On May 7, a Bench comprising Justices Surya Kant and K V Viswanathan warned against the presence of “unfair, prejudicial, and atrocious mindsets” that perpetuate and validate caste prejudices.
It also directed all states and union territories to ensure that the ‘history sheets‘ maintained by their police forces are free from ‘caste biases’.
The Bench was adjudicating a petition filed by AAP MLA Amanatullah Khan, contesting a history sheet initiated against him and a proposal to designate him as a ‘bad character’ by registering his name in the surveillance register at Delhi’s Jamia Nagar police station.
Did you know about the ‘History sheets’?
The term “history sheet” first appeared in the Punjab Police Rules of 1934.
These rules authorized the opening of a history sheet against individuals reasonably believed to be habitually addicted to crime or aiding and abetting criminal activities, regardless of whether they have been convicted.
How was the process of ‘history sheeting’ initiated?
The process of opening a history sheet is governed by police rules specific to each state, such as it is applicable in Punjab, Haryana, Himachal Pradesh, Delhi, and Chandigarh.
The initiation typically begins when the Station House Officer (SHO), who is the head of the police station, takes notice of an individual proven guilty in multiple cases or found to be consistently engaged in criminal activities.
Details included in the history sheet(Acc. Punjab Police Rules, 1934):
A history sheet must contain a detailed description of the individual, paying special attention to any peculiarities of appearance that can aid in identification.
It mentions the relations and connections of the individual. This provides clues regarding persons with whom the criminal is likely to associate.
It holds the details about any property owned by the criminal, as well as their mode of earning a livelihood, should be included.
About Amanatullah Khan’s plea in the Supreme Court:
On May 13, 2022, the Station House Officer (SHO) of Jamia Nagar had submitted a dossier to the Assistant Commissioner of Police (ACP) and Deputy Commissioner of Police (DCP) proposing to open a history sheet and label him as a “Bad Character” in police records.
The proposal was accompanied by a list of 18 pending cases against Khan, including offenses such as intimidation, threatening, and riots. Khan claimed that he had been discharged, acquitted, or had the FIRs quashed in 14 of these cases.
Legal Battles:
In January 2023, the Delhi HC dismissed Khan’s plea against the opening of the history sheet and the “Bad Character” tag, stating that the Delhi Police had followed due procedure and complied with the Punjab Police Rules, 1934.
Khan’s appeal to the SC was rejected, but the SC directed the police to ensure that details of his minor children and wife were not reflected in the history sheet.
Khan’s plea focused on protecting the dignity, self-respect, and privacy of his innocent family members, including minor relatives, from being compromised by inclusion in the history sheet.
Revisiting Police Procedures: The Delhi Police submitted that they would revisit the format for history sheets to ensure that the details of innocent family members are not compromised.
A Standing Order issued by the Delhi Police Commissioner on March 21, 2024, stated that details of minor relatives should not be included in the history sheet.
BACK2BASICS
Constitutional and Legal Provisions for accused person in India:
Article 20: This right protects against arbitrary and excessive punishment of an accused person, whether a citizen, a foreigner, or a legal person like a company or a corporation, etc.
Article 21: This right declares that no person shall be deprived of his life or personal liberty except according to the procedure established by law. This right is available to both citizens and non-citizens.
Section 50(1) of the CrPC: As per this section, every arrested person has the right to be treated with dignity and respect during detention.
This section ensures that individuals, including the accused, are not subjected to any form of physical or mental abuse while in custody, upholding the basic human rights of the accused.
Way Forward:
Review and Revise Police Procedures: States and Union Territories should conduct a comprehensive review of their police procedures related to maintaining history sheets to ensure they are free from caste biases.
Training and Sensitization: Police personnel should undergo regular training and sensitization programs to raise awareness about caste biases and the importance of impartiality in law enforcement.
Mains PYQ:
Q The jurisdiction of the Central Bureau of Investigation (CBI) regarding lodging an FIR and conducting probe within a particular State is being questioned by various States. However, the power of the States to withhold consent to the CBI is not absolute. Explain with special reference to the federal character of India.
The Supreme Court has granted interim bail to Delhi Chief Minister Arvind Kejriwal in the liquor policy case till to campaign for the Lok Sabha elections.
What is Interim Bail?
Interim bail in India is a temporary release granted to an accused person from custody under Section 439 Cr.
It can be granted to address urgent matters such as medical emergencies, family crises, or other significant personal issues.
Legal Provisions forInterim Bail
Interim bail in India is NOT explicitly defined under a specific statute but is derived from the discretionary powers granted to courts under various legal provisions.
