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Subject: Fundamental Rights,DPSP

1. History + Evolution
2. Features
3. Amendments
4. Basic Structure

  • Re-examination of Sedition Law in motion: Govt informs SC

    Central idea: The Centre has informed Supreme Court that it has initiated the “process of re-examination” of Section 124A (sedition) of the Indian Penal Code and consultations are in its “final stage”.

    What is the Sedition Law?

    • Section 124A of the Indian Penal Code lays down the punishment for sedition. The IPC was enacted in 1860, under the British Raj.
    • The then British government in India feared that religious preachers on the Indian subcontinent would wage a war against the government.
    • Particularly after the successful suppression of the Wahabi/Waliullah Movement by the British, the need was felt for such law.
    • Throughout the Raj, this section was used to suppress activists in favor of national independence, including Tilak and Mahatma Gandhi, both of whom were found guilty and imprisoned.

    Do you know?

    Queen-Empress v. Bal Gangadhar Tilak (1897) was the first case in which Section 124A was defined and applied. Again in 1908, when Tilak was tried under same section, then young barrister and a staunch protagonist Mohammed Ali Jinnah defended Tilak.

    What is Sedition?

    • The Section 124A defines sedition as:

    An offence committed when “any person by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India”.

    • Disaffection includes disloyalty and all feelings of enmity.
    • However, comments without exciting or attempting to excite hatred, contempt or disaffection, will not constitute an offense.
    • Sedition is a non-bailable offense.
    • Punishment under Section 124A ranges from imprisonment up to three years to a life term with/without a fine.

    Sedition as a cognizable offense

    • Sedition was made a cognizable offense for the first time in history in India during the tenure of Prime Minister Indira Gandhi in 1973, that is, arrest without a warrant was now permissible.
    • In 1962 the Supreme Court of India interpreted the section to apply only if there is, say, “incitement to violence” or “overthrowing a democratically elected government through violent means”.

    Is it constitutionally valid?

    • Violative of FRs: Two high courts had found it unconstitutional after Independence, as it violated the freedom of speech and expression.
    • Reasonable restrictions: The Constitution was amended to include ‘public order’ as one of the ‘reasonable restrictions’ on which free speech could be abridged by law.
    • Kedar Nath Case: Thereafter, the Supreme Court, in Kedar Nath Singh v. State of Bihar (1962) upheld its validity.
    • Limited use: At the same time, it limited its application to acts that involve “intention or tendency to create disorder” or incitement to violence.
    • Strong criticism doesn’t amount to sedition: Thus, even strongly worded remarks, as long as they do not excite disloyalty and enmity, or incite violence, are not an offence under this section.

    sedition

    Why the controversy now?

    • Frequent use: In recent times, the resort to this section is seen as disturbingly frequent.
    • Curbing dissent: Activists, cartoonists and intellectuals have been arrested under this section, drawing criticism from liberals that it is being used to suppress dissent and silence critics.
    • Misuse for propaganda: Authorities and the police who invoke this section defend the measure as a necessary step to prevent public disorder and anti-national activities.
    • Irrelevance: Many of them have also been detained under the National Security Act and UAPA.

    What is being debated about it?

    • Demand for its scrapping: Liberals and rights activists have been demanding the scrapping of Section 124A.
    • Provision is outdated: It is argued that the provision is “overbroad”, i.e., it defines the offence in wide terms threatening the liberty of citizens.
    • Various calls for its reconsideration: The Law Commission has also called for a reconsideration of the section.
    • Tyranny of the law: It has pointed that Britain abolished it more than a decade ago and raised the question of whether a provision introduced by the British to put down the freedom struggle should continue to be law in India.
    • Doctrine of severability: Some argue that a presumption of constitutionality does not apply to pre-constitutional laws as those laws have been made by foreign legislature or bodies.

    Need for such law

    • There are some tendencies exist even today who wish to overthrow the state apparatus and constitutional scheme of India.
    • It falls on the judiciary to protect Articles 19 and Article 21 of the Constitution.
    • Undue exercise of free speech has led to overture of ordinary dissent into an anti-national insurrection or uprising.
    • There are areas in the country that face hostile activities and insurgencies created by rebel groups, like the Maoists.
    • There must be restrictions on expressing unnecessary contempt or ridiculing of the Government beyond certain limits.

