radicalisation generally succeeds only with those who have been subjected to real or perceived injustices. Let us remove injustice to combat terrorism. The creation of a truly just, egalitarian and non-oppressive society would be far more effective in combating terrorism.

Important Judgements In News

Significance of recent judgments in UAPA cases

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not much

Mains level : Paper 2- Issues with UAPA 1967

Recent judgements involving UAPA highlights the issues with certain provisions resulting in long years of undertrial imprisonment.

Context

In the past week, three seminal judgments involving the Unlawful Activities (Prevention) Act, 1967 (UAPA) have been delivered. While these judgments are welcome developments, they also remind us that thousands continue to languish under the UAPA regime.

Issues with the provisions of UAPA

  • Originally enacted in 1967, the UAPA was amended to be modelled as an anti-terror law in 2004 and 2008.
  • The period of detention is increased, enlarging the period of custody prior to which default bail cannot be granted.
  • Regular bail is subject to the satisfaction of the judge that no prima facie case exists.
  • Bail apart, the dilatory trial procedures ensure lengthy periods of pre-trial incarceration for the accused who are presumed guilty of heinous terror crimes.

NCRB data reveal long years of undertrial imprisonment

  • As per the National Crime Records Bureau (NCRB) data, a total of 4,231 FIRs were filed under various sections of the UAPA between 2016 and 2019.
  •  While the number of acquittals is low,  the real picture emerges in the pendency rates.
  • The pendency rate at the level of police investigation is very high, at an average of 83 per cent.
  • This denotes that chargesheets are filed by the police on an average in about 17 per cent of the total cases taken up for investigation.
  • The rate of pendency at the level of trial is at an average of 95.5 per cent.
  • This indicates that trials are completed every year in less than 5 per cent cases.

What did the courts say in various judgements?

  • The Supreme Court, in Union of India v K A Najeeb, held that despite restrictions on bail under the UAPA, constitutional courts can still grant bail on the grounds that the fundamental rights of the accused have been violated.
  • In Asif Iqbal Tanha v State of NCT of Delhi, the Delhi High Court took this reasoning a step further, holding that it would not be desirable for courts to wait till the accused’s rights to a speedy trial are entirely vitiated before they are set at liberty.
  • Courts should exercise foresight, and in cases with hundreds of prosecution witnesses where a trial will not see a conclusion for years to come, courts should apply the principles laid down in Najeeb.

Way forward

  •  Even within the constraints of the UAPA, much can be achieved if a responsive and independent judiciary follows the basic principles of natural justice and due process.
  • But access to the judiciary remains limited for most of the thousands incarcerated under this widely-used law.

Conclusion

The governments need to consider the issue of pendency of cases under UAPA and take steps to address the issues by either repealing certain provisions or ensuring speedy trials.

Important Judgements In News

Balancing right to be forgotten with fair criticism and accountability

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not much

Mains level : Paper 2- Right to be forgotten

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

Context

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

Right to be forgotten

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

Balancing between right of the public

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

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

Way forward

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

Conclusion

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

Important Judgements In News

Verdict on Maratha reservation ignores inequality within intermediate castes

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not much

Mains level : Paper 2- Reservation debate

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

About the verdict

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

Justification for 50% limit

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

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

Growing income difference

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

What explains growing income difference

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

Issues with the Maratha quota judgment

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

Conclusion

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

Important Judgements In News

Maratha quota judgment could lead to a federal crisis on reservation

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Article 342A (1)

Mains level : Paper 2- Interpretation of 102nd Amendment

The article highlights the issues with the Supreme Court’s interpretation of the 102nd amendment depriving the States of power to identify the SEBCs.

How 102nd Constitution Amendment was interpreted by the SC?

  • Supreme Court held that the 102nd Constitution Amendment has taken away the power of the states to identify and prepare a list of Socially and Economically Backward Classes (SEBCs).
  • The Supreme Court has interpreted the 102nd constitutional amendment to the effect that only the President can publish a list of backward classes in relation to each state and that only Parliament can make inclusions and exclusions in that list.
  • The Supreme Court has also directed the central government to notify the list of SEBCs for each state and Union Territory.
  • Until such lists are prepared, the court directed that the present state list would continue to be in operation.

Time-honoured authority of the States

  • The states have been exercising the power to identify the list of SEBCs from the beginning of the 20th century.
  • In states like the Madras Presidency, Mysore, Bombay, Travancore-Cochin, reservation and other benefits to OBCs were in practice since the 1920s.
  • The Constitution (First Amendment) Act, 1951 and the insertion of Article 15(4), empowered the states to make “special provision for the advancement of socially and educationally backward classes of citizens”.
  • In states like Bihar, 26 per cent reservation to OBCs in jobs and educational institutions were provided in 1978 on the recommendations of the Mungeri Lal Commission.
  • Similarly, in more than a dozen states, reservation in jobs and educational institutions were provided on recommendations of the respective state commissions.
  • Till 1992, there was no central list of SEBCs and no reservation in jobs and educational institutions in the central government.
  • In the Indra Sawhney judgment in 1992, the Supreme Court upheld 27 per cent reservation in central government jobs for SEBCs.
  • After Indra Sawhney, the Union government was authorised to prepare a central list for reservation of SEBCs in central government jobs and take other affirmative actions.
  • Acting on the directions of the Supreme Court in Indra Sawhney, the central and several state governments enacted laws for setting up commissions to ascertain and identify the backward class of citizens.
  • Therefore, after 1992, there was a “central list” for central government services and a “state list” that was prepared by state governments for state-specific jobs.

Intention of the Union government

  • The intention was not to change the status quo and to take away the power of the state governments to prepare and notify a separate state list of SEBCs.
  • Even during the discussion in the select committee of Parliament on the 102nd Constitution Amendment, the Ministry of Social Justice and Empowerment clarified that the proposed insertion of Article 342A (1) and (2) did not interfere with the power of state governments to identify SEBCs.
  • In the affidavit filed by the central government before the Supreme Court, it was submitted that the power of Parliament to identify SEBCs lay with reference to the central list and states would have a separate list of SEBCs for reservation.

Way forward

  • If the review petition fails to convince the Supreme Court, the central government would have to expeditiously bring a constitutional amendment to resolve this crisis.

Consider the question “Examine the issues with the Supreme Courts interpretation of the 102nd constitutional amendment regarding the States’ right to identify the socially and economically backward class.” 

Conclusion

The majority judgement by 3:2 has failed to appreciate that Article 15 empowers the states to identify socially and economically backward classes of citizens and that this power has not been changed by the 102nd Constitution Amendment.

Important Judgements In News

Divesting States of the power to determine backwardness hits federalism

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Article 342A

Mains level : Paper 2- Interpretation of 102nd Amendment and issues created by it

The article highlights the issues with the Supreme Court judgement in the Maratha reservation case.

Three findings from Maratha reservation judgement

  • Recently, the Supreme Court of India declared as unconstitutional a Maharashtra law which provided for reservation to the Maratha community.
  • Three primary findings emanated from the judgement-
  • 1) Maratha not backward class: The Court held that the Maratha community did not constitute a socially and educationally backward class.
  • 2) Breach of 50% limit: The bench said that the law was in breach of a rule previously set by the Court disallowing reservations made in excess of 50% of the total available positions.
  • 3) Power of the States: The Court held that State governments had no independent power to declare a group as a backward class.

Issues with the judgement

The latter two findings run against the values of equality and federalism, which the Court has long regarded as integral to India’s democracy.

1)  50% limit does not stem from the Constitution

  • Articles 16(4) and 15(4) which confer power on the government to make reservations do not contains 50% limitation.
  • Reservation as an exception: Originally, however, these clauses were seen by the Supreme Court as exceptions to a broad rule of formal equality envisioned by the Constitution.
  • To that end, the Court held that to allow reservation in excess of 50% would lead to an exception overriding a rule. 
  • Reservation as basic guarantee: Countering the reservations as an exception position, a seven-judge Bench, in State of Kerala vs N.M. Thomas (1975), held that a programme of reservation was inherent in the Constitution’s basic guarantee of equal treatment.
  • This judgment held that affirmative action by the state was compelled by an objective of attaining substantive equality.
  • With this judgement the rule requiring that reservations stay under 50% ought to have been deemed incongruous.
  • But when the Court sat as a nine-judge Bench in Indra Sawhney vs Union of India (1992) it sustained the 50% limit.
  • The majority on the Bench ruled, on the one hand, that N.M. Thomas was correct in seeing reservations as embedded in a constitutional vision of substantive equality.
  • On the other hand, the bench accepted that reservation made in excess of 50%, barring exceptional circumstances, was harmful to that very vision. 

2) Interpretation of 102nd Amendment curtails the powers of the State governments to declare groups as backward

  • After Indra Sawhney judgement, the determination of backward classes was made by the National Commission for the Backward Classes, at the level of the Centre, and by regional commissions at the level of the State governments.
  • This division in power, gave States autonomy to classify groups as backward.
  • In contrast, the power to prepare lists of Scheduled Castes and Scheduled Tribes, vested solely with the Union government.
  • The 102nd Amendment (2018), introduced Article 342A.
  • Article 342A stipulated that the President of India may, after consultation with the State government, notify groups of persons within such a State who are deemed to be socially and educationally backward.
  • Any such “Central List”, the clause clarified, could only be altered by Parliament.
  • Article 366(26C) was also added, and “socially and educationally backward classes” was defined as “such backward classes as are so deemed under Article 342A for the purposes of this Constitution”.
  • In interpreting these changes, a majority in the Maratha reservation judgement concluded that the power for determination of other backward classes rests solely with the Centre.

