Subject: Fundamental Rights,DPSP

Former Supreme Court Judge Rohinton Fali Nariman has said civil suits against hate speech leading to the award of punitive damages should be taken up by courts.

What did the ex-Judge say?

• He described the Fundamental Duty of fraternity (Article 51A(5)) as the only Constitutional method of assuring the dignity of every citizen and the unity and integrity of the nation.
• The cardinal principle of fraternity prescribed that every citizen honoured the other citizen in the spirit of brotherhood, transcending religious, sectarian, and other tendencies.
• He opined that civil suits like defamation being dealt with fines would be more efficient in curbing hate speeches against individuals.

Article 51A(5): Promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities and to renounce practices derogatory to the dignity of women.

What is ‘Hate Speech?

• There is no specific legal definition of ‘hate speech’.
• The Law Commission of India, in its 267th Report, says: “Hate speech generally is an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like …
• Thus, hate speech is any word written or spoken, signs, visible representations within the hearing or sight of a person with the intention to cause fear or alarm, or incitement to violence.”
• In general, hate speech is considered a limitation on free speech that seeks to prevent or bar speech that exposes a person or a group or section of society to hate, violence, ridicule or indignity.

How is it treated in Indian law?

• Provisions in law criminalize speeches, writings, actions, signs and representations that foment violence and spread disharmony between communities and groups and these are understood to refer to ‘hate speech’.
• Sections 153A and 505 of the Indian Penal Code are generally taken to be the main penal provisions that deal with inflammatory speeches and expressions that seek to punish ‘hate speech’.

[I] Section 153A:

• Promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony’, is an offence punishable with three years’ imprisonment.

[II] Section 505:

• 505(1): Statements conducing to public mischief– The statement, publication, report or rumour that is penalized under Section 505(1) should be one that promotes mutiny by the armed forces, or causes such fear or alarm that people are induced to commit an offence against the state or public tranquillity. This attracts a jail term of up to three years.
• 505(2): It is an offence to make statements creating or promoting enmity, hatred or ill-will between classes.
• 505(3): Same offence will attract up to a five-year jail term if it takes place in a place of worship, or in any assembly engaged in religious worship or religious ceremonies.

Why curb hate speeches?

• Creates social divide: Individuals believe in stereotypes that are ingrained in their minds and these stereotypes lead them to believe that a class or group of persons are inferior to them and as such cannot have the same rights as them.
• Threat to peaceful co-existence: The stubbornness to stick to a particular ideology without caring for the right to co-exist peacefully adds further fuel to the fire of hate speech.

Issues in regulating hate speech

• Powers to State: Almost every regulation of speech, no matter how well-intentioned, increases the power of the state.
• Hate speeches are Political: The issue is fundamentally political and we should not pretend that fine legal distinctions will solve the issue.
• Legal complications: An over-reliance on legal instruments to solve fundamental social and political problems often backfires.

Way forward

• Subjects like hate speeches become a complex issue to deal with, in a country like India which is very diverse, as it was very difficult to differentiate between free and hate speech.
• There are many factors that should be considered while restraining speeches like strong opinions, offensive comments towards certain communities, the effect on values like dignity, liberty and equality.
• We all have to work together and communicate efficiently for our country to be a healthy place to live in.

 

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The Jharkhand assembly on Friday cleared two bills, one fixing land records of 1932 as the basis for a domicile in the state and another to increase reservation in state government jobs across categories to 77%

What is the news?

• Though both these bills were cleared unanimously, they would come into effect only after the Centre includes them in the Ninth Schedule of the Constitution.
• A law in the Ninth Schedule is shielded from judicial review.

Why the need to include in Ninth Schedule?

• The 77 per cent reservation breaches the 50 per cent ceiling set by the Supreme Court in the landmark 1992 Indra Sawhney v Union of India verdict.
• However, placing legislation in the Ninth Schedule shields it from judicial scrutiny.

What is the Ninth Schedule?

• The Ninth Schedule contains a list of central and state laws which cannot be challenged in courts.
• Most of the laws protected under the Schedule concern agriculture/land issues.
• The Schedule became a part of the Constitution in 1951, when the document was amended for the first time.
• It was created by the new Article 31B, which along with 31A was brought in by the government to protect laws related to agrarian reform and for abolishing the Zamindari system.
• While A. 31A extends protection to ‘classes’ of laws, A. 31B shields specific laws or enactments.

