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Subject: Fundamental Rights,DPSP

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

  • Is Draft Telecommunications Bill, 2022 Flawless?

    Draft Telecommunications Bill, 2022Context

    • Keeping an eye on the telecommunication regulatory framework Supreme Court issued substantive legal reform on surveillance laws in India. Union government has published the Draft Telecommunications Bill, 2022 to replace the Telegraph Act, 1885.

    Background

    • Over two decades ago, allegations of surveillance against politicians led to a CBI inquiry and report against V P Singh’s government. The allegations revealed that imaginary reasons were given for ordering phone tapping without authorization.
    • Last years, many publications reported that phones of several dozen Indian journalists, lawyers and human rights activists had been compromised using an invasive Israeli-developed malware called Pegasus.

    Draft Telecommunications Bill, 2022What is Draft Telecommunications Bill, 2022?

    • The draft Indian Telecommunication Bill, 2022 is an attempt by the Department of Telecommunications (DoT) to consolidate various legislations presently governing the telecommunication landscape in India.
    • The Bill seeks to replace three laws, the Indian Telegraph Act, 1885, the Indian Wireless Telegraphy Act, 1933 and the Telegraph Wires (Unlawful Possession) Act, 1950.
    • The new regulatory framework is to bring the law at par with technological advancements and remove obsolete provisions from the colonial era laws.

    What are the current laws governing communication surveillance in India?

    Communication surveillance in India takes place primarily under two laws:

    • Telegraph Act, 1885: It deals with interception of calls.
    • Call interception:Under Section 5(2) of this law, the government can intercept calls only in certain situations.
    • For sovereignty:They include the interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states or public order, or for preventing incitement to the commission of an offense.
    • Free speech restrictions:These are the same restrictions imposed on free speech under Article 19(2) of the Constitution.
    • Exceptions for journalists:A provision in Section 5(2) states that even this lawful interception cannot take place against journalists.
    • Information Technology Act, 2000: It was enacted to deal with surveillance of all electronic communication, following the Supreme Court’s intervention in 1996.
    • Electronic surveillance:Section 69 of the IT Act and the IT (Procedure for Safeguards for Interception, Monitoring, and Decryption of Information) Rules, 2009 were enacted to further the legal framework for electronic surveillance.
    • Data interception:Under the IT Act, all electronic transmission of data can be intercepted.
    • Section 69 of the IT Act adds another aspect that makes it broader — interception, monitoring, and decryption of digital information “for the investigation of an offense”.

    Draft Telecommunications Bill, 2022How the loopholes in the current system breaching the Data Privacy?

    • No comprehensive data Protection Law:
    • No comprehensive data protection law leaving ambiguities over several laws.
    • A comprehensive data protection law to address the gaps in existing frameworks for surveillance is yet to enact.
    • Unaccountable, opaque exercise of surveillance:
    • The Telegraph Act contains broad and excessive powers of interception and surveillance of communications carried out through any telegraph.
    • The surveillance power is principally contained under Section 5(2), and has resulted in an unaccountable, opaque and unconstitutional exercise of surveillance that has led to accusations across the political spectrum.
    • Less transparency:
    • Ministry of Home Affairs refuses to disclose even aggregate data on the number of surveillance orders issued by it each year illegally gathered evidence is being sought to prosecute people.
    • For instance, the Bombay High Court about three years ago noted in a case that premier investigating agencies such as the CBI have used, interception orders (that) neither have sanction of law nor issued for legitimate aim.

    Draft Telecommunications Bill, 2022Key features of the Draft Telecommunications Bill, 2022

    • Broad Definitions:
    • The Bill introduces a broad definition of ‘telecommunication services’.
    • It now includes internet-based services, in-flight and maritime connectivity, interpersonal communications services, machine to machine communication services, and over-the-top (OTT) based communication services that are made available to users by telecommunication
    • KYC and caller id requirements:
    • The Bill requires licensed entities to ensure that they identify the persons to whom they provide telecommunication services.
    • The Bill places an obligation on telecommunication service providers to do this through a ‘verifiable mode’, as prescribed by the government.
    • Licensing, registration, and authorization:
    • Under the Bill, four types of permissions are identified – license, registration, authorization and assignment.
    • While the Bill does not differentiate between the four types of permissions, it clarifies that a license is only required for providing telecommunication services or operating telecommunication networks
    • Wide ranging powers of Central Government:
    • The Bill includes wide-ranging powers for the central and state governments in the event of a public emergency or in interest of public safety.
    • These powers include taking temporary possession of any telecommunication services, suspension of transmission in cases of public emergency, interception/detainment/disclosure of messages, suspension of communications, or otherwise transmit certain announcements for public safety and national security purposes.
    • User protection and duties: User has been declared as an important policy objective of the Government. It places a duty on users to not furnish false information, suppress material information or impersonate others when proving identity to avail telecommunication services.
    • Offences and penalties: Any offence under the Bill may be punished with a fine, imprisonment, suspension of telecommunication services or a combination of the above. For companies, the employees who were responsible for the conduct or the business relating to the offence at the time the offence was committed will be punished.
    • Dispute resolution mechanism: The Bill provides for the right of appeal before the appellate authority. It also creates an enabling provision for the Central Government to set up an alternate dispute resolution mechanism such as arbitration, mediation or other processes of dispute resolution

    What are Concerns over the Draft Telecommunication bill, 2022?

    • Regulatory overlaps:The broad of the definition of ‘telecommunication services’ include OTT communication platforms such as WhatsApp, Telegram, Signal among others, may potentially lead to regulatory or jurisdictional overlaps.
    • Unchecked use of State powers:The Bill gives broad powers to the central government in prescribed situations without any accompanying checks and balances. The Bill empowers the central and state government to intercept messages in the interest of public safety and emergency without the providing clearly defined guardrails for it.
    • Undefined National security: The term, national security is left undefined and does not match constitutional precedent or text which instead uses the phrase,in the interests of the security of state
    • Users Less choice in the privacy and security of their digital footprint:
    • Power to prescribe standards under Clause 23, which may result in regulations as recently issued by the Computer Emergency Response Team (CERT-In) that have resulted in the closure of servers or services by leading, global VPN providers such as Proton and TunnelBear.
    • All of this practically means that users will have less choice in the privacy and security of their digital footprint, as these powers will lead to requirements to locally register and host data, and comply with requirements to identify users (KYC requirements).

    Conclusion

    • There should be some reasonable basis or some tangible evidence to initiate or seek approval for interception by State authorities. Any digression from the ethical and legal parameters set by law would be tantamount to a deliberate invasion of citizens.

    Mains Question

    Q. Any deviation from the moral and legal parameters set by the law would amount to a deliberate attack on citizens. In this context discuss the data privacy of citizens in the era of massive expansion of internet and mobile usage.

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  • All women have Right to Legal and Safe Abortion: Supreme Court

    The Supreme Court has held that all women, irrespective of their marital status, are entitled to safe and legal abortion till 24 weeks of pregnancy under the Medical Termination of Pregnancy (MTP) Act.