How this interpretation goes against the federalism

  • This interpretation of 102nd Amendment altogether dispossess States from exercising a time-honoured authority.
  • But yet the amendment, in the Court’s belief, did not violate the Constitution’s basic structure.
  • This was because, according to the majority, the alterations neither took away “the very essence of federalism” nor denuded the States of their effective power to legislate.
  • But divesting states of power this critical, to classify groups as backward, entitling many communities to protection under Articles 15(4) and 16(4) is offensive to the “essence” of federalism.
  • The changes, as interpreted by the Court, directly impede the ability of States to secure just social order.

Consider the question “What are the implications for the States of the interpretation of the 102nd Amendment by the Supreme Court in the Maratha reservation case?” 

Conclusion

It is imperative that Parliament amend the Constitution and grants to States an express power to determine backwardness. Any other result will offend the delicate balance at the heart of Indian federalism.

Important Judgements In News

Reading Maratha quota verdict

Note4Students

From UPSC perspective, the following things are important :

Prelims level : 102nd Amendment

Mains level : Paper 2- Maratha quota judgement

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

Issue 1:  Whether Indra Sawhney judgment needs to be revisited

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

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

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

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

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

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BACK2BASICS

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

Important Judgements In News

Supreme Court struck down law for reservation to Maratha community

Note4Students

From UPSC perspective, the following things are important :

Prelims level : 102nd Constitution Amendment

Mains level : Paper 2- The Supreme Court strikes down law granting reservation to Maratha community

About the judgment

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

What the Supreme Court said

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

SC upheld 102nd Constitution amendment

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

————————————//————————————————-

BACK2BASICS

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

 

Important Judgements In News

Article 21 and the right of non-refoulement

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Article 21

Mains level : Paper 2- Principle of non-refoulement

Significance of Manipur High Court judgement

  • The High Court of Manipur on Monday allowed seven Myanmar nationals, to travel to New Delhi to seek protection from the United Nations High Commissioner for Refugees (UNHCR).
  • “The far-reaching and myriad protection afforded by Article 21 of our Constitution, as interpreted and adumbrated by our Supreme Court time and again, would indubitably encompass the right of non-refoulement,” the court said.

What is the principle of non-refoulemennt

  • Non-refoulement is the principle under international law that a person fleeing from persecution from his own country should not be forced to return.
  • Though India is not a party to the UN Refugee Conventions, the court observed that the country is a party to the Universal Declaration of Human Rights of 1948 and the International Covenant on Civil and Political Rights of 1966.

Important Judgements In News

Enforcing COVID-19 rules is State’s responsibility: ECI

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Disaster Management Act

Mains level : Paper 2- Powers of Election Commission

What prompted ECI to give clarification

  • In its oral observations, the Madras High Court blamed the ECI for the second wave of COVID-19 in Tamil Nadu and Puducherry.
  • The Madras High Court said the ECI was unable to ensure political parties followed the rules while campaigning for the Assembly elections.

What the ECI said

  • The ECI said that the enforcement under the 2005 Act has to be ensured by the SDMA [State Disaster Management Authority] concerned and notified authorities under the Act.
  • The Commission has always emphasised that the State authorities shall ensure COVID-19 compliance in the matter of public gatherings, etc. for campaign purposes.
  • At no occasion, the Commission takes over the task of SDMA for enforcement of COVID-19 instructions.

Important Judgements In News

POCSO doesn’t brook dilution

Note4Students

From UPSC perspective, the following things are important :

Prelims level : UN Convention on the Rights of the Child

Mains level : Paper 2- Issues with the Bombay High Courts Judgement in POCSO Act

The recent Bombay High Court judgement has raised controversy for its interpretation of certain Section of the POCSO Act. The article deals with this issue.

Object of the POCSO Act

  • The Protection of Children from Sexual Offences (POCSO) Act was enacted in 2012 especially to protect children (aged less than 18) from sexual assault.
  • The Statement of Objects and Reasons of the Act admitted that a number of sexual offences against children were neither specifically provided for in extant laws nor adequately penalised.
  • The UN Convention on the Rights of the Child, ratified by India in 1992, also requires sexual exploitation and sexual abuse to be addressed as heinous crimes.

Issues with Bombay High Court’s Judgement

  • The Bench acquitted a man under the POCSO Act found guilty of assault on the grounds that he groped his victim over her clothes and there was no skin-to-skin contact between them.
  • As this judgment was likely to set a dangerous precedent, the apex court stayed the acquittal.
  • Section 7 of the POCSO Act, along with other things, says that whoever with sexual intent touches the breast of the child is said to commit sexual assault.
  • Whereas Section 8 of the Act provides minimum imprisonment of three years for sexual assault.
  • Section 354 of the Indian Penal Code (IPC) lays down a minimum of one year imprisonment for outraging the modesty of a woman.

Difference between IPC and POCSO

  • The difference between POCSO and IPC, as far as the offence of sexual assault is concerned, is two-fold.
  • One, the definition of ‘assault or criminal force to woman with intent to outrage her modesty’ given in the IPC is generic.
  • Whereas in POCSO, the acts of sexual assault are explicitly mentioned such as touching various private parts.
  • ‘Sexual assault’ in POCSO specifically excludes rape which requires penetration; otherwise the scope of ‘sexual assault’ under POCSO and ‘outraging modesty of a woman’ under the IPC is the same.
  • Two, whereas the IPC provides punishment for the offence irrespective of any age of the victim, POCSO is specific for the protection of children.
  • Higher punishment is provided under POCSO not because more serious allegations of sexual assault are required but because the legislature wanted punishment to be more deterrent if the victims are children.

Conclusion

In the absence of any specific provision in the POCSO Act which requires skin-to-skin touch as a mandatory element of an offence, any interpretation which dilutes protection to children must be declared ultra vires.

Important Judgements In News

POCSO Act

Note4Students

From UPSC perspective, the following things are important :

Prelims level : POCSO Act

Mains level : Paper 2- Interpretation of Section 7 of POCSO Act

In a recent judgement, Section 7 of POCSO Act was interpreted in a controversial way by the Nagpur Bench of the Bombay High Court. 

Issue of the definition of sexual assault under POCSO Act

  • Recently, the Nagpur Bench of the Bombay High Court held that skin-to-skin contact is essential to constitute the offence defined under Section 7 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).
  • Section 354 of the Indian Penal Code, 1860, which deals with outraging modesty of women and which provides for a lesser sentence, was held to be applicable in such cases.
  • This ruling raises several concerns.
  • The National Commission for Protection of Child Rights had asked the Maharashtra government to appeal this decision in the Supreme Court.
  • The Supreme Court has currently stayed the acquittal of the accused under this judgement.

Concerns with the judgement

  • The Court held that the stringent nature of punishment provided for the offence required stricter proof and serious allegations.
  • The court said the punishment should be proportionate to the seriousness of the crime.
  • Nevertheless, while adjudging the seriousness of the offence the court has not given consideration to the fact that the victim, a minor, is entitled to greater protection.
  • The major concern is that the interpretation of the court seems to defeat the purpose of the POCSO Act.
  • Section 7 of POCSO defines sexual assault as “Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.”
  •  The court has concluded that the touching of the breast without skin-to-skin contact is not similar to the abovementioned acts and, therefore, does not fall within this definition.
  • The court seems to have followed a rather pedantic approach to reach this conclusion.
  • The fact that the trauma of the child whose breasts were groped through a cloth could be of the same nature and severity as direct touching of the breast is not discussed.
  • And if the trauma is the same, the mere existence of cloth should not affect the applicability of the POCSO Act.

Legislative history and object of POCSO Act

POCSO Act

  • The POCSO Act was enacted with the specific intention of protecting children from sexual assault and sexual harassment.
  • It took into consideration the standards prescribed by the Convention on the Rights of the Child adopted by the General Assembly of the United Nations to which the Indian government acceded to on December 11, 1992.
  • The Act acknowledges the special vulnerability of children and that special protection, above and beyond that provided in the IPC, is required when the victim is a child.

Conclusion

If such an interpretation is followed, there is a threat that the POCSO Act in itself might become redundant as a wide range of sexually violative activities would be excluded from its ambit due to lack of skin-to-skin contact.

Important Judgements In News

Defending liberty against selective prosecution

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Article 14 and selection of prosecution

Mains level : Paper 2- Selective prosecution and its impact on personal liberty

The article examines the issue of selective prosecution and Indian judiciary’s approach toward it. It also highlights the importance of recent Goswami case.

Selective prosecution: Form of abuse of state power

  • Recently the case involving bail application of a T.V. anchor brought to the fore issue of selective prosecution.
  • The illegal selection of accused based on grounds prohibited by the Constitution is called “selective prosecution”.
  • In case of selective prosecution, the police and enforcement agencies selectively target political and ideological opponents of the ruling dispensation to interrogate, humiliate, harass, arrest, torture and imprison.
  • It is one of the oldest, most pernicious and widespread forms of abuse of state power.

How it is illegal: Two independent legal issues

1) Exercise of prosecutorial discretion

  • The applicable legal standard is that while the police and prosecutors in common law jurisdictions enjoy vast discretion in deciding who they may pursue and who they may spare.
  • However, the choice of accused must not be based on grounds that violate Constitutional rights, including the Article 14 right to equal protection of the law.
  • The accused should not be selected, either explicitly or covertly, on constitutionally prohibited grounds.

2) Merit of the case filed

  • When the choice of accused runs contrary to the Constitution, the entire criminal proceeding is vitiated, irrespective of the determination of the second issue, viz., whether the accused are convicted or acquitted on the charges brought against them.
  • Once the proceedings fail under the first issue, there is no legal basis to proceed to the second issue., i.e., trial on the merits of the case.
  • The theory is that the Constitution cannot be violated to uphold the law — such an approach would spell doom for the Constitution.
  • The selective prosecution claim must be adjudicated as a threshold issue, with the prosecution being quashed at the outset of the criminal case if the claim is justified.
  • In the context of this discussion, the constitutionally prohibited ground we are confronting in India is the political or ideological affiliation of the accused.
  • It is an arbitrary ground that violates the Article 14 guarantee of equal protection of the law.

