Important Judgements In News

Important Judgements In News

A just verdictop-ed of the day

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

Reservation as right: on Supreme Court judgmentop-ed of the day

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Reservations in jobs flowing from enabling provisions of the Constitution.

Mains level : Paper 2- Provision for the vulnerable section of the society, Role and importance of affirmative action in the development of the weaker section.


Context

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

Received wisdom in affirmative action jurisprudence

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

What does the judgement mean?

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

Question of government obligation

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

Why reservation matters for equality?

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

What may be the consequences of this judgement?

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

Conclusion

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

 

Important Judgements In News

Victim justice is two steps forward, one step backop-ed snap

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 officeop-ed snap

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

[op-ed of snap] The four phases of constitutional interpretationop-ed snap

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not much.

Mains level : Paper 2- Evolutionary phases through which the interpretation of Constitution by judiciary passed.


Context

The ways in which the Constitution of India is interpreted has undergone changes through four phases.

Constitution-An Ambitious political experiment

  • Indian Constitution was an ambitious political experiment for the following reasons-
    • Universal Adult Franchise: India began its journey with the universal adult franchise.
    • Federalism: Federalism in a region consisting of over 550 princely States.
    • The promise of Equality: The Constitution was a sort of social revolution in a deeply unequal society with the promise of equality.
    • Unique constitutional design: it was equally a unique achievement in terms of constitutional design.

The first phase of interpretation-Focus on text

  • A textualist approach-focusing on the plain meaning of the words: In its early years, the Supreme Court adopted a textualist approach, focusing on the plain meaning of the words used in the Constitution.
    • K. Gopalan v. State of Madras (1950) was one of the early decisions in which the Court was called upon to interpret the fundamental rights under Part III.
    • The leader of the Communist Party of India claimed that preventive detention legislation under which he was detained was inconsistent with Articles 19 (the right to freedom), 21 (the right to life) and 22 (the protection against arbitrary arrest and detention).
    • Fundamental rights separate from each other: The Supreme Court decided in A. K. Gopalan case that each of those articles covered entirely different subject matter, and were to be read as separate codes rather than being read together.
  • Unlimited Amendment Power: In its early years, the Court read the Constitution literally, concluding that there were no limitations on the Parliament’s power to amend the Constitution.

The second phase of interpretation-Focus on ‘basic structure’

  • Appeals to the structure and coherence: Appeals to the text of the Constitution were gradually overtaken by appeals to the Constitution’s overall structure and coherence.
    • Limited Amendment Power-Kesavananda Bharati case: In the leading case of Kesavananda Bharati v. State of Kerala(1973), the Court concluded that Parliament’s power to amend the Constitution did not extend to altering its “basic structure”.
    • What is the “Basic Structure”: The basic structure is an open-ended list of features that lie within the exclusive control of the Court.
    • When Parliament attempted to overturn this decision by amending the Constitution yet again, the Court, relying on structuralist justifications, decisively rejected that attempt.
  • Key takeaways from Kesavananda Bharati case
    • Limited Amendment Power: In this case, the Court pronounced that Parliament’s power to amend the Constitution is not unlimited.
    • Fundamental rights as a cohesive bill of rights: In this phase, the Court also categorically rejected the Gopalan approach in favour of a structuralist one.
    • Maneka Gandhi v. Union of India (1978):  Through decision, in this case, the Court conceived of the fundamental rights as a cohesive bill of rights rather than a miscellaneous grouping of constitutional guarantees.
    • Incremental interpretation of Right to Life: The right to life was incrementally interpreted to include a wide range of rights such as clean air, speedy trial, and free legal aid.
    • Courts playing role in governance: The incremental interpretation of Article 21 paved the way for the Supreme Court to play an unprecedented role in the governance of the nation.
  • What was common in the first two phases?
    • Interpretation done by Constitutional Benches: That significant decisions involving the interpretation of the Constitution were entrusted to Constitution Benches (comprising five or more judges of court) and were carefully (even if incorrectly) reasoned.
    • Little scope for precedential confusion: There was limited scope for precedential confusion, since matters which had been decided by Constitution Benches and which demanded reconsideration were referred to larger Constitution Benches.

Third Phase of interpretation-Eclecticism

  • Different opinions on the same issues: In the third phase the Supreme Court started to give different opinions on the same issues-i.e. it engaged in eclecticism.
    • Lesser reasoning: The Court often surrendered its responsibility of engaging in a thorough rights reasoning of the issues before it.
    • Two factors underpinned this institutional failure.
  • First-Change in the structure of the SC: The changing structure of the Court, which at its inception began with eight judges, grew to a sanctioned strength of 31; it is currently 34.
  • It began to sit in panels of two or three judges, effectively transforming it into a “polyvocal” group of about a dozen sub-Supreme Courts.
  • Second-expansion of own role by the SC-The Court began deciding cases based on a certain conception of its own role -whether as a sentinel of democracy or protector of the market economy.
  • The focus of the judgement on the result rather than reason: This unique decision-making process sidelined reason-giving in preference to arriving at outcomes that match the Court’s perception.
  • Consequences of the eclecticism
    • Rise of doctrinal incoherence and inconsistency: The failure to give reasons contributed not only to methodological incoherence but also to serious doctrinal incoherence and inconsistency across the law.
    • Conflicting decisions and interpretations: This approach can be best described as panchayati eclecticism, with different Benches adopting inconsistent interpretive approaches based on their conception of the Court’s role, and arriving at conclusions that were often in tension with one another.
    • Decision detached from precedents and established methods: The imagery that panchayati eclecticism is meant to invoke is that of a group of wise men and women (applying the analogy, sub-Supreme Courts), taking decisions based on notions of fairness that are detached from precedent, doctrine and established interpretive methods.

Fourth phase- based on the purpose

  • Purpose of enactment of the Constitution as critical: In the fourth phase, the Court has acknowledged as critical to its interpretive exercise the purpose for which the Constitution has been enacted.
  • The realisation of revolutionary and transformative potential: The Court is now beginning to interpret the Constitution in accordance with its revolutionary and transformative potential.
    • Renaissance in decisions: With about a dozen significant Constitution Bench decisions from the Supreme Court since September 2018, there has been a renaissance in decision-making by Constitution Benches.
    • The most important decisions of this period include-
    • Court’s decisions striking down Section 377 and the criminal offence of adultery.
    • And including the office of the Chief Justice of India within the scope of the Right to Information Act.

Conclusion

With the interpretation process entering in the fourth phase-realising the purpose of enactment of the Constitution- Indian judiciary is on the right track, however, facets of phase 3 continue to linger on it. The Supreme Court must avoid getting in phase three mode to in order to realise the purpose it was entrusted with.

 

 

 

 

Important Judgements In News

[op-ed snap] Making amendsop-ed snap

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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