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Subject: Polity

  • Indian constitutional morality

    constitutional

    Context

    • This Republic Day, as India marks the completion of 74 years of its constitutional functioning, the moral and ethical spirit of the Constitution that has phenomenally shaped the trajectory of constitutional democracy, needs to be delved into. To adequately comprehend the promise and practice of the Indian Constitution, it is crucial to unpack its underlying moral or ethical tenets that have shaped or has been shaping the discourse of constitutionalism in India.

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    Ethical underpinnings of the Indian Constitution

    • Constitution for governance: Constitutions are primarily seen as the legal edifice that prescribes the fundamental principles and rules crucial for governing a nation.
    • Legal guiding document: The Indian Constitution, as the revered guiding document, for governing the post-colonial independent nation, consists of the prescription, pronouncements, and provisions that gave shape to India’s legal-political system of governance.
    • Contains ethical values: Beyond the legal directives and provisions, the document reflects a set of normative ethical values which the Indian Constitution makers perceived as integral for laying the foundation of the Indian Republic.
    • Basic premise of Constitutional morality: Such constitutional predilection towards a set of ‘substantive moral entailments’ that goes beyond the legal-doctrinal reading of the Constitution entails the basic premise of constitutional morality.

    Constitutional

    What is mean by Constitutional morality?

    • Constitutional morality refers to the set of moral principles and values that are reflected in the Indian Constitution and considered important for the proper functioning of Indian society.
    • This includes not only legal rules but also broader ethical guidelines for how the country should be governed.

    Contextualizing constitutional morality

    • Constitutional Morality to Understand Democracy in India: The premise of constitutional morality needs to be extrapolated to better understand the larger ethical dynamics that have consolidated the form and substance of democracy in India.
    • Two dimensions of representative democracy: The practise of representative democracy is constituted by two dimensions procedural democracy as well as substantive democracy. The former encapsulates the practise of electoral democracy while the latter also includes the larger substantive or qualitative impact of electoral democracy on the lives of the people.
    • The resilience of constitutional democracy in India: Despite the apprehensions raised at the time of independence as India was dubbed as an ‘improbable democracy’, constitutional democracy in India undoubtedly remains stable and durable, manifesting its unflinching resilience in the last seven decades.
    • The ethical drivers of India’s vibrant democratic continuity: The success of India’s vibrant democratic continuity, in spite of the humongous challenges of multi-dimensional diversity, geographical, and demographic expanse and other socio-economic hindrances can be attributed to the moral and ethical drivers of the Indian Constitution that needed to be deciphered further.

    Constitutional

    Ethical motivation and democracy

    • The Democratic Ethic of the Indian Republic: The book, Politics and Ethics of Indian Constitution, notes that the Constitution at its very inception identified itself to belong to the ‘people’ underlining the democratic ethic of the Indian Republic. The Constitution’s genuinely egalitarian project got manifested in the granting of the universal adult franchise to all sections of people in India.
    • Right to vote: India, by virtue of its constitutional inclination towards inclusivity, commenced universal political enfranchisement immediately after the independence while the right to vote has been granted to women in stable western democracies much later after their independence.
    • The autonomous election commission and free and fair elections: The constitutionally designated Election Commission in India functions as an autonomous body and has remained successful in conducting largely free and fair elections. Voter turnout has remarkably increased since then specially women to be mentioned. Also, the instances of major electoral violence have also declined with time.
    • Political participation and equal opportunity: In tandem with the principle of inclusiveness based on the idea of equal political opportunity that the Indian constitution espoused, India witnessed a gradual increase in the political participation and representation of the hitherto marginalised and weaker sections of people.
    • Strengthening democratic credentials through fundamental rights: The fundamental rights rolled out by the Constitution have acted as an extremely helpful instrument for strengthening India’s democratic credentials by making the ‘modern citizen’ aware of their political, legal and civic rights based on the inalienable principle of individual liberty.
    • Welfare state by Directive Principles of State Policy: The Indian Constitution includes important but non-enforceable provisions for welfare in the Directive Principles of State Policy (DPSP). These provisions have helped to expand welfare and development programs in electoral politics, and have given many people access to basic necessities for a decent life, in line with the democratic ideal of a better life for all.

    Conclusion

    • The values of freedom, fraternity, equality and social justice in the Indian Constitution have enabled inclusive participation and given citizens the power to demand welfare and development. Thus, the inextricably embedded values of India’s constitutional morality have played a pivotal role in strengthening the ethical vision of democracy, despite challenges, further enhancing India’s democratic resilience.

    Mains question

    Q. What do you understand by mean constitutional morality? Despite of challenges India’s constitution showed remarkable democratic resilience. Discuss.

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  • What is a Living Will?

    A five-judge Bench of the Supreme Court headed by Justice K M Joseph agreed to significantly ease the procedure for passive euthanasia in the country by altering the existing guidelines for ‘living wills’.

    What is Living Will?

    • A living will is a legal document detailing the type and level of medical care one wants to receive if they are unable to make decisions or communicate their wishes when care is needed.
    • A living will addresses many life-threatening treatments and procedures, such as resuscitation, ventilation, and dialysis.
    • A person can appoint a healthcare proxy to make decisions regarding care when they are unable to do so.
    • A living trust is a legal document that addresses how the assets of the incapacitated person should be managed.
    • People can enlist the services of an estate planner or an attorney to help draft or review a living will.

    Living Will in India

    • It was first laid down in its 2018 judgment in Common Cause vs. Union of India & Anr, which allowed passive euthanasia.
    • It was in response to the Aruna Shanbaug Case where protagonists were arguing in favor of mercy killing to Aruna.
    • The guidelines pertained to questions such as who would execute the living will, and the process by which approval could be granted by the medical board.
    • It declared that an adult human being having mental capacity to take an informed decision has right to refuse medical treatment including withdrawal from life-saving devices.

    What is Euthanasia?

    • Euthanasia refers to the practice of an individual deliberately ending their life, oftentimes to get relief from an incurable condition, or intolerable pain and suffering.
    • Euthanasia, which can be administered only by a physician, can be either ‘active’ or ‘passive’.
    • Active euthanasia involves an active intervention to end a person’s life with substances or external force, such as administering a lethal injection.
    • Passive euthanasia refers to withdrawing life support or treatment that is essential to keep a terminally ill person alive.

    What is the legal history of this matter?

    • Passive euthanasia was legalized in India by the Supreme Court in 2018, contingent upon the person having a ‘living will’.
    • It must be a written document that specifies what actions should be taken if the person is unable to make their own medical decisions in the future.
    • In case a person does not have a living will, members of their family can make a plea before the High Court to seek permission for passive euthanasia.

    What did the SC rule in 2018?

    • The Supreme Court allowed passive euthanasia while recognising the living wills of terminally-ill patients who could go into a permanent vegetative state.
    • It was required to be signed by an executor (the individual seeking euthanasia) in the presence of two attesting witnesses and to be further countersigned by a Judicial Magistrate of First Class (JMFC).
    • The court issued guidelines regulating this procedure until Parliament passed legislation on this.
    • However, this has not happened, and the absence of a law on this subject has rendered the 2018 judgment the last conclusive set of directions on euthanasia.

    What was the situation before 2018?

    • P Rathinam vs Union Of India, 1994: In a case challenging the constitutional validity of Section 309 of the IPC — which mandates up to one year in prison for attempt to suicide the Supreme Court deemed the section to be a “cruel and irrational provision”.
    • Gian Kaur vs The State Of Punjab, 1996: Two years later, a five-judge Bench of the court overturned the decision in P Rathinam, saying that the right to life under Article 21 did not include the right to die, and only legislation could permit euthanasia.
    • Aruna Ramchandra Shanbaug vs Union Of India & Ors, 2011: SC allowed passive euthanasia for Aruna Shanbaug, a nurse who had been sexually assaulted in Mumbai in 1973, and had been in a vegetative state since then. The court made a distinction between ‘active’ and ‘passive’, and allowed the latter in “certain situations”.

    Key observations by Law Commission

    • Earlier, in 2006, the Law Commission of India in its 196th Report’ had said that a doctor who obeys the instructions of a competent patient to withhold or withdraw medical treatment does not commit a breach of professional duty and the omission to treat will not be an offence.
    • It had also recognised the patient’s decision to not receive medical treatment, and said it did not constitute an attempt to commit suicide under Section 309 IPC.
    • Again, in 2008, the Law Commission’s ‘241st Report On Passive Euthanasia: A Relook’ proposed legislation on ‘passive euthanasia’, and also prepared a draft Bill.

    What was the old cumbersome process?

    • The treating physician was required to constitute a board comprising three expert medical practitioners from specific but varied fields of medicine, with at least 20 years of experience.
    • They would decide whether to carry out the living will or not.
    • If the medical board granted permission, the will had to be forwarded to the District Collector for his approval.
    • The Collector was to then form another medical board of three expert doctors, including the Chief District Medical Officer.
    • Only if this second board agreed with the hospital board’s findings would the decision be forwarded to the JMFC, who would then visit the patient and examine whether to accord approval.
    • This cumbersome process will now become easier.

    Recent changes after the SC’s order this week

    • Medical board: Instead of the hospital and Collector forming the two medical boards, both boards will now be formed by the hospital.
    • 5 year experienced doctor: The requirement of 20 years of experience for the doctors has been relaxed to five years.
    • Magistrate approval not required: The requirement for the Magistrate’s approval has been replaced by an intimation to the Magistrate.
    • No witness required: The 2018 guidelines required two witnesses and a signature by the Magistrate; now a notary or gazetted officer can sign the living will in the presence of two witnesses instead of the Magistrate’s countersign.
    • HC for appeal: In case the medical boards set up by the hospital refuses permission, it will now be open to the kin to approach the High Court which will form a fresh medical team.

    Different countries, different laws

    • NETHERLANDS, LUXEMBOURG, BELGIUM allow both euthanasia and assisted suicide for anyone who faces “unbearable suffering” that has no chance of improvement.
    • SWITZERLAND bans euthanasia but allows assisted dying in the presence of a doctor or physician.
    • CANADA had announced that euthanasia and assisted dying would be allowed for mentally ill patients by March 2023; however, the decision has been widely criticised, and the move may be delayed.
    • UNITED STATES has different laws in different states. Euthanasia is allowed in some states like Washington, Oregon, and Montana.
    • UNITED KINGDOM considers it illegal and equivalent to manslaughter.

    Justification for Euthanasia/Assisted Suicide

    • It provides a way to relieve extreme pain.
    • Euthanasia can save life of many other people by donation of vital organs.

    Conclusion

    • India officially recognizes that- “every single citizen is entitled to and reserves the right to die with dignity.”
    • Hon’ble Supreme Courts’ recent updated guidelines are a major move in this direction.

     

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  • Uniform Civil Code, Identity politics and the gender equality

    Civil

    Context

    • Once again there is a clamour to replace diverse personal laws with a Uniform Civil Code (UCC), applicable to all Indians, irrespective of religion, gender or caste. Some states (for example, Uttarakhand) are already drafting one.

    What is a Uniform Civil Code?

    • A Uniform Civil Code is one that would provide for one law for the entire country, applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption, etc.
    • Article 44, one of the directive principles of the Constitution lays down that the state shall endeavor to secure a Uniform Civil Code for the citizens throughout the territory of India.
    • These, as defined in Article 37, are not justiciable (not enforceable by any court) but the principles laid down therein are fundamental in governance.

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    Inheritance laws at present

    • Hindus are governed by the 2005 Hindu Succession Amendment Act (HSAA);
    • Muslims by the Muslim Personal Law (Shariat) Application Act, 1937;
    • Christians and Parsis by the Indian Succession Act 1925 (amended by both communities subsequently), and
    • Tribal groups are still subject to custom.

    Civil

    What makes unification difficult?

    • Distinction in Hindu inheritance laws: Hindu inheritance distinguishes between separate property and coparcenary joint family property, giving coparceners rights by birth. No other personal law makes this distinction.
    • Within Hindu law itself, states diverge: Kerala abolished joint family property altogether in 1976, but other states retained it, and matrilineal Hindus (as in Meghalaya and Kerala) have different inheritance rules from patrilineal Hindus. Even among the latter, Hindus historically governed by Dayabhagha (West Bengal and Assam) differ from those in the rest of India who were governed historically by Mitakshara.
    • unrestricted right to will: The right to will is unrestricted among Hindus, Christians and Parsis, but Muslim law restricts wills to one-third of the property; and Sunni and Shia Muslims differ on who can get such property and with whose consent.
    • Complex gender equal laws specifically in Muslims: for while the inheritance laws of Hindus, Christians and Parsis are largely gender equal today, under Muslim personal law, based on the Shariat, women’s shares are less than men’s, generically. Being embedded in the Koran, this complex structure of rules leaves little scope for reform towards gender equality.
    • Land is treated differently from other property: The HSAA 2005, for instance, deleted the clause which discriminated against women in agricultural land, but the 1937 Shariat Act governing Muslims continues to exclude agricultural land from its purview, leaving a major source of gender inequality intact. Although Tamil Nadu, Andhra Pradesh and Kerala later amended the Shariat Act to include agricultural land, in many other states, landed property is still subject to tenurial laws which exclude Muslim women from inheriting it, contrary to their rights under the Shariat.
    • Social justifications on who deserves to inherit differ: Hindus emphasise sapinda (“shared body particles” in Mitakshara and religious efficacy in Dayabhaga); other communities privilege blood or marital ties; and yet others favour proximity of children’s post-marital residence to provide parents care in old age.

    Civil

    Main concern: Deflection from the original aim of Gender equality

    • Today, the UCC debate has become enmeshed with identity politics, deflecting it from the original aim of gender equality. And the mingling of legal reform with religious identity has sharpened political divisiveness.

    Answer probably lies in: The discussions among women’s groups in the 1990s

    1. Encourage each religious community to pursue its own reform for gender equality.
    2. Constitute a package of gender-just laws which would coexist with personal laws, and a person could choose one or the other upon reaching adulthood.
    3. Constitute a gender-equal civil code applicable to all citizens without option, based on the constitutional promise of gender equality, rather than on religious decree or custom.

    Conclusion

    • For a start, rather than one code covering inheritance, marriage, etc., we should discuss each separately. On inheritance, which is the most complex, a secular law based on constitutional rights will clearly go the farthest towards gender equality. Whether this is possible in today’s divisive political environment remains an open question. But at least we should restart the conversation.

    Mains question

    Q. What is Uniform civil code? Highlight some of the major points which makes the unification difficult.

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  • PM greets people on Statehood day of Tripura, Manipur, Meghalaya

    state

    Prime Minister has greeted people of three northeast states- Tripura, Manipur and Meghalaya on their Statehood Day.

    What is the news?

    • Today marks the 51st anniversary of the formation of the states, which were created on this day in 1972.
    • While Manipur and Tripura were princely states which were absorbed into India in October 1949, Meghalaya, on the other hand, was part of Assam.
    • The states came into being the North-Eastern Areas (Reorganisation) Act, 1971, enacted on December 30 that year.

    Quick backgrounder

    • These states attained statehood under the North Eastern Region (Reorganization) Act of 1971.
    • The NE composition consisted of Assam plains from the old Assam Province, the hill districts, and the North Eastern Frontier Tracts (NEFT) of the North-Eastern borderland.
    • Later on the NE region was turned into seven sisters with the statehood of Manipur, Tripura, Meghalaya, Assam, Mizoram, Arunachal Pradesh, and Nagaland.

    [1] Meghalaya

    • Apart from accounts of the more essential Khasi kingdoms in the chronicles of the neighbouring Ahoms and Kacharis, little is known of Meghalaya prior to the British rule.
    • However, in the early 19th century, the British desire to build a road through the region to link Bengal and Assam led to a treaty with the ruler (Syiem) of the Khasi principality of Nonkhlaw.
    • In 1829, opponents of the treaty persuaded the Syiem to repudiate it, and a subsequent attack on Britishers led inevitably to its military operations against the Khasis.
    • By the mid-1830s, most local rulers had submitted to the British.
    • For the next century, the British exercised its political control over the area, then known as the Garrows and Cossiya (Khasi) States, but the tribals who were left to fend themselves managed to preserve their traditional culture in seclusion.

    Integration into India

    • In 1947, the rulers of the region acceded to the newly independent India.
    • The first PM Nehru evolved a policy to preserve and protect the culture of the tribal people.
    • The region was given special protection in the Indian constitution along with other tribal areas, and it retained a great deal of autonomy.
    • In 1960, when Assamese became the state’s official language, agitation for autonomy and self-rule gathered strength.
    • Unlike many other hill regions in north-eastern India, this movement was largely peaceful and constitutional.
    • In 1970, Meghalaya became an autonomous state within Assam and achieved full statehood on January 21, 1972.

    [2] Manipur

    • Over 500 princely states had negotiated their accession to the Indian union before independence.
    • According to News Nine, the rulers of these states signed a document called the ‘Instrument of Accession’.
    • On August 11, 1947, Bodhachandra Singh, then Maharaja of Manipur, signed the document. He had been assured that the autonomy of Manipur would be maintained.
    • Elections were held in Manipur in June 1948, but its legislative assembly had differences of opinion on the merger.
    • However, the Maharaja signed a Merger Agreement with India in September 1949.

    [3] Tripura

    • Maharajas of the Manikya dynasty ruled the former princely state of Tripura.
    • It was an independent administrative unit under the Maharaja even during British rule in India.
    • However, according to Tripura State Portal, this independence was qualified, subject to the Britishers’ recognition, as the paramount power of each successive ruler.
    • As per Rajmala, in the royal chronology of Tripura, around 184 kings ruled over the state before it merged with the Indian Union on October 15, 1949.
    • Since then, the history of Tripura has been interspersed with various political, economic and social developments.

    Attainment of full statehood

    • On January 26, 1950, Tripura was accorded the status of a ‘C’ category state, and on November 1, 1956, it was recognized as a Union Territory.
    • With its people’s sustained efforts and struggle, it gained full statehood on January 21, 1972, as per the North-East Reorganisation Act, 1971.
    • Its democratic set-up further stretched to the village level in 1978 with an election to the local bodies that ultimately culminated in introducing a three-tier Panchayati Raj System.

     

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  • Disclosure of Journalistic Sources by Press

    press

    While rejecting a closure report filed by the CBI, a Delhi court said there is “no statutory exemption in India to journalists from disclosing their sources to investigating agencies”.

    What is the news?

    • The CBI had sought to close its investigation on how certain news channels and a newspaper had aired and published reports related to a disproportionate assets case against a leader.
    • It had argued that the “documents used by the news channel were forged” but it could not be established who forged the documents.
    • This certainly amounts to creation of fake news.

    Legal protection for disclosure of Journalistic Sources

    Ans. Freedom of Speech and Expression under Article 19

    • In India, there is no specific legislation that protects journalists from being asked to disclose their sources.
    • Article 19 of the Constitution guarantees the right to freedom of speech and expression to all citizens.
    • Investigative agencies can issue notice to anyone, including journalists, to provide information.
    • Like any citizen, a journalist can be compelled to give evidence in Court.
    • If she does not comply, the journalist can face charges of Contempt of Court.

    Freedom of Press

    • The fundamental right to freedom of speech and expression under Article 19 includes press freedom.
    • This covers an entire process from newsgathering, editorial judgement, publication and distribution of printed matter.
    • Press freedom covers all four stages.

     What have courts said on this issue?

    • While the Supreme Court broadly recognises the freedom of the press, including the right of journalists to ensure the protection of their sources, various courts have ruled differently on this issue.
    • In the Pegasus spyware case (2021), the Court underlined that the protection of journalistic sources is one of the basic conditions for the freedom of the press.
    • In 2019, the Supreme Court in a review petition in the Rafale case overruled the Centre’s objections on the petitioner’s claims since they relied on purportedly “stolen” confidential documents.

    Is there any legal enforcement?

    Ans. No

    • Courts have in “public interest asked journalists to disclose their sources. In the absence of a specific law, it is often the discretion of a Court.
    • Under the Press Council of India (PCI) Act, of 1978, the Press Council has powers of a civil court to deal with complaints when a newspaper has “offended against the standards of journalistic ethics.”
    • However, the Council cannot force a newspaper, news agency, journalist, or editor to reveal their sources during the proceedings.
    • The Whistleblower Protection Act, 2014 offers protection to people disclosing acts of corruption, wilful misuse of power, or criminal offences by public servants, in public interest.

    Recommendations for a change in law

    Ans. Recognition under Indian Evidence Act

    • The Law Commission of India in its 93rd Report in 1983 recommended recognising journalistic privilege by amending the Indian Evidence Act.
    • In its 185th report on the amendments to the Evidence Act, the Law Commission again suggested this amendment.

    Position in other countries

    • United Kingdom: The Contempt of Courts Act 1981 creates a presumption in favour of journalists who want to protect the identity of their sources. However, that right is subject to certain conditions in the “interest of justice”.
    • United States: Although the First Amendment guaranteeing free speech in the United States specifically mentions the press, the Supreme Court has held that journalists do not have the right to refuse to testify in a federal grand jury proceeding and disclose sources.
    • Sweden: The Freedom of the Press Act in Sweden is a broad protection of rights of journalists and even extends to state and municipal employees who might share information with journalists freely. In fact, a journalist who reveals his or her source without consent may be prosecuted at the behest of the source.
    • France and Germany: Journalists can refuse to disclose sources in an investigation.

    Need for non-disclosure

    • Debated issue: The right of journalists to use and protect confidential sources is a debated topic.
    • Vitality of larger public interest: Many journalists say that confidential sources are an essential tool in the search to uncover information of great public interest.
    • Prevent oppression: It is a reporter’s need and duty to protect the identity of the source of his information or else vital information of concern to the people in a democracy would be suppressed.

    Why are we discussing this?

    • Media malpractices are on rise: When the public interest is compelling and the disclosure outweighs the public interest then the sources can be revealed.
    • Serious allegations and media trial: The court can also require disclosure of the source of the news relates to a public office or public official and serious allegations have been made against him.
    • Defamation by media: Also if there is a defamatory article against a person then the Court may compel the journalist to reveal his source.

    Why media needs protection for sources?

    Where source protection is compromised, the impacts can include:

    • Pre-publication exposure of journalistic investigations may trigger cover-ups, intimidation, or destruction of information,
    • Revelation of sources’ identities has legal or extra-legal repercussions,
    • Sources of information running dry,
    • Self-censorship by journalists and citizens.

    Conclusion

    • Indian law on source disclosure is limited and has mostly been determined by courts on a case-by-case basis.

     

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  • Renaming of Madras State as Tamil Nadu

    Tamil Nadu Governor’s remarks suggesting changing the name of the state to ‘Tamizhagam’ has triggered a controversy.

    What is the news?

    • Several political parties, including the TN CM, condemned the speech and recalled the struggle to rename the Madras State to Tamil Nadu.
    • It was on January 14, 1969, that the Madras State was officially renamed Tamil Nadu, under the then Chief Minister CN Annadurai.

    A short history of Tamil Nadu

    • Social activist E V Ramasamy, fondly known as ‘Periyar’ (1879-1973), had started the Self-Respect Movement in 1925 to “redeem the identity and self-respect” of Tamils.
    • He envisaged an independent Dravida homeland of Dravida Nadu (In Tamil, Nadu means country), comprising Tamil, and Malayalam, Telugu and Kannada speakers.
    • He launched a political party called the Dravidar Kazhagam (DK).
    • Periyar also opposed the imposition of Hindi and emphasized the need for a cultural identity of the Tamil nation.

    How Madras State became Tamil Nadu?

    • Formerly called Madras Province, it had been renamed Madras State on January 26, 1950.
    • The name Madras State did not become Tamil Nadu overnight.
    • Congress party worker ‘Thiyagi’ Sankaralingam was behind the first demand to change the name, in the 1950s, and made repeated representations.
    • In 1953, several Tamil scholars including Ma. Po. Sivagnanam raised the demand in the Madras Legislative Council.
    • In 1956, Congress leader K P Sankaralinganar began an indefinite fast. One of his demands was the renaming of the state to Tamil Nadu.
    • It is noted that Sankaralinganar fasted for 76 days, which resulted in his death on October 13, 1956. Sankaralinganar’s death further spurred on the fight for renaming the state.

    Reception in Parliament

    • Around the same time, Member of Parliament and Communist leader from West Bengal, Bhupesh Gupta, moved a Bill in Parliament for renaming Madras State as Tamil Nadu.
    • At that time, CN Annadurai, who was a Rajya Sabha member, supported the move.
    • Speaking in favour of the Bill, Annadurai argued that a capital city (Madras) cannot become the name of a state and he also cited that the name Tamil Nadu had been used in ancient literature.

    When it finally happened?

    • Cut to six years later, on July 18, 1967, CM Annadurai prepared a resolution in the State Assembly.
    • During the debate, Opposition Leader P G Karuthiraman said, “Madras is a name in world history; Tamil Nadu will take time to reach the same heights”.
    • So, he suggested that the name ought to be ‘Tamil Nadu-Madras State’.
    • But, after consensus, Tamil Nadu was accepted as the name and a resolution passed unanimously.

     

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  • Hate speech a menace, buck stops at Centre: SC

    hate speech

    The Supreme Court has said the “buck ultimately stops with the government” to clamp down on hate speech and hate crimes, as they are offenses committed on society.

    What is ‘Hate Speech’?

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

    Attributes of Hate Speech

    Hate Speech has three important attributes:

    1. Hate speech can be conveyed through any form of expression, including images, cartoons, memes, objects, gestures and symbols and it can be disseminated offline or online.
    2. Hate speech is “discriminatory” (biased, bigoted or intolerant) or “pejorative” (prejudiced, contemptuous or demeaning) of an individual or group.
    3. Hate speech calls out real or perceived “identity factors” of an individual or a group, including: “religion, ethnicity, nationality, race, colour, descent, gender,” but also characteristics such as language, economic or social origin, disability, health status, or sexual orientation, among many others.

    How is it treated in Indian law?

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

    [I] Section 153A:

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

    [II] Section 505:

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

    Some Supreme Court Judgements

    1.Rangila Rasool case

    • Rangila Rasool was a tract brought out by a Hindu publisher — that had made disparaging remarks about the Prophet’s private life.
    • Cases against the first pamphlet, filed under Section 153A, were dismissed by the Punjab and Haryana High Court, which examined the question whether targeting religious figures is different from targeting religions.
    • This debate in interpretation prompted the colonial government to enact Section 295A with a wider scope to address these issues.

    2. Ramji Lal Modi v State of Uttar Pradesh

    • The constitutionality of Section 295A was challenged.
    • The Supreme Court upheld the law on the grounds that it was brought in to preserve “public order”.
    • Public order is an exemption to the fundamental right to freedom of speech and expression and the right to religion recognised by the Constitution.

    3. Ramlal Puri v State of Madhya Pradesh

    • In 1973, the Supreme Court said the test to be applied is whether the speech in question offends the “ordinary man of common sense” and not the “hypersensitive man”.
    • However, these determinations are made by the court and the distinction can often be vague and vary from one judge to the other.

    4.Baragur Ramachandrappa v State of Karnataka:

    • A 2007 decision of the Supreme Court, “a pragmatic approach” was invoked in interpreting Section 295A.
    • The state government had issued a notification banning Dharmakaarana, a Kannada novel on the ground that it was hate speech, invoking a gamut of provisions including Section 295A.

    Why curb hate speeches?

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

    Issues in regulating hate speech

    • Powers to State: Almost every regulation of speech, no matter how well-intentioned, increases the power of the state.
    • Hate speeches are Political: The issue is fundamentally political and we should not pretend that fine legal distinctions will solve the issue.
    • Legal complications: An over-reliance on legal instruments to solve fundamental social and political problems often backfires.
    • Misuse of Laws: Lower conviction rates for these provisions indicate that the process where a police officer can arrest without a warrant is often the punishment.
    • Violation of free speech: Critics have pointed out that these laws are intended for the state to step in and restore “public order” rather than protect free speech.
    • Vague terms in the law: The broad, vague terms in the laws are often invoked in its misuse.
    • Old-aged Laws: Section 295A lie in the communally charged atmosphere of North India in the 1920s.

    Suggestions made by Law Commission

    In its 267th report, the Law Commission of India proposed including the following two provisions:

    • Section 153C covers crimes committed when someone threatens someone with remarks meant to incite fear, hatred, or violence based on someone’s race, caste, religion, sex, gender identity, or other characteristics.
    • Section 505A should be included and have provisions that make inciting fear, alarm, or violence a crime.

    Suggestions for Changes in IPC:

    Viswanathan Committee 2019:

    • It proposed inserting Sections 153 C (b) and Section 505 A in the IPC for incitement to commit an offence on grounds of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe.
    • It proposed punishment of up to two years along with Rs. 5,000 fine.

    Bezbaruah Committee 2014:

    • It proposed amendment to Section 153 C IPC (promoting or attempting to promote acts prejudicial to human dignity), punishable by five years and fine or both and Section 509 A IPC (word, gesture or act intended to insult member of a particular race), punishable by three years or fine or both.

    Way forward

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

     

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  • All Sikkimese women must be allowed to get IT relief: SC

    The Supreme Court in a judgment, held that exclusion of Sikkimese women who marry non-Sikkimese men after April 1, 2008 from exemptions under the Income Tax Act is unconstitutional and amounts to gender discrimination.

    What is the news?

    • The top court’s verdict came on appeal filed by the Association of Old Settlers of Sikkim and others seeking striking down of Section 10(26AAA) of the Income Tax Act, 1961.
    • More particularly, the definition of “Sikkimese” in Section 10 (26AAA) to the extent it excludes Indians who have settled in Sikkim prior to the merger of Sikkim with India on April 26, 1975.

    The story of Sikkim

    • Sikkim witnessed 333 years monarchical rule of Namgyal dynasty under whose reign there many invasions, foreign interference, accession and annexation.
    • On 28th March, 1861 Sikkim became a formal protectorate of the British Government and on 16th May, 1975 it became the 22nd state of the Indian Union.
    • In erstwhile Himalayan Kingdom of Sikkim, no legal rights were conferred to Sikkimese women.
    • However, after Sikkim’s merger with India such Regulations relating to Sikkim citizenship have become futile and non-operational.

    How women rights in Sikkim are different from that of mainstream India?

    The status of rights conferred to Sikkimese women is different from that of women in India. Certain conditionality were imposed upon their property or inheritance right such as the following:

    1. Immovable property inherited, gifted or purchased by women married to non-locals cannot be transferred and registered in their names.
    2. Immovable property of a Sikkimese woman cannot be transferred or registered to her legal heirs if her husband is non-Sikkimese.
    3. Mandatory requirement for Sikkimese women to submit an “unmarried certificate in all government procedures”.
    4. Identity of women is to be based on the identity of not one, but two men. A Sikkimese woman will be considered Sikkimese only if both, her father and husband are also Sikkimese

    Issues with such regulations

    • Unconstitutional: The discrimination is based on gender, which is wholly violative of Articles 14, 15 and 21 of the Constitution.
    • Gendered bias: It is to be noted that there is no disqualification for a Sikkim man, who marries a non-Sikkimese after April 1, 2008.
    • Associating identity to marriage: A woman is not a chattel and has an identity of her own, and the mere factum of being married ought not to take away that identity,” Justice Shah wrote.
    • No legal basis: Sikkim has become a part of India and all Sikkim Subjects and all Sikkimese domiciled in the territory of Sikkim have become Indian citizens.

    Note: Article 14 relates to equality before law, while Article 15 forbids discrimination on grounds of religion, race, caste, sex or place of birth, and Article 21 provides for right to life and personal liberty.

    Way ahead

    • Legal reforms: The centre shall make an amendment to Explanation to Section 10 (26AAA) of IT Act, 1961, so as to suitably include a clause to extend the exemption from payment of income tax to all Indian citizens domiciled in Sikkim on or before April 26, 1975.
    • Ensure parity: The reason for such a direction is to save the explanation from unconstitutionality and to ensure parity in the facts and circumstances of the case.

     

     

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  • Under Constitution, law declared by the Supreme Court is binding on all

    law

    Vice President Jagdeep Dhankhar questioned the landmark 1973 Kesavananda Bharati case verdict that gave the basic structure doctrine, saying it set a bad precedent and if any authority questions Parliament’s power to amend the Constitution, it would be difficult to say ‘we are a democratic nation’.

    What did the SC say?

    • Vice-President’s public criticism of the National Judicial Appointments Commission (NJAC) judgment may be seen as comments by a high constitutional authority against “the law of the land” (Art. 141).
    • That is, as long as the NJAC judgment, which upholds the collegium system of judicial appointments, exists, the court is bound to comply with the verdict.
    • The Parliament is free to bring a new law on judicial appointments, possibly through a constitutional amendment, but that too would be subject to judicial review.

    What is Article 141?

    • Article 141 provides that the law declared by the Supreme Court shall be binding on all courts within the territory of India.
    • The law declared has to be construed as a principle of law that emanates from a judgment, or an interpretation of law or judgment by the Supreme Court, upon which, the case is decided.
    • This article forms the basis of Doctrine of Precedent in India.

    What has the VP accused the judiciary of?

    • Dilution of Parliamentary Sovereignty: The Vice-President had remarked that judicial review, as was done in the case of the NJAC law, diluted parliamentary sovereignty. He had used terms like “one-upmanship”.
    • Curb on Legislature: The Vice-President had said he did not “subscribe” to the landmark Kesavananda Bharati judgment of 1973 which limited the Parliament’s power under Article 368 to amend the Constitution.
    • Disregard to the mandate of people: Dhankhar said no institution can wield power or authority to neutralise the mandate of people.

    Notes for Aspirants

    A classic observation in this regard was made by Chief Justice Patanjali Shastri in State of Madras versus V.G. Row (1952).  Justice Shastri’s words were reproduced by Chief Justice J.S. Khehar in his lead opinion for the Constitution Bench in the NJAC case in October 2015.

    (1) Actual nature of Judicial Review

    • Justice Shastri said judicial review was undertaken by the courts “not out of any desire to tilt at legislative authority in a crusader’s spirit, but in discharge of a duty plainly laid down upon them by the Constitution”.
    • The Kesavananda Bharati verdict (1973) had made it clear that judicial review is not a means to usurp parliamentary sovereignty.
    • It is a “system of checks and balances” to ensure constitutional functionaries do not exceed their limits.

    (2) Limitations to Article 368

    • Article 368 postulates only a ‘procedure’ for amendment of the Constitution.
    • The same could not be treated as a ‘power’ vested in the Parliament to amend the Constitution so as to alter the ‘core’ of the Constitution, which has also been described as the ‘basic structure’ of the Constitution.

    Back2Basics: Doctrine of Precedent

    • Any judicial system’s structure places a high priority on the notion of precedent.
    • It suggests that a judgement made by a court at the top of the judicial food chain binds courts below it.
    • According to Article 141 of the Indian Constitution, all lower courts must abide by the Supreme Court’s interpretation of the law.
    • Similar to this, a State’s High Court’s decision is binding on all Lower Courts within that state, and a division bench of a State High Court’s ruling is binding on the Justices sitting singly in that High court.

     

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  • Notification of Minorities  

    The Delhi government has suggested that the Centre can grant “migrated minority” status to Hindus who have moved to the national capital from places like Jammu and Kashmir or Ladakh where they are a religious minority.

    What is the news?

    • The suggestion by the Delhi government is part of a compilation of views collected by the Centre from 24 States.
    • It studies whether religious and linguistic minority communities should be identified and notified by the Union or the respective States.
    • It is part of an affidavit submitted by the Centre in the Supreme Court.

    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.

    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.

    Various states on Minorities

    • Maharashtra has notified ‘Jews’ as a minority community within the State.
    • Again, Karnataka notified Urdu, Telugu, Tamil, Malayalam, Marathi, Tulu, Lambadi, Hindi, Konkani and Gujarati as minority languages within the State.

    Why in news?

    • The Centre was responding to a petition filed stating that the followers of Judaism, Baha’ism and Hinduism — who are the real minorities in Ladakh, Mizoram, Lakshadweep, Kashmir, Nagaland, Meghalaya, Arunachal Pradesh, Punjab and Manipur.
    • They however cannot establish and administer educational institutions of their choice.
    • The Centre said the allegation was “not correct”.
    • The government’s affidavit explained that Parliament and State legislatures have concurrent powers to enact laws to provide for the protection of minorities and their interests.

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