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Subject: Fundamental Rights,DPSP

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

  • Supreme Court frees Perarivalan

    The Supreme Court has invoked its extraordinary powers to do complete justice under Article 142 of the Constitution and ordered the release of A.G. Perarivalan in former PM assassination case.

    Among the factors that sustained Perarivalan’s long battle was the determination and commitment of his mother, Arputham Ammal, who emerged as the face of an anti-death penalty movement, and the sympathy and empathy that he received from people from all walks of life.

    What is the news?

    • A Bench led by Justice L. Nageswara Rao, in its judgment, took into consideration Perarivalan’s long jail term for over 30 years to order his release.
    • The court held that the TN Council of Ministers’ advice to pardon Perarivalan was binding on the Governor under Article 161 (Governor’s power of clemency) of the Constitution.
    • The advice of the State Cabinet is binding on the Governor in matters relating to commutation/remission of sentences under Article 161.

    Note: As per Article 161, the Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends

    What branded Perarivalan as a murderer?

    • He had bought two 9 volt battery cells on behalf of the bomber.
    • These were used to make the bomb explode.
    • This confession statement taken under Section 15(1) of TADA to establish his link with the assassins and his knowledge and role in the assassination.

    Why was this a case for Governor?

    • Perarivalan was not a death sentenced convict.
    • Earlier, the apex court had commuted his death penalty to life sentence for murder in 2014.
    • The Governor had no business forwarding the pardon plea to the President after sitting on it for years together.
    • Had this been a death penalty, the case would have been different.

    Why did the Supreme Court intervene?

    • Governor’s delay to decide Perarivalan’s pardon for more than two years has compelled the apex court to employ its constitutional powers under Article 142 to do justice to Perarivalan.
    • After all, the court said, a Governor’s non-exercise of power under Article 161 of the Constitution was not immune from judicial review.

    What is Article 142?

    • Article 142 provides discretionary power to the Supreme Court.
    • It states that the court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.
    • Such decree shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament.
    • It is usually used in cases involving human rights and environmental protection.

    Other legal aspects of this pardon

    • The Court dismissed the Centre’s argument that the President exclusively, and not the Governor, had the power to grant pardon in a case under Section 302 (murder) of the Indian Penal Code.
    • The court had said that such a contention would render Article 161 a “dead-letter”.
    • This would rather create an extraordinary situation whereby pardons granted by Governors in murder cases for the past 70 years would be rendered invalid.

    Back2Basics:

    Pardoning powers of the President

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  • On Section 124A Supreme Court has aligned itself with the collective conscience

    Context

    The Supreme Court’s seminal intervention in a batch of petitions challenging the constitutional validity of section 124A of the Indian Penal Code is a watershed moment in the progressive expansion of human rights jurisprudence.

    Abuse of sedition law

    • The slapping of sedition charges against political opponents and others in Maharashtra, Punjab, Rajasthan, Chhattisgarh, Tamil Nadu, Andhra Pradesh and Madhya Pradesh have confirmed that the abuse of the sedition law is no longer an aberration.
    • It has become a norm that has hollowed out the constitutional guarantee of fundamental rights and exposed individuals to the rigour of draconian laws unjustly invoked, outraging national sensitivities as never before.

    Significance of the move

    • In what is seen as a first in judicial history, the Supreme Court has virtually rendered redundant the provision of a criminal law without expressly declaring it as unconstitutional.
    • In an example of judicial statecraft, the court has shielded individuals against a harsh law without trenching on Parliament’s legislative remit or the executive’s command over policy decisions.
    • Plenary jurisdiction: Exercising plenary jurisdiction, the Supreme Court is expected to see through its suggestions/orders to the government, particularly when these concern the non-negotiable fundamental rights of citizens.
    • Suggestive jurisdiction: As an organ of the state, the Supreme Court’s suggestive jurisdiction is clearly in accord with its declared law (Nagaraj, 2006) that the state (of which the court is an integral constituent), is under a duty not only to protect individual rights but is also obliged to facilitate the same.
    • Validating the nations role: The court-inspired initiatives would also validate the nation’s preeminent role in the shaping of a new world order.