    A case for safe abortion

    • A Bench led by Justice D.Y. Chandrachud was hearing the appeal of a woman who wanted to abort her 24-week pregnancy after her relationship failed and her partner left her.
    • The lower court had taken an “unduly restrictive view” that her plea for a safe abortion was not covered under the Medical Termination of Pregnancy Act.
    • This was since the pregnancy arose from a consensual relationship outside wedlock.

    What was the last amendment?

    • The court noted that an amendment to the Act in 2021 had substituted the term ‘husband’ with ‘partner’, a clear signal that the law covered unmarried women within its ambit.

    Reiterating the live-in recognition

    • Chastising the lower court, the Bench said live-in relationships had already been recognised by the Supreme Court.
    • There were a significant number of people in social mainstream who see no wrong in engaging in pre-marital sex.
    • The law could not be used to quench “notions of social morality” and unduly interfere in their personal autonomy and bodily integrity.

    About Medical Termination of Pregnancy (MTP) Act

    • Abortion in India has been a legal right under various circumstances for the last 50 years since the introduction of the Medical Termination of Pregnancy (MTP) Act in 1971.
    • The Act was amended in 2003 to enable women’s access to safe and legal abortion services.
    • Abortion is covered 100% by the government’s public national health insurance funds, Ayushman Bharat and Employees’ State Insurance with the package rate for surgical abortion.

    The idea of terminating your pregnancy cannot originate by choice and is purely circumstantial. There are four situations under which a legal abortion is performed:

    1. If continuation of the pregnancy poses any risks to the life of the mother or mental health
    2. If the foetus has any severe abnormalities
    3. If pregnancy occurred as a result of failure of contraception (but this is only applicable to married women)
    4. If pregnancy is a result of sexual assault or rape

    The pregnancy can be terminated upto 24 weeks of gestational age after the opinion of two registered medical practitioners under these conditions —

    • If the woman is ​​either a survivor of sexual assault or rape or incest
    • If she is a minor
    • If her marital status has changed during the ongoing pregnancy (i.e. either widowhood or divorce)
    • If she has major physical disabilities or is mentally ill
    • On the grounds of foetal malformation incompatible with life or if the child is born, it would be seriously handicapped
    • If the woman is in humanitarian settings or disaster, or emergency situations as declared by the government

    These are the key changes that the Medical Termination of Pregnancy (Amendment) Act, 2021, has brought in:

    1. The gestation limit for abortions has been raised from the earlier ceiling of 20 weeks to 24 weeks, but only for special categories of pregnant women such as rape or incest survivors. But this termination would need the approval of two registered doctors.
    2. All pregnancies up to 20 weeks require one doctor’s approval. The earlier law, the MTP Act 1971, required one doctor’s approval for pregnancies upto 12 weeks and two doctors’ for pregnancies between 12 and 20 weeks.
    3. Women can now terminate unwanted pregnancies caused by contraceptive failure, regardless of their marital status. Earlier the law specified that only a “married woman and her husband” could do this.
    4. There is also no upper gestation limit for abortion in case of foetal disability if so decided by a medical board of specialist doctors, which state governments and union territories’ administrations would set up.

    Criticism of Abortion

    • Foetuses feel the pain: If the foetus is beyond 20 weeks of gestation, gynaecs assume that there will be pain caused to the foetus.
    • Abortions cause psychological damage: Young adult women who undergo abortion may be at increased risk for subsequent depression.
    • Abortions reduce the number of adoptable babies: Instead of having the option to abort, women should give their unwanted babies to people who cannot conceive. Single parenthood is also gaining popularity in the US.
    • Cases of selective abortion: Such cases based on physical and genetic abnormalities (eugenic termination) is overt discrimination.
    • Abortion as a form of contraception: It is immoral to kill an unborn child for convenience. Many women are using abortion as a contraceptive method.
    • Morality put to question: If women become pregnant, they should accept the responsibility that comes with producing a child. People need to take responsibility for their actions and accept the consequences.
    • Abortion promotes throwaway culture: The legalization of abortion sends a message that human life has little value and promotes the throwaway culture.

    Arguments in favour for Abortion Rights

    • Upholding individual conscience and decision-making:  The US Supreme Court has declared abortion to be a fundamental right guaranteed by the US Constitution.
    • Reproductive choice empowers women: The choice over when and whether to have children is central to a woman’s independence and ability to determine her future.
    • Foetal viability occurs post-birth:  Personhood begins after a foetus becomes “viable” (able to survive outside the womb) or after birth, not at conception. Abortion is the termination of a pregnancy, not a baby.
    • No proof of foetal pain: Most neuroscientists believe that the cortex is necessary for pain perception. The cortex does not become functional until at least the 26th week of a foetus’ development.
    • Preventing illegal abortions: Access to legal, professionally-performed abortions reduces maternal injury and death caused by unsafe, illegal abortions.
    • Mother’s health: Modern abortion procedures are safe and do not cause lasting health issues such as cancer and infertility.
    • Child’s health: Abortion gives pregnant women the option to choose not to bring fetuses with profound abnormalities to full term.
    • Prevents women’s exclusion: Women who are denied abortions are more likely to become unemployed, to be on public welfare, to be below the poverty line, and to become victims of domestic violence.
    • Reproductive choice protects women from financial disadvantage: Many women who choose abortion don’t have the financial resources to support a child.
    • Justified means of population control: Many defends abortion as a way to curb overpopulation. Malnutrition, starvation, poverty, lack of medical and educational services, pollution, underdevelopment, and conflict over resources are all consequences of overpopulation.

    Conclusion

    • Hence it is now established that the right to abortion is a legal right of all women.

     

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  • Domicile based job quota laws in States

    The Karnataka government recently tabled The Kannada Language Comprehensive Development Bill which gives preference to Kannadigas in government jobs and also provides for a reservation to locals in private jobs generated in the state.

    What does the Karnataka legislation envisage?

    • Apart from ensuring job guarantee to Kannada speakers, the Bill pushes for the use of Kannada in institutes of higher learning and for sops to industries that employ locals.
    • Features highlighted in the Bill include reservation in higher, technical and professional education to those who studied in Kannada medium schools.
    • It seeks introduction of Kannada as essential language for seeking employment in the state government.
    • Also, industries will be entitled to concessions, tax rebates and deferment of taxes if they provide reservation for Kannadigas, as per the state’s industrial policy.

    What is Quota for Locals?

    Ans. Constitutional provision for Equal Treatment

    • Article 16 of the Constitution guarantees equal treatment under the law in matters of public employment. It prohibits the state from discriminating on grounds of place of birth or residence.
    • Article 16(2) states that “no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State”.
    • The provision is supplemented by the other clauses in the Constitution that guarantee equality.
    • However, Article 16(3) of the Constitution provides an exception by saying that Parliament may make a law “prescribing” a requirement of residence for jobs in a particular state.
    • This power vests solely in the Parliament, not state legislatures.

    Why does the Constitution prohibit reservation based on domicile?

    • When the Constitution came into force, India turned itself into one nation from a geographical unit of individual principalities and the idea of the universality of Indian citizenship took root.
    • India has single citizenship, and it gives citizens the liberty to move around freely in any part of the country.
    • Hence the requirement of a place of birth or residence cannot be qualification for granting public employment in any state.