The most relevant laws and principles include:
Code of Criminal Procedure, 1973 (CrPC): While the CrPC does not explicitly mention “interim bail,” it provides the framework for granting bail in general. Sections like 437 (bail in non-bailable cases by Magistrate), 438 (anticipatory bail), and 439 (special powers of High Court or Court of Session regarding bail) are used by courts to grant bail, including interim bail, based on judicial discretion.
Constitutional Provisions: The Constitution of India under Article 21, which guarantees the right to life and personal liberty, is often interpreted to include the right to bail as part of the fair and just legal process.
Back2Basics:What is Bail?
Bail is the conditional release of a defendant with the promise to appear in court when required.
The term also means the security that is deposited in order to secure the release of the accused.
In India’s legal world, the term offense has been categorized as bailable offenses and non-bailable under the Code of Criminal Procedure.
Why need Bail?
Bail is a fundamental aspect of any criminal justice system.
A person can defend himself/herself better when he/she is free, thus ensuring free trial.
The practice of bail grew out of the need to safeguard the fundamental right to liberty.
Liberty is the right of one whose guilt has not yet been proven.
Types of Bail in India
Depending upon the sage of the criminal matter, there are commonly three types of bail in India:
Regular Bail: Granted to a person who has already been arrested and is in custody. This type of bail is provided under Sections 437 and 439 of the Code of Criminal Procedure, 1973 (CrPC). It allows the accused to be released from custody while the trial is ongoing.
Anticipatory Bail: Under Section 438 of the CrPC, anticipatory bail is a pre-arrest legal process. It is granted when a person apprehends arrest on an accusation of having committed a non-bailable offence. This type of bail ensures that the accused will be released on bail in the event they are arrested.
Interim Bail: This is temporary bail granted for a short period. Interim bail is often granted to allow the accused some relief until a final decision on their regular or anticipatory bail plea is made.
Conditions for Grant of Bail in Bailable Offences
Section 436 of the Code of Criminal Procedure, 1973, lays down that a person accused of a bailable offense under IPC can be granted bail if:
There are sufficient reasons to believe that the accused has not committed the offence.
There is sufficient reason to conduct a further inquiry in the matter.
The person is not accused of any offence punishable with death, life imprisonment or imprisonment up to 10 years.
Conditions for Grant of Bail in Non-Bailable Offences
Section 437 of Code of Criminal Procedure, 1973 lays down that the accused does not have the right to apply for bail in non-bailable offences.
It is discretion of the court to grant bail in case of non-bailable offences if:
The accused is a woman or a child, bail can be granted in a non-bailable offence.
There is a lack of evidence then bail in non-Bailable offenses can be granted.
There is a delay in lodging FIR by the complainant, bail may be granted.
The accused is gravely sick.
PYQ:
[2021] With reference to India, consider the following statements :
1. Judicial custody means an accused is in the custody of the concerned magistrate and such accused is locked up in police station, not in jail.
2. During judicial custody, the police officer in charge of the case is not allowed to interrogate the suspect without the approval of the court.
Which of the statements given above is/are correct?
Q) To achieve the desired objectives, it is necessary to ensure that the regulatory institutions remain independent and autonomous. Discuss in the light of experiences in the recent past. (UPSC IAS/2015)
Q) The product diversification of financial institutions and insurance companies, resulting in the overlapping of products and services strengthens the case for the merger of the two regulatory agencies, namely SEBI and IRDA. Justify. (UPSC IAS/2013)
Note4Students:
Prelims: Standard Essential Patents (SEP);
Mains: The effect of judicial lethargy and activism on Standard essential patents (SEP);
Mentor comments:There is a possible crisis brewing in India over how certain technology companies are wielding ‘standard essential patents’ (SEP) against the telecom manufacturing sector in India. This is a complex policy issue that has direct ramifications for India’s effort to build a domestic manufacturing industry for cellular phones. So far, the issues of regulating SEPs have been left to the judiciary, which, as an institution, has mostly missed the ball.
Let’s learn
—
Why in the News?
The government must put in place measures to regulate Standard Essential Patents before the judiciary causes further damage to India’s manufacturing dreams.
What are ‘Standard Essential Patents’ (SEP)?
These are the types of patents that cover technologies that are adopted by the industry as “standards”. For example, technologies such as CDMA, GSM, and LTE are all industry standards in the telecom sector.
Technological standards are especially important to ensure the interoperability of different brands of cellular phones manufactured by different companies.
For example, once GSM was adopted as a standard, all manufacturers had to ensure that the handsets that they manufactured were compatible with GSM.
The Opaque Model:
Countries with little innovation in the telecom sector, such as India, have minimal influence over the setting of standards or the licensing of Standard Essential Patents (SEPs). This lack of influence contributes to the opacity of the process.
Standard-setting organizations (SSOs) are primarily run by private technology companies, leading to a concentration of power and decision-making among these entities.