    Implications of the law

    • Nudging the government towards anti-lynching law: As with the sedition law, it can nudge the government to enact an anti-lynching humanitarian law as suggested by it and a comprehensive law against custodial torture.
    •  Law against custodial torture: The absence of an anti-custodial torture law, a glaring gap in the architecture of the criminal justice system, is inexplicable considering the command of Article 21, recommendations of the Select Committee of Rajya Sabha (2010), the Law Commission of India (2017) and the Human Rights Commission and the judgments of the Supreme Court (Puttaswamy, 2017; Jeeja Ghosh, 2016; and Shabnam, 2015).
    • Implications for the UAPA: It is expected likewise from the court to intervene suitably and read down the UAPA and other criminal laws that have been repeatedly misused to trample upon the civil liberties and rights of the people.

    Conclusion

    This is indeed the moment to seize, as the government reviews the nation’s legal structures. The initiatives suggested above are in aid of democracy anchored in the inviolability of human rights and would enhance India’s soft power in our engagement with the international community.

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  • In abeyance of Section 124A, a provisional relief

    Context

    In a brief order delivered in S.G. Vombatkere vs Union of India, a three-judge Bench of the Supreme Court of India effectively suspended the operation of Section 124A of the Indian Penal Code.

    What was the basis for the reconsideration?

    • This direction was issued after the Union government filed an affidavit informing the Court that it had decided to re-examine the law.
    • The Bench believed that the offer to reconsider the provision, if nothing else, showed that the Government was in broad agreement with the Court’s prima facie opinion on the matter, that the clause as it stands “is not in tune with the current social milieu, and was intended for a time when this country was under the colonial regime”.

     Section 125A and issues with it

    • Section 124A defines sedition as any action — “whether by words, signs, or visible representation” — which “brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards the Government established by law in India”.
    • The word “disaffection”, the provision explains, “includes disloyalty and all feelings of enmity”.
    • The adopted Constitution did not permit a restriction on free speech on the grounds of sedition. 
    • In the 1950s, two different High Courts struck down Section 124A as offensive to freedom.
    • But, in 1962, in Kedar Nath Singh vs State of Bihar, a five-judge Bench of the Supreme Court reversed these verdicts.
    • The Court paid no heed to the debates that informed the Constituent Assembly.
    • Instead, it found that Section 124A was defensible as a valid restriction on free speech on grounds of public order.
    • However, while upholding the clause, the Court limited its application to “acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence”.
    • Vague terms: The decision failed to recognise that terms such as “disaffection towards the government”, which are fundamentally vague.
    • Marginalised sections affected: Since then, in its application by law enforcement, the limitations imposed in Kedar Nath Singh have rarely been observed.
    •  As is often the case with abuses of this kind, it is the most marginalised sections of society that have faced the brunt of the harm.
    • Reading of fundamental rights changed: Since 1962, when the judgment was handed out, the Supreme Court’s reading of fundamental rights has undergone a transformative change.
    • Time to reconsider Kedar Nath: This altered landscape meant that when fresh challenges were mounted against Section 124A, the time to reconsider Kedar Nath Singh had clearly arrived. 
    • In the long run, the decision in Kedar Nath Singh will require a clear disavowal.
    • But in nullifying Section 124A, albeit for the present, the Court has provided provisional relief — allowing those accused of the offence to both seek bail in terms of the order, and to have their trials frozen.

    Conclusion

    To protect our democracy, we must ensure that the constitutional guarantees to personal liberty and freedom do not go in vain. For that, each of our penal laws must be animated by a concern for equality, justice, and fairness.

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  • Public opinion cannot influence jurisprudence

    Context

    On May 5, 2022, the current affairs site politico.com obtained the draft opinion of Justice Samuel Alito, apparently speaking for the majority of the judges of the Supreme Court of the United States (SCOTUS) overruling Roe v Wade (1973) and Planned Parenthood v Casey (1992). These two previously decided cases enable women in the US to access abortions, albeit with some restrictions.

    Background of the US Supreme Court

    • SCOTUS was established on March 4, 1789.
    • The almost 225-year-old court, founded to interpret the American constitution that was adopted in 1789, has a long history of being an ideologically divided court, hearing deeply contentious political issues.
    • Within both the polity and law in the US, no issue is as emotive and divisive as matters related to abortion.
    • At present there is the 6-3 divide in the SCOTUS, with the conservatives constituting the majority.
    • Paying attention to the public opinion: Conservative judges also frame the regulation of abortion as a state legislative rights issue, giving enormous weight to the apparent public opinion within those states.