    Way forward

    • India is the largest democracy in the world and the right to free speech and expression is an essential ingredient of democracy.
    • The sedition law should not be abolished as some measures are needed to check communal violence & insurgency activities like Naxals.
    • The definition of sedition should be narrowed down, to include only the issues pertaining to the territorial integrity of India as well as the sovereignty of the country.
    • Section 124A should not be misused as a tool to curb free speech.

     

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  • 50 years of Kesavananda Bharati Case

    kesav

    Fifty years ago, on April 24, 1973, the Supreme Court delivered its judgment in Kesavananda Bharati Sripadagalvaru and Ors vs. State of Kerala and Anr, the landmark case that redefined the relationship between Parliament and the Constitution.

    Kesavananda Bharati Case (1973)

    • The Kesavananda Bharati judgement, was a landmark decision of the Supreme Court that outlined the basic structure doctrine of the Indian Constitution.
    • The case is also known as the Fundamental Rights Case.
    • The SC in a 7-6 decision asserted its right to strike down amendments to the constitution that were in violation of the fundamental architecture of the constitution.
    • The Court asserted through the Basic Structure doctrine that the constitution possesses a basic structure of constitutional principles and values.
    • Key outcomes were:
    1. Basic Structure Doctrine: It is a principle that limits Parliament’s power to amend the Indian Constitution. It holds that certain fundamental features of the Constitution, such as the principle of separation of powers, cannot be amended by Parliament.
    2. Judicial Review: The Court partially cemented the prior precedent Golaknath v. State of Punjab, which held that constitutional amendments through Article 368 were subject to fundamental rights review, but only if they could affect the ‘basic structure of the Constitution’.
    3. Exceptions to Judicial Review: At the same time, the Court also upheld the constitutionality of the first provision of Article 31-C, which implied that amendments seeking to implement the Directive Principles, which do not affect the ‘Basic Structure,’ shall not be subjected to judicial review.

    Criticism of the doctrine

    • Dilution of powers: The basic structure doctrine has been criticized for diluting the principle of separation of powers and undermining the sovereignty of Parliament.
    • Ambiguous nature: It has also been criticized as a vague and subjective form of judicial review.

    Landmark cases of the doctrine

    • Indira Gandhi v Raj Narain (1975): The Supreme Court applied the principle laid down in the Kesavananda ruling for the first time in this case. It struck down The Constitution (39th Amendment) Act, 1975, which barred the Supreme Court from hearing a challenge to the election of President, Prime Minister, Vice-President, and Speaker of Lok Sabha.
    • Minerva Mills Ltd vs. Union of India (1980): The Supreme Court struck down a clause inserted in Article 368, which said “there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution.”
    • P Sambamurthy v State of Andhra Pradesh (1986): The Supreme Court struck down a portion of the 32nd Amendment (1973), which constituted an Administrative Tribunal for Andhra Pradesh for service matters, taking away the P jurisdiction of the High Court.
    • L Chandra Kumar v Union of India (1997): The Supreme Court struck down a portion of the 42nd Amendment, which set up administrative tribunals excluding judicial review by High Courts.

    Significance of the Judgment and the doctrine

    • Strengthen judicial review: The doctrine forms the basis of the power of the Indian judiciary to review and override amendments to the Constitution of India enacted by the Parliament.
    • Clarification about Article 368: Article 368 postulates only a ‘procedure’ for amendment of the Constitution. The same could not be treated as a ‘power’ vested in the Parliament to amend the Constitution to alter the ‘core’ of the Constitution, which has also been described as the ‘basic structure’ of the Constitution.
    • Not antithetical to legislative authority: Justice Shastri said Judicial Review was undertaken by the courts “not out of any desire to tilt at legislative authority in a crusader’s spirit, but in the discharge of a duty laid down upon them by the Constitution”.
    • A system of checks and balances: The Kesavananda Bharati verdict (1973) made it clear that judicial review is not a means to usurp parliamentary sovereignty. It is a “system of checks and balances” to ensure constitutional functionaries do not exceed their limits.