    But are reservations not granted on other grounds such as caste?

    • Equality enshrined in the Constitution is not mathematical equality and does not mean all citizens will be treated alike without any distinction.
    • To this effect, the Constitution underlines two distinct aspects which together form the essence of equality law:
    1. Non-discrimination among equals, and
    2. Affirmative action to equalize the unequal

    Supreme Court rulings on quota for locals

    • The Supreme Court has ruled against reservation based on place of birth or residence.
    • In 1984, ruling in Dr Pradeep Jain v Union of India, the issue of legislation for “sons of the soil” was discussed.
    • The court expressed an opinion that such policies would be unconstitutional but did not expressly rule on it as the case was on different aspects of the right to equality.
    • In a subsequent ruling in Sunanda Reddy v State of Andhra Pradesh (1995), the Supreme Court affirmed the observation in 1984 ruling to strike down a state government policy that gave 5% extra weightage to candidates.
    • In 2002, the Supreme Court invalidated appointment of government teachers in Rajasthan in which the state selection board gave preference to “applicants belonging to the district or the rural areas of the district concerned”.
    • In 2019, the Allahabad HC struck down a recruitment notification by the UP PSC which prescribed preference for women who are “original residents” of the UP alone.

    Why it is a bad idea?

    • Against Equality as well as meritocracy: It goes against the Constitution of India. In fact, it violates several fundamental rights, such as freedom to move anywhere, the right not to be discriminated on the basis of place of birth, the right to be treated equally before laws and the right to pursue one’s livelihood.
    • Migration criteria not justified: The actual data on inter-State migration shows that inter-State migration is relatively low in India. Migration often bring skills, motivation, energy which may be in short supply or lacking locally.
    • Free movement of labour: A more analytical aspect to highlight is that free movement of labour partly compensates for the uneven economic progress of different States. The idea also goes against the established fact that migration of labour is good for the economy.
    • Un-ease of doing business: Local reservation in the private sector may not be the ideal solution to tackle the unemployment crisis. In fact, it can deter the corporate sector from investing in states that come up with such a rule.
    • Scapegoating the private sector: What distinguishes the private sector from the public sector is the inherent competition and a hunger for improvement. In such a scenario, chief ministers should do well to engage with the private sector in a much more holistic manner, and not burden it with unfeasible rules.
    • MSMEs to be hit harder: MSMEs could be the hardest hit. They do not have the necessary capital to relocate and many studies have shown that more than 50 per cent of employees are not residents of the state.

    Arguments in favour of quota in private

    • Avoiding encroachments: Often the privileged castes (or groups) use nefarious arguments to protect their interests.
    • Foul argument of merit: Reservations once accepted in the constitutional framework are not a charity that is to be kept away from the ‘meritocracy’ of ‘private’ operations.
    • Ensuring equal opportunity: Like all other constitutional guarantees, one may feel the necessity to get ensured of equal opportunity in all spaces.
    • Preventing exclusion: Giving preference and quotas for socially and educationally deprived sections in the private space is, therefore, in keeping with this fundamental tenet.

    Conclusion

    • The politics of identity and polarization on region/religious lines seems inadequate for the elections.
    • The philosophy and pragmatism of universal excellence through equality of opportunity for education and advancement across the nation is part of our founding faith and constitutional creed.
    • Clearly, this is not the appropriate domain of being “vocal for local”.
    • Although some reservations may still be necessary for the socio-political condition in India, reservation on the basis of domicile or residence within a State would be highly discriminatory.
    • It is more likely that such politically motivated steps would be overturned by the judiciary as has been done several times in the past.

     

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  • Democracy Report 2022

    democracyContext

    • G7 nations and partner countries including India recently signed “2022 Resilient democracies statement”-We, the Leaders of Germany, Argentina, Canada, France, India, Indonesia, Italy, Japan, Senegal, South Africa, the United Kingdom, the United States of America, and the European Union, affirm our commitment to strengthening the resilience of our democracies and to working towards equitable, inclusive and sustainable solutions to global challenges, including climate change and the COVID-19 pandemic, and reaffirm our commitment to the rules-based international order.

    How we define Democracy?

    • “Government of the people, by the people and for the people” the words used by Abraham Lincoln in the year 1863 while talking about democracy.

    Purpose of democracy

    • Cornerstones of democracy include freedom of assembly, association, property rights, freedom of religion and speech, inclusiveness and equality, citizenship, consent of the governed, voting rights, freedom from unwarranted governmental deprivation of the right to life and liberty, and minority rights.

    Democracy Report 2022

    • The study, titled ‘Democracy Report 2022: Autocratisation Changing Nature?’ states that more than twice as many countries are undergoing Autocratisation as are witnessing democratization.
    • The conceptual scheme takes into account not only the electoral dimension (free and fair elections) but also the liberal principle that democracy must protect “individual and minority rights”
    • The V-Dem report classifies countries into four regime types based on their score in the Liberal Democratic Index (LDI): a)Liberal Democracy b)Electoral Democracy c)Electoral Autocracy and d)Closed Autocracy

    democracyWhere do the Reports and Indices put India?

    • Sweden based Sweden-based V-Dem Institute was harsher in its latest report on democracy. It said India had become an “electoral autocracy”
    • US-based non-profit Freedom House downgraded India from a free democracy to a “partially free democracy”.
    • India, described as a “flawed democracy”, slipped two places to 53rd position in the latest Democracy Index published by The Economist Intelligence Unit.

    Status of Supporters of Democracy

    • Decolonised African Countries:
    • The number of African countries that have adopted democratic systems of government has grown since decolonisation, the collapse of communism and the ending of a number of civil wars.
    • Some countries, such as Ghana, are seen as resilient democracies, while for others the democratic transition is more fragile, after months of pro-democracy protests in 2019 in Sudan, a civilian-led transitional government is now paving the way for democracy after decades of military rule.
    • India as example:
    • India is the world’s largest democracy. India is staying as one unit despite having vast no of cultures, languages and religions. This is possible because of the democracy in India.
    • Minorities and disadvantaged sections are represented in parliament which enabled inclusive growth.
    • When India got independence, its economy was in shambles. Extreme poverty, unemployment, food insecurity were the major problems before Indian government. But India’s democratic constitution successfully balanced development and welfare of the country.
    • Now, India is one of the fastest growing economies in the world.

    What critics arguing?

    • Democracy in crisis: Democracy is more in crisis than ever before, with the onset of centralisation of power, with a foreign policy defying public opinion, with the media centralised, and with corporate control of the economy tighter than ever.
    • Increasing polarity: Threatening world order is emerging, which seeks to abrogate all individual rights and divide us along the extremist polarities that we thought had been neutralised.
    • Global Crisis: We move into this new stage of conflict carrying the risk of a nuclear tragedy, further exacerbated by the collective buttressing of a global crisis of the novel coronavirus pandemic, uncontrollable ecological disasters, and food and water deficiency.
    • Populism: Blatant fascist leanings of the so-called “democracies”, and escalating hunger and disease in Africa and other parts of the under-developed world give enough evidence that democracy faces serious issues of populism.
    • Other global problems: Growing economic discrimination, overpopulation and environmental degradation, Misgivings about moral progress, about mutual understanding, exacerbate the dismal situation that faces humanity.

    democracyWhat can be done to strengthen the democracies further?