Approach of judiciary

  • Our courts have not recognised selective prosecution as an independent claim.
  • This is because courts assume that lawfulness of prosecution can only be taken up after the trial, if the accused is acquitted.
  • The 2018 Report of the Law Commission on ‘Wrongful Prosecution (Miscarriage of Justice): Legal Remedies’ discusses remedies for wrongful prosecution available only if and after the accused is acquitted.
  • Remedy after acquittal comes far too late, well after a brutal and long drawn out criminal justice process that upends the lives of the victims.
  • Also, the right against selective prosecution cannot be extinguished by conviction.
  • Separate from post-acquittal actions for wrongful prosecution (which will still be available), the claim of selective prosecution is a threshold issue that is required to be adjudicated at the outset of criminal proceedings even during the investigation stage irrespective of the merit of the charges.

Importance of Goswami case

  • The case provides a much needed and long awaited legal opening to strengthen the recognition and use of the selective prosecution claim in India to counter politically coloured prosecution.
  • The judgment says, “Courts should be alive to the needof ensuring that the law does not become a ruse for targeted harassment ”.
  • The Goswami judgment also quotes the 2018 Supreme Court holding in Romila Thapar v. Union of India that, “[T]he basic entitlement of every citizen who is faced with allegations of criminal wrongdoing is that the investigative process should be fair. This is an integral component of the guarantee against arbitrariness under Article 14 and of the right to life and personal liberty under Article 21.”

Consider the question “How selective prosecution could threten the liberty of person? How Indian judiciary approaches the issue of selective prosecution and what are the issue with the approach adopted by the judiciary?”

Conclusion

To strengthen the protection of civil liberty, equality and democracy, it is time our courts — at all levels — recognise selective prosecution as a threshold constitutional defence against the abuse of police and prosecutorial power.

Important Judgements In News

Issues with suspension of the Farm laws

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Functions of the the judiciary

Mains level : Paper 2- Issues with the Supreme Court order suspending the implementation of the Farm acts

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.

Important Judgements In News

Deconstructing the opposition between merit and reservation

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Article 15 and 16

Mains level : Paper 2- Reservation and issues related to it

The Supreme Court in recent judgement in Saurav Yadav Vs. State of Uttar Pradesh made it clear that reservation and merit are not mutually exclusive. The article deals with this issue.

Vertical Vs. Horizontal reservation

  • Articles 15(4) and 16(4) enable vertical reservation based on slotting the population in terms of SC, ST, OBC, and General Category.
  • But there is also a class of reservations that cuts across all these categories and are referred to as horizontal reservation.
  • Horizontal reservation includes a reservation for women differently-abled persons, freedom fighters, army veterans, etc.

Specifying the relationship between horizontal and vertical reservation

  • In cases like Anil Kumar Gupta v/s State of Uttar Pradesh, the Court had made it clear that horizontal reservation ought to be generally understood in compartmentalized terms: recognition of inequalities within each vertical category.
  •  In a particular case, candidates were excluded from competing from the General Category positions even though they have scored more, simply because they were OBC.
  • However, some state governments are trying to use the open category seats as a quota for general category candidates.
  • The High Courts had been giving contrary directions: Uttar Pradesh and Madhya Pradesh excluded reserved category women for consideration in the general category.
  • Rajasthan and Gujarat, amongst others, included them.
  • The Supreme Court, in a three-judge bench, ruled against the UP government and clarified the relationship between horizontal and vertical reservations.

Analyzing the judgment

  • The judgments reiterate the principle that groups eligible for horizontal reservation cannot be excluded from the open category seats because they are from other vertically reserved category communities, like SC or OBC.
  • Women from all categories are eligible to be considered for the open category.
  • It also made it clear that the open category seats are not meant to be a quota for the non-reserved categories.

Merit Vs. Reservation

  • The Court has often contrasted merit with reservation.
  • But this has always been a mistaken view of the relationship between merit and reservation.
  • In principle, reservation is an instrument for identifying merit in individuals from historically marginalized communities.
  • The Court is saying that by excluding the adjustment of OBC women who had scored higher against general category seats, the UP government was ironically using the General Category to exclude meritorious candidates.
  • When the Court is using the term merit, it is simply pointing out that certain selection criteria are being used.
  • Such selection criteria are also within particular reserved categories: which is also a function of selection criteria, in this case, marks.
  • From this point of view, even those who advocate reservation do not fully give up on the meritocratic criteria of selection — they just apply it differentially.
  • What the Court was concerned with is fairness in the application of the selection criteria within the overall framework of reservation.

Conclusion

What the court is trying to say something more interesting: Members of the reserved category must be fully considered as falling under the rubric of being potentially meritorious.

Important Judgements In News

Plea in SC against 1975-77 Emergency

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Art. 352

Mains level : National Emergency

The Supreme Court agreed to look into whether it should examine the constitutionality of the proclamation of National Emergency in 1975 by the then Indira Gandhi-led government.

Q.Discuss how the imposition of National Emergency under Art. 352 of the Constitution seek to change India’s federal character.

What is the issue?

  • A 94-year old lady is seeking compensation for the loss she suffered due to the proclamation of emergency.
  • Petitioner has claimed that a number of her immovable properties were illegally occupied for their activities during the Emergency.
  • A bench of the Supreme Court has agreed to examine if the court could examine whether the proclamation of Emergency was constitutional.
  • The court was hesitant to take up the issue as 45 years have passed since the declaration of Emergency and examining such an issue on merits now could be a cumbersome process.

What is a National Emergency?

  • A national emergency can be declared on the basis of “external aggression or war” and “internal disturbance” in the whole of India or a part of its territory under Article 352.
  • Such an emergency was declared in India in 1962 war (China war), 1971 war (Pakistan war), and 1975 internal disturbance (declared by Indira Gandhi).
  • But after the 44th amendment act 1978 added the provision for Internal Emergency.
  • The President can declare such an emergency only on the basis of a written request by the Cabinet headed by the Prime Minister.

The 1975 Emergency

  • On June 12, 1975, the Allahabad High Court had declared the election of then PM Indira Gandhi as null and void.
  • Following the court decision, Gandhi moved the Supreme Court and stayed the high court’s decision allowing her to remain as PM while limiting her right to vote in the parliament till the appeal was decided.
  • Following an opposition rally for the resignation of Indira Gandhi, she made a decision to impose a national Emergency which would give the central government sweeping powers.
  • On June 25, 1975, then President Fakhruddin Ali Ahmed relying on Article 352 of the Constitution declared a national emergency in the country.

What happened after the proclamation of Emergency?

  • From media censorship, suspension of civil liberties and attempts to fundamentally change the Constitution to suit the government, the Emergency is remembered as a dark period in India’s democracy.
  • The 38th- 42nd Constitutional amendments were passed during the Emergency which led to a tussle between the executive and the judiciary that gave the Parliament a power to amend the Constitution.
  • Many of these changes were either overturned by courts or were reversed in the 44th Constitutional amendment in 1978 which was brought in after the Janata government was voted to power.

Series of Amendments

  • Through the 38th Constitutional Amendment, Gandhi sought to expand the power of the President and barred judicial review of the proclamation of Emergency.
  • The 39th amendment was intended to nullify the effect of the Allahabad High Court ruling that declared Gandhi’s election as null and void.
  • The amendment placed any dispute to the election to the office of the Prime Minister, President beyond the scope of judicial review.
  • The 40th amendment placed crucial land reforms in the Ninth schedule, beyond the scope of judicial review.
  • The 41st Amendment said no criminal proceedings “whatsoever” could lie against a President, Prime Minister, or Governor for acts before or during their terms of office.
  • In the 42nd amendment, the Parliament expanded its powers to amend the Constitution, even its ‘basic structure’ and curtail any fundamental rights.

The 44th Amendment

  • Through the 43rd and 44th amendments, many of the amendments made during the Emergency were withdrawn.
  • Article 352- the provisions relating to Emergency itself was strengthened to prevent misuse by the executive.

Important Judgements In News

Personal choices, the Constitution’s endurance

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Scope of Article 25

Mains level : Paper 2- Freedom of conscience under Article 25

The order delivered by the Allahabad High Court underlines the most cherished values of our Constitution. The order examines the scope of individual choice and personal liberty on the touchstone of constitutional values.

Background

  • The Allahabad High Court declared last month that religious conversions, even when made solely for the purposes of marriage, constituted a valid exercise of a person’s liberties.
  • The petitioners had approached the High Court seeking orders to quash a First Information Report (FIR) that was lodged against them.
  • The petitioners claimed that they were both adults competent to contract a marriage, and had, in fact, wedded in August 2019, as per Muslim rites and ceremonies, only after the girl had converted to Islam.
  • The State argued that petitioner’s partnership had no sanctity in the law, because a conversion with a singular aim of getting married was illegitimate.
  • In making this argument, the government relied on a pair of judgments of the Allahabad High Court, in particular on the judgment in Noor Jahan v. State of U.P. (2014).
  • There, the High Court had held that a conversion by an individual to Islam was valid only when it was predicated on a “change of heart” and on an “honest conviction” in the tenets of the newly adopted religion.
  • Additionally, the High Court had ruled that the burden to prove the validity of a conversion was on the party professing the act.

Major takeaways from the High Court order

  • The Allahabad High Courtruled that the freedom to live with a person of one’s choice is intrinsic to the fundamental right to life and personal liberty.
  • It order recognises that a person’s freedom is not conditional on the caste, creed or religion that her partner might claim to profess.
  • And also that every person had an equal dominion over their own senses of conscience.
  • The High Court’s order makes it clear that it is neither the province of the state nor any other individual to interfere with a person’s choice of partner or faith.
  • By invoking the Supreme Court’s judgment in Puttaswamy, the High Court held that an individual’s ability to control vital aspects of her life inheres in her right to privacy.
  • Term privacy includes the preservation of decisional autonomy, on matters, among other things, of “personal intimacies, the sanctity of family life, marriage, procreation, the home, and sexual orientation”.
  •  It Court that the judgment in Noor Jahan was incorrectly delivered.
  • Marriage, the High Court said, is a matter of choice, and every adult woman has a fundamental right to choose her own partner. 