How many laws are there in ninth schedule?

• Currently, 284 such laws are shielded from judicial review.
• The First Amendment added 13 laws to the Schedule. Subsequent amendments in 1955, 1964, 1971, 1974, 1975, 1976, 1984, 1990, 1994, and 1999 have taken the number of protected laws to 284.

Previous instances — Tamil Nadu’s case

• A Tamil Nadu Law of 1993, reserves 69 per cent of the seats in colleges and jobs in the state government.
• When it ran into legal obstacles in the 1990s after the SC verdict, the then CM led a delegation to New Delhi to meet the then PM PV Narasimha Rao.
• The reservation provision was then included in the Ninth Schedule.

Nature of exemption from Judicial Review

• While the Ninth Schedule provides the law with a “safe harbour” from judicial review, the protection is not blanket.
• The Tamil Nadu law was challenged in 2007 in the I R Coelho v State of Tamil Nadu
• The Supreme Court ruled in a unanimous nine-judge verdict that while laws placed under Ninth Schedule cannot be challenged on the grounds of violation of fundamental rights.
• They can be challenged on the ground of violating the basic structure of the Constitution, said the apex court.

Verdict of the IR Coelho Case

• The IR Coelho verdict said, “A law that abrogates or abridges rights guaranteed by Part III of the Constitution may violate the basic structure doctrine or it may not.
• If former is the consequence of law, whether by amendment of any Article of Part III or by an insertion in the Ninth Schedule, such law will have to be invalidated in exercise of judicial review power of the Court.”

 

What is the 1973 deadline about?

• The court clarified that the laws cannot escape the “basic structure” test if inserted into the Ninth Schedule after 1973.
• As it was in 1973 that the basic structure test was evolved in the Kesavananda Bharati case as the ultimate test to examine the constitutional validity of laws.

 

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A Constitution Bench of the Supreme Court, in a 3:2 majority decision, upheld the validity of the 103rd Constitutional Amendment, which provides 10% reservation in government jobs and educational institutions to the Economically Weaker Sections (EWS) of society.

What else?

• The judgment excludes the “poorest of poor” among Scheduled Castes (SC), Scheduled Tribes (ST), Socially and Educationally Backward Classes (SEBC) and Other Backward Classes (OBC) from its scope.

What was the 103^rd Amendment?

• The 103rd Amendment inserted Articles 15(6) and 16(6) in the Constitution to provide up to 10 per cent reservation to the economically weaker sections (EWS) among non-OBC and non-SC/ST sections .
• In other words, the amendment had changed the Constitution and introduced a quota for the poor among the so-called ‘forward castes’ or ‘general category’.

Quota available to EWS

• The quota is available in:

1. Admissions to higher educational institutions and
2. Initial recruitment in central government jobs

• The amendment also empowered state governments to provide reservation on the basis of economic backwardness.

On what basis was the quota challenged?

Ans. Violation of Basic Structure

• Violation of basic structure: Essentially, the challenge was based on the argument that the 103rd amendment violated the “basic structure” of the Constitution.
• Socially disadvantage: The primary argument in this case stemmed from the view that the special protections guaranteed to socially disadvantaged groups is part of the basic structure.
• Sole economic criterion: The 103rd Amendment departs from this by promising special protections on the sole basis of economic status.

Key arguments by the Judges

[A] Majority Opinion

Three judges, Justices Dinesh Maheshwari, Bela Trivedi, and S B Pardiwala, have upheld the validity of the 103rd amendment.

1. Justice Dinesh Maheshwari: He has ruled that reservation based only on economic criteria does not violate the basic structure of the Constitution, and that the exclusion of classes covered in Article 15(4) and 16(4) — that is OBCs and SC/STs — in the 103rd amendment does not damage the basic structure.
2. Justice Bela Trivedi: She has concurred with Justice Maheshwari. She ruled that treating EWS as a separate class would be a reasonable classification, and that treating unequals equally would violate the principle of equality under the Constitution.
3. Justice Trivedi: He said that 75 years after independence, it was time to revisit the system of reservation in the larger interest of society.
4. Justice S B Pardiwala: He concurred with Justice Maheshwari and Justice Trivedi. He observed that “Reservation is not an end, it is means, it should not be allowed to become a vested interest.