    • Strengthening public support: To protect freedom domestically and build support for a foreign policy that protects democratic rights and values abroad, it is essential to foster a stronger public understanding of democratic principles, especially among young people. civic education is necessary.
    • Rule of law: In order to maintain trust in public institutions, the principles of legality, legal certainty and prohibition of arbitrariness of the executive powers, judicial independence, impartiality, and equality before the law need to be respected.
    • Individual rights: Democracy entails the right of individuals to participate in and influence the development of society, with free and fair elections at its core. Without an active turnout in elections and proper mechanisms for participation, the essence of democracy can be lost.
    • Free speech: Free speech guard the freedom of expression and opinion, and affirmation of commitment to the very idea of democracy and a move towards opposing oppression and violence

    Conclusion

    • Democracy is always a work in progress. The key ingredients of democracy are effective and accountable institutions, and leadership. Institutions build resilience by embedding norms and standards and bridging periods of weak leadership.

    Mains Question

    Q.Do you think Democracy is the best solution to tackle the growing fault lines between the communities? What makes India as the best example of Democracy to the world? Discuss.

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  • In news: Attorney-General (A-G) of India

    Attorney General of India (AGI)

    • The AGI is the Indian government’s chief legal advisor and is a primary lawyer in the Supreme Court of India.
    • They can be said to be the advocate from the government’s side.
    • They are appointed by the President of India on the advice of Union Cabinet under Article 76(1) of the Constitution and holds office during the pleasure of the President.
    • They must be a person qualified to be appointed as a Judge of the Supreme Court ( i.e. a judge of some high court for five years or an advocate of some high court for ten years or an eminent jurist, in the opinion of the President and must be a citizen of India.).

    Functions and duties

    • The AGI is necessary for advising the Government of India on legal matters referred to them.
    • They also perform other legal duties assigned to them by the President.
    • The AGI has the right of audience in all Courts in India as well as the right to participate in the proceedings of the Parliament, though not to vote.
    • The AGI appears on behalf of the Government of India in all cases (including suits, appeals and other proceedings) in the Supreme Court in which GoI is concerned.
    • They also represent the Government of India in any reference made by the President to the Supreme Court under Article 143 of the Constitution.
    • The AG is assisted by a Solicitor General and four Additional Solicitors General.

    Powers of AG

    • The AG can accept briefs but cannot appear against the Government.
    • They cannot defend an accused in criminal proceedings and accept the directorship of a company without the permission of the Government.
    • The AG is to be consulted only in legal matters of real importance and only after the Ministry of Law has been consulted.
    • All references to the AG are made by the Law Ministry.

    Term of Attorney General’s office

    • There is no fixed term for the Attorney General of India. The Constitution mentions no specified tenure of Attorney General. Similarly, the Constitution also does not mention the procedure and ground of his removal.

    Facts about his office:

    • He can be removed by the President at any time.
    • He can quit by submitting his resignation only to the President.
    • Since he is appointed by the President on the advice of the Council of Ministers, conventionally he is removed when the council is dissolved or replaced.

    Limitations to his powers

    The AG:

    • should not advise or hold a brief against the Government of India
    • should not defend accused persons in criminal cases without the permission of the government of India
    • should not accept appointment as a director in any company without the permission of the government

    Office of AG across the world

    • Unlike the Attorney General of the United States, the AGI does not have any executive authority.
    • Those functions are performed by the Law Minister of India.
    • Also, the AG is not a government servant and is not debarred from private legal practice.

     

     

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  • Supreme Court’s basic structure doctrine in a new context

    basic structureContext

    • The basic structure doctrine constitutes a high watermark in the assertion of the Supreme Court’s judicial power in the teeth of a determined majoritarian regime.

    What is basic structure of Constitution?

    • The basic structure doctrine is one of the fundamental judicial principles connected with the Indian Constitution. The doctrine of the basic structure holds that there is a basic structure to the Indian Constitution, and the Parliament of India cannot amend the basic features.

    What is the significance of the basic structure in the Constitution of India?

    • The doctrine of basic structure is nothing but a judicial innovation to ensure that the power of amendment is not misused by Parliament. The idea is that the basic features of the Constitution of India should not be altered to an extent that the identity of the Constitution is lost in the process.08-Dec-2021

    Background

    • Courts are empowered under our Constitution to invalidate not only executive orders, but also legislative enactments that violate any part of the Fundamental Rights guaranteed in Part III of the Constitution (Bill of Rights).
    • But as to whether they are also empowered to adjudicate on the validity of constitutional amendments passed with the requisite special majority and following the procedure prescribed in Article 368 the Constitution is silent.

    basic structureHistorical developments on evolution of basic structure doctrine

    • Constitution provided a mechanism for parliament to amend the constitution in the form of article 368 but the nature and scope of this amending power was questioned in Supreme Court on multiple occasions. Supreme Court gave a series of judgement which ultimately culminated in probably the most landmark judgement Basic structure doctrine judgement.
    • Shankari Prasad Case
    • Sajjan Singh Case
    • Golakh Nath Case
    • Kesvananda Bharati Case
    • Minerva Mills case
    • I.R. Koelhi

    Constitutional Provisions

    1. 1st amendment and 9th schedule
    2. 24th amendment
    3. 42nd amendment

     

    His holiness, Kesavananda bharati, challenged before the supreme court, the validity of 29th CAA which inserted some laws in 9th schedule and affected property of his Hindu Mutt.

    What else was at stake?

    1. Supreme Court (R. C. Cooper case) had struck down bank nationalization act of 1969 which had nationalized 14 major banks for illusory compensation though it conceded parliament’s right to nationalise banks in national interest.
    2. Supreme Court had struck down abolition of privy purses which was a betrayal of solemn promise to erstwhile kings by Sardar Patel.

    Supreme Court could do all this as it had held in 1967 in Golaknath case that fundamental rights could not be abridged.

    Before returning back to Kesavananda, Let’s take a look at the relevant provisions of the constitution and Supreme Court interpretation of the same.

    • Art 13(2) – Any LAW abridging fundamental rights mentioned in part 3 shall be null and void to the extent of contravention
    • Art 368 -Procedure to amend the constitution.
    • Art 19(f) – freedom to acquire hold on and dispose off property.
    • Art 31 – right to property

    Both the rights were subject to reasonable restriction in public interest and restriction were subject to judicial review.

    Soon after the coming into force of the constitution, states enacted land reform acts #Zamindars challenged them. #Patna high court declared Bihar act as unconstitutional for violating right to property #interim parliament passed 1st CAA.