     

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  • Assam- Arunachal Pradesh Border Dispute

    • assam

    Central idea

    • Ahave had a long-standing border dispute over 123 villages that are located in 12 districts of Arunachal and 8 districts of Assam.
    • On April 21, 2022, an MoU was signed between the two states to resolve the dispute.

    Genesis of the dispute

    • The border dispute between Arunachal Pradesh and Assam has around 1,200 points of conflict along their 804 km boundary, which began in the 1970s and intensified in the 1990s.
    • The issue goes back to 1873 when the British government introduced the inner-line permit, vaguely separating the plains from the frontier hills.
    • In 1954, the North-East Frontier Agency (NEFA) was formed, and 3,648 sq. km of the “plain” area of Balipara and Sadiya foothills was transferred to the Darrang and Lakhimpur districts of Assam based on the 1951 report.
    • Arunachal has been celebrating its statehood with an eye on China since 1987, and its people living in the transferred patches have been resentful, claiming that the transfer was done arbitrarily.
    • However, their counterparts in Assam say the 1951 demarcation is constitutional and legal.

    Past efforts to resolve the border issue

    • Several efforts were made in the past to resolve the border dispute between Assam and Arunachal Pradesh.
    • In 1979, a high-powered tripartite committee was constituted to delineate the boundary, and around 489 km of the 800 km were demarcated by 1983-84.
    • Further demarcation could not take place because Arunachal Pradesh did not accept the recommendations.
    • The apex court appointed a local boundary commission in 2006 to resolve the dispute. However, nothing came of it.

    Process leading up to the signing of the MoU

    • Assam CM and Arunachal CM commenced CM-level talks over the border issue on January 24, 2022.
    • In their second meeting on April 20, 2022, they made key decisions.
    • The border issues between both the states would be confined to a list of 123 villages which Arunachal Pradesh had claimed before the Local Commission in 2007.
    • A boundary line delineated by the high-powered tripartite committee in 1980 would be taken as the notified boundary, and all realignment would be done in relation to it.
    • Both states would set up 12 regional committees covering the 12 districts of Arunachal Pradesh and the 8 counterpart districts of Assam for joint verification of the 123 villages.

    Extent to which the issue has been resolved

    • The MoU has resolved the dispute over 34 villages.
    • The village boundaries of 49 of the remaining villages are unresolved.
    • The MoU states that in these, the Regional Committees will finalize the boundaries within a period of six months “through continuous dialogue.”

     

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  • What is Civil Union, how is it different from Marriage?

    Central idea

    • The Indian judiciary is currently hearing arguments about the legal recognition of same-sex unions under the Special Marriage Act.
    • The Centre has contested the maintainability of the petitions, and the judiciary’s right to confer legal recognition on the “socio-legal institution” of marriage.
    • However, the CJI has clarified that the scope of the hearing would be limited to developing a notion of a Civil Union that finds legal recognition under the Act.
    • This article explains what civil unions are, how they differ from marriage, and which countries allow them.

    What is a Civil Union?

    • A civil union is a legal status that allows same-sex couples specific rights and responsibilities normally conferred upon married couples.
    • Civil unions resemble marriages and bring with them employment, inheritance, property, and parental rights, among other things.

    How is a civil union different from marriage?

    • In the US, prior to the Supreme Court’s landmark ruling in “Obergefell v. Hodges” in 2015, a majority of the states had civil union laws that allowed same-sex couples to marry without providing them formal recognition of the same.
    • Civil unions were recognised solely by issuing states and not by federal law, which meant that such couples could not enjoy the benefits of being in a civil union uniformly across all states.
    • After the legalisation of same-sex marriages, several civil unions were converted into marriages.

    What other countries allow civil unions?