    Paying attention to the public opinion

    • In the draft opinion that was leaked, after being circulated to the other eight judges of SCOTUS, Justice Alito writes “We hold that Roe and Casey must be overruled,” adding, “it is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.
    • Here is how the issue is initially framed: Legislatures in states must be able to adopt laws on abortion as they see fit.
    • The justification offered is in the context of the legitimacy of such laws being made by the will of the people, through their representatives.
    •  Justice Alito clearly sees this an issue for the legislature to decide based on the will of the voters.

    Why public opinion is not a legitimate parameter for adjudicating issues of rights

    • Against the separation of power: Across jurisdictions, in the constitutional scheme of separation of powers, the executive, legislature and judiciary are expected to play different roles.
    • The executive to govern using the rule of law, the legislature to make law and the judiciary to ensure that those laws are in consonance with constitutional values.
    • The introduction of public opinion and deference to the legislature as a valid basis for adjudication by constitutional courts leads to extraordinary conclusions.
    • The virtue of constitutional courts is that they are expected to be insulated from public opinion.
    • In that regard, they are freed from the vagaries of the will of the voters and enjoy the quiet introspection and justification through legal reasoning that the law creates space for.

    Conclusion

    The notion that constitutional courts should take  the will of voters into account is at odds with the understanding of courts elsewhere, like in India.

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  • Sedition law

    Context

    On May 11, the Supreme Court directed the Union government and the states to refrain from using the law of sedition and keep all previous cases under 124A in abeyance till the matter is reconsidered in a comprehensive way.

    Data on Section 124A and UAPA about pendency and conviction rates

    • The data on draconian laws like 124A or UAPA exposes their untenability.
    • According to the National Crime Records Bureau data, a total of 156 cases of sedition were pending in 2017.
    • In that year, only 27 cases could be disposed of at the police level by withdrawing the case or submitting a chargesheet.
    • In courts, out of the 58 cases on trial, only one conviction could be obtained and the pendency rate for the cases of sedition was close to 90 per cent.
    • The number of cases increased in 2020, the year for which the latest NCRB data is available, but with the same results.
    • Of the total 230 cases registered, only 23 were chargesheeted.
    • Pendency in court reached close to 95 per cent for the sedition cases in 2020.
    • The abysmally low rate of conviction and disposal of these cases make it clear that these charges are slapped with very flimsy or no evidence to intimidate or harass those who question the government’s fiat.
    • The picture is no different for the UAPA.
    • Cases under it have increased by about 75 per cent between 2017-2020.
    • A total of 4,827 UAPA cases were pending in 2020 —of them, only 398 could be chargesheeted in that year.
    • The pendency rate in court remained 95 per cent, indicating harassment and violation of the right to life and liberty for a great number of people who are suffering because of the diabolical prison conditions in India.

    Recommendations and measures

    • A consultation paper on sedition circulated by the Law Commission of India on August 30, 2018, found many issues that need addressing around the working of Section 124A.
    • Most recently, on May 11, the Supreme Court directed the Union government and the states to refrain from using the law of sedition.

    Conclusion

    Dissent, criticism and differences of opinion are vital for the functioning of any democracy. The witch-hunting of those who question the government of the day reminds us of medieval times and totalitarian rulers. It is time we usher in an era of free speech. For that, the sedition law must go.

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  • Govt to reconsider Minority Tag for Hindus in some states

    The Union government will initiate a wide consultation with states and other stakeholders to examine a plea as to whether Hindus can be granted minority status in states where their numbers are comparatively less.

    Why such move?

    • Hindus are merely 1% in Ladakh, 2.75% in Mizoram, 2.77% in Lakshadweep, 4% in Jammu & Kashmir, 8.74% in Nagaland, 11.52% in Meghalaya, 29% in Arunachal Pradesh, 38.49% in Punjab, and 41.29% in Manipur.

    Who are the Minorities?

    • Muslims, Sikhs, Christians, Buddhists, Jain and Zorastrians (Parsis) have been notified as minority communities under Section 2 (c) of the National Commission for Minorities Act, 1992.
    • As per the Census 2011, the percentage of minorities in the country is about 19.3% of the total population of the country.
    • The population of Muslims are 14.2%; Christians 2.3%; Sikhs 1.7%, Buddhists 0.7%, Jain 0.4% and Parsis 0.006%.
    • Minority Concentration Districts (MCD), Minority Concentration Blocks and Minority Concentration Towns, have been identified on the basis of both population data and backwardness parameters of Census 2001 of these areas.