[B] Minority (Dissenting) Opinion

1. Justice Bhat: He has ruled that while reservation on economic criteria is per se not violative of the Constitution, excluding SC/ST/OBC from the purview of EWS is violative of basic structure. He has struck down Articles 15(6) and 16(6) for being discriminatory and violative of the equality code.
2. CJI Lalit: He said he concurs entirely with the judgment of Justice Bhat.

What about the 50% ceiling on quotas?

• The judgment appears to have struck down the ceiling of 50%.
• Justice Maheshwari said that reservations for EWS does not violate basic structure on account of 50% ceiling limit because ceiling limit is not inflexible.

How the judiciary deviated from its earlier judgments?

• However, the dissenting opinion says that permitting breach of 50% would result in compartmentalization, and the rule of right to equality will become right to reservations.
• The apex court has repeatedly underlined the 50% ceiling on reservations imposed by the landmark Indra Sawhney judgment of 1992.
• On that basis, attempts by a number of states have been struck down.
• Several of those issues can now be reopened. Now states can rebel with their populist moves to provide reservations to some communities. Ex. Nomadic Tribes case in Maharashtra.

What is the EWS Quota?

• The EWS criteria for employment and admission was notified on January 31, 2019 by the Department of Personnel and Training (DoPT) based on the 103rd Amendment.
• Under the 2019 notification, a person who was not covered under the scheme of reservation for SCs, STs, and OBCs, and whose family had a gross annual income below Rs 8 lakh, was to be identified as EWS.
• The notification specified what constituted “income”, and excluded some persons from the EWS category if their families possessed certain specified assets.

Broad issues with EWS quota

• Reduction within general category: The EWS quota remains a controversy as its critics say it reduces the size of the open category, besides breaching the 50% limit on the total reservation.
• Arbitrariness over income limit: The court has been intrigued by the income limit being fixed at ₹8 lakh per year. It is the same figure for excluding the ‘creamy layer’ from OBC reservation benefits.
• Socio-economic backwardness: A crucial difference is that those in the general category, to whom the EWS quota is applicable, do not suffer from social or educational backwardness, unlike those classified as the OBC.
• Metropolitan criteria: There are other questions as to whether any exercise was undertaken to derive the exceptions such as why the flat criterion does not differentiate between metropolitan and non-metropolitan areas.
• OBC-like criteria: The question the court has raised is when the OBC category is socially and educationally backward and, therefore, has additional impediments to overcome.
• Not based on relevant data: In line with the Supreme Court’s known position that any reservation or norms for exclusion should be based on relevant data.
• Breaches reservation cap: There is a cap of 50% on reservation as ruled in the Indira Sawhney Case. The principle of balancing equality ordains reservation.

Way forward

• Preserving the merit: We cannot rule out the sorry state of economic backwardness hampering merit in our country.
• Rational criteria: There has to be collective wisdom to define and measure the economic weakness of certain sections of society in order to shape the concept of economic justice.
• Judicial guidance: Judicial interpretation will pave the wave forward for deciding the criterion for EWS Quota.
• Targetted beneficiaries. The center needs to resort to more rational criteria for deciding the targeted beneficiary of this reservation system. Caste Census data can be useful in this regard.
• Income study: The per capita income or GDP or the difference in purchasing power in the rural and urban areas, should be taken into account while a single income limit was formulated for the whole country.

 

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Bangladesh Information Minister has said that the Citizenship Amendment Act (CAA) framed to grant Indian citizenship to minorities of Bangladesh, Pakistan and Afghanistan was an “internal matter” of India.

What is Citizenship Amendment Act (CAA), 2019?

• The Citizenship (Amendment) Act, 2019 (CAA) is an act that was passed in the Parliament on December 11, 2019.
• The 2019 CAA amended the Citizenship Act of 1955 allowing Indian citizenship for religious minorities who fled from the neighboring Muslim majority countries before December 2014 due to “religious persecution or fear of religious persecution”.
• However, the Act excludes Muslims.
• Under CAA, migrants who entered India by December 31, 2014, and had suffered “religious persecution or fear of religious persecution” in their country of origin, were made eligible for citizenship by the new law.
• These type of migrants will be granted fast track Indian citizenship in six years.
• The amendment also relaxed the residence requirement for naturalization of these migrants from eleven years to five.