    • Several countries allow civil unions.
    • Before Sweden legalised same-sex marriages in 2009, LGBTQ couples there could apply for civil unions and enjoy benefits such as the right to adopt.
    • In Norway, couples could enter into civil unions from 1993, which gave way to a new law 15 years later allowing such couples to marry, adopt, and undergo state-sponsored artificial insemination.
    • In Austria, same-sex couples could form civil partnerships between 2010-2017 until a court ruling deemed civil unions discriminatory, and such marriages were legalised.
    • Similarly, countries like Brazil, Uruguay, Andorra, and Chile recognised the right of same-sex couples to enter into civil unions even before they formally recognised their legal right to marriage.

     

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  • What is Ninth Schedule of the Constitution?

    Central idea: Chhattisgarh CM has written to the Prime Minister seeking the inclusion of two amendment Bills allowing for higher quotas in jobs and educational institutions in the Ninth Schedule of the Constitution.

    What is Ninth Schedule?

    • The Ninth Schedule is a legal provision in the Constitution of India that provides immunity to certain laws from judicial review.
    • It is a list of Central and State laws that are immune from judicial review.
    • These laws are not subject to judicial scrutiny or challenge in any court of law, including the Supreme Court of India.
    Details
    Definition A list of Central and State laws that are immune from judicial review.
    History Added to the Constitution by the First Amendment in 1951.
    Purpose back then To protect land reforms and other progressive laws from being challenged in courts.
    Significance Used to protect laws related to land reforms, reservation in education and employment, anti-defection laws, and other progressive measures aimed at social justice and equality.
    Criticisms Criticised for shielding unconstitutional laws and violating fundamental rights.

    Supreme Court of India has struck down several laws in the Ninth Schedule on the grounds that they violate the basic structure of the Constitution.
    Amendment Constitution (Ninety-Sixth Amendment) Act, 2001 added a provision stating that any law added to the Ninth Schedule after April 24, 1973, can be challenged in courts on the ground that it violates the fundamental rights guaranteed by the Constitution.

     

    What is the request made by CG CM?

    • In Chhattisgarh’s case, the two amendment Bills were passed unanimously by the State Assembly paving the way for 76% quota for Scheduled Caste, Scheduled Tribes and Other Backward Classes.
    • However, the Bills are yet to receive the Governor’s nod.
    • The Chhattisgarh High Court had struck down a 2013 State government order to allow 58% quota, holding that reservation above the 50% ceiling was “unconstitutional.”

    Request for Inclusion in Ninth Schedule

    • The CM presented the demographics of the State and wrote that the socio-economic and educational condition of the OBC people of the State is as weak as that of the SC/ST people.
    • He argued that the inclusion of the amended provision in the Ninth Schedule of the Constitution is necessary for the people of the deprived and backward classes to get justice.

     

     

  • Constitution Bench formed in Same-Sex Marriage Case

    bench

    The Supreme Court has announced the formation of a new Constitution Bench headed by Chief Justice of India DY Chandrachud to hear a series of petitions seeking legal recognition of same sex marriages.

    What is a Constitution Bench?

    • The constitution bench is the name given to the benches of the Supreme Court of India.
    • The Chief Justice of India has the power to constitute a Constitution Bench and refer cases to it.

    Constitution benches are set up when the following circumstances exist:

    1. Interpretation of the Constitution: Article 145(3) provides for the constitution of at least five judges of the court which sit to decide any case “involving a substantial question of law as to the interpretation” of the Constitution of India.
    2. President of India seeking SC’s opinion: When the President has sought the Supreme Court’s opinion on a question of fact or law under Article 143 of the Constitution. Article 143 of the Constitution provides for Advisory jurisdiction to the SC. As per the provision, the President has the power to address questions to the apex Court, which he deems important for public welfare.
    3. Conflicting Judgments: When two or more three-judge benches of the Supreme Court have delivered conflicting judgments on the same point of law, necessitating a definite understanding and interpretation of the law by a larger bench.
    • The Constitution benches are set up on ad hoc basis as and when the above-mentioned conditions exist.
    • Constitution benches have decided many of India’s best-known and most important Supreme Court cases, such as:
    1. K. Gopalan v. State of Madras (Preventive detention)
    2. Kesavananda Bharati v. State of Kerala (Basic structure doctrine) and
    3. Ashoka Kumar Thakur v. Union of India (OBC reservations) etc.