Freedom of conscience under Article 25

  • Article 25 of the Constitution expressly protects the choices that individuals make.
  • In addition to the right freely to profess, practise and propagate religion, it guarantees to every person the freedom of conscience.
  • The idea of protecting one’s freedom of conscience goes beyond mere considerations of religious faith.

Conclusion

When we fail to acknowledge and respect the most intimate and personal choices that people make — choices of faith and belief, choices of partners — we undermine the most basic principles of dignity. Our Constitution’s endurance depends on our ability to respect these decisions, to grant to every person an equal freedom of conscience.

Important Judgements In News

Striking a fine balance in the review of RBI’s policies

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not much

Mains level : Paper 3-Challenges in judicial review of the central bank actions

Judicil review of central bank action could impact several stakeholders at the same time. This type of problems could be termed as polycentric problems. The article disusses the issues with judicial reviews in such cases.

Judicial review of central bank actions

  • The Supreme Court is currently considering if the RBI should extend the COVID-19 induced loan moratorium and waive the accrued interest on interest.
  • Earlier this year, the court struck down an RBI circular imposing a ban on virtual currencies.
  • Last year, it quashed RBI circular that mandated banks and financial institutions to initiate insolvency proceedings against defaulting companies with significant loan exposures.

Unsuitable for adjudication

  • Legal scholars have long recognised that certain disputes are inherently unsuitable for adjudicative disposition.
  • The most influential arguments on this subject were advanced by the American legal philosopher Lon Luvois Fuller.
  • Fuller compared polycentricity with a spider’s web — a pull on one strand distributes the tension throughout the web in a complicated pattern.
  • Applied to adjudication, polycentric problems normally involve many affected parties and a somewhat fluid state of affairs.
  • The range of those affected by the dispute cannot easily be foreseen and their participation in the decision-making process by reasoned arguments and proofs cannot possibly be organised.
  • As a result, the adjudicator is inadequately informed and cannot determine the complex repercussions of a proposed solution.

Complexity of functioning of bank

  • Disputes involving certain central bank functions are highly polycentric and are unsuitable for resolution through judicial review.
  • For example, consider monetary policy function.
  • This involves varying short-term interest rate to control supply and demand of money in the economy, which, in turn, influences economic activity and inflation.
  • If judicial review supplants the central bank’s decision on this rate with the decision of the adjudicator, the repercussions would affect every single borrower and saver.
  • Yet, the adjudicator can neither offer a meaningful hearing to all those affected parties, nor can he effectively process all the necessary information to determine an optimal solution.
  • Evidently, disputes about monetary policy rate are highly polycentric and are better resolved outside the court.\

Which actions of banks should involve judicial review

  • Not all disputes involving central bank functions are polycentric.
  • For example, a dispute regarding imposition of a pecuniary penalty by a central bank could be resolved through judicial review.
  • If the adjudicator finds the central bank to be correct, it need not interfere.
  • If the adjudicator finds the central bank to be incorrect, it could modify or overturn the central bank’s decision.
  • Clearly, judicial review could be effectively used to resolve bipolar disputes involving the central bank if they exhibit low polycentricity.

Need for striking the balance

  • Monetary policy and pecuniary penalties are at two extreme ends of the polycentricity spectrum.
  • There are, however, various central bank functions of intermediate polycentricity.
  • Consider prudential regulations such as bank capital regulation.
  • If judicial review supplants provisions of such regulations with the decision of the adjudicator, it may appear to directly impact only the banks and nobody else.
  • But in reality, it could impact bank lending, which, in turn, would have complex repercussions on the entire credit market and risk-taking abilities across the economy.
  • Effective hearing of all affected parties, directly or indirectly, would, therefore, be impossible.
  • Consequently, some bipolar disputes involving the central bank may be too polycentric for meaningful resolution through judicial review.
  • Judicial review could be purely procedural — the adjudicator could merely review whether the central bank’s action is within its legal mandate or not.
  • The adjudicator could at most nullify a procedurally invalid central bank action, but may never supplant the decision of the central bank with his own.

Consider the question “Judicial review of the central bank actions could be different from the other judicial reviews. Examine the issues in such reviews by the judiciary.”

Conclusion

Adopting polycentricity test within constitutional jurisprudence would help sustain the legitimacy of judicial review while retaining the accountability of technocratic institutions such as the central bank.

Important Judgements In News

Hate speech in India

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not much

Mains level : Paper 2- Free speech vs hate speech

Context

  • Sudarshan TV case will have several implication for the regulation of free speech.
  • In principle, Indian law allows prior restraint on broadcasting. This prior restraint should be used sparingly and must meet a high constitutional bar.
  • Indian law also allows regulation for hate speech.

Maintaining the equilibrium

  • The government feared that if it did not have the power to regulate speech, it will threaten the stability of society.
  • The hate and violence got the state to betray its own liberal commitments
  • Liberals never acquired the confidence of people to let go of  state regulation in the name of defending the republic.
  • The spread of hate speech and its political consequences are now infinitely greater.
  • The situation, where communication mediums are used to target communities, are not outside the realm of possibility.
  •  It is for this reason we still have so many restraints on speech.

Challenges in regulation of speech

  • Almost every regulation of speech, no matter how well intentioned, increases the power of the state.
  • But now, in the current context, empowering the state is a frightening prospect as well.
  • The issue is fundamentally political and we should not pretend that fine legal distinctions will solve the issue.
  • An over-reliance on legal instruments to solve fundamentally social and political problems often backfires.

3 lessons to learn

  • 1) The more the state regulates, the more it politicises the regulation of speech, and ultimately legitimate dissent will be the victim.
  • 2) There is a whole bunch of laws and regulation already on the books for regulation, these have been ineffective because of institutional dysfunction.
  • 3) Social media operates on a set of monetising incentives. But broadcast media is also based on political economy.
  • The granting of licences has always been a political affair; the pricing structures set by the TRAI have perverse consequences for quality and competition.
  • Our current media landscape is neither a market nor a state. The more the underlying political economy of media is broken, the less likely it is that free speech will stand a chance.

Way forward

  • Not post facto content regulation, but a market structure that can help provide more checks and balances.
  • Not let bad media drive out good.
  • The Court suo motu setting up a regulatory framework does not inspire confidence. It is not its jurisdiction to begin with.
  •  This is something for Parliament to think about.

Conclusion

The government must walk the tight rope of regulation and safeguarding the rights of all.

Important Judgements In News

Understanding the significance of Kesavananda Bharati case

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Basic Structure doctrine

Mains level : Paper 2- Basic Structure and essential feature doctrine

The article revisits the impact and significance of the case for the democracy in India.

Understanding the Basic Structure doctrine

  • Basic Structure and essential features doctrine was expounded in the Kesavananda Bharati case.
  • In the case, the validity of the 29th amendment which immunised, in the Ninth Schedule Kerala’s takeover of the religious mutt’s property was challenged.
  • Basic structure is the power of judicial review and essential features are what the Court identifies as such in the exercise of that power.
  • Justice Bhagwati remarkably enunciated as an essential feature the “harmony” between fundamental rights and directive principles.
  • The crucial message though is that the apex court has, in the rarest of rare cases, the constituent power to pronounce a constitutional amendment invalid.

Limits on the powers of Supreme Court

  • The Court is bound by the “golden triangle” of rights created by Articles 14, 19, and 21 of the Constitution.
  • Court must derive the “spirit” of the Constitution by reference to the provisions of the Constitution.
  • Since 1973, the evidence shows the Apex Court has shown utmost democratic responsibility and rectitude in interpreting the doctrine of BSEF.

Consider the question asked by the UPSC in 2019 “Parliament’s power to amend the Constitution is limited power and it cannot be enlarged into absolute power”. In light of this statement explain whether parliament under article 368 of the constitution can destroy the Basic Structure of the Constitution by expanding its amending power? “

Conclusion

The ultimate message of BSEF doctrine is not merely to set limits to the power of the managers of people, but to make little by little the tasks of emancipation less onerous.

Important Judgements In News

Undoing the right to housing

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Right to livelihood and related Articles

Mains level : Paper 2- Right of livelihood

The article analyses the implications of recent Supreme Court order regarding the removal of encroachment along the railway line. 

Context

  •  In short order, the Supreme Court of India on August 31 ordered the removal of about 48,000 slum dwellings situated along the railway tracks in Delhi.
  • The order raises several legal questions, which are discussed below.

1) Violation of the principle of natural justice

  • The order violates principles of natural justice and due process because it was delivered without hearing the affected party, the jhuggi dwellers.
  • The order was passed in the long-running case on the piling up of garbage along railway tracks.
  • However, neither this case nor the report concerns itself with the legality of informal settlements.
  • Still, the Court made an unconvincing connection between the piling of garbage and the presence of slums.

2) Ignoring the right to livelihood

  • In this order, the Court ignored its long-standing jurisprudence on the right to livelihood.
  • In the landmark decision concerning pavement-dwellers, a five-judge Bench of the Supreme Court in Olga Tellis & Ors vs. Bombay Municipal Corporation & Ors. (1985) held that the right to life also includes the “right to livelihood”.
  • Further, in Chameli Singh vs. the State Of U.P. (1995), the Supreme Court recognised the “right to shelter” as a component of the right to life under Article 21 and freedom of movement under Article 19(1)(e).