    Who are linguistic minorities?

    • Linguistic Minorities are group or collectivities of individuals residing in the territory of India or any part thereof having a distinct language or script of their own.
    • The language of the minority group need not be one of the twenty-two languages mentioned in the Eighth Schedule of the Constitution.
    • In other words, linguistic minorities at the State level mean any group or groups of people whose mother tongues are different from the principal language of the State, and at the district and taluka/tehsil levels, different from the principal language of the district or taluka/tehsil concerned.
    • The linguistic minorities are therefore identified by the respective States/UTs.

    Defining Minorities

    • The Constitution recognizes Religious minorities in India and Linguistic minorities in India through Article 29 and Article 30.
    • But Minority is not defined in the Constitution.
    • Currently, the Linguistic minorities in India are identified on a state-wise basis thus determined by the state government whereas Religious minorities in India are determined by the Central Government.
    • The Parliament has the legislative powers and the Centre has the executive competence to notify a community as a minority under Section 2(c) of the National Commission for Minorities Act of 1992.

    Article 29: It provides that any section of the citizens residing in any part of India having a distinct language, script, or culture of its own, shall have the rights of minorities in India to conserve the same. Article 29 is applied to both minorities (religious minorities in India and Linguistic minorities in India) and also the majority. It also includes – rights of minorities in India to agitate for the protection of language.

    Article 30: All minorities shall have the rights of minorities in India to establish and administer educational institutions of their choice. Article 30 recognises only Religious minorities in India and Linguistic minorities in India (not the majority). It includes the rights of minorities in India to impart education to their children in their own language.

    Article 350-B: Originally, the Constitution of India did not make any provision with respect to the Special Officer for Linguistic minorities in India. However, the 7th Constitutional Amendment Act, 1956 inserted Article 350-B in the Constitution. It provides for a Special Officer for Linguistic Minorities appointed by the President of India. It would be the duty of the Special Officer to investigate all matters relating to the safeguards provided for linguistic minorities under the Constitution.

    Laws specifying minorities

    • There are two such laws:
    1. 1992 National Commission for Minorities (NCM) Act and
    2. 2004 National Commission for Minorities Educational Institutions (NCMEI) Act
    • Under the NCM Act, the central government has notified only six communities, namely Christians, Sikhs, Muslims, Buddhists, Parsis and Jains, as minorities as the national level.
    • The NCMEI Act entitles the six communities notified under the NCM Act to establish and administer educational institutions of their choice.

     

     

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  • Value of MPs’ vote for President Poll to go down

    The value of the vote of an MP in the presidential polls to be held in July is likely to go down to 700 from 708 due to the absence of a Legislative Assembly in Jammu and Kashmir.

    Do you know?

    The value of an MP’s vote has been 708 since the 1997 presidential election.

    What is the news?

    • Before it was bifurcated into the UTs of Ladakh and Jammu & Kashmir in August 2019, the erstwhile State of J&K had 83 Assembly seats.
    • According to the Jammu and Kashmir Reorganisation Act, the Union Territory of J&K will have an Assembly, while Ladakh will be governed directly by the Centre.

    The President of India

    • The President of India is recognised as the first citizen of the country and the head of the state.
    • The elected President of India is a part of the Union Executive along with several other members of the parliament including the Prime Minister, Attorney-General of India and the Vice – president.

    Electing the President

    • The provisions of the election of the President are laid down in Article 54 of the Constitution of India.
    • The Presidential and Vice-Presidential Election Act 1952 led to the establishment of this Constitutional provision.

    Qualifications to become the President of India

    The qualification of be the President of India are given below:

    • He/ She must be an Indian citizen
    • A person must have completed the age of 35.
    • A person must be qualified for election as a member of the House of the People.
    • Must not hold a government (central or state) office of profit
    • A person is eligible for election as President if he/she is holding the office of President or Vice-President.

    Actual course of election

    • The President of India is elected indirectly by an Electoral College following the system of proportional representation utilizing a single transferable vote system and secret ballots.
    • MPs and MLAs vote based on parity and uniformity values.

    Electoral College composition-

    (1) Legislative Assemblies of the States:

    • According to the provision of Article 333, every state’s Legislative Assembly must consist of not less than 60 members but not more than 500 members.