    Why in news now?

    • The Centre had expressed its concern about the “psychological impact” that same-sex unions could have on children, but refused to link its worries to stigma about same-sex relationships.
    • The government’s recent affidavit sought to explain how same-sex marriage was antithetical to the view held by many in India that marriage was a “holy union, a sacrament and a sanskar” between a biological man and a woman.

     

  • Role of Parliamentary Committees

    Central idea: This article discusses the importance and functions of parliamentary committees in India.

    Why in news?

    • As little as 25% of the Bills introduced were referred to committees in the 16th Lok Sabha, as compared to 71% and 60% in the 15th and 14th Lok Sabha respectively.
    • This represents a declining trend of national legislation being subjected to expert scrutiny.

    What is a Parliamentary Committee?

    • A committee appointed or elected by the House or nominated by the Speaker that works under the direction of the Speaker and presents its report to the House or the Speaker.
    • Two kinds of committees: Standing Committees and Ad hoc Committees.

    (1) Standing Committees

    • Permanent and regular committees constituted from time to time in pursuance of the provisions of an Act of Parliament or Rules of Procedure and Conduct of Business in Lok Sabha.
    • The work of these Committees is of continuous nature.
    • Examples include the Financial Committees and DRSCs.

    (2) Ad hoc Committees

    • Appointed for a specific purpose and cease to exist when they finish the task assigned to them and submit a report.
    • The principal Ad hoc Committees are the Select and Joint Committees on Bills.
    • Examples include the Railway Convention Committee and Joint Committee on Food Management in Parliament House Complex.

    Why need Parliamentary Committee?

    • Parliament scrutinizes legislative proposals (Bills) in two ways: discussion on the floor of the two Houses and referring the Bill to a parliamentary committee.
    • Since Parliament meets for 70 to 80 days in a year, there is not enough time to discuss every Bill in detail on the floor of the House.

    Role of the committee in the passage of a Bill

    • The debate in the house is mostly political and does not go into the technical details of a legislative proposal.
    • Referring a Bill to a parliamentary committee takes care of the legislative infirmity of debate on the floor of the House.
    • However, referring Bills to parliamentary committees is not mandatory.

    What is a Select Committee?

    • India’s Parliament has multiple types of committees.
    • Departmentally related Standing Committees focus on the working of different ministries.
    • Each committee has 31 MPs, 21 from Lok Sabha and 10 from Rajya Sabha.
    • The main purpose is to ensure the accountability of Government to Parliament through a more detailed consideration of measures in these committees.

    When does a committee examine a Bill?

    • Bills can reach a committee through a recommendation by the minister piloting the Bill or the presiding officer of the House.

    What happens when a Bill goes to a Committee?

    • The committee undertakes a detailed examination of the Bill, inviting comments and suggestions from experts, stakeholders and citizens.
    • The government also appears before the committee to present its viewpoint.
    • The committee’s report makes suggestions for strengthening the Bill.
    • While the committee is deliberating on a Bill, there is a pause in its legislative journey.
    • The Bill can only progress in Parliament after the committee has submitted its report.

    What happens after the report?

    • The report of the committee is of a recommendatory nature.
    • The government can choose to accept or reject its recommendations.
    • Select Committees and JPCs have an added advantage of including their version of the Bill in the report.
    • The minister in charge of that particular Bill can move for the committee’s version of the Bill to be discussed and passed in the House.

    Importance of these Committees

    • Parliamentary committees analyze the impact that a specific piece of legislation may have on governance indicators.
    • It recommends the government to take an ‘Action Taken’ report for the House to judge the progress made on the suggestions of the committee.
    • Though committee reports aren’t binding on the government, it helps the legislature ensure oversight of the executive.

     

  • Principles of Natural Justice and Proportionality

    justice

    Central idea

    • The Supreme Court lifted a broadcasting ban on a Malayalam news channel ‘MediaOne’.
    • The court blasted the government for silencing voices in the media who “speak truth to power” by branding them as “anti-establishment”.