3) Failure to consider policies and case laws

  •  High Court of Delhi has held that prior to any eviction, a survey must be conducted.
  • The procedure laid down in this judgment formed the basis for the Delhi Slum and JJ Rehabilitation and Relocation Policy, 2015.
  • In Ajay Maken & Ors. vs Union Of India & Ors. (2019), the Delhi High Court invoked the idea of the “Right to the City” to uphold the housing rights of slum dwellers.
  • This case led to the framing of a Draft Protocol for the 2015 Policy on how meaningful engagement with residents should be conducted.

Conclusion

The Courts need to strike the balance between the rights of the slum dweller and those affected by the encroachment.

Important Judgements In News

Right to possession to women and issues

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not much

Mains level : Paper 2- Women's right to parents' property

The Supreme Court in its latest judgement clarified that women’s right to their parents’ property is their birthright and clarified the air of confusion surrounding the issue due to previous judgements.

What was said in the judgement

  • The judgement highlighted the patriarchal practices of the Mitakshra School of Hindu law — the guiding force of the Hindu Succession Act, 1956.
  • It settled the confusion created by two of its own antagonistic judgments.
  • In Prakash vs Phulawati (2016), it had ruled that the amendments to the Hindu Succession Act (2005) applied only to women whose parents were alive on September 9, 2005, the date of the notification of the act.
  • In Danamma @ Suman Surpur vs Amar (2018) cases, it inferred that coparcenary rights were birthrights.
  • The Supreme Court has now set forth the idea that coparcenary rights are birthrights free from limitations imposed by the dates of any legal notifications.

Issues that need to be addressed

1) Stree dhan issue

  • Section 14 (1) of the Hindu Succession Act 1956 provides that women can acquire property as a full owner, and it can be carried over or retained post marriage as stree dhan.
  • There are cases where the movable property may have been given to a daughter by her father as an intentionally undeclared and informal settlement between his descendants.
  • At the same time, it is quite true that stree dhan over time gave way to the unethical and illegal practices of dowry.
  • But the issue of stree dhan needs to be explained further in the light of this judgment.
  • The ruling might impact dowry transactions that continue despite stringent anti-dowry laws.

2) Issues in claiming the right to property

  • In the rural context, where most of the property is in the form of agricultural land claiming the property may not be easy.
  • With patriarchy, it is doubtful if male heirs will share property-related documents, information.

3) Challenge of societal change

  • On occasion, the law and courts may turn out to be progressive.
  • However, we can not expect society to readily accede to progressive reforms.
  • The challenge for economically dependent women in far-flung rural areas who are denied literacy, dignity and, sometimes, even a name and identity, in securing their rights is immense.
  • In parts of Bihar, there are areas where women are still addressed by their village names or more commonly as someone’s wife.

Conclusion

Women are asserting their rights, both in conjugal and property matters. However, there are significant cultural, religious, educational barriers and caste and class inequalities that require a massive overhauling of social attitudes to overcome.


Back2Basics: Mitakshra School of Hindu law

  • In the Mitakshara School, the allocation of parental property is based on the rule of possession by birth.
  • Moreover, a man can leave his property in his will.
  • The joint family property goes to the group known as coparceners.
  • Ther are the people who belong to the next three generations.
  • Hence, the joint family property by partition can be, at any time, converted into a separate property.
  • Therefore in Mitakshara School, sons have an exclusive right by birth in the joint family property.

Coparcener

  • Coparcenary is a term often used in matters related to the Hindu succession law, and coparcener is a term used for a person assumes a legal right in his ancestral property by birth.

 

 

Important Judgements In News

Issue of contempt of court

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Articles related to contempt of court

Mains level : Paper 2-Contempt of court

The concept of contempt of court has been in the news recently. This article analyses the issue and draws on the approach adopted by the British judiciary.

Issues with the concept of contempt

  • The concept of contempt is a centuries-old British law abolished in 2013.
  • At the time the British Law Commission said that one of the intentions for contempt of court was to hide judicial corruption.
  • The concept, therefore, clashed with the need for transparency but also freedom of speech.

Let’s look into some comment’s from judges

  • In1968, a British judge, had this to say of the Law of Contempt “We will not use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. “
  • In a 2008 lecture by Justice Markandey Katju noted that “The test to determine whether an act amounts to contempt of court or not is this: Does it make the functioning of judges impossible or extremely difficult? If it does not, then it does not amount to contempt of court even if it’s harsh criticism”.

Way forward

  • Whilst justice is important, judges must not take themselves too seriously.
  • Even if their amour propre is offended, it does not mean the institution has been questioned or justice brought into disrepute.
  • Judges deliver justice, they do not embody it.
  • They should never forget their Court is supreme because it’s final not because it’s infallible.
  • When they lapse they can be criticised, but of course, politely and fairly.

Conclusion

Indian Supreme Court hopefully pay attention to this aspect while delivering the judgement on the contempt cases.

Important Judgements In News

The issue of powers of Speaker and Court

Note4Students

From UPSC perspective, the following things are important :

Prelims level : 10th Schedule

Mains level : Paper 2- Power of the Speaker/Chairman, Kohito Hollohan case

The article examines the larger issue of powers of the Speaker under 10th Schedule and the current interim order of the Rajasthan High Court.

Context

  • The Rajasthan High Court had admitted the petition by the Congress faction group challenging the notice of the Speaker.
  • In the interim order, the High Court had ordered to maintain the status quo.

Why Kihoto Hollohan Case matters

  • The Kihoto Hollohan decision of the Supreme Court delivered in 1992 forms the basis in such decisions.
  • The Constitution Bench which heard it was split 3:2.
  • The majority on the bench upheld the constitutionality of the Tenth Schedule of the Constitution.
  • The High Court is not empowered to unsettle Kihota Hollohan and must apply its ratio that the Chairman/Speaker is the final arbiter on the disqualification of a member.
  • Rajasthan High Court has raised the issue about whether disqualification under Tenth Schedule is applicable in the case of “intra-party dissent”.
  • Para 2(1) a of 10th Schedule deals with disqualification of a member of a House belonging to any party “if he has voluntarily given up his membership of such political party”.

Let’s look at what the Supreme Court said  in Kihoto Hollohan case:

“paragraph 2 of the Tenth Schedule of the Constitution is valid. Its provisions do not suffer from the vice of subverting democratic rights of elected members of Parliament and the legislatures of the States. It does not violate their freedom of speech, freedom of vote and conscience as contended”.

Consider the question “Examine the issue of powers of Speaker/Chairman in the matters of disqualification of the member against the powers of the Courts in such matters. What are the reasons for frequent frictions between the two authorities on this matter?”

Conclusion

The high courts and the Supreme Court routinely refuse to interfere in matters where the concerned authority has merely issued a show-cause notice or granted an opportunity of being heard. So, it must fix the issue raised by the Rajasthan High Court interim order.

Important Judgements In News

Relations between judiciary and legislature

Note4Students

From UPSC perspective, the following things are important :

Prelims level : 10th Schedule

Mains level : Paper 2- Role of judiciary and Speaker

The article discusses the relation between the judiciary and the legislature. Recent development in Rajasthan assembly serves as the backdrop.

Context

  • The political tussle in Rajasthan entered the High Court and the Supreme Court.
  • The Supreme Court itself proposed to rule on the larger question of the jurisdiction of courts to entertain such pleas.

Historical background

  • The President of India made a presidential reference to the Supreme Court on the relative powers of legislative assemblies and constitutional courts.
  • The Supreme Court held that there is a broad separation of essential powers of each organ of the State.
  • However, the Court went on to hold that a judge who entertains a petition challenging any order of the legislature does not commit contempt of the said legislature.
  • Since then court have restrained themselves from interfering in the workings of legislative assemblies or Parliament is concerned.
  • The sole exception is under the anti-defection law-after a final order of disqualification has been passed.

Let’s look into Kihoto Hollohan’s case

  • Constitution bench of the Supreme Court in 1992 held that the Speaker acting in a disqualification matter acts as a tribunal and is subject to judicial review.
  • However, the same judgment makes it clear that the Court will not intervene at an interim stage.
  • The same judgment further holds the Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House.

Let’s now look into Rajasthan episode

  • In this case, issuance of a possible disqualification notice by the Speaker, has been contested in constitutional courts.
  •  Even in routine petitions against notices of proposed administrative actions, the petitioner is told to answer the show cause notice and to challenge the final action only.
  • The Rajasthan High Court, however, entertained a petition to challenge the Speaker’s authority to decide, if MLAs had committed an act of defection.
  • The Rajasthan High Court reserved its judgment, requested the Speaker to defer further proceedings and proceeded to direct him to await judgment.

Co-equality of Constitutional authorities

  • Rajasthan assembly Speaker moved the Supreme Court, questioning the court’s power to direct a Constitutional authority.
  • The principle of law applied is that Constitutional authorities cannot issue directions to each other.
  • They can, at best, make a polite request.
  • The single judge in Calcutta, recorded in his judgment that the Supreme Court was only co-equal with the High Court, as a Constitutional Court.
  • Appellate powers of the Supreme Court did not make it a superior authority to which the High Court was subordinate.
  • Ever since, the Supreme Court has been careful to couch its orders as requests to any High Court, or Constitutional authority.
  • Constitutional courts have followed the same principle, in addressing other Constitutional authorities.

Role of judiciary in maintaining the balance

  • Unnecessary conflict between organs of state may well invite some Speaker, backed by a solid majority at State and Centre, to defy the courts.
  • Courts are apolitical but keep getting pulled into political thickets, especially in matters of mass defections resulting in regime change.
  • The walls of separation between constitutional organs, once breached, cannot be then repaired against future intrusions.

Consider the question “Analyse fine balance Indian Consitution strikes between the various Constitutional authorities. Also examine how role of judiciary in dealing with the anti-defection law.”

Conclusion

Even under a sovereign Constitution, parliamentary and legislative supremacy in their areas of working must be respected.