Owners of SEPs can demand extortionary royalties or licensing terms from manufacturers due to the lack of alternatives. This practice can block competition and hinder market entry for smaller players.
The lack of alternatives and the necessity for manufacturers to license SEPs create a “patent holdup” problem, where owners of SEPs can exploit their position to extract higher licensing fees.
Despite the theoretical expectation that SSOs would prevent unfair practices, the self-regulation model has failed in practice. This failure is evidenced by the record fines imposed on some SEP owners for engaging in anti-competitive practices.
The Effect of Judicial Lethargy and Activism
Lack of Investigation into Abusive Licensing Practices: Due to judicial lethargy and delays, the Indian government has yet not investigated potentially abusive licensing practices of technology companies owning Standard Essential Patents (SEPs).
Protracted Litigation: Litigation surrounding competition law issues has been mired in delays and remained pending for an extended period, resulting in a lack of resolution. For instance, a case involving Ericsson challenging the Competition Commission of India’s power lasted for seven years before a judgment was delivered.
Impact on Manufacturers: The prolonged litigation and uncertainty have adversely affected manufacturers, particularly Indian companies, who have been required to deposit substantial sums of money with the court during the pendency of trials. This has strained their financial resources and affected their ability to operate effectively.
Unprecedented Interim Orders: The Delhi High Court has issued unprecedented “deposit” orders, requiring manufacturers to deposit large sums of money with the court before trial.
These orders lack legal basis and are unfair to defendants, depriving them of working capital for the duration of the trial.
Impact on Investment and Manufacturing Sector: Judicial lethargy and activism have negative implications for the government’s efforts to attract investment in the manufacturing sector.
Delays and uncertainties in legal proceedings deter potential investors and undermine the effectiveness of government initiatives like the “production-linked incentives” scheme.
Questioning on the Policies of Government: The situation raises questions about the rationale behind government policies that incentivize manufacturing while overlooking issues related to abusive licensing practices by SEP owners. This inconsistency may hinder efforts to promote economic growth and job creation in the country.
Way Forward:
Need for Government Intervention: There is a pressing need for the Indian government to intervene and implement measures to regulate SEPs. The current judicial delays and uncertainties surrounding SEPs are hindering India’s manufacturing aspirations.
Ensuring Fairness and Equity: Regulatory measures would aim to ensure fairness and equity in the licensing of SEPs, preventing monopolistic practices and extortionate royalties that could hinder competition and innovation.
The petition, filed by advocate Mathews Nedumpara, seeks a revival of the NJAC. SC Registrar says the issue is already settled, and a repeat litigation is a “needless waste of judicial time and energy”
What is the Registrar of supreme court?
The registrar is a chief executive officer of a judicial forum. They are in charge of the entire registry of the department.
What is NJAC (National Judicial Appointments Commission)?
In August 2014, Parliament passed the Constitution (99th Amendment) Act, 2014 along with the National Judicial Appointments Commission (NJAC) Act, 2014, providing for the creation of an independent commission to appoint judges to the Supreme Court and high courts.
In 2015, Supreme Court struck down the National Judicial Appointments Commission (NJAC) and the 99th Amendment
Actually, Collegium system is used for the appointment of SC Judges
First Judges Case (1981):
Also known as S.P. Gupta case (December 30, 1981), the Supreme Court held that consultation does not mean concurrence and it only implies exchange of views
It declared that the “primacy” of the Chief Justice of India (CJI)s recommendation on judicial appointments and transfers can be refused for “cogent reasons.”
The ruling gave the Executive primacy over the Judiciary in judicial appointments.
Second Judges Case (1993):
SC reversed its earlier ruling and changed the meaning of the word consultation to concurrence.
Hence, it ruled that the advice tendered by the Chief Justice of India is binding on the President in the matters of appointment of the judges of the Supreme Court.
But, the Chief Justice would tender his advice on the matter after consulting two of his senior most colleagues (this was considered as Collegium)
The collegium can veto the government if the names are sent back by the latter for reconsideration.
The basic tenet behind the collegium system is that the judiciary should have primacy over the government in matters of appointments and transfers in order to remain independent.
The opinions of each member of the Collegium and other judges consulted should be made in writing and form part of the file on the candidate sent to the government.
Thus, the executive element in the appointment process was reduced to a minimum.
If the CJI had consulted non-judges, he should make a memorandum containing the substance of consultation, which would also be part of the file. After the receipt of the Collegium recommendation, the Law Minister would forward it to the Prime Minister, who would advise the President in the matter of appointment.
Third Judges Case (1998):
SC on President’s reference expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues while HC collegium is led by its Chief Justice and four other senior most judges of that court.
Names recommended for appointment by a HC collegium reaches the government only after approval by the CJI and the SC collegium.