    A quick recap of the case

    • The Ministry of Information and Broadcasting (MIB) has earlier refused to renew broadcast license of a Malayalam news channel.
    • The Ministry of Home Affairs had declined to grant security clearance to the channel’s promoters citing alleged links between radical groups.
    • Hence the news agency approached Kerala High Court, which upheld the ban on February 9, 2022
    • The Supreme Court granted temporary relief and allowed it to resume operations.

    Supreme Court’s ruling

    • The Supreme Court set aside earlier ban orders and upheld the channel’s appeal on two procedural grounds, namely
    1. Principles of natural justice and
    2. Proportionality

    Articles invoked in the judgment

    • The Court stated that the burden shifts on the Centre to prove that the procedure followed was reasonable and in compliance with the requirements of Articles 14 and 21 of the Constitution.
    • The Court used the standard of proportionality to test the reasonableness of the procedure in the present case and assessed the validity of public interest immunity claims based on the “structured proportionality standard”.
    • The Court found that the reasons for denying security clearance to the channel were not legitimate purposes for the restriction of the right of freedom of speech protected under Article 19(1)(a) of the Constitution.

    Key concepts involved

    (1) Principles of natural justice

    • The principles of natural justice are a set of procedural rules that ensure fairness and justice in administrative and legal proceedings.
    • These principles are based on the fundamental idea that everyone is entitled to a fair hearing, and they are aimed at preventing arbitrary or biased decisions by decision-makers.
    • The SC bench allowed the challenge to the MHA order and judgment of the High Court on account of the principles of natural justice constitutionalized by its judgment in its 1978 ruling in “Maneka Gandhi vs Union of India”
    • Actions which violate procedural guarantees can be struck down even if non-compliance does not prejudice the outcome of the case.

    (2) Proportionality

    • The principle requires that the decision or action must be proportionate to the objective it seeks to achieve.
    • In other words, the means employed to achieve the objective must be no more than necessary to achieve it, and the harm caused by the decision or action must not be excessive in relation to the benefit gained.
    • The validity of the claim of involvement of national security considerations must be assessed on the test of whether there is material to conclude that the non-disclosure of information is in the interest of national security.
    • Courts can assess the validity of public interest immunity claims based on the “structured proportionality standard”, said the SC.
    • The SC observed that sealed cover proceedings infringe the principles natural justice and open justice.

    Conclusion

    • The Court’s ruling has been welcomed by media organizations and civil society groups as a victory for freedom of speech and expression
    • The Court observed that the duty to act fairly derived from common law is not exhaustively defined in a set of concrete principles, and the concept of natural justice “cannot be put into a ‘straitjacket formula’.
    • The ruling has been hailed as a victory for freedom of speech and expression, and a blow to attempts to stifle dissent and critical voices in the media.

  • SC asks govt. for data on Death by Hanging

    death

    The Supreme Court has asked the Centre to provide data which may point to a more dignified, less painful and socially acceptable method of executing prisoners other than death by hanging.

    Central idea

    • The Supreme Court is hearing a petition challenging the constitutionality of death by hanging as a mode of execution.
    • The petition argued that there is a need to evolve a “humane, quick and decent alternative” to hanging, which he termed as “cruel and barbarous” compared to lethal injection used in the United States.

    Quest for painless execution

    • Justice Narasimha noted that there was literature suggesting that “hanging is closest to painless”.
    • In 2018, the Centre filed an affidavit supporting death by hanging and stated that it had found the method of firing squads and lethal injections as “barbaric, inhuman and cruel”.
    • The government traced statistics of “botched-up” administration of lethal injections to condemned prisoners in the United States for 110 years to prove its point.

    Status of death penalty in India

    • Section 354 (5) of the Code of Criminal Procedure mandates that a person sentenced to death shall “be hanged by the neck till he is dead”.
    • In India, The Air Force Act, 1950, The Army Act 1950, and The Navy Act 1957 say that execution has to be carried out either by hanging by the neck until death or by being shot to death.

    Why in news now?

    • The court clarified that it was not questioning the constitutionality of the death penalty, which was well-settled in Deena versus Union of India judgment and the Bachan Singh case reported in 1980.
    • The government argued that the mode of execution is a “matter of legislative policy” and the death penalty is awarded only in the rarest of rare cases, with only three executions between 2012 and 2015.