Important Judgements In News

The need for an anti-discrimination law

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Article 15

Mains level : Paper 2-Need for legislation to back the right to equality and right against discrimination

India has a unique distinction of being a democracy without comprehensive legislation to back the constitutional right of equality. This lack of legislation gives rise to certain issues. Every time the case of discrimination is brought the discriminating party claims that he is at liberty to do so. Not only this, in a certain case, the Supreme Court also endorsed such restrictive interpretation. All this points to the need for the comprehensive legislation.

Indirect and unintended discrimination

  • More than 70 years after Independence, our society remains rife with structural discrimination.
  • These prejudices, which pervade every aspect of life, from access to basic goods, to education and employment, are sometimes manifest.
  • But, on other occasions, the discrimination is indirect and even unintended. 
  • The forms that it takes were perhaps best explained by the U.S. Supreme Court’s ruling in Griggs vs. Duke Power Co. (1971).
  • There, the court held that an energy company had fallen foul of the U.S. Civil Rights Act of 1964 — which made racial discrimination in private workplaces illegal.
  • The company had insisted on a superfluous written test by applicants for its better entry-level jobs.
  • Although, on the face of it, this requirement was race-neutral, in practice it allowed the company to victimise African-Americans.
  • In a memorable judgment, invoking an Aesop fable, Chief Justice Burger wrote that “tests or criteria for employment or promotion may not provide equality of opportunity merely in the sense of the fabled offer of milk to the stork and the fox.”
  • On the contrary, the law, he said, resorting again to the fable, “provided that the vessel in which the milk is proffered be one all seekers can use.”
  • That is, that it wasn’t merely “overt discrimination” that was illegal but also “practices that are fair in form, but discriminatory in operation”.

Let’s look into 2 cases in India

1. Madhu vs. Northern Railway

  • The verdict in Griggs was notably applied in the Delhi High Court’s 2018 judgment in Madhu vs. Northern Railway.
  • There, the Railways had denied free medical treatment to the wife and daughter of an employee which they would otherwise have been entitled to under the rules.
  • The Railways contended that the employee had “disowned” his family and had had their names struck off his medical card.
  • The court held that to make essential benefits such as medical services subject to a declaration by an employee might be “facially neutral”, but it produced a disparate impact, particularly on women and children.
  • But while this case concerned discrimination by the state, entry barriers to goods such as housing, schools and employment tend to function in the realm of private contracts.

Is Article 15 applicable in private contracts?

  •  The Constitution is markedly vocal on this too.
  • Article 15(2) stipulates that citizens shall not on grounds only of religion, race, caste, sex, or place of birth be denied access to shops, public restaurants, hotels and places of public entertainment.
  • Yet, on occasion, this right, which applies horizontally, inter se individuals, comes into conflict with the rights of persons to associate with others, often to the exclusion of certain groups.

2. Zoroastrian Cooperative Housing Society vs District Registrar Co-operative Societies (Urban) and Others

  • This is why every time a case of discrimination is brought, the party that discriminates claims that he possesses a liberty to do so, that he must be free to act according to his own sense of conscience.
  • The Supreme Court in 2005 endorsed one such restrictive bond, when it ruled in favour of a bye-law of a Parsi housing society that prohibited the sale of the property to non-Parsis.
  • This right to forbid such a sale, the Court ruled, was intrinsic in the Parsis’ fundamental right to associate with each other.
  • But in holding thus, the judgment, as Gautam Bhatia points out in his book, The Transformative Constitution, not only conflated the freedom to contract with the constitutional freedom to associate but also overlooked altogether Article 15(2).

Let’s look into the scope of Article 15(2)

  • At first blush, Article 15(2) might appear to be somewhat limited in scope.
  • But the word “shops” used in it is meant to be read widely.
  • A study of the Constituent Assembly’s debates on the clause’s framing shows us that the founders explicitly intended to place restrictions on any economic activity that sought to exclude specific groups.
  • For example, when a person refuses to lease her property to another based on the customer’s faith, such a refusal would run directly counter to the guarantee of equality.

India: A country with no legislative backing to the fundamental right to equality

  • India is unique among democracies in that a constitutional right to equality is not supported by comprehensive legislation.
  • In South Africa, for example, a constitutional guarantee is augmented by an all-encompassing law which prohibits unfair discrimination not only by the government but also by private organisations and individuals.

Consider the question “Discrimination partakes different forms. And due to lack of any legislation backing the Right to Equality, this right is just as capable of being threatened by acts of private individuals as they are by the state.” In light of this, discuss the need for an act backing the Right to Equality and right against discrimination.”

Conclusion

Any reasonable conception of justice would demand that we look beyond the intentions of our actions, and at the engrained structures of society.  To that end, the idea of enacting a law that will help ameliorate our ways of life, that will help reverse our deep-rooted culture of discrimination, is worth thinking about.

Important Judgements In News

The SC order on migrants labours raises several issues

Note4Students

From UPSC perspective, the following things are important :

Mains level : Paper 2- The SC order on migrant labour rises several questions dealing with the fundamental rights.

Context

On March 31, the Supreme Court of India (SC), entertaining a writ petition under Article 32, passed an order which raises more questions than it seeks to answer.

What were the issues involved in the writ petition?

  • The writ petition was purportedly filed in the public interest, “for redressal of grievances of migrant workers in different parts of the country”.
  • Directions which are in favour of the Union government: The Court has proceeded to issue several directions which are clearly in favour of the respondent, the Union of India.
  • The following three directions were uncalled for:

What were the directions issued by the Supreme Court?

  • One, that under section 54 of the Disaster Management Act, 2005, persons can be punished with imprisonment, which may extend to one year, or with a fine for making or circulating a false alarm or warning.
  • Disobedience of the order including an advisory by a public servant would result in punishment under section 188 of the IPC.
  • Two, all concerned, that is the state government, public authorities and citizens will faithfully comply with directives, advisory and orders issued by the Union of India in letter and spirit in the interest of public safety.
  • Three, the media should only refer to and publish the official version of the Government of India, publishing a daily bulletin.
  • The SC observations about migrant labourers: After giving substantial reliefs to the Union of India, the SC proceeded to make mere observations about migrant labourers by directing that they should be dealt with “in a humane manner”.
  • And that “trained counsellors, community leaders and volunteers must be engaged along with the police to supervise the welfare activities of migrants”.
  • The SC has virtually absolved the government for its handling of the situation.

What was the basis for issuing orders and issues with it

  • The basis of the directions is a statement made by the Solicitor General of India and some status reports to the effect that “the exodus of migrant labourers was triggered due to panic created by some fake/misleading news and social media”.
  • What is an issue with basis? The SC has proceeded on assumptions and surmises which were untested and unchallenged.
  • What the court should have done? In a matter of such seriousness, the least it should have done was to have appointed an amicus curiae (a friend of the court) to assist it rather than simply accept the self-serving status reports and statements made before it.
  • The Court overlooked the fact that in India, hundreds of millions of people work during the day and are paid at the end of the day and then go and buy their foodstuffs.
  • They have no savings, nor do they have foodgrains stored.
  • It is surprising that the Court, the custodian of fundamental rights, should be oblivious to this reality.

Issue of press freedom

  • Citizens have the right to freedom of speech and expression. Press freedom is a part of this. Citizens have the right to receive information as well.
  • Article 13 (2) of the Constitution says that the state cannot make any law which takes away or abridges the fundamental rights.
  • If Parliament cannot do so, the Supreme Courtthe upholder of the constitutional rights — surely cannot do so.
  • The SC has itself held in M Nagraj (2006): “A right becomes a fundamental right because it has foundational value. The fundamental right is a limitation on the power of the State. A Constitution, and in particular that part of it which protects and which entrenches fundamental rights and freedoms to which all persons in the State are to be entitled, is to be given a generous and purposive construction.”
  • The SC should not have made all media subservient to the government by directing that the former “refer to and publish the official version about the developments”.
  • Such an order could be justified only during an emergency and that too by the executive, subject to challenge before the courts.

Conclusion

The SC has given a carte blanche to the authorities, and citizens appear to have no avenues of redress. Most of all, by condemning the media and social media, holding them responsible for fake news, the SC has done a great disservice to the institution which provides information to citizens and upholds democracy.

Important Judgements In News

Whither tribunal independence?

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not much.

Mains level : Paper 2- Provision of constitution of tribunal, tenure and the SC directives.

Context

The reframed Tribunal rules are in contempt of several Constitution Bench decisions of the Supreme Court.

What the SC said in Rojer Mathew case

  • Rules being unconstitutional: In November 2019, a Constitution Bench of the Supreme Court, in Rojer Mathew, declared the Tribunal, Appellate Tribunal and other Authorities (Qualification, Experience and other Conditions of Service of Members) Rules, 2017 as unconstitutional.
    • Why it was declared unconstitutional? It was declared unconstitutional for being violative of principles of independence of the judiciary and contrary to earlier decisions of the Supreme Court in the Madras Bar Association 
  • Direction to the Central government: In Rojer Mathew, there was also a direction to the Central government to reformulate the rules strictly in accordance with principles delineated by the Court in its earlier decisions.
    • The reframed rules, notified by the Ministry of Finance, however, suffer from the same vices.

What were the issues in the Finance Act, 2017

  • What was prescribed in the Finance Act, 2017: The Finance Act, 2017, around 26 Central statutes were amended.
    • Excessive rule-making powers to the Centre government: The power to prescribe eligibility criteria, selection process, removal, salaries, tenure and other service conditions pertaining to various members of 19 tribunals were sub-delegated to the rule-making powers of the Central government.
  • Attempt to keep the judiciary away: Describing the search-cum-selection-committee as an attempt to keep the judiciary away from the process of selection and appointment of members, vice-chairman and chairman of tribunals.
    • Executive litigant in most cases: The Court held that the executive is a litigating party in most of the litigation and hence cannot be allowed to be a dominant participant in tribunal appointments.
    • Selection committee issue: Barring the National Company Law Appellate Tribunal (NCLAT), the selection committee for all other tribunals was made up either entirely from personnel within or nominated by the Central government or comprised a majority of personnel from the Central government.
    • While the selection committee for NCLAT consisted of two judges and two secretaries to the Government of India, all other committees comprised only one judge and three secretaries to the Government of India. Now, in the 2020 rules, by default, all committees consist of a judge, the president/chairman/chairperson of the tribunal concerned and two secretaries to the Government of India
  • 3 years tenure injurious to the efficiency: Reiterating its previous decision in Madras Bar Association (2010), the Court held that the tenure of three years for members will “preclude cultivation of adjudicatory experience and is thus injurious to the efficiency of the Tribunals”.

