Important Judgements In News

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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