    Debate over Death Penalty

    Arguments in favor:

    • Forfeiture of life: Supporters of the death penalty believe that those who commit murder, because they have taken the life of another, have forfeited their own right to life.
    • Moral indignation of the victim: It is a just form of retribution, expressing and reinforcing the moral indignation not only of the victim’s relatives but of law-abiding citizens in general.
    • Highest form of Justice: For heinous crimes such as the Nirbhaya Gangrape Case, no other punishment could have deterred the will of the convicts.
    • Deterrent against crime: Capital punishment is often justified with the argument that by executing convicted murderers, we will deter would-be murderers from killing people.
    • Proportional punishment: The guilty people deserve to be punished in proportion to the severity of their crime.
    • Prevailing lawlessness: The crimes we are now witnessing cannot be addressed by simple punishments. We are seeing horrific attacks on women, young girls, minority communities and Dalits etc.
    • Prevention of crime is non-existent: Despite of stringent regulations, it is certainly visible that some crimes can never be prevented in our society.

    Arguments against:

    • Eye for an eye: Reformative justice is more productive, that innocent people are often killed in the search for retribution, and that “an eye for an eye makes the whole world blind.
    • Deterrence is a myth: Death penalty is not a deterrent to capital crimes state that there is no evidence to support the claim that the penalty is a deterrent.
    • Political tool of suppression: The authorities in some countries, for example Iran and Sudan, use the death penalty to punish political opponents.
    • Reverence for life’ principle: Death penalty is an immoral punishment since humans should not kill other humans, no matter the reasons, because killing is killing.
    • Stigma against killing: With the introduction of lethal injection as execution method, medical professionals participate in executions. Many professionals have now refused to administer such deaths.
    • Skewed justice systems: In many cases recorded by Amnesty International, people were executed after being convicted in grossly unfair trials, on the basis of torture-tainted evidence and with inadequate legal representation.
    • Discriminatory nature: The weight of the death penalty is disproportionally carried by those with less advantaged socio-economic backgrounds or belonging to a racial, ethnic or religious minority.
    • Penalizing the innocents: The risk of executing the innocent precludes the use of the death penalty. Our colonial history has witnessed many such executions.

    Other issues with such executions

    (a) Socio-Economic Factors

    • The recent statistics shows that the death row prisoners in India are more from the backward classes of the society.
    • The death row prisoners belong to backward classes and religious minorities and the majority of convicts’ families are living in adjunct poverty.
    • These people who are backward both in economic and social respects, are not in a position to here expensive lawyers and get proper representation in the Court.

    (b) Delayed Execution

    • The law provides for a long process before the execution of the convicts actually takes place.
    • The unexplained delay in execution can be a ground for commutation of death penalty, and an inmate, his or her kin, or even a public-spirited citizen could file a writ petition seeking such commutation.
    • Their trials are often cruelly forced to endure long periods of uncertainty about their fate.

    Way forward: Law Commission recommendations on death penalty

    The Law Commission of India in its 262nd Report (August 2015) recommended that:

    • Death penalty be abolished for all crimes other than terrorism-related offences and waging war.
    • Measures such as police reforms, witness protection scheme and victim compensation scheme should be taken up expeditiously by the government.
    • It felt that time has come for India to move towards abolition of the death penalty. However the concern is often raised that abolition of death penalty for terrorism-related offences and waging war, will affect national security.

     

  • Concerns with linking Aadhaar with Voter IDs

    adhaar

    Central idea: The article discusses the potential issues and concerns related to the Indian government’s proposal to link Aadhaar with Voter IDs.

    Total Aadhaar-Voter ID linkages

    • Around 60% of India’s electors now have their Aadhaar number linked to their name on the voter rolls.
    • It has achieved saturation of over 90% in States like Tripura, which went to the polls recently.
    • States like Gujarat and Delhi are lagging where only around 30% of the electorate has provided an Aadhaar number to election officials.

    What is the move about?