Conclusion:
The primary argument against the NJAC was that it could potentially undermine judicial independence by giving the executive a significant role in judicial appointments. Any alternative system, including a revised version of the NJAC, would need to ensure that judicial independence is safeguarded.
Mains PYQ
Q Critically examine the Supreme Court’s judgement on ‘National Judicial Appointments Commission Act, 2014’ with reference to appointment of judges of higher judiciary in India.
The Supreme Court on Monday used its extraordinary powers under Article 142 of the Constitution to do “complete justice” to permit the medical termination of pregnancy of a 14- year-old rape.Her pregnancy is nearing 30 weeks. The minor became aware of her condition only at a very late stage.
Article 142
Article 142 of the Indian Constitution grants extraordinary powers to the Supreme Court of India to deliver complete justice. It empowers the Supreme Court to pass any order or issue any writ necessary for doing “complete justice” in any cause or matter pending before it, even if the case does not fall directly within its jurisdiction.
Distinctive features of Article 142:
Extraordinary Powers: Article 142 grants the Supreme Court of India extraordinary powers to deliver complete justice. These powers are exceptional and not restricted by the ordinary limitations of jurisdiction or procedure.
Wide Discretion: The provision grants the Supreme Court wide discretion in passing orders or issuing writs to achieve complete justice.
Non-obstante Clause: Article 142 begins with a non-obstante clause, which means that the powers conferred by this article prevail over any other provision of the Constitution or law. This underscores the supremacy of the Supreme Court’s authority in exercising these powers.
Judicial Activism: Article 142 is often invoked to enable the judiciary to intervene in matters where existing laws or legal provisions are inadequate or where there are gaps in the law. This enables the court to play an active role in shaping legal principles and addressing societal concerns.
Medical Termination of Pregnancy (MTP) Act 2020
Gestation Limits: The Act allows for the termination of pregnancy up to 20 weeks with the opinion of one registered medical practitioner.
For termination between 20 to 24 weeks, the opinion of two registered medical practitioners is required.
The upper gestation limit has been increased from 20 to 24 weeks for special categories of women, including survivors of rape, victims of incest, differently-abled women, and minors.
Medical Board: In cases of substantial foetal abnormalities diagnosed by a Medical Board, the upper gestation limit does not apply.
The Medical Board consists of a gynaecologist, a paediatrician, a radiologist or sonologist, and other notified members.
Privacy Protection: The Act ensures the protection of privacy for women who have terminated their pregnancy. The name and other details of the woman are not to be revealed except to authorized individuals.
Conclusion:
Need to take Measures to prevent rape in society by providing education on consent, promoting gender equality, ensuring swift and awareness about severe punishment for perpetrators, enhancing support for survivors, and fostering a culture of respect.
Mains PYQ
Q ‘Constitutional Morality’ is rooted in the Constitution itself and is founded on its essential facets. Explain the doctrine of ‘Constitutional Morality’ with the help of relevant judicial decisions.
The Supreme Court refused to condone a delay of 5659 days in an appeal filing, setting forth eight guiding principles by interpreting Sections 3 and 5 of the Limitation Act, 1963, in ‘Harmonious Construction’.
What is the Doctrine of Harmonious Construction?
The doctrine of harmonious construction means figuring out how to understand different parts of a law that seem to disagree with each other.
This doctrine helps maintain consistency and coherence in legal interpretation, ensuring that legislative intent is upheld while resolving apparent conflicts within statutes.
Origin: The Origin of the Doctrine of Harmonious Construction dates back to the landmark Judgement of Sri Shankari Prasad Singh Deo v. Union of India (1951), when there existed conflict between Fundamental Rights and DPDP.
In the present context, the SC harmoniously construed Sections 3 and 5 of the Limitation Act, ensuring that the strict interpretation of limitation periods under Section 3 was balanced with the liberal approach to condonation of delay under Section 5.
What is Limitation Act, 1963?
The Limitation Act, 1963 is a statute enacted by the Parliament that prescribes the time limits within which legal proceedings can be initiated for various civil and criminal matters.
The Act sets out the specific time periods, known aslimitation periods, within which a person must file a lawsuit or take legal action to enforce their rights or claim remedies for a particular cause of action.
Once the limitation period expires, the right to initiate legal proceedings becomes barred by law, and the aggrieved party loses the right to seek legal redress.
Here are its key features:
Applicability: The Limitation Act, 1963 applies tocivil suits, appeals, and applications filed in courts across India, with exceptions for cases where specific statutes provide for different limitation periods.
Limitation Periods: The Act sets a limitation period of3 years for filing suits related to recovery of debts, breach of contract, or injury to a person.
Commencement of Limitation: The limitation period typically begins from the date when the cause of action arises, which is when the aggrieved party becomes entitled to sue.