Key feature: Defining illegal migrants

• Illegal migrants cannot become Indian citizens in accordance with the present laws.
• Under the CAA, an illegal migrant is a foreigner who: (i) enters the country without valid travel documents like a passport and visa, or (ii) enters with valid documents, but stays beyond the permitted time period.
• Illegal migrants may be put in jail or deported under the Foreigners Act, 1946 and The Passport (Entry into India) Act, 1920.

Exceptions

• The Bill provides that illegal migrants who fulfil four conditions will not be treated as illegal migrants under the Act.  The conditions are:

1. They are Hindus, Sikhs, Buddhists, Jains, Parsis or Christians;
2. They are from Afghanistan, Bangladesh or Pakistan;
3. They entered India on or before December 31, 2014;
4. They are not in certain tribal areas of Assam, Meghalaya, Mizoram, or Tripura included in the Sixth Schedule to the Constitution, or areas under the “Inner Line” permit, i.e., Arunachal Pradesh, Mizoram, and Nagaland.

Controversy with the Act

• Country of Origin: The Act classifies migrants based on their country of origin to include only Afghanistan, Pakistan and Bangladesh.
• Other religious minorities ignored: It is unclear why illegal migrants from only six specified religious minorities have been included in the Act.
• Defiance of purpose: India shares a border with Myanmar, which has had a history of persecution of a religious minority, the Rohingya Muslims.
• Date of Entry: It is also unclear why there is a differential treatment of migrants based on their date of entry into India, i.e., whether they entered India before or after December 31, 2014.

Why discuss this?

• The CAA became a huge cause of concern between India and Bangladesh when it was passed by the Parliament in December 2019, with Dhaka seeking a written assurance from India.
• Dhaka, then was irked by the remarks about religious persecution of minority Hindus in Bangladesh.

 

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The Supreme Court has agreed to examine a PIL challenging changes made to the right to freedom of speech and expression by the first amendment to the Constitution in 1951.

Why in news?

• The fresh petition argues that the 1st Constitutional Amendment damages the basic structure doctrine.

What was the first amendment?

• The Constitution (First Amendment) Act, 1951 made several changes to the Fundamental Rights provisions of the Indian constitution.
• It provided means to:

1. Restrict freedom of speech and expression,
2. Validation of zamindari abolition laws, and
3. Clarified that the right to equality does not bar the enactment of laws which provide “special consideration” for weaker sections of society

• This Amendment set the precedent of amending the Constitution to overcome judicial judgements impeding fulfilment of the government’s perceived responsibilities.

Why in news now?

• In his plea, the petitioner said Section 3(1) of the 1951 Amending Act substituted original Clause (2) of Article 19.
• This clause 19(2) deals with reasonable restrictions on the freedom of speech and expression guaranteed under Article 19(1)(a).

(a) Objectionable insertions

• It which contained two objectionable insertions allowing restrictions also:

1. In the interest of public order and
2. In relation to incitement to an offence

(b) Crucial omissions

• The new Clause (2) also omitted the expression “tends to overthrow the State” as appearing in the original Clause (2).
• Section 3 (2) of the amending Act effected validation of certain laws even if they took away or abridged the right to freedom of speech and expression, the petitioner said.

Issues created by Clause (2) of Article 19

Ans. It protects certain arbitrary sections of IPC from constitutionality check

• The petition contended that these two insertions protect certain IPC sections such as from the vice of unconstitutionality –

1. Sections 124A: Sedition
2. Section 153A: Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc. prejudicial to maintenance of harmony
3. Section 295A: Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs and
4. Section 505: Statements conducing to public mischief

• The questionable expressions inserted unduly abridge the fundamental right under Article 19 (1)(a) { freedom of speech and expression}.

How it sought to trivialize national security?

• The amendment also neglects national security by dropping the expression ‘tends to overthrow the State’.
• The omission of this expression raises grave concern in the context of the dangers posed to the concept of secular democratic republic by radicalism, terrorism and religious fundamentalism.
• This could either be radicalism or right-wing extremism.

How did the petition invoke basic structure doctrine here?

• The petition argued that undue abridgement does not advance or sub serve any constitutional objectives.
• They appear more to damages inter alia democracy and republicanism and supremacy of the Constitution.

 

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