    (2) Council of States:

    • 12 members are nominated by the President of India based on skills or knowledge in literature, arts, science, and social service to act as the members of the Council of States.
    • In total, 238 represent act as representatives from both the States and Union Territories.

    (2) House of the People:

    • The composition of the House of People consists of 530 members (no exceeding) from the state territorial constituencies.
    • They are elected through direct election.
    • The President further elects 20 more members (no exceeding) from the Union Territories.

    Uniformity in the scale of representation of states

    To maintain the proportionality between the values of the votes, the following formula is used:

    Value of vote of an MLA= total no. of the population of the particular state/ number of elected MLAs of that state divided by 1000.

    Single vote system

    • During the presidential election, one voter can cast only one vote.
    • While the MLAs vote may vary state to state, the MPs vote always remain constant.

    MPs and MLAs vote balance

    • The number of the total value of the MPs votes must equal the total value of the MLAs to maintain the State and the Union balance.

    Quotas:

    • The candidate reaching the winning quota or exceeding it is the winner.
    • The formula sued is ‘Winning quota total number of poll/ no.of seats + 1’.

    Voters’ preference:

    • During the presidential election, the voter casts his vote in favor of his first preferred candidate.
    • However, in case the first preference candidate does not touch the winning quota, the vote automatically goes to the second preference.
    • The first preferred candidate with the lowest vote is eliminated and the votes in his/her favor are transferred to the remaining candidates.

    Why need Proportional representation?

    • The President of India is elected through proportional representation using the means of the single transferable vote (Article 55(3)).
    • It allows the independent candidates and minority parties to have the chance of representation.
    • It allows the practice of coalition with many voters under one government.
    • This system ensures that candidates who are elected don’t represent the majority of the electorate’s opinion.

    Why is President indirectly elected?

    If Presidents were to be elected directly, it would become very complicated.

    • It would, in fact, be a disaster because the public doesn’t have the absolute clarity of how the president-ship runs or if the candidate fits the profile of a president.
    • Another reason why the direct election system isn’t favorable is that the candidate running for the president’s profile will have to campaign around the country with the aid of a political party.
    • And, this will result in a massive political instability.
    • Moreover, it would be difficult and impossible for the government to hand out election machinery (given the vast population of India).
    • This will cost the government financially, and may end up affecting the economy as well.
    • The indirect election system is a respectable system for the First Man of India (rightly deserving).
    • The system/method of indirect electing of the president also allows the states to maintain neutrality and minimize hostility.

     

  • Centre-Delhi Row heads to Constitution Bench

    The Supreme Court has referred to a Constitution Bench the battle between the Centre and the Delhi government for control over bureaucrats in the Capital.

    What is a Constitution Bench?

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

    Constitution benches are set up when the following circumstances exist:

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

    Why in news now?

    • A 2018 Constitution bench decision interpreting Article 239AA had not dealt with an aspect having a bearing on the dispute over services, CJI agreed.
    • The proceedings have their genesis in the Delhi HC judgment of August 4, 2017, whereby it held that for the purposes of administration, the L-G was not bound by the aid and advice of the Council of Ministers in every matter.
    • On appeal, the SC on February 15, 2017, referred the matter to decide on the interpretation of Article 239AA.

    What is the 2018 Judgment all about?

    • By a majority decision in July, 2018, the Constitution bench upheld the respective powers of the state Assembly and the Parliament.
    • It said that while the CoM must communicate all decisions to the L-G, this does not mean that the L-G’s concurrence is required.
    • In case of a difference of opinion, the L-G can refer it to the President for a decision.
    • The L-G has no independent decision-making power but has to either act on the ‘aid and advice’ of the CoM or is bound to implement the decision of the President on a reference being made.
    • The bench, which limited itself to the interpretation of Article 239AA, left individual issues to be decided by regular benches.

    When power tussle began

    • Subsequently in 2019, a two-judge bench of the SC dealt with some individual issues arising from the power tussle between the Centre and the NCT government.
    • It ruled that the Anti-Corruption Branch of the Delhi government cannot investigate corruption cases against central government officials.
    • The power to appoint commissions under the Commission of Inquiry Act, 1952, would be vested with the Centre and not the Delhi government, the judgment said.

    Issue over control of administrative services

    • The judges, however, differed on who should have control over administrative services.
    • This was challenged again in the SC where the Centre contended that the two judges could not take a decision on the question.
    • The 2018 Constitution bench judgment had not interpreted the expression “insofar as any such matter as applicable to Union Territories” appearing in Article 239AA.
    • The Centre has urged SC CJI Ramana to refer the matter to a five-judge Constitution bench so that the question of law can be settled before the dispute over who has control over services can be looked into.