    1. ART 31B created 9th schedule. Laws inserted under it by constitutional amendment were immune to judicial review.

    Other provisions not imp for this article but imp for exams –

    1. Reasonable restrictions against freedom of expression under art 19.
    2. To nullify judgment in State of Madras v. Champakam Dorairajan and giving effect to art 46 (promoting educational and economic interests of weaker sections) amplified article 15 (3)

    Zamindars didn’t like it, not one bit. And here comes the 1st salvo

    Shankari Prasad v Union of India

    Challenged 1st CAA. What was the court’s judgment?

    1. Difference b/w constituent power and ordinary legislative power i.e. amendment not law for the purpose of article 13
    2. art 13 and 368 in conflict # apply DOCTRINE OF HARMONIOUS CONSTRUCTION # ART 13 not applicable to art 368

    Govt 1-0 Zamindars

    Govt passed 17th amendment and inserted more laws under 9th schedule ‘

    Zamindars fired another salvo-

    Sajjan Singh vs state of rajasthan

    Supreme Court sang Shankari prasad song again

    Govt 2-0 jamindars

    But Justice Mudholkar was of the view that the every Constitution has certain features which are basic in nature and those features cannot be changed.

    2 minority judgements…. utter confusion. And you can see seeds of basic structure were sown here.

    Zamindars fired 3rd salvo

    Golaknath v. State of Punjab

    11 judge bench overturned earlier 2 verdicts by a slender majority of 6-5

    Really? What was the logic given here?

    1. Nothing to suggest constituent power to be separate from legislative power and even if distinct, amending power not same as constituent power which is given only to constituent assembly i.e. amendment is law and subject to article 13
    2. Fundamental rights so sacrosanct and transcendental that they cannot be abridged even if whole parliament unanimously decided to abridge them.

    But it validated all previous land reform acts as nullifying them would create utter confusion

    Govt angry – Zamindars angry

    New landlords happy.

    Loss – loss to defendants as well as petitioner.

    Madam Indira was in power and she did not like this. Not one bit.

    Along came 24th amendment to neutralize GOLAKNATH JUDGEMENT

    1. Art 13 inapplicable to art 368
    2. Art 368 provided powers as well as procedure to amend the constitution
    3. Parliament by way of addition, variation or repeal can amend any provision of constitution
    4. President shall give assent to CA bills ( VERY VERY IMP FOR PRELIMS )

    But madam Indira wouldn’t just stop here as Cooper judgment (Bank nationalization ) also had to be neutralized.

    Smarting from this setback, Madam Indira (the parliament, herself) passed 24th CAA to neutralise GOLAKNATH judgement. But there was also a small matter of reversing Copper judgment in bank nationalisation case so parliament passed 25th CAA.

    1. Art 19f delinked from 31, in effect parliament deciding compensation amount payable instead of courts.
    2. Art 31c  -inserted under which – art 39b and c, most socialist of DPSPs (equitable distribution and prevention of concentration of wealth respectively) precede over 7 freedoms (art 19 ), equality (14), property (31)
    3. Parliament’s power to determine if policy is to give effect to 39b and c not subject to judicial review.

    29th CAA had put Kerala land reform act under 9th schedule and his holiness challenged the provisions and all hell broke loose.

     

    Now the 4th salvo

    basic structureKesvanada Bharati Case

    A 13 judge bench is constituted and what does it do!

    1. Overturned Golaknath i.e. amendment not law, fundamental rights amendable, no implied limit under art 368 i.e. CAA 24 constitutional
    2. Art 25 invalid to the extent it takes away judicial review i.e. 39 b and c above 14, 19 and 31 but subject to judicial review

    Most imp decision of all by slimmest of all 7-6 majority stated Parliament can amend any provision of the Constitution but the basic structure should not be destroyed, damaged or abrogated.

    What’s the logic?

    1. Expression amendment did not encompass defacing the constitution such that it lost its identity.
    2. In the garb of amendment parliament can not rewrite the constitution.

    Court gave relief to govt but reserved for itself power to review all amendment not just those that violate fundamental rights.

    Aftermath

    Indira Gandhi didn’t like the judgement one  bit. She (via the president) superseded 3 judges to appoint justice A.N. Ray as CJI.

    Knives had been drawn and the battle was gonna be very bloody –

    • Navnirman movement of JP (Jayprakash) had gathered steam, Indira was on the back foot and along came the judgement of Allahabad High Court convicting Indira of corrupt electoral practices. Election was declared null and void and  6 years ban to contest election was imposed on her.
    • Supreme Court stayed it and allowed her to remain PM but not to draw salary or speak or vote in parliament.
    • Darkest chapter in democracy’ 21 month emergency was declared on 25th June 1975 without even consulting cabinet (44th amendment made it mandatory for the president to have written advice of cabinet to declare emergency)

    Indira Gandhi wasn’t to sit quiet.

    CAA 39th – election of president, VP, PM and speaker beyond judicial review

    Clownish Rajnarayan challenged the CAA 39.

    Indira Gandhi v/s Raj Narain Case

    For the 1st time Supreme Court applied basic structure doctrine and considered free and fair election and rule of law to be part of basic structure. #amending act invalidated.

    Note here that 4 of the 5 judges on the bench had given dissenting judgment in Bharati case but still applied the same doctrine for Supreme Court judgment becomes law until overruled by bigger bench (art 141).

    Then how did Indira continue to be prime minister and contest election again and not get banned for 6 years?

    Supreme court accepted retrospective amendment to electoral law i.e. electoral malpractice of Indira was no longer a corrupt practice.

    Find out for fun the charges against Mrs. Gandhi for which she was convicted and what a popular British magazine had to say about the judgement.

    Along came the mini constitution i.e 42nd amendment act TO ELIMINATE IMPEDIMENTS TO THE GROWTH OF THE CONSTITUTION –

    1. PART 4a fundamental duties
    2. Socialist,secular and integrity word to preamble
    3. New DPSPs were added

    And for the purpose of this article amendment to article 368 nullifying basic structure doctrine by adding amendments can’t be challenged in courts and parliament possessing unlimited power of amendment

    1. All DPSPs to take precedence over all fundamental rights not just 39b and 39c.

    And Minerva Textile mills of Karnataka fired the 5th and the last salvo

    Minerva Mills v Union of India

    SC unanimously struck down amendment to article 368 holding limited amending power and judicial review to be part of basic structure.

    Court held that constitution is founded on the bedrock of balance b/w FRs and DPSPs. Goals set out by DPSPs have to be achieved without abrogation of means provided by FRs.

    What’s the logic?

    If a donee was vested with limited power, it could not be exercised to control that very power power and convert into unlimited one.

    Or

    If a genie grants u 3 wishes, it is understood u can not, as one of the wish, ask for unlimited number of wishes!

    Janta govt comes to power and 44th CAA deletes art 31 (b) right to property and 19 (f) freedom to acquire, hold and dispose of property as they were not considered part of basic structure

    Right to property now a constitutional right under art 300A.

    9th schedule and judicial review

    I.R.Coelho vs state of TN

    Supreme Court held that acts placed under 9th schedule after basic structure subject would be subject to judicial review to the extent of those acts violating basic structure of constitution.

    Impact of basic structure doctrine.

    It certainly saved Indian democracy from degenerating into authoritarian regime during those testing times but it has also given immense untold unbridled power to Supreme Court and made it the most powerful court in the world.