    • The linking is being carried out by filling Form 6B, which is provided by election officials going door-to-door to collect Aadhaar or alternate ID from registered voters.
    • The form was the result of the Election Laws (Amendment) Act passed in 2021 to allow the linking of Voter IDs and Aadhaar.
    • While the Election Commission (EC) maintains that providing an Aadhaar is optional, Form 6B requires voters to declare that they do not have an Aadhaar to avoid providing the number.

    Aadhaar-Voter ID linkage: Why does the government want this?

    • Accurate voter’s record: The EC conducts regular exercises to maintain an updated and accurate recordof the voter base.
    • Avoid duplicate voters: A part of this exercise is to weed out duplication of voters.
    • Identify unique voters: As per the government, linkage of Aadhaar with voter IDs will assist in ensuring that only one Voter ID is issued per citizen of India.

    Is the linking of Aadhaar with one’s Voter ID mandatory?

    • In December 2021, Parliament passed the Election Laws (Amendment) Act, 2021.
    • This was to amend the Representation of the People Act, 1950and Section 23(4) was inserted in the RP Act.
    • It states that the electoral registration officerMAY require voters to furnish their Aadhaar numbers to verify Authencity of voters list.

    Why there is such proposal for linking?

    The preference to use Aadhaar for verification and authentication, both by the state and private sector, stems from few reasons:

    • Increase in UID-holders:First, at the end of 2021, 99.7% of the adult Indian population had an Aadhaar card.
    • Most versatile document:This coverage exceeds that of any other officially valid document such as driver’s licence, ration cards, PAN cards etc. that are mostly applied for specific purposes.
    • Reliable source of authentication:Since Aadhaar allows for biometric authentication, Aadhaar based authentication and verification is considered more reliable, quicker and cost efficient when compared to other IDs.

    Issues with mandatory linking: Puttaswamy judgment highlights

    • Puttaswamy judgment:The above reasons do not suffice the mandating of Aadhaar except in limited circumstances as per the Puttaswamy judgment.
    • Indispensability of the purpose:It needs to be considered whether such mandatory linkage of Aadhaar with Voter ID would pass the test of being “necessary and proportionate” to the purpose of de-duplication which is sought to be achieved.
    • Constitutional ambiguity:In Puttaswamy, one of the questions that the Supreme Court explored was whether the mandatory linking of Aadhaar with bank accounts was constitutional or not.
    • Against informational autonomy: It is the right to privacy which would allow a person to decide which official document they want to use for verification and authentication.
    • Disenfranchisement: Some fear that linking Aadhaar with Voter IDs may exclude certain groups of people, such as those who do not have an Aadhaar card.

    Other judicial observations: Lal Babu Hussein (1995) Case

    • The Supreme Court had held that the Right to vote cannot be disallowed by insisting only on four proofs of identity.
    • The voters are entitled to rely on any other proof of identity and obtain the right to vote.

    What are the operational difficulties?

    • Aadhaar is not a citizenship proof:The preference to Aadhaar for the purposes of determining voters is puzzling as Aadhaar is only a proof of residence and not a proof of citizenship.
    • Excluding non-citizens is not easy:Verifying voter identity against this will only help in tackling duplication but will not remove voters who are not citizens of India from the electoral rolls.
    • Estimate of error rates in biometric based authentication:This certainly differs. As per the UIDAI in 2018, Aadhaar based biometric authentication had a 12% error rate.
    • Disenfranchisement of existing voters:Errors have led to the disenfranchisement of around 30 lakh voters in AP and Telangana before the Supreme Court stalled the process of linkage.

    Key concern: Right to Privacy

    • Some civil societies has highlighted that linking of the two databases of electoral rolls and Aadhaar could lead to the linkage of Aadhaar’s “demographic” information with voter ID information.
    • This could lead to violation of the right to privacy and surveillance measures by the state.
    • This would leave the EC with the option of verifying its information only through door-to-door checks.
    • There is a lack of enforceable data protection principlesthat regulate how authentication data will be used.

    Way forward

    • The govt should expedite the enactment of a data protection legislation that allays concerns of unauthorized processing of personal data held by the government.