 An equal say for the judiciary

  • 2 Judges in 4 member committee: The common thread in the Madras Bar Association series and Rojer Mathew decisions is that judiciary must have an equal say in the appointment of members of the tribunals.
    • To deny the executive an upper hand in appointing members to tribunals, the court ordered to have two judges of the Supreme Court to be a part of the four-member selection committee.
    • In Madras Bar Association(2010), held that the selection committee should comprise the Chief Justice of India or his nominee (chairperson, with a casting vote), a senior judge of the Supreme Court or Chief Justice of the High Court, and secretaries in the Ministry of Finance and Ministry of Law and Justice respectively.
  • Decision applicable to all tribunals: Subsequent Constitution Bench decisions in Madras Bar Association (2014), Rojer Mathew and the decision of the Madras High Court in Shamnad Basheer have repeatedly held that the principles of the Madras Bar Association (2010) are applicable to the selection process and constitution of all tribunals in India.
  • What are the provisions dealing with appointment in 2020 rules? Under the 2020 rules, the inclusion of the president/ chairman/chairperson of the tribunal as a member in the selection committee is in the teeth of previous decisions of the Supreme Court.
    • Non-judicial member can become a chairman: For instance, now, in the Income Tax Appellate Tribunal (ITAT), Customs Excise and Service Tax Appellate Tribunal (CESTAT), Central Administrative Tribunal (CAT), Debt Recovery Appellate Tribunal (DRAT), etc. a non-judicial member can become the president/chairman/chairperson, as the case may be.
    • Therefore, when a non-judicial member becomes a member in the selection committee, the Supreme Court judge will be in minority, giving primacy to the executive, which is impermissible.
  • Only judges and advocates can be judicial members: In Madras Bar Association (2010), the Court explicitly held that only judges and advocates can be considered for appointment as a judicial member of the tribunal and that persons from the Indian Legal Service cannot be considered for appointment as judicial member.
    • Recently, in Revenue Bar Association (2019), the Madras High Court declared Section 110(1)(b)(iii) of the CGST Act, 2017 as unconstitutional for allowing members of Indian Legal Service to be judicial members in GSTAT.

Violation of the SC directives

  • What the SC said on tenure: Based on Madras Bar Association (2010), in Rojer Mathew, the Court held that the term of three years is too short, and by the time members achieve a refined knowledge, expertise and efficiency, one term will be over.
    • What are the provisions in 2020 rules? In the 2020 rules, the tenure of members has been increased from three years to four years, thereby blatantly violating the directions of the Supreme Court.
  • Since the Madras Bar Association (2010), the government has repeatedly violated the directions of the Supreme Court.
    • One by one, the traditional courts, including the High Courts, have been divested of their jurisdictions and several tribunals have been set up.

Conclusion

The 2020 rules are, thus, in contempt of several Constitution Bench decisions of the Supreme Court. Unless the Court comes down heavily on the Central government, we will see these encroachments over and over again.

 

Important Judgements In News

When a court pronounces a verdict, without giving reasons

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not much.

Mains level : Paper 2- Supreme Court delivering its judgement without giving the reasons and its implications.

Context

In a highly unusual move, a nine-judge Bench of the Supreme Court resorted to a non-speaking order as it ruled affirmatively on the preliminary issue arising out of the Sabarimala review petition.

Departure from norms

  • The importance of a ‘reasoned decision’ in a constitutional democracy committed to the rule of law, is self-evident.
    • Its importance cannot be overstated and this curious departure from the norm merits close analysis.
  • Time and again, the Supreme Court has unequivocally endorsed and underlined the requirement of giving reasons in support of the order.
    • The SC has often chastised subordinate institutions for their failure to supplement their orders with reasons.

Importance of ‘reasoned decision’

  • The juristic basis for the ‘reasoned decision’: The juristic basis for this has also been explored in a number of cases.
  • In various decisions, the court has ruled that speaking orders promote-
    • Judicial accountability and transparency.
    • Inspire public confidence in the administration of justice; and
    • Introduce clarity and minimise the chances of arbitrariness.
  • Quotes from various judgements: In addition to being a “healthy discipline for all those who exercise power over others”, recording of reasons has been described by the Supreme Court as the “heartbeat of every conclusion”; the “life blood of judicial decision making”; and a cherished principle of “natural justice”.
  • The Madhya Pradesh Industries Ltd case: In this case Justice Subba Rao K. stated:
    • “The condition to give reasons introduces clarity and excludes or at any rate minimises arbitrariness;”
    • “… it gives satisfaction to the party against whom the order is made; and it also enables an appellate or supervisory court to keep the tribunals within bound… Speaking order will at its best be reasonable and at its worst be at least a plausible one.”

Devaluation by the SC and implications

  • Implicit rules: The need for a court to provide an intellectual substrate for its decisions is also implicit in the expression “pronounce judgment” in Supreme Court Rules, 2013.
    • According to settled decisions, the same signifies “judicial determination by reasoned order”.
  • However, when it came to applying the principle to its own verdict, the apex court has inadvertently devalued the importance of concurrent reporting of reasons.
    • The court seems to have downplayed the fact that it may be coming across as inarticulate at best and indecisive at worst.
  • Undermining integrity: Besides undermining institutional integrity, a decision’s authority as a binding precedent is also potentially compromised by this omission.

Culture of justification

  • The term “transformative constitutionalism” has recently found currency in constitutional adjudication (Navtej Joharand Joseph Shine).
    • The Supreme Court is yet to articulate a comprehensive theory of the concept but it has been fleshed out in other jurisdictions.
  • From authority to justification: For example, Pius Langa, former Chief Justice of the Constitutional Court of South Africa, argued that “transformative constitutionalism” entails a transformation of legal culture from one “based on authority” to the one “based on justification”.
  • Karl Klare (the scholar who coined the term) posited that it may be legitimately expected of constitutional adjudication to “innovate and model intellectual and institutional practices appropriate to a culture of justification”.

Conclusion

In light of the above, it can be concluded that the practice of issuing non-speaking orders and giving post-hoc rationalisations later is an anathema to the principle of constitutional governance. Duty to give reasons is an incident of the judicial process and constitutional justice should not be a matter of afterthought.

 

 

 

Important Judgements In News

A just verdict

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not much.

Mains level : Paper 2- Extending the gender equality to women in the armed forces.

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.

Important Judgements In News

Victim justice is two steps forward, one step back

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not much.

Mains level : Paper 2- Making the justice system more victim-centric.

Context

The recent judgment in Rekha Murarka vs The State Of West Bengal, the SC has held that the victims’ private counsel cannot orally examine or cross-examine the witnesses.

Place of the victim in the present criminal justice system

  • Removed from the proceedings: Under our criminal justice system, victims find themselves removed from the proceedings.
    • Their identities are reduced to being mere witnesses.
    • The harm they suffer is reduced to being aggravating or mitigating factors at the time of sentencing.
    • Stage props in a larger scheme: With the state appropriating their victimisation, the actual victims become mere stage props in a larger scheme.
  • Need of The victim-centric notion of justice-Law Commission suggestion: In 1996, the 154th Law Commission Report suggested a paradigm shift in India’s criminal justice system towards a victim-centric notion of justice.
    • Partial acceptance: The Code of Criminal Procedure (Amendment) Act, 2009 partially accepted the Law Commission suggestion and granted some rights to the victims of crime.
    • The Act introduced victims’ right to a private counsel under Section 24(8).
    • Move toward victim’s participation: The Code of Criminal Procedure already allowed for pleaders engaged by private persons to submit written arguments with the permission of the court under Sections 301(2) and 302 allowed a person to conduct the prosecution with permission of the court.
    • These sections were read together to partially secure the victims’ right to participation.

Steps take  towards securing justice for victims

  • Right to legal assistance to victims of sexual assault: In the case of Delhi Domestic Working Women’s Forum v. Union of India (1994), the SC called for the extension of the right to legal assistance to victims of sexual assault at the pre-trial stages.
  • The SC opinion over asymmetry in rights of victims and the accused: In Mallikarjun Kodagali (Dead) … vs The State Of Karnataka (2018), the Court accepted that under the criminal justice system, the rights of the accused far outweigh the rights of the victim.
  • Introduction of victim impact statement right to appeal against the adverse order: The Supreme Court not only called for the introduction of a victim impact statement in order to guarantee the participation of the victim in the trial proceedings.
    • The SC also reinstated the victims’ right to appeal against an adverse order.

Provisions on the international level for the victim’s participation

  • Despite these advances, the scheme of victim participation remains far removed from the ideals embedded in the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power; India is a signatory.
    • What does the declaration require? It requires that the views and concerns of victims should be allowed and considered at all appropriate stages without prejudice to the accused.
  • Need to increase the victims’ advocate’s role: Presently, the victims’ advocate has an extremely limited role to play wherein he “assists” the prosecutor rather than represent the interests of the victim before the court.
    • The only substantial opportunity provided to a private counsel is after the closing of evidence when written arguments may be submitted to the court only after seeking the permission of the court.
  • Contrast with ICC: In contrast, the International Criminal Court (ICC) provides for victim participation at the stage of-
    • First, a challenge to the jurisdiction of the ICC.
    • Second, framing of charges.
    • Third, opening and closing statements.
    • Fourth, making a written submission wherever the personal interests of the victims are affected.
    • And finally, for presenting witnesses to give evidence on issues relating to the personal interests of the victims.