    As we would later see in the NJAC Verdict (let’s call it 4th judges case), Supreme Court applied this doctrine, many would say for wrong reasons to strike down the act and kept for itself the power to appoint brother judges. In the original constitution only fetters on the power of parliament was art 13.

    Relevance –  It was delivered at the time of single party rule both at the centre and most of the states. In the era of coalition politics no govt is going to wield so much power to destroy the constitution and then there is ever present danger of tyranny of unelected.

    But only legitimate way to overturn the verdict would be a 15 judge bench so don’t hold your breath for that.

    Now is the time for some thought questions

    #1. Consider these 2 statements –

    1. Any LAW that is ordinary law violating provisions of constitution would be declared null and void to the extent of contravention.
    2. Any LAW violating art 13 would be declared null and void

    Both statements are true…..If amendments were not law, what was the purpose of art 13 (2) other laws would anyway be declared unconstitutional!

    #2. Is basic structure doctrine relevant in the present political scenario where no single party is unlikely to enjoy majority in both the houses?

    #3. What should be the limits to amending power of parliament? Do u think for very substantial amendments instead of courts, people by way of referendum should determine whether amendment should go through or not?

    #4. Whatever happens to original intent theory that constitutional courts have to interpret constitution in accordance with the implied intentions of founding fathers and there is enough evidence to suggest founding fathers thoughtfully kept FRs sacrosanct to prevent their abrogation or as we would see in a later article how supreme court by creative interpretation virtually changed procedure established by law in art 21 to due process of law while founding fathers deliberately kept expression as procedure established by law.

     

    Conclusion

    • By restraining the amending powers of legislative organ of State, it provided basic Rights to Citizens which no organ of State can overrule. Being dynamic in nature, it is more progressive and open to changes in time unlike the rigid nature of earlier judgements.

    Mains question

    Q. What do you understand by basic structure of constitution? Trace evolution of basic structure in India.

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  • Intra party elections

    Intra party electionContext

    • Congress party has issued a notification for the party’s presidential election hinting towards intra party election.
    • As per the official notification, party leaders can file nominations from 24 September to 30 September. The voting will be held on 17 October and the results will be declared on 19 October.

    What are the elections?

    • An election is a way people can choose their representatives of their preferences in a representative democracy. Elections enable people to judge the performance of the government.

    Why they are important?

    • Elections give people a chance to evaluate their leaders, chance to change the government.
    • Elections help the people in the selection of their representatives and it provides law making power directly to the people.
    • Elections make a fundamental contribution to democratic governance.

    Intra party electionWhat is mean by Intra party elections?

    • It is a mechanism to choose the candidates for various posts of the political through a democratic process, it’s a mandate given by the members of the party itself.
    • The intra-party election is a fundamental indicator to explore the authenticity of democratization and decentralization of political parties.

    Why elections are necessary within the political parties?

    • Internal debates: During intra party elections there would be contests between leaders. There will be debate, discussions some criticism, and differences of opinion. There should be a dialogue between the leaders, members and volunteers
    • Democratic culture: Political parties don’t have to be homogeneous in terms of both ideas and leadership. Political parties are aggregations of interests yet Party workers should not feel they are being ignored, that their efforts are not appreciated or not going in vain under the shadow of a leader came from the family lines.
    • Political career: Having these internal elections, meetings and contests of ideas is important.  Internal election is a key for upward mobility. It gives better understanding of the party’s idea, culture and the work process.
    • High command culture: High command culture is what we are witnessing today in India and South Asia is problematic for democracy, where all political parties are centralized. The few members at the helm are controlling even the smallest decisions about what party should do. Members are not able to express freely their personal views.
    • Feudalism: They are family-controlled parties, and dynastic politics has become a norm. Won’t be able to name more than three or four political parties which have survived 30 years in Indian politics and are today not controlled by apolitical family.
    • Favoritism: where you can only rise up the ranks in the system depending on the relationship you share with the first family of that party. Irrespective of difference of opinions with the top leaders of the party, the upward mobility majorly depends on the relationship.

    Intra party electionWhat is a Legal framework for election?

    There is no law for intra-party elections as of now.

    • Seshan effect: When T.N. Seshan was at the helm of the Election Commission of India (ECI); by an executive order political parties were ordered to conduct intra party elections. And because Seshan was a much respected and feared person, political parties complied with it. Since then, elections are held periodically in every recognized party.
    • What Constitution says: Article 324 says free and fair elections to parliament, state assemblies, president and vice-president. It doesn’t say anything about political party or election within.
    • What Courts argue: The courts have made an observation that nothing in Article 324 of the Constitution, or Section 29A of the Representation of the People Act, 1951 tells us that the ECI can actually regulate internal structures, organizations or elections of the party. Which is why parties, on the left or right, have not been conducting internal elections as we want them to conduct them

    Worldwide practice

    • USA: In the U.S. election, the selection of the candidate to be the presidential nominee is done via debate, in which the contenders condemn and criticize each other.
    • UK: In the U.K. Democracy should be at every level, and political parties are an essential pillar of democracy. Intra party election happens to choose the leader of party.

    What is state funding of election?

    • It is an idea where state or Government of India provides funding to political parties according to their electoral performance.
    • As of today, state does provide land at concessional rate, free air time on national television but today political parties do not come under RTI. Hence some suggest state funding of elections to regulate the behavior of political parties.

    What is the Role of Election Commission in organizational election of political parties?

    • The ECI does insist on organizational elections, but only gently. They do go through the process.
    • Election can happen only if there are two or more candidates in the fray. Getting elected unopposed is also a valid election. It is not just within the political parties, we have

    Seen it in panchayat elections and sometimes even in Lok Sabha and State Assembly elections that candidates have got elected unopposed.

    Intra party electionHow to fix the accountability of the political parties?

    • ECI re-interpreting the existing laws, as happened in the 1990s. ECI has to imagine its role as a regulator of these political parties and in some ways. They have to try out milder options.
    • Political parties are required to hold organizational elections regularly. The parties are required to inform the ECI about changes in their office-bearers.
    • They are required to submit a document of expenditure incurred during elections and in the non-election periods. But there is no cost attached to non-compliance.
    • Expert suggests state funding of election would ensure the accountability of parties as it will bring parties under ambit of RTI and voters can seek the expenditure report from parties. Election commission can also penalize party for non-compliance.

    Conclusion

    • Election for a gram panchayat or presidential it is always a booster for democracy. Intraparty elections are beneficial for party, contesting individual and country at large, it culminates into emergence of quality leadership which in turn a boon for good governance.

    Mains Question

    Q. Intra party elections are essential feature of healthy democracy. Discuss the role of election commission, the courts and the political parties for the healthy functioning of intra party democracy.

    Do follow

    Internal democracy in political parties

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  • Rules for Identifying Criminals now notified

    On September 19, the Ministry of Home Affairs (MHA) notified the rules governing The Criminal Procedure (Identification) Act, 2022. The Act was passed in March by the Parliament.

    Why in news?