Extension and Suspension: The Act allows for certain circumstances where the limitation period may be extended or suspended. For instance, if the plaintiff is under a disability or if fraud is discovered, the limitation period may be extended.
Principles for Condonation of Delay
Justices Bela M Trivedi and Pankaj Mithal presided over the bench that delineated these principles.
Public Policy Basis: Limitation law aims to conclude litigation by forfeiting the remedy rather than the right itself.
Temporal Limitation: Rights or remedies unexercised for a prolonged duration should cease to exist.
Strict vs. Liberal Construction: Section 3 (limitation period) requires strict interpretation, while Section 5 (condonation of delay) demands a liberal approach.
Substantial Justice: While promoting substantial justice, the core of limitation law (Section 3) must not be undermined.
Discretionary Power: Courts may condone delay if sufficient cause is explained but may refrain due to factors like inordinate delay and negligence.
Individual Justification: Relief granted to some does not mandate the same for others if delay justification is unsatisfactory.
Merit Irrelevance: Merits of the case need not influence delay condonation decisions.
Condonation Parameters: Applications for delay condonation must adhere to statutory provisions; overlooking conditions amounts to disregarding the law.
Why were these guidelines laid out?
These principles emerged from a case where legal heirs sought to challenge a High Court decision dismissing their plea to condone delay in filing an appeal against a Trial Court’s reference dismissal.
The litigant’s heirs argued insufficient knowledge about the dismissal due to her stay in the matrimonial house, leading to a delayed filing.
However, the Supreme Court rejected this argument, citing negligence in pursuing the reference and appeal, lack of procedural diligence, and acceptance of the reference court’s decision by most claimants.
PYQ:
[2021] With reference to Indian judiciary, consider the following statements:
1. Any retired judge of the Supreme Court of India can be called back to sit and act as a Supreme Court judge by the Chief Justice of India with prior permission of the President of India.
2. A High Court in India has the power to review its own judgement as the Supreme Court does.
Which of the statements given above is/are correct?
In early March this year, 30 people in Thrissur in Kerala executed living wills.
Context:
The Supreme Court’s 2018 order on Passive Euthanasia, wherein it recognized the ‘Right to die with dignity’ as a fundamental right and an aspect of Article 21 (right to life) of the Constitution.
However, the people wanting to get a “living will” registered were facing problems due to cumbersome guidelines, prompting a reconsideration by the apex court.
A Constitution Bench, led by Chief Justice of India Dipak Misra, in three concurring opinions, upheld that the fundamental right to life and dignity includes the ‘Right to Refuse Treatment and Die with dignity’.
What is a Living Will?
A Living Will is a healthcare directive, in which people can state their wishes for their end-of-life care, in case they are not in a position to make that decision.
The Court’s procedure:
Pre-2023: Initially, the process of creating living wills was deemed overly complex by the Court, with elaborate bureaucratic procedures in place to prevent abuse by unscrupulous individuals seeking to exploit the patient’s assets.
Post-2023: Recognizing the impracticality of requiring judicial magistrate countersignatures on living wills, the Court streamlined the process in January 2023. Now, living will require signatures in the presence of witnesses, attestation by a notary or gazetted officer, and submission to a designated government officer acting as a custodian.
Challenges in Implementation :
Decision-Making Process: Even if a living will is created, its implementation is not automatic. Decisions on withholding or withdrawing treatment require certification by primary and secondary medical boards, posing logistical challenges, especially in hospitals without designated boards.
Ambiguities and Discomfort: Ambiguities in guidelines, discomfort with end-of-life care topics, and unclear legal definitions contribute to the hesitancy among officials to implement the Court’s directives without clear instructions from higher authorities.
Legal Ambiguity: Indian law lacks a clear definition of ‘next of kin’, leading to potential disputes among family members about medical decisions for terminally ill patients.
Barriers to End-of-Life Decisions: A survey of intensive care doctors reveals a general belief that end-of-life decisions are fraught with legal implications, serving as a significant barrier to making such decisions in the ICU.
Regional Disparities in India:
Haryana: While some states like Haryana have issued directions to follow the judgment, they have not provided essential guidance or protocols for implementation.
Odisha: In contrast, Odisha has taken a more thorough approach by forming a committee of experts to develop detailed draft orders for implementing the judgment, setting a potential example for other states.
Conclusion: The central government could help bridge the gap in expertise by developing and publishing model orders and protocols to provide states with confidence and guidance in effectively implementing the judgment.
Mains question for practice
Q Discuss the challenges surrounding the implementation of living wills in India, as established by the Supreme Court’s landmark judgment in 2018.
Recently SCt said that advisory boards should act like a safety net, protecting people’s freedom from the government’s arbitrary use of power.
They need to make sure there’s a balance between the government’s actions and people’s right to be free.
About Advisory Board:
Article 22 of the Constitution makes it mandatory for preventive detention laws to form advisory boards consisting of persons qualified to be High Court judges.
Objective: It must consider whether the detention is necessary not just in the eyes of the detaining authority but also in the eyes of the law.
Case Background: The judgment came in an appeal filed by a man ordered by the Telangana police to be detained as a ‘goonda’ under the Telangana Prevention of Dangerous Activities Act, 1986.
The claim by Telangana police: The man was a threat to “public order”. He was a cause of panic and fear among women. The appellant was accused of making a habit of snatching the ‘mangalsutras’ of his victims in broad daylight.
SC on the Appeal filed under the Telangana Prevention of Dangerous Activities Act, 1986:
Qualifications of Advisory Board Members: Justice Pardiwala emphasized that having qualified individuals, potentially fit to become High Court judges, on advisory boards was crucial. This ensures robust scrutiny of government detention orders.
Responsibilities of Advisory Boards: These boards, mandated by various laws, are required to review detention orders every three months.
Substantial Evidence to justify detention: Justice Pardiwala highlighted the unfairness of depriving someone of their Personal Liberty based merely on the assumption that they might commit a crime in the future. He stressed the importance of substantial evidence to justify detention.
Absence of Evidence of Threat to Public Order: The Supreme Court observed that the state failed to provide sufficient material indicating that the detained individual posed a genuine threat to public order. Specifically, there was no substantial evidence linking him to activities that could disrupt public order.
The distinction between ‘Public order’ and ‘Law and Order’, and the Preventive Detention
Differentiating ‘Public Order’ and ‘Law and Order’: Justice Pardiwala highlighted the distinction between ‘law and order’ issues, which affect only a few individuals, and ‘public order’ concerns, which have a broader impact on the community or even the entire country.
Limitations on Preventive Detention: The SC emphasized that preventive detention should only be utilized in exceptional circumstances.
Quashing of Detention Order: Justice Pardiwala ordered the quashing of the detention order against the appellant based on the absence of his direct involvement in any of the First Information Reports (FIRs).
Conclusion: The Supreme Court emphasizes advisory boards in preventive detention laws aren’t mere rubber stamps for the government but safeguards for personal liberty. They must ensure the necessity of detention, backed by substantial evidence, and limit preventive detention to exceptional circumstances.
Mains question for practice
Q Discuss the recent Supreme Court ruling emphasizing the role of advisory boards in preventive detention laws ( 150 words )
Mains: 1. Whether the National Commission for Scheduled Castes (NCSC) can enforce the implementation of constitutional reservation for the Scheduled Castes in the religious minority institutions? Examine (2018)
2. What are the two major legal initiatives by state since Independence, addressing discrimination against Scheduled Tribes (ST)? (2017)
3. Why are the tribals in India referred to as ‘the Scheduled Tribes’? Indicate the major provisions enshrined in the Constitution of India for their upliftment. (2016)
Prelims: Under the Indian Constitution, the Concentration of Wealth violates (2021) a) the Right to Equality b) the Directive Principles of State Policy c) the Right to Freedom d) the Concept of Welfare
From The Hindu
Note4Students:
Mains: Minority sections of the society and their Empowerment; Judiciary; State government;
Prelims: Fundamental rights; Important judgements by SC; State government;
Mentor comments: Recently, the case of ‘State of Punjab vs Davinder Singh’ revolves around the question of whether State governments can make sub-classifications within Scheduled Castes and Scheduled Tribes for public employment. The Supreme Court is set to deliver a judgment on this matter, addressing the issue of intra-group variances and the power of States to recognize them. We need to analyze this issue as it is sub-classified SC reservations which are leading to legal challenges and subsequent legislative actions.
Let’s learn.
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Why in the News?
The SC is set to deliver a judgment on whether State governments can make sub-classifications within SCs and STs, addressing the varying levels of development and discrimination within these groups.
Context:
The ongoing case of State of Punjab v Davinder Singh has brought to light the complexities surrounding sub-classification within reserved categories.
The central question revolves around whether a group within a reserved category can be further sub-classified and granted reservations.
Proponentsargue that sub-classification is necessary to ensure adequate representation of the most disadvantaged groups, addressing the issue of backwardness within backwardness.
On the other hand, opponents contend that the existing reservation scheme already ensures adequate representation for historically disadvantaged groups, making sub-classification unnecessary.
JUDICIARY ON SUB-CATEGORIZATION WITHIN RESERVED CATEGORIES:
1) State of Punjab vs Davinder Singh case (1975):
– In 1975, the Government of Punjab issued a circular that reserved 50% of SC seats for Balmikis and Mazhabi Sikhs, leading to legal challenges culminating in the Supreme Court’s involvement.
– The case questions whether sub-classifications are constitutionally permissible within SCs and STs, challenging the notion that these groups are homogenous.
– The debate involves revisiting past judgments like E.V. Chinnaiah vs State of Andhra Pradesh, which prohibited sub-classifications within SCs but recognized such distinctions within Other Backward Classes (OBCs).
2) Indra Sawhney vs Union of India Case (1992):
– The SC cited its judgment which arose out of the Mandal Commission’s report. There, a nine-judge Bench had held that sub-classifications within socially and educationally backward classes (OBCs) for services under the government was permissible.
– The case introduced the concept of the “creamy layer,” excluding affluent sections within backward classes (limited it to not exceed 50%) from reservation benefits.
– The genesis of this debate dates back to 1980 when the Second Backward Classes Committee, chaired by BP Mandal, recommended 27% reservation for OBCs and 22.5% for Scheduled Castes.
3) About E.V. Chinnaiah vs State of Andhra Pradesh Case (2004):
– A five-judge Bench quashed the Andhra Pradesh Scheduled Castes (Rationalization of Reservations) Act, 2000. The Act was challenged before the High Court and later the Supreme Court, which declared it ‘ultra viresthe Constitution’ as it offended Article 341 of the Constitution.
– This provision allows the President of India to notify a list of SCs for each State, and stipulates that the list can only be modified by Parliament.
– The case prohibited sub-classifications within SCs as it was found to violate constitutional provisions but recognized such distinctions within Other Backward Classes (OBCs). It emphasized that SCs and STs are homogeneous groups incapable of further regrouping or classification.
– The Court found that the State government had no power to tinker with the list because it was clear on a bare reading of Article 341 that such authority vested only with Parliament.
What is the difference between a homogenous class and a sub-classification within reserved categories?
A homogenous class refers to a group that is considered uniform or undifferentiated, where all individuals within the group are treated equally.
The Sub-classification within reserved categories involves categorizing a larger group into smaller sub-groups based on specific criteria, allowing for differential treatment or preferences within the overall category.
The distinction lies in how individuals within a larger reserved category are treated – either uniformly as a single homogenous group or with differentiated preferences based on sub-classifications.
What are the arguments for and against sub-classification within reserved categories?
Arguments for Sub-classification:
Ensuring Adequate Representation: Proponents argue that sub-classification is necessary to ensure adequate representation of the most disadvantaged groups within reserved categories.
Tailoring Criteria for Sub-classification: The court needs to tailor criteria for sub-classification to prevent leaving out certain groups while granting benefits to the most backward.
State’s Ability to Identify Backwardness: The states needs to be best positioned to judge the backwardness of communities and should have the authority to create sub-classifications within reserved categories without violating constitutional provisions.
Arguments against Sub-classification:
Presumption of Backwardness: Opponents argue that while there is a presumption of backwardness with Scheduled Castes (SCs), individual castes within SCs cannot be considered separate classes under Article 16(4), suggesting that making laws for specific castes within SC lists could violate Article 16(2).
Violation of Equality Principle: Critics assert that sub-classification would violate the right to equality by treating communities within the category differently, potentially leading to discrimination based on caste, which is prohibited under Article 16(2).
Stigma and Exclusion: Those against sub-classification argue that if certain Scheduled Castes do not receive reservation benefits, they may be left with the stigma of being a Scheduled Caste without access to affirmative action measures, highlighting concerns about exclusion and inequality.
What are the challenges faced by Sub-Classifications within Reserved Categories in India?
Lack of Equal Opportunities: Articles 14 to 16 of the Constitution promises of substantive equality. The absence of sub-classification perpetuates inequality within reserved categories, hinders the framing of appropriate government policies.
Legal and Constitutional Complexities: The states face challenges as they lack legislative competence to create sub-classifications within reserved categories, raising questions about the constitutionality of such measures.
Addressing Backwardness: The issue of “backwardness within backwardness” has been acknowledged, emphasizing the need to address the most disadvantaged communities effectively.
Way Forward
Considering the above challenges, they highlight the complexities and nuances involved in addressing sub-classifications within reserved categories in India. Hence it is necessary to emphasize on careful consideration and legal clarity in policy-making and implementation. The SC’s decision in cases like ‘State of Punjab vs Davinder Singh’ will play a crucial role in shaping affirmative action discourse and addressing issues of social justice within reserved categories
India’s bail system faces significant challenges, resulting in a large number of undertrials remaining in prison despite being granted bail.
The complexities of complying with bail conditions, especially for marginalized individuals, exacerbate the situation.
Bail Provisions in India
Description
What is Bail?
The conditional release of a defendant with the promise to appear in court when required. It also refers to the security deposit to secure the release of the accused.
Types of Bail in India
Regular bail: Granted to a person in police custody, applied for under section 437 and 439 of CrPC.
Interim bail: Short-term bail granted before the hearing for regular or anticipatory bail.
Anticipatory bail: Granted under section 438 of CrPC by session court or High Court, to avoid potential arrest for a non-bailable offense.
Case in Bailable Offences
Section 436 states that accused of a bailable offence under IPC can be granted bail if:
There’s reason to believe the accused didn’t commit the offence.
There’s need for further inquiry.
Accused isn’t charged with an offence punishable by death, life imprisonment, or up to 10 years’ imprisonment.
Bail for Non-Bailable Offences
Section 437 states that accused doesn’t have the right to apply for bail. Bail may be granted if:
Accused is a woman or child.
Lack of evidence.
Delay in lodging FIR.
Accused is gravely sick.
Understanding the Crisis in Bail System
Overrepresentation of Undertrials: Over 75% of India’s prison population comprises undertrials, reflecting systemic inefficiencies in the bail system.
Judicial Reluctance: Chief Justice of India D.Y. Chandrachud highlighted a growing reluctance among trial judges to grant bail, leading to a situation where incarceration becomes the norm.
Bail Backlog: The backlog of bail applications further exacerbates the problem, prolonging the detention of undertrials awaiting trial.
Judicial Acknowledgment and Guidelines
Supreme Court’s Observations: The Supreme Court acknowledged the ineffectiveness of India’s bail system in the case of Satender Kumar Antil vs CBI, emphasizing the principle of ‘bail not jail’.
Need for Legislative Action: The Court urged the enactment of separate legislation and laid down comprehensive guidelines to streamline bail procedures.
Delayed Disposal of Applications: Despite court directives, delays in the disposal of bail applications contribute to prolonged detention of undertrials.
Empirical Assessment and Policy Reforms
Lack of Empirical Evidence: The absence of empirical data hampers efforts to understand the bail system’s challenges comprehensively.
Socio-economic Barriers: Bail laws disproportionately burden marginalized individuals, necessitating reforms based on a realistic assessment of the problem.
No Data-driven Reform: Policymakers should prioritize empirical research to inform evidence-based policy reforms aimed at addressing systemic inequalities.
Safeguards and Adjudication Practices
Arrest Safeguards: Existing safeguards against arbitrary arrest often exclude vulnerable populations, contributing to the high proportion of undertrials.
Discretionary Adjudication: Courts exercise discretion in granting bail, but guidelines lack clarity on how socioeconomic factors influence bail decisions.
Recording Reasons for Bail Denial: Courts should be mandated to record detailed reasons for denying bail, promoting transparency and accountability in the adjudication process.
Bail Compliance Challenges
Financial Hurdles: Many undertrials struggle to comply with bail conditions due to financial constraints and lack of local sureties.
Structural Disadvantages: Factors like lack of residence proof and family support further hinder undertrials’ ability to comply with bail conditions.
Support Mechanisms: Establishing support mechanisms to assist undertrials in navigating the bail process and fulfilling conditions can alleviate compliance challenges.
Why bail needs reform?
Indiscriminatearrests: Of this category of prisoners, majority may not even be required to be arrested despite registration of a cognizable offense, being charged with offenses punishable for seven years or less.
Disadvantageous for some sections: They are not only poor and illiterate but also would include women. Thus, there is a culture of offense being inherited by many of them.
Colonial legacy: Theoretically, the court also linked the idea of indiscriminate arrests to magistrates ignoring the rule of “bail, not jail” to a colonial mindset.
Way forward
No Flawed Assumptions: The current bail system operates on flawed assumptions about the accused’s socio-economic status, rendering ‘bail not jail’ meaningless for many.
Call for Bail Reform: Meaningful bail reform necessitates a reevaluation of these assumptions and a data-driven approach to diagnose systemic issues.
Holistic Approach: Reform efforts should adopt a holistic approach, addressing both procedural inadequacies and socio-economic barriers to ensure equitable access to bail.
Conclusion
India’s bail system stands at a critical juncture, with an urgent need for reform to address systemic inefficiencies and ensure justice for all.
Empirical research, legislative action, and judicial scrutiny are essential components of a comprehensive reform agenda.
Try this PYQ from CSE Prelims 2021:
With reference to India, consider the following statements:
Judicial custody means and accused is in the custody of the concerned magistrate and such accused is locked up in a police station, not in jail.
During judicial custody, the police officer in charge of the case is not allowed to interrogate the suspect without the approval of the court.
Which of the statements given above is/are correct?
(a) 1 only
(b) 2 only
(c) Both 1 and 2
(d) Neither 1 nor 2
[wpdiscuz-feedback id=”wwodi0ynqz” question=”Please leave a feedback on this” opened=”1″]Post your responses here.[/wpdiscuz-feedback]
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