What the SC judgement means

  • Missed opportunity: The Supreme Court in Rekha Murarkahas missed the opportunity to forward the jurisprudence on victim justice and rectify the lacunae in our laws.
    • Instead, the judgment goes against the jurisprudential current specified above.
    • Indeed, the victim’s right to participation cannot be secured by restricting the rights of the accused.
  • Why the victim’s advocate is not allowed the right to participate in the SC’s opinion: According to the judgment, a victim’s advocate cannot be allowed the right to participate because-
    • First- Insistence by the victim’s counsel to examine a witness deliberately left out by the prosecution may weaken the prosecution’s case;
    • Second– The trial will derogate into a “vindictive battle” between the victim’s counsel and the accused.
    • Third- A lack of experience on the part of the victim’s counsel may lead to lapses.
  • The problem in the SC ruling: The judgment further assumes that prosecutions effectively take the victim’s needs into account.
    • SC ignored why the need for private counsel arise: The judgement ignores the fact that the need for a private counsel arises precisely because intentional or unintentional prosecutorial lapses directly lead to injustice to the victims.
    • The court expects the victim’s counsel to make the prosecutor aware of any aspects that have not been addressed in the examination of witnesses or the arguments advanced by the public prosecutor.
    • In the process, it assumes that the prosecutor will address such lapses.

Conclusion

Under the role currently envisaged in our criminal justice system, the public prosecutor cannot sufficiently take into account the interests, needs and requirements of the victims. The cause of victim justice would be greatly served if the Supreme Court decided to revisit its reasoning and assumptions to appropriately amend this provision in light of the above.

 

 

Important Judgements In News

[op-ed snap] Course correction for the Speaker’s office

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not much.

Mains level : Paper 2- Suggest the ways to ensure the neutrality of the Speaker in cases under 10th Schedule.

Context 

Recently the Supreme Court of India recommended that Parliament should rethink as to whether disqualification petitions ought to be entrusted to a Speaker as a quasi-judicial authority when such a Speaker continues to belong to a particular political party either de jure or de facto.

What the SC recommended?

  • Provision of a ‘Permanent Tribunal’: The SC was of the opinion that Parliament may seriously consider a Constitutional amendment to substitute-
    • The Speaker of the Lok Sabha and Legislative Assemblies with a ‘permanent Tribunal headed by a retired Supreme Court judge or a retired Chief Justice of a High Court.
    • Or some other outside independent mechanism.
  • What the ‘Permanent Tribunal’ achieve?
    • Impartiality and timely decisions: This is to ensure that such disputes are decided both swiftly and impartially.
    • Proper functioning of the democracy: It will give teeth to the provisions contained in the Tenth Schedule, which are so vital in the proper functioning of India’s democracy’.

Range of functions of the Speaker

  • What is the nature of the duties of the Speaker?
    • Role under 10th schedule: Under 10th Schedule, the nature of duties of the Speaker, is as an “arbiter” or a “quasi-judicial body”. But it also extends to a range of its functions.
    • What other functions are performed by the Speaker? While facilitating the business of the House and to maintain decorum in the House, the Speaker has ‘extensive functions to perform in matters regulatory, administrative and judicial, falling under her domain.
    • She enjoys vast authority under the Constitution and the Rules, as well as inherently’.
    • Ultimate interpreter: She is the ‘ultimate interpreter and arbiter of those provisions which relate to the functioning of the House. Her decisions are final and binding and ordinarily cannot be easily challenged.
    • She decides the duration of debates, can discipline members and even override decisions by committees.
    • A representative of the House: She represents the collective voice of the House and is the sole representative of the House in the international arena’

Issue of alleged bias

  • Allegations of bias by the Speaker: On several occasions, the Speaker’s role has been questioned on the allegation of bias. The office has been criticised for being an agent of pernicious partisan politics.
    • The Supreme Court has observed in Jagjit Singh versus State of Haryana“…certain questions have been raised about the confidence in the matter of impartiality on some issues having political overtones which are decided by the Speaker in his capacity as a Tribunal.”
  • As a minority view, Justice J.S. Verma in Kihoto Hollohan vs Zachillhu And Others observed: “The Speaker being an authority within the House and his tenure being dependent on the will of the majority therein, the likelihood of suspicion of bias could not be ruled out.”
  • What is the problem with the neutrality of the Speaker? Howsoever desirable the proposition of neutrality maybe, in the present circumstances, it would be unrealistic to expect a Speaker to completely abjure all party considerations.
    • Structural issues: There are structural issues regarding the manner of appointment of the Speaker and her tenure in office.
  • Why the Speaker prefers to maintain party membership: A member is appointed to the office of the Speaker if a motion nominating her is carried in the House.
    • Since the electoral system and conventions in India have ‘not developed to ensure protection to the office, there are cogent reasons for Speakers to retain party membership.
    • Elections are not always by consensus and there have been cases when different parties have fielded their own candidates.
    • All political parties campaign in the constituency of the Speaker.
    • Even if the Speaker is re-elected to the House, the office of the Speaker in India is still open for elections’.
  • Way forward
    • Revamp the structure: What is required is not merely incidental changes in the powers of the Speaker; rather a major revamp in the structure of the office itself is necessary.
    • How to ensure the neutrality of the Speaker? The scheme should be brought wherein Speakers should renounce all political affiliations, membership and activity once they have been elected, both within the Assembly and in the country as a whole.
  • Replicating the UK model:
  • Reference can be sought from the United Kingdom where the ‘main characteristic of the Speaker of the House of Commons is neutrality.
  • Once elected, the Speaker gives up all-partisan affiliation, as in other Parliaments of British tradition, but remains in office until retirement, even though the majority may change.
  • She does not express any political views during debates and is an election candidate without any ticket.
  • Impartiality, fairness and autonomy in decision-making are the hallmarks of a robust institution.
  • It is the freedom from interference and pressures which provide the necessary atmosphere where one can work with an absolute commitment to the cause of neutrality as a constitutional value.

Conclusion

At a time when India’s fall in ranks in the latest Democracy Index has evoked concern, it is expected that Parliament will pay heed to the reasoning of the Supreme Court and take steps to strengthen the institution of the Speaker.

 

 

Important Judgements In News

Private Property is a Human Right: Supreme Court

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Right to Property

Mains level : Read the attached story

The right to property is a human right, the Supreme Court has recently ruled.

What did the court say?

  • A citizen’s right to own private property is a human right. The state cannot take possession of it without following due procedure and authority of law, the Supreme Court has held in a recent judgment.
  • The state cannot trespass into the private property of a citizen and then claim ownership of the land in the name of ‘adverse possession’.
  • Grabbing private land and then claiming it as its own makes the state an encroacher.
  • Article 300A required the state to follow due procedure and authority of law to deprive a person of his or her private property, the Supreme Court reminded the government.

Adverse possession

  • A welfare state cannot be permitted to take the plea of adverse possession, which allows a trespasser i.e. a person guilty of a tort, or even a crime, to gain legal title over such property for over 12 years.
  • The State cannot be permitted to perfect its title over the land by invoking the doctrine of adverse possession to grab the property of its own citizens.

Back2Basics

Right to Property

  • The Constitution of India originally provided for the right to property under Articles 19 and 31.
  • Article 19 guaranteed to all citizens the right to acquire, hold and dispose of property.
  • Article 31 provided that “no person shall be deprived of his property save by authority of law.” It also provided that compensation would be paid to a person whose property has been taken for public purposes.
  • The 44th Amendment of 1978 removed the right to property from the list of fundamental rights.
  • A new provision, Article 300-A, was added to the constitution, which provided that “no person shall be deprived of his property save by authority of law”.

What if one is deprived of his/her properties?

  • Thus, if a legislator makes a law depriving a person of his property, there would be no obligation on the part of the state to pay anything as compensation.
  • The aggrieved person shall have no right to move the court under Article 32.
  • Thus, the right to property is no longer a fundamental right, though it is still a constitutional right. If the government appears to have acted unfairly, the action can be challenged in a court of law by aggrieved citizens.

Important Judgements In News

[op-ed snap] Making amends

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing

Mains level : SC/ ST PO Act

Context

The Supreme Court has recalled its 2018 order that diluted provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The previous judgement

  • A two-judge bench had forbidden the arrest of public servants and private persons without prior permission in cases filed under the SC/ST Act.
  • It insisted on a preliminary inquiry before registering an FIR in such cases. 

Current judgement

  • The three-judge bench observed that the March 20, 2018 judgment was “against the spirit of the Constitution”. 
  • The Court also found that the guidelines for the execution of the Act given in the 2018 order were beyond its remit and an encroachment on the legislature’s domain
  • The 2018 order had read the Act without taking into consideration the social context and imperatives that led to its enactment in the first place.

Incidents involving Dalits in the last few years

  • The 2018 order triggered unrest among Dalits. It gave fresh impetus to the mobilisations that started in the wake of a series of high-profile crimes against the community. 
  • Dalits came under attack from communities whose political-ideological prejudices found validation from elements of the Hindutva agenda such as cow protection. The public flogging of five Dalits by cow vigilantes in Una is a case in point. 
  • Attempts were made to crush Dalit assertion. The suicide of Rohith Vemula had bought to the fore the issue of caste discrimination on campus
  • They created a new narrative of Dalit resistance and agency that led to the emergence of a new generation of leaders such as Jignesh Mevani and political outfits including the Bhim Army. 
  • The 2018 order came in this backdrop and stoked unrest in large sections of the SC/ST communities. 

Conclusion

It is creditable that the Supreme Court has revisited its order and recalled it. It is in accordance with the spirit of the Constitution and institutional resilience.

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