    Rules for Identifying Criminals now notified - Civilsdaily

    • Until rules are notified, an Act cannot be implemented or come into force.
    • The legislation would enable police and central investigating agencies to collect, store and analyse physical and biological samples including retina and iris scan of arrested persons.

    What is the Criminal Procedure (Identification) Act, 2022?

    Ans. It is about critical measurements of Criminals.

    • This act provides legal sanction to law enforcement agencies for taking measurements of convicts and other persons for the purposes of identification and investigation of criminal matters.
    • The Minister of Home Affairs has observed that with advancements in forensics, there was a need to recognise more kinds of “measurements” that can be used by law enforcement agencies for investigation.

    What is the use of identification details in criminal trials?

    • Measurements and photographs for identification have three main purposes:
    1. To establish the identity of the culprit against the person being arrested
    2. To identify suspected repetition of similar offences by the same person and third
    3. To establish a previous conviction

    What was the previous Identification of Prisoners Act, 1920 about?

    • Even though the police has powers of arrest, mere arrest does not give Police the right to search a person.
    • The police requires legal sanction to search the person and collect evidence.
    • These legal sanctions are designed so as to maintain a balance between the rights of an individual and the interests of society in prosecution and prevention of offences.
    • The Identification of Prisoners Act, 1920 became a necessity when the recording of newer forms of evidence such as fingerprints, footprints and measurements started becoming more accurate and reliable.

    What was the need to replace this Act?

    Ans. Changing nature of Crime

    • Over the years, the need to amend/update the Identification of Prisoners Act, 1920 has been voiced several times.
    • In 1980, the 87th Report of the Law Commission of India undertook a review of this legislation and recommended several amendments.
    • This was done in the backdrop of the State of UP vs. Ram Babu Misra case, where the Supreme Court had highlighted the need for amending this law.
    • The first set of recommendations laid out the need to amend the Act to expand the scope of measurements to include “palm impressions”, “specimen of signature or writing” and “specimen of voice”.
    • The second set of recommendations raised the need of allowing measurements to be taken for proceedings other than those under the Code of Criminal Procedure (CrPC).

    What are the main highlights and differences in both the legislations?

    • Both provide legal sanction: Like the 1920 Law, the new Criminal Procedure (Identification) Act, 2022 provides for legal sanction to law enforcement agencies for the collection of measurements.
    • Creating usable database of evidences: The purpose is to create a useable database of these measurements.
    • Notifying designated state agencies: At the State level, each State is required to notify an appropriate agency to collect and preserve this database of measurements.
    • NCRB at centre stage: At the national level, the National Crime Records Bureau (NCRB) is the designated agency to manage, process, share and disseminate the records collected at the State level.

    What are some of the concerns with the present legislation?

    • Striking a balance: The new legislation has raised some concerns related to the protection of fundamental rights.
    • Unresolved right to Privacy debate: The legislation comes in the backdrop of the right to privacy being recognised as a fundamental right.
    • Notion of physical privacy: A fundamental facet of the right to privacy is protection from the invasion of one’s physical privacy.
    • Justifying necessity: As per the Puttaswamy judgment, there is a need for the measure to be taken in pursuance of a legitimate aim of the state, be backed by the law and be “necessary and proportionate” to the aim being sought to be achieved.

    (1) Various tests behind

    • In this case, while the first two tests are satisfied, as:
    1. “prevention and investigation of crime” is a legitimate aim of the state
    2. “measurements” are being taken under a valid legislation,
    • Satisfaction of the third test of “necessity and proportionality” has been challenged on multiple counts.

    (2) A probable police state in making

    • Analysis and measurement of behavioural attributes have raised concerns that data processing may go beyond recording of core “measurements”.
    • That is some of these measurements could be processed for predictive policing.

    (3) Includes petty offences

    • The current law allows for “measurements” to be taken if a person has been convicted/arrested for any offence, including petty offences.
    • The necessity of taking measurements of such persons for investigation of offences is unclear, and such discretion is likely to result in abuse of the law at lower levels.
    • This would definitely overburden the systems used for collection and storage of these measurements.

    (4) Period of storage of data

    • Given that these records will be stored for 75 years from the time of collection, the law has been criticised as being disproportionate.

    (5) Surveillance state

    • Such collection can also result in mass surveillance, with the database under this law being combined with other databases such as those of the Crime and Criminal Tracking Network and Systems (CCTNS).

    (6) Promotes self-incrimination

    • Concerns are being raised that the present law violates the right against self-incrimination enshrined in Article 20(3) of the Constitution of India.
    • However, this argument is nebulous since the Supreme Court has already settled this point.
    • In the State of Bombay vs Kathi Kalu Oghad, the Supreme Court had conclusively held that “non-communicative” evidence i.e. evidence which does not convey information within the personal knowledge of the accused cannot be understood to be leading to self-incrimination.
    • Therefore, no challenge lies to the law on this ground.

    Way forward

    • Extensive pre-legislative consultation is must for any sensitive law as such.
    • Privacy and data protection-related concerns must be addressed in the Rules formulated under the legislation and through model Prison Manuals that States can refer to.

     

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  • The hijab case and the doctrine of essentiality

    doctrine of essentialityContext

    • A two-judge Bench of the Supreme Court of India is presently hearing arguments on the correctness of a Karnataka High Court judgment that upheld the ban on the use of the hijab by students in Karnataka which raises question on doctrine of essentiality.

     What is ‘doctrine of essentiality’?

    • A seven-judge Bench of the Supreme Court invented the doctrine of “essentiality” in the Shirur Mutt case in 1954. The court held that the term “religion” will cover all rituals and practices “integral” to a religion.

    Importance doctrine of essentiality

    • In the legal framework, the doctrine of essentiality is a doctrine that has evolved to protect the religious practices that are essential or integral and does not violate any fundamental right. India being a secular country has discrete religious beliefs and to deny any is to violate the freedom of religion.

    Why hijab is not an essential practice?

    • Wearing of hijab (head scarf) by Muslim women does not form a part of essential religious practices in Islamic faith and it is not protected under the right to freedom of religion guaranteed under Article 25 of the Constitution of India, the High Court of Karnataka declared on March 15 2022.

    doctrine of essentialityIs hijab essential part of Islam?

    • The Qur’an instructs Muslim women and men to dress modestly, and for some, the hijab is worn by Muslim girls and women to maintain modesty and privacy from unrelated males. According to the Encyclopedia of Islam and Muslim World, modesty concerns both men’s and women’s “gaze, gait, garments, and genitalia”.

    How do you identify essential religion practice?

    • The Court observed that in order to determine whether or not a particular practice is an essential part of religion, the test must be whether the absence of the practice itself

    Meaning of Article 26

    • Freedom to manage religious affairs Subject to public order, morality and health, every religious denomination or any section thereof shall have the right.

    doctrine of essentialityExamples of the essential religious practices test

    • While these issues are largely understood to be community-based, there are instances in which the court has applied the test to individual freedoms as well.
    • In a 2004 ruling, the Supreme Court held that the Ananda Marga sect had no fundamental right to perform the Tandava dance in public streets since it did not constitute an essential religious practice of the sect.
    • For example, in 2016, the Supreme Court upheld the discharge of an airman from the Indian Air Force for keeping a beard.
    • It distinguished the case of a Muslim airman from that of Sikhs who are allowed to keep a beard.
    • In 2015, the Supreme Court restored the Jain religious practice of Santhara/Sallekhana (a ritualistic fast unto death) by staying an order of the Rajasthan HC.

    doctrine of essentialityWhat is the Supreme Court’s judgement on Doctrine of Essentiality?