    Back2Basics: Article 239AA

    • Article 239AA granted Special Status to Delhi among Union Territories (UTs) in the year 1991 through the 69th Constitutional Amendment.
    • It provided a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers.
    • That’s when Delhi was named as the National Capital Region (NCT) of Delhi.
    • As per this article – Public Order, Police & Land in NCT of Delhi fall within the domain and control of Central Government which shall have the power to make laws on these matters.
    • For remaining matters of State List or Concurrent List, in so far as any such matter is applicable to UTs, the Legislative Assembly shall have the power to make laws for NCT of Delhi.

     

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  • Absence of Roe v Wade won’t just impact the US

    Context

    The leak of an initial draft majority opinion of the US Supreme Court voting to overturn the decision in Roe v Wade has sent shockwaves across liberal and conservative quarters alike, globally.

    Background of the Roe v Wade case

    • Right to abortion: While locating the right of privacy within the guarantee of personal liberty enshrined in the fourteenth amendment of the American constitution, Roe embodies a supervening constitutional right to abortion emanating from this right of privacy.
    • The right to abort was held to be a constitutionally protected right within the right of privacy.
    • Roe, the 1973 outcome of an unmarried woman’s crusade for bodily autonomy, had declared overbroad, and consequently unconstitutional, a provision of the Texas Penal Code which permitted only those abortions that were “procured or attempted by medical advice to save the life of the mother”.
    • The decision simultaneously recognised the state’s interest in protecting the life of the foetus as also the life of the mother. 
    • Roe is not only relevant as a progressive trailblazer for reproductive rights in the United States but is also fundamental to constitutional jurisprudence globally for the interpretative tools it employed.

    Implications of overturning Roe v Wade

    • Political considerations vs judicial responsibility: The overturning of Roe is more than the mere abdication of the judicial responsibility to protect individual rights — it signals a dangerous trend of courts making long-standing determinations of legal rights based on transient political considerations.
    • Incursion into women’s right to abort: It would also mean legitimisation of state incursions into women’s right to abort and consequently their right to bodily autonomy and liberty, in addition to forcing them to move to states with enabling laws to procure abortions, leading to issues of access and affordability of abortions.
    • While the impact of Roe’s absence would most profoundly be felt in the US, it is likely to embolden conservative anti-abortion voices across the world.
    • Limits of judicial activism: It will inevitably also raise fundamental questions on the limits of judicial activism aimed at protecting the rights of persons and classes, which do not find explicit mention within a country’s constitutional framework.
    • Possibility of a conservative approach to abortion cases: In 2021, the abortion laws in India underwent substantial changes, with the introduction of the Medical Termination for Pregnancy (Amendment) Act, 2021 which, in addition to destigmatising pregnancies outside marriage by introducing the nomenclature of “any woman or her partner”, also increased the upper gestational limits within which pregnancies are legally terminable.
    • The Act, however, carries ambiguities and leaves room for both judicial and executive interpretation.
    • As cases of subjective determination arise, the Indian judiciary will be called upon to reconcile the right to privacy recognised in Puttaswamy with the permissible limits of abortion in the Act.

    How does Roe v Wade apply in the Indian context?

    • In KS Puttaswamy v Union of India, Justice Chandrachud referred to Roe and Planned Parenthood while reading the right to privacy into the existing framework of constitutionally protected fundamental rights subject to “just, reasonable and fair” restrictions.
    • Recognising derivative rights: In the lifetime of the Indian Supreme Court, recognising derivative rights within the existing framework of fundamental rights has been regularly witnessed — be it rights during arrest and detention, the right to express one’s sexual and gender identity, or rights against harassment at the workplace, to cite a few.
    • Setback to transformative constitutionalism: In the Indian context, the overturning could be seen as a setback to the celebrated doctrine of transformative constitutionalism, which sees the Indian Constitution as a “living document” that moulds, adapts and responds to changing times and circumstances.

    Conclusion

    The likelihood of the overturning of Roe leading to more conservative approaches to judicial interpretation in abortion rights cases, cannot be ruled out.

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  • President has no role to play in Perarivalan’s plea: SC

    The Supreme Court has disagreed with the Central government’s suggestion that the court should wait till the President took a call on former PM’s assassination case convict A.G. Perarivalan’s mercy plea referred to him by the Tamil Nadu Governor for a decision.

    Why in news now?

    • The Bench of the Supreme Court said that the Centre had missed the obvious question posed by the court by a mile.
    • The pertinent question was whether the Governor had, in the first place, the authority to refer the mercy plea to the President.
    • Under Article 161 of the Constitution, the Governor was bound by the aid and advice given by the TN Council of Ministers in September 2018.
    • The Governor prima facie had no authority to transfer the mercy plea to the President.

    What does Pardon mean?

    • A pardon is a government/executive decision to allow a person to be absolved of guilt for an alleged crime or other legal offense as if the act never occurred.

    Why need a Pardon?

    • Pardons can be granted when individuals are deemed to have demonstrated that they have “paid their debt to society”, or are otherwise considered to be deserving of them.
    • Pardons are sometimes offered to persons who were either wrongfully convicted or who claim that they were wrongfully convicted.
    • Pardons are sometimes seen as a mechanism for combating corruption, allowing a particular authority to circumvent a flawed judicial process to free someone that is seen as wrongly convicted.

    What does Article 161 say?

    • Article 161 of the Constitution provides the Governor with the power to remit or commute the sentence of any prisoner.
    • The Governor’s decision will be subject to judicial review by the constitutional courts.

    Supreme court’s observations

    • The Constitution Bench in 2015, in a majority decision, had held that the States cannot unilaterally remit the sentences of life convicts in cases investigated by a Central agency under a Central law.
    • The assassination case was probed by the CBI.
    • In compliance with the 2015 verdict, the Tamil Nadu government wrote to the Centre in 2016, proposing the grant of remission to the convicts. The State wanted the Centre to concur.
    • After a wait of over two years, the Centre rejected the State’s proposal, saying this was an unparalleled act in the annals of crimes committed in this country.

    Arguments in Perarivalan’s petition seeking pardon

    • Perarivalan had been pleading for release citing that he was 19 when he was arrested.
    • He was the only male child of his parents, there were no records of criminal antecedents, and that he had excellent conduct in his entire prison life.
    • His petition also cited UG and PG degrees, and that he was the university topper, Gold medalist in diploma in DTP, and that he completed more than eight diploma and certificate courses during his prison term.
    • His probation officer gave a report about lapses in recording his confession statement that handed out maximum punishment in his case.

    Basis of his innocence

    • Perarivalan cannot be called innocent before the law as he continues to be a convicted prisoner serving imprisonment.
    • He was accused of having bought two battery cells for the LTTE man who masterminded the conspiracy.
    • He was sentenced to death based on this crucial confession statement.

    Significance of the convicts’ release

    • The release of seven convicts is a demand raised by not only the ruling party of TN but the main opposition too.
    • All TN politicians voiced that the judiciary should be able to reform and let them live as good citizens to uphold the high values of reformatory justice and restitution.

    Back2Basics: Pardoning Powers in India

    • Under the Constitution of India (Article 72), the President of India can grant a pardon or reduce the sentence of a convicted person, particularly in cases involving capital punishment.
    • A similar and parallel power vests in the governors of each state under Article 161.

    (1) President

    • Article 72 says that the president shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence.
    • The pardoning powers of the Indian President are elucidated in Art 72 of the Indian Constitution. There are five different types of pardoning which are mandated by law.
    1. Pardon: means completely absolving the person of the crime and letting him go free. The pardoned criminal will be like a normal citizen.
    2. Commutation: means changing the type of punishment given to the guilty into a less harsh one, for example, a death penalty commuted to a life sentence.
    3. Reprieve: means a delay allowed in the execution of a sentence, usually a death sentence, for a guilty person to allow him some time to apply for a Presidential Pardon or some other legal remedy to prove his innocence or successful rehabilitation.
    4. Respite: means reducing the quantum or degree of the punishment to a criminal in view of some special circumstances, like pregnancy, mental condition etc.
    5. Remission: means changing the quantum of the punishment without changing its nature, for example reducing twenty-year rigorous imprisonment to ten years.

    (2) Governor

    • As per Article 161, the Governor of a State has the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law.
    • It must be relating to a matter to which the executive power of the state extends.
    • Please note that President can grant pardon to a person awarded death sentence. But a governor of a state does not enjoy this power.

     

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