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Subject: Polity

  • The hijab case and the doctrine of essentiality

    doctrine of essentialityContext

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

     What is ‘doctrine of essentiality’?

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

    Importance doctrine of essentiality

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

    Why hijab is not an essential practice?

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

    doctrine of essentialityIs hijab essential part of Islam?

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

    How do you identify essential religion practice?

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

    Meaning of Article 26

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

    doctrine of essentialityExamples of the essential religious practices test

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

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

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

    How has the doctrine been used in subsequent years?

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

    Issues over the doctrine

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

    How does essentiality square up against religious freedom?

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

    Its effect on society

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

    Conclusion

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

    Mains question

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

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  • Death Penalty: SC moots fair hearing

    death

    The Supreme Court has referred to a Constitution Bench the question of how to provide accused in death penalty cases a “meaningful, real and effective” hearing of their mitigating circumstances before a trial judge.

    Death Penalty: A backgrounder

    • Capital punishment, sometimes called death penalty, is execution of an offender sentenced to death after conviction by a court of law for a criminal offense.
    • It should be distinguished from extrajudicial executions carried out without due process of law.
    • The term death penalty is sometimes used interchangeably with capital punishment, though imposition of the penalty is not always followed by execution, because of the possibility of commutation to life imprisonment.

    When is it awarded?

    • The term “Capital Punishment” stands for most severe form of punishment.
    • It is the punishment which is to be awarded for the most heinous, grievous and detestable crimes against humanity.
    • While the definition and extent of such crimes vary, the implication of capital punishment has always been the death sentence.

    Special factors on the death penalty jurisprudence in India

    (a) Increase in Sexual Offences

    • The report on death penalty published by NLU Delhi shows that the rate of awarding capital punishment to the offences of rape with murder is much higher than other offences.
    • There is no doubt that rape is one of the most heinous crimes.

    (b) Sedition and waging War against India

    • India has seen many cases of treason, terrorism and seditious activities.
    • It is in fact the most vulnerable state for such crimes.

    Judicial observations related to Death Penalty

    The Supreme Court has always said that the death sentence should be given rarely.

    Judgments against:

    (a) Mithu vs State of Punjab (1983):

    • The Supreme Court ruled that the mandatory death penalty is unconstitutional.
    • It struck down Section 303 in the IPC, which entailed a mandatory death sentence for a person who commits murder while serving a life term in another case.
    • The Supreme Court ruled Section 303 violated Articles 14 (right to equality) and 21 (right to life) since an unreasonable distinction was sought to be made between two classes of murders.

    (b) State of Punjab vs Dalbir Singh (2012):

    • Similarly, the Supreme Court ruled that mandatory death penalty as punishment for crimes under Section 27 (3) of the Arms Act, 1959, was unconstitutional.

    (c) Channulal Verma vs State of Chhattisgarh (2018):

    • In Channulal, the Supreme Court, through Justice Kurian Joseph noted that the time was appropriate to review the constitutionality of the death penalty and take into consideration reformative aspects of punishment

    Judgments in favour:

    • In Jagmohan Singh vs State of UP’ (1973), then in ‘Rajendra Prasad vs State of UP’ (1979), and finally in ‘Bachan Singh vs State of Punjab’ (1980) the Supreme Court affirmed the constitutional validity of the death penalty.
    • It said that if capital punishment is provided in the law and the procedure is a fair, just and reasonable one, the death sentence can be awarded to a convict.
    • This will, however, only be in the “rarest of rare” cases, and the courts should render “special reasons” while sending a person to the gallows.

    Avenues available to a Death-Row Convict

    • Confirmation by HC: After a trial court awards the death penalty, the sentence must be confirmed by a High Court. The sentence cannot be executed till the time the High Court confirms it, either after deciding the appeal filed by the convict, or until the period allowed for preferring an appeal has expired.
    • Review Petition: If the High Court confirms the death penalty and it is also upheld by the Supreme Court, a convict can file a review petition.
    • Curative Petition: If the review petition is rejected, the convict can file a curative petition for reconsideration of the judgment.
    • Mercy Petition: Under Article 72 of the Indian Constitution, the President shall have the power to grant pardons, reprieves, respites, or remissions of punishments or to suspend, remit or commute the sentence of any convicted person.

    Debate over Death Penalty

    Arguments in favor:

    • Forfeiture of life: Supporters of the death penalty believe that those who commit murder, because they have taken the life of another, have forfeited their own right to life.
    • Moral indignation of the victim: It is a just form of retribution, expressing and reinforcing the moral indignation not only of the victim’s relatives but of law-abiding citizens in general.
    • Highest form of Justice: For heinous crimes such as the Nirbhaya Gangrape Case, no other punishment could have deterred the will of the convicts.
    • Deterrent against crime: Capital punishment is often justified with the argument that by executing convicted murderers, we will deter would-be murderers from killing people.
    • Proportional punishment: The guilty people deserve to be punished in proportion to the severity of their crime.
    • Prevailing lawlessness: The crimes we are now witnessing cannot be addressed by simple punishments. We are seeing horrific attacks on women, young girls, minority communities and Dalits etc.
    • Prevention of crime is non-existent: Despite of stringent regulations, it is certainly visible that some crimes can never be prevented in our society.

    Arguments against:

    • Eye for an eye: Reformative justice is more productive, that innocent people are often killed in the search for retribution, and that “an eye for an eye makes the whole world blind.
    • Deterrence is a myth: Death penalty is not a deterrent to capital crimes state that there is no evidence to support the claim that the penalty is a deterrent.
    • Political tool of suppression: The authorities in some countries, for example Iran and Sudan, use the death penalty to punish political opponents.
    • Reverence for life’ principle: Death penalty is an immoral punishment since humans should not kill other humans, no matter the reasons, because killing is killing.
    • Stigma against killing: With the introduction of lethal injection as execution method, medical professionals participate in executions. Many professionals have now refused to administer such deaths.
    • Skewed justice systems: In many cases recorded by Amnesty International, people were executed after being convicted in grossly unfair trials, on the basis of torture-tainted evidence and with inadequate legal representation.
    • Discriminatory nature: The weight of the death penalty is disproportionally carried by those with less advantaged socio-economic backgrounds or belonging to a racial, ethnic or religious minority.
    • Penalizing the innocents: The risk of executing the innocent precludes the use of the death penalty. Our colonial history has witnessed many such executions.

    Other issues with such executions

    (a) Socio-Economic Factors

    • The recent statistics shows that the death row prisoners in India are more from the backward classes of the society.
    • The death row prisoners belong to backward classes and religious minorities and the majority of convicts’ families are living in adjunct poverty.
    • These people who are backward both in economic and social respects, are not in a position to here expensive lawyers and get proper representation in the Court.

    (b) Delayed Execution

    • The law provides for a long process before the execution of the convicts actually takes place.
    • The unexplained delay in execution can be a ground for commutation of death penalty, and an inmate, his or her kin, or even a public-spirited citizen could file a writ petition seeking such commutation.
    • Their trials are often cruelly forced to endure long periods of uncertainty about their fate.

    Way forward: Law Commission recommendations on death penalty

    The Law Commission of India in its 262nd Report (August 2015) recommended that:

    • Death penalty be abolished for all crimes other than terrorism related offences and waging war.
    • Measures such as police reforms, witness protection scheme and victim compensation scheme should be taken up expeditiously by the government.
    • It felt that time has come for India to move towards abolition of the death penalty. However the concern is often raised that abolition of death penalty for terrorism-related offences and waging war, will affect national security.

    Further, the Commission sincerely hopes that the movement towards absolute abolition will be swift and irreversible

     

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  • SC quota for Dalit Muslims and Christians

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

    What is the news?

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

    Dalit Convertees and Quota Benefits

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

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

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

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

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

    What did they recommend?

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

    Reception to these recommendations

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

    What lies ahead?

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

     

     

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  • AP approaches SC over Three Capitals Issue

    capitals

    After much discontent on the High Court (HC) verdict in the three capitals case, the Andhra Pradesh government has finally challenged it in the Supreme Court through a special leave petition (SLP).

    AP’s move for three capitals

    • AP had introduced a ‘Three Capitals Act’ titled Andhra Pradesh Decentralisation and Inclusive Development of All Regions Act, 2020.
    • Thus, it was decided that:
    1. Amaravati was to be the Legislative capital
    2. Visakhapatnam the Executive capital and
    3. Kurnool the Judicial capital
    • However, the Andhra Pradesh High Court repealed this Act citing that the legislature has no competence to enact any law for shifting the three organs of the capital.

    Concerns raised by AP government

    • AP contended that the judgement was in violation of the basic structure of the Constitution as the HC cannot hold that the State does not have the powers to decide on its capital.
    • The judgement was against the doctrine of separation of powers as it sought to preempt the legislature from taking up the issue (of three capitals).
    • Further, it is argued that under the federal structure of the Constitution, every State has an inherent right to determine where it should carry out its capital functions from.

    Reasons for AP’s consideration

    (1) Viable option of Visakhapatnam

    • Vizag always had been the biggest city, after Hyderabad, even in the combined State.
    • It has all the settings to become a good living space.

    (2) Sri Krishna panel recommendations

    • The advantages and qualities of Visakhapatnam to become the capital was elaborately deliberated by the Sri Krishna Committee to study the alternatives for a new capital for the State of Andhra Pradesh.
    • Coming to suggestion for the alternative capital, the Committee primarily took up three things for consideration — creation of single city or super city in greenfield location, expanding existing cities and distributed development.

    (3) Decentralisation

    • This idea was elaborately described in the Sri Bagh pact.
    • The pact clearly defined decentralisation, for the benefit of all three main regions such as Coastal AP, Godavari and Krishna districts and Rayalaseema.

    Major practical problems

    • Continuum of work: The government argues that the Assembly meets only after gaps of several months, and government Ministers, officers, and staff can simply go to Amaravati when required.
    • Logistics nightmare: coordinating between seats of legislature and executive in separate cities will be easier said than done.
    • Time and costs of travel: The distances in Andhra Pradesh are not inconsiderable. Executive capital Visakhapatnam is 700 km from judicial capital Kurnool, and 400 km from legislative capital Amaravati.

    Examples of multi-capital states in India

    • Among Indian states, Maharashtra has two capitals– Mumbai and Nagpur (which holds the winter session of the state assembly).
    • Himachal Pradesh has capitals at Shimla and Dharamshala (winter).
    • The former state of Jammu & Kashmir had Srinagar and Jammu (winter) as capitals where Darbar Move is carried out.

    Back2Basics: Special Leave Petition

    • SLP hold a prime place in the Indian judicial system.
    • It provides the aggrieved party a special permission to be heard in Apex court in appeal against any judgment or order of any Court/tribunal in the territory of India.
    • It has been provided as a “residual power” in the hands of Supreme Court of India to be exercised only in cases when any substantial question of law is involved, or gross injustice has been done.
    • Article 136 vests the Supreme Court of India with a special power to grant special leave, to appeal against any judgment or order or decree.
    • It is discretionary power vested in the Supreme Court of India and the court may in its discretion refuse to grant leave to appeal.
    • The aggrieved party cannot claim special leave to appeal under Article 136 as a right, but it is privilege vested in the Supreme Court to grant leave to appeal or not.

     

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  • Vacant offices, unaware office-bearers: curious case of delisted parties

    The EC has been on a mission to clean up the list of registered unrecognized political parties, deleting 284 since May for either being untraceable during a physical check or not responding to communications.

    Why de-list political parties?

    • The news highlights the tale of a Bharatiya xyz Party.
    • Its registered address, the ground floor of a Delhi Development Authority flat, has been home to a family since they purchased the house in 2008.

    When is a party de-registered?

    • The EC’s recent order has highlighted that a party must contest an election within five years of its registration, and should continue to contest thereafter.
    • If the party does not contest elections continuously for six years, the party shall be taken off the list of registered parties.

    Registering a Political Party

    • The registration of all political parties is governed by the provisions of the Representation of the People Act, 1951.
    • According to the Election Commission (EC), any party seeking registration has to submit an application to the Commission within a period of 30 days.
    • This is done as per guidelines prescribed by the EC in exercise of the powers conferred by Article 324 of the Constitution and Section 29A of the RP Act, 1951.

    Note: There is no procedure available for de-registration of dormant political parties.

    Process of registration

    • The applicant is asked to publish a proposed party name in two national daily newspapers and two local daily newspapers, and provide two days for submitting objections, if any.
    • The notice for publication is also displayed on the website of the Election Commission.

    Why registering with the EC is important?

    • It is not mandatory to register with the Election Commission.
    • However, registering as a political party with the EC has its advantage in terms of intending to avail itself of the provisions of the RP Act, 1951.
    • The candidates set up by a political party registered with the EC will get preference in the matter of allotment of free symbols vis-à-vis purely independent candidates.
    • More importantly, these registered political parties, over course of time, can get expanded recognition as a ‘state party’ or a ‘national party’.

    How EC recognises a political party as a state or national party?

    For recognition as a NATIONAL PARTY, the conditions specified are:

    1. a 6% vote share in the last Assembly polls in each of any four states, as well as four seats in the last Lok Sabha polls; or
    2. 2% of all Lok Sabha seats in the last such election, with MPs elected from at least three states; or
    3. recognition as a state party in at least four states.

    For recognition as a STATE PARTY, any one of five conditions needs to be satisfied:

    1. two seats plus a 6% vote share in the last Assembly election in that state; or
    2. one seat plus a 6% vote share in the last Lok Sabha election from that state; or
    3. 3% of the total Assembly seats or 3 seats, whichever is more; or
    4. one of every 25 Lok Sabha seats (or an equivalent fraction) from a state; or
    5. an 8% state-wide vote share in either the last Lok Sabha or the last Assembly polls.

    Benefits for recognized parties

    • This is subject to the fulfilment of the conditions prescribed by the Commission in the Election Symbols (Reservation and Allotment) Order, 1968.

    (a) Reserved Sybol

    • If a party is recognised as a ‘state party’, it is entitled for exclusive allotment of its reserved symbol to the candidates set up by it in the state in which it is so recognised.
    • If a party is recognised as a ‘national party’ it is entitled for exclusive allotment of its reserved symbol to the candidates set up by it throughout India.

    (b) Proposer for nomination

    • Recognised ‘state’ and ‘national’ parties need only one proposer for filing the nomination.

    (c) Campaigning benefits

    • They are also entitled for two sets of electoral rolls free of cost and broadcast/telecast facilities over state-owned Akashvani/Doordarshan during the general elections.

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  • Parliamentary Standing Committees

    Parliamentary CommitteesContext

    • In the recent monsoon session of Parliament (July-August) the Competition (Amendment) Bill, 2022 and the Electricity (Amendment) Bill, 2022 sent to the Parliamentary Committees for detailed examination and a report thereon.

    Background

    • Parliament had only limited legislative time this session and could pass only five pieces of legislation
    • Oppositions stand: opposition alleging that the Government has been trying to steamroll various pieces of legislation in the last few sessions.
    • Governments stand: Government worries that so much time is lost in disruptions in Parliament that the legislative process, as it is, becomes unduly delayed and therefore, referring the bills to the Standing Committees.

    Parliamentary CommitteesParliamentary Committees

    • Need of parliamentary committees: The functions of the Parliament are varied, complex and voluminous. Moreover, it has neither the adequate time nor necessary expertise to make a detailed scrutiny of all legislative measures.
    • Function: To assist parliament to discharge of its duties.
    • Mandate: To examine various legislations referred to it, the budget proposals of different Ministries, and also to do policy thinking on the vision, mission and future direction of the Ministries concerned.
    • Composition: Members of the Parliament of both the LokSabha and the RajyaSabha in the ratio 2:1,
    • Authority: constituted by the Speaker of the LokSabha and the Chairman of the RajyaSabha, jointly.
    • Classification: Broadly, two kinds–Standing Committees and Ad Hoc Standing Committees are permanent (constituted every year or periodically) and work on a continuous basis, while Ad Hoc Committees are temporary and cease to exist on completion of the task assigned to them.
    • Parliament has 24 Department Related Parliamentary Standing Committees (DRSC).

    Relevance of parliamentary committees

    • Withdrawal of farm law bills shows that if bills are not discussed thoroughly, these laws are just bizarre pieces of legislation from point of view consumers and stakeholders.
    • Parliamentary committee’s discussions are held closed door. Members can express their opinion freely.
    • Members of DRSC always try reach to consensus despite political differences. Such practices are essential for healthy democracy.
    • To strengthen the relevance of parliamentarians the parliamentary committees are crucial tools.

    Parliamentary CommitteesHow to improve Efficacy of committees?

    • Compulsory process: The Speaker of the Lok Sabha and the Chairman of the Rajya Sabha have powers to refer Bills to a DRSC of Parliament. Making the process of reference of Bills to these committees compulsory/an automatic process will be useful. An exemption could be made with the specific approval of the Speaker/ Chairman after detailed reasons for the same.
    • No whip: All discussions in the Parliamentary Standing Committee should be frank and free. No whip of the party would apply to them during the discussion.
    • Time bound: fixed timeline to come up with the recommendation and present its report which can be decided by the Speaker/Chairman. In case the committee if fails to give its recommendation within the approved/extended time, the Bill may be put up before the House concerned directly.
    • Inviting filed Expertise: To ensure quality work in the committees, experts in the field may be invited who could bring with them the necessary domain knowledge and also help introduce the latest developments and trends in that field from Some subject matter experts/young researchers could be associated with the committee for a short period would be fruitful.
    • Authority: The Speaker/Chairman should have the right to fix a time limit, sometimes even stringent, if the government of the day asks for it and the demand is found to be reasonable by the Speaker/Chairman.
    • Organized work in the gap: Between two sessions, there is generally enough time to organise committee meetings for discussions on Bills in the parliamentary committees. It is important for the Ministry of Parliamentary Affairs in collaboration with the committee chairmen to get these parliamentary works organized during the intersessional period, in advance.
    • Other than Budget Proposals: The committees should not limit themselves to discussing just the budget proposals and endorsing them with a few qualifications here or amendments there. They should also come up with suggestions for the Ministry to take up new initiatives and people friendly measures.

    Conclusion

    • Discussion is not a stumbling block but an indispensable preliminary of any wise actions.
    • Discussion is soul of democracy.
    • Parliamentary committees are truly democratic institutions in India due to its consensus and bonhomie while functioning.
    • Government of the day should take step to strengthen DRSC and refer more bills to committees. 

    Other related information

    Parliamentary sessions

    • The president from time to time summons each House of Parliament to meet.
    • The maximum gap between two sessions of Parliament cannot be more than six months.
    • In other words, the Parliament should meet at least twice a year.
    • There are usually three sessions in a year: 1. The Budget Session (February to May); 2. The Monsoon Session (July to September); and 3. The Winter Session (November to December).

    Competition Commission of India (CCI)

    • CCI is the chief national competition regulatorin India.
    • The commission was established on 14 October 2003. It became fully functional in May 2009
    • It is a statutory body within the Ministry of Corporate Affairs
    • Responsibility: To enforce the Competition Act, 2002 to promote competition and to prevent activities that effects negatively on competition in India.
    • The CCI looks into cases and investigates them if the same has a negative impact on competition.
    • CCI also approves combination under the act so that two merging entities do not overtake the market.

    Mains Question Q.

    Evaluate the significance of parliamentary standing committee in parliamentary democracy. Suggest the steps to strengthen the parliamentary committees.

     

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  • Hindi not a competitor of regional languages: Home Minister

    Union Home Minister has appealed to guardians to speak to children in their mother tongue to enable them to learn Hindi without much effort, on the Hindi Divas.

    What did HM say on Hindi?

    • He said it was time that inferiority complex around Indian languages, instilled by the British, was overthrown from people’s conscience with the help of regional languages and Hindi.
    • He also said that Hindi was not a competitor but a “friend” of all the other regional languages in the country and they were mutually dependent on each other for their growth.
    • He said there was a concerted disinformation campaign to pit Hindi against other languages such as Marathi and Tamil, and underlined the need to strengthen local languages with Hindi.

    Debate over Hindi

    • Between September 12 and 14, 1949, that the Constituent Assembly debated the status of India’s languages.
    • Among the issues that were discussed were the use of the term ‘national language’ instead of ‘official’ language.
    • Hindi author Seth Govind Das, who represented the Central Provinces and Berar, argued for ‘one language and one script’ and suggested that Hindi should replace English at the earliest.

    What is the status of Hindi?

    • Finally, the Constituent Assembly adopted what was known as “Munshi-Ayyangar Formula.”
    • According to this, Hindi in the Devnagari script would be the official language of the Union.

    Official, not national

    • English would continue to be used for all official purposes for the next 15 years, to enable a smooth transition for non-Hindi speaking states.
    • The deadline was 26 January 1965.
    • Under Article 343 of the Constitution, the official language of the Union shall be Hindi in Devanagari script.
    • The international form of Indian numerals will be used for official purposes.

    Why has language become a sensitive issue?

    • Self-identification: A strong identification with one’s regional language and an underlying fear of homogenisation is at the heart of the national language question in India. An individual conceptualises and communicates his thoughts in a language, enabling him to be an active part of society.
    • Language defines primary group: People identify with one another based on language, thus giving them a primary group. A nation is the largest primary group that once can address.
    • Learning abilities at stake: The dangers of imposing a language are manifold. It can affect the learning ability of non-native speakers thereby affecting their self-confidence.
    • Threats to endangered languages: It can also endanger other languages and dialects and reduce diversity.
    • Threats to diversity: National integration cannot come at the cost of people’s linguistic identities. Language is integral to culture and therefore privileging Hindi over all other languages spoken in India takes away from its diversity.
    • Promises made by Constituent Assembly: Then PM Pt. Nehru had promised that Hindi would only serve as a linking language and it would not be imposed on non-Hindi speaking states as long as they were against it.

    Benefits of having a national language

    • Wide range of speakers: Hindi is still the most widely spoken language in the country with an estimated 258 million people declaring that Hindi is their native language and millions more comfortable with Hindi.
    • Language as a unifying language: A complete usage of Hindi language whilst respecting the various native languages would also ensure better coordination and cooperation among all the states and act as a strong unifying factor and eliminate all regional differences.
    • Reputation at international fora: When countries like Germany, Japan, France, Italy etc. use their respective language as a medium of communication even during International forums not only has the reputation of those countries have greatly enhanced but also those languages have gained a huge reputation worldwide.

    Issues with Hindi

    • Inherent opposition to Hindi: The Constituent Assembly was bitterly divided on the question, with members from States that did not speak Hindi initially opposing the declaration of Hindi as a national language.
    • Fear of imposition: Opponents were against English being done away with, fearing that it may lead to Hindi domination in regions that did not speak the language.
    • Symbol of identity politics: The approach towards linguistic policy seems to be driven more by the politics of identity than values of aspiration or accommodation.
    • Favour for majoritarianism: The primary argument in favour of Hindi has been reduced to assertions of slim majoritarianism.
    • Few speakers, still dominant: Even then, there are concerns about the claim based on mere numerical strength, as only 25 per cent of Indians seem to recognise Hindi as their mother tongue (Census 2011).
    • Demographic barriers: Today nearly 35% of people are migrating daily for work. In such a situation, we have to conceptualise a new form of language identity for our states.
    • Economic barriers: Any idea of one link language, whether Hindi or English, will be economically disastrous for India. It will slow down migration and reduce the ease of capital flow.
    • Multiple dialects: Only five states in India have Hindi as their’ native language’. However, in those states, too, the dialects of Hindi are associated with locals and their communities.

    Why Hindi cannot be the national language?

    • Multiple dialects: Hindi has largely been influenced by Persian — and then English, among other languages. Also, when the languages were enumerated, Hindi subsumed Bhojpuri, which is spoken by a little over five crore people.
    • Inefficacy of Sanskrit: There were demands to make Sanskrit the official language, while some argued in favour of ‘Hindustani’.
    • Issue over Script: There were differences of opinion over the script too. When opinion veered towards accepting Hindi, proponents of the language wanted the ‘Devanagari’ script to be adopted both for words and numerals.

    Why this issue needs a rational consideration?

    • Linguistic chauvinism: Various policies on language have been framed both by the central and state governments that have been termed as forms of linguistic chauvinism.  Ex. Obsession for Marathi in Mumbai
    • Secular fabric under threat: The states’ fear of the central government’s ideology of monopolising faith, education, and language will adversely affect the Indian political system, which is based on pluralism and accommodation.
    • Monolingualism can prove disastrous: If there is a mechanical and monolithic idea of unity followed by any entity, such an entity generally generates great hostility beyond its immediate borders.  In neighbouring Bangladesh – then East Pakistan – the language movement against the imposition of Urdu on Bengali speakers was a key driver of Pakistan splitting into two nations.

    Way forward

    • Language as a skill: Language should be looked at as an important skill to operate in a world which is more connected today than at any other point in time.
    • Language not a cultural burden: A united nation has to have space for diversity. India is united in its diversity. Diversity is a great philosophical idea and should never be seen as a cultural burden.
    • Linguistic heritage needs priority: This is not to contend that our linguistic heritage should be neglected or trivialised. Our metropolises must be recognized as multilingual entities.

     

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  • Centre adds 4 new tribes to Scheduled Tribes (ST) List

    The Union Cabinet under the chairmanship of PM has approved the addition of four tribes to the list of Scheduled Tribes (ST), including those from Himachal Pradesh, Tamil Nadu and Chhattisgarh.

    Which tribes are we talking about?

    1. Hatti tribe in the Trans-Giri area of Sirmour district in Himachal Pradesh
    2. Narikoravan and Kurivikkaran hill tribes of Tamil Nadu and
    3. Binjhia tribe in Chhattisgarh, which was listed as ST in Jharkhand and Odisha but not in Chhattisgarh

    Other tribes in news

    • The Cabinet also approved ‘Betta-Kuruba’ as a synonym for the Kadu Kuruba tribe In Karnataka.

    Who are the Scheduled Tribes?

    • The term ‘Scheduled Tribes’ first appeared in the Constitution of India.
    • Article 366 (25) defined scheduled tribes as “such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of this constitution”.
    • Article 342 prescribes procedure to be followed in the matter of specification of scheduled tribes.
      • Article 342(1) empowers the President of India to specify, by public notification, the tribes or tribal communities deemed to be Scheduled Tribes in each state and union territory.
    • Among the tribal groups, several have adapted to modern life but there are tribal groups who are more vulnerable.
    • The Dhebar Commission (1973) created a separate category “Primitive Tribal Groups (PTGs)” which was renamed in 2006 as “Particularly Vulnerable Tribal Groups (PVTGs)”.

    How are STs notified?

    • The first specification of Scheduled Tribes in relation to a particular State/ Union Territory is by a notified order of the President, after consultation with the State governments concerned.
    • These orders can be modified subsequently only through an Act of Parliament.

    Status of STs in India

    • The Census 2011 has revealed that there are said to be 705 ethnic groups notified as Scheduled Tribes (STs).
    • Over 10 crore Indians are notified as STs, of which 1.04 crore live in urban areas.
    • The STs constitute 8.6% of the population and 11.3% of the rural population.

    What is the reason for special provisions for the Scheduled Tribes in the constitution of India? Are these provisions successful in ameliorating their conditions? (250 Words)

     

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  • LGBTQ leap forward for positive future growth of human rights

    LGBTQContext

    • Four years after landmark LGBTQ verdict: The march to full citizenship.

    Why in news?

    • On September 6, 2018, exactly four years ago, in Navtej Singh Johar and Ors v Union of India, a five-judge constitution bench of the Supreme Court, in a beautifully elaborate decision, liberated LGBTQI Indians from the darkness of Section 377 of the Indian Penal Code, 1860.

    What is LGBTQ?

    • LGBTQ is an initialism that stands for lesbian, gay, bisexual, and transgender. In use since the 1990s, the initialism, as well as some of its common variants, functions as an umbrella term for sexuality and gender identity.

    What is Section 377 of the IPC?

    • It reads – Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
    • The terms “carnal intercourse” and “against the order of nature” are not defined precisely anywhere in the code.

    LGBTQRole played by the judiciary hitherto

    • The Delhi High Court’s verdict in Naz Foundation vs Government of NCT of Delhi (2009) was a landmark in the law of sexuality and equality jurisprudence in India.
    • The court held that Section 377 offended the guarantee of equality enshrined in Article 14 of the Constitution, because it creates an unreasonable classification and targets homosexuals as a class.
    • In a retrograde step, the Supreme Court, in Suresh Kumar Koushal vs Naz Foundation (2013), reinstated Section 377 to the IPC.
    • However, the Supreme Court in Navtej Singh Johar