    • The doctrine of “essentiality” was invented by a seven-judge Bench of the Supreme Court in the ‘Shirur Mutt’ case in 1954.
    • It is a contentious doctrine evolved by the court to protect only such religious practices which were essential and integral to the religion.
    • The court held that the term “religion” will cover all rituals and practices “integral” to a religion, and took upon itself the responsibility of determining the essential and non-essential practices of a religion.
    • Referring to the Ayodhya case, the Constitution Bench had ruled in 1994 that A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in open.

    How has the doctrine been used in subsequent years?

    • The ‘essentiality doctrine’ of the Supreme Court has been criticised by several constitutional experts.
    • Scholars of constitutional law have argued that the essentiality/integrality doctrine has tended to lead the court into an area that is beyond its competence, and given judges the power to decide purely religious questions.
    • As a result, over the years, courts have been inconsistent on this question — in some cases they have relied on religious texts to determine essentiality.
    • In others it relied on the empirical behaviour of followers, and in yet others, based on whether the practice existed at the time the religion originated.

    Issues over the doctrine

    • In the beginning, the court engaged with the question of whether untouchability, manifested in restrictions on entry into temples, was an “essential part of the Hindu religion”.
    • After examining selected Hindu texts, it came to the conclusion that untouchability was not an essential Hindu practice.
    • The idea of providing constitutional protection only to those elements of religion which the court considers “essential” is problematic as it assumes that one element or practice of religion is independent of other elements or practices.
    • So, while the essentiality test privileges certain practices over others, it is, in fact, all practices taken together that constitute a religion.

    How does essentiality square up against religious freedom?

    • Freedom of religion was meant to guarantee freedom to practice one’s beliefs based on the concept of “inward association” of man with God.
    • The apex court in ‘Ratilal Panachand Gandhi vs The State of Bombay and Ors’ (March 18, 1954) acknowledged that “every person has a fundamental right to entertain such religious beliefs as may be approved by his judgment or conscience”.
    • The framers of the Constitution wanted to give this autonomy to each individual. Scholars have argued that the essentiality test impinges on this autonomy.
    • The apex court has itself emphasised autonomy and choice in its Privacy (2017), 377 (2018), and Adultery (2018) judgments.

    Its effect on society

    • Narrowing of safeguards to religious customs: It has allowed the Court to narrow the extent of safeguards available to religious customs by directly impinging on the autonomy of groups to decide for themselves what they deem valuable, violating, in the process, their right to ethical independence.
    • Negated legislation that might otherwise enhance the cause of social justice: It has also negated legislation that might otherwise enhance the cause of social justice by holding that such laws cannot under any circumstances encroach on matters integral to the practice of a religion. For example, in 1962, the Court struck down a Bombay law that prohibited excommunications made by the Dai of the Dawoodi Bohra community when it held that the power to excommunicate is an essential facet of faith and that any measure aimed at social welfare cannot reform a religion out of its existence.
    • A principle of anti-exclusion: Its application would require the Court to presume that a practice asserted by a religious group is, in fact, essential to the proponents of its faith. But regardless of such grounding, the Constitution will not offer protection to the practice if it excludes people on grounds of caste, gender, or other discriminatory criteria.

    Conclusion

    • For now, any Court hearing a matter touching upon a matter of faith has the unenviable task of acting not merely as an expert on law but also as an expert on religion.

    Mains question

    Q. Every person has a fundamental right to entertain such religious beliefs as may be approved by his judgment or conscience. Critically examine in context of doctrine of essentiality.

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  • SC quota for Dalit Muslims and Christians

    The Centre is likely to soon decide on setting up a national commission to study the social, economic and educational status of Dalits who converted to religions other than Hinduism, Buddhism and Sikhism.

    What is the news?

    • Several petitions are pending before the Supreme Court seeking Scheduled Caste (SC) reservation benefits for Dalits who converted to Christianity or Islam.

    Dalit Convertees and Quota Benefits

    • The original rationale behind giving reservation to Scheduled Castes was that these sections had suffered from the social evil of untouchability, which was practised among Hindus.
    • Under Article 341 of the Constitution, the President may specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall…be deemed to be Scheduled Castes.
    • The first order under this provision was issued in 1950, and covered only Hindus.
    • Following demands from the Sikh community, an order was issued in 1956, including Sikhs of Dalit origin among the beneficiaries of the SC quota.
    • In 1990, the government acceded to a similar demand from Buddhists of Dalit origin, and the order was revised to state: “No person who professes a religion different from the Hindu, the Sikh or the Buddhist religion shall be deemed to be a member of Scheduled Caste.”

    Does this religion-based bar apply to converted STs and OBCs as well?

    • It does not.
    • The Department of Personnel and Training (DoPT) website states, “The rights of a person belonging to a Scheduled Tribe are independent of his/her religious faith.”
    • Following the implementation of the Mandal Commission report, several Christian and Muslim communities have found place in the Central and state lists of OBCs.

    What efforts have been made to include Muslims and Christians of Dalit origin among SCs?

    • After 1990, a number of Private Member’s Bills were brought in Parliament for this purpose.
    • In 1996, a government Bill called The Constitution (Scheduled Castes) Orders (Amendment) Bill was drafted, but in view of a divergence of opinions, the Bill was not introduced in Parliament.
    • Then government headed by PM Manmohan Singh set up two important panels:
    1. Ranganath Misra Commission: The National Commission for Religious and Linguistic Minorities, popularly known as the Ranganath Misra Commission, in October 2004 and
    2. Sachar Committee: A seven-member high-level committee headed by former Chief Justice of Delhi High Court Rajinder Sachar to study the social, economic, and educational condition of Muslims in March 2005.

    What did they recommend?

    • The Sachar Committee Report observed that the social and economic situation of Dalit Muslims and Dalit Christians did not improve after conversion.
    • The Ranganath Misra Commission, which submitted its report in May 2007, recommended that SC status should be completely de-linked from religion and Scheduled Castes should be made fully religion-neutral like Scheduled Tribes.

    Reception to these recommendations

    • The report was tabled in Parliament in 2009, but its recommendation was not accepted in view of inadequate field data and corroboration with the actual situation on the ground.
    • Few studies, commissioned by the National Commission for Minorities, was also not considered reliable due to insufficient data.

    What lies ahead?

    • Based on the recommendations of the Ranganath Misra Commission, there are some petitions pending before the Supreme Court, seeking reservation benefits for Christians and Muslims of Dalit orgin.
    • In the last hearing, a three-judge Bench gave the Solicitor General of India three weeks’ time to present the stand of the Union government on the issue.
    • The next hearing is awaited.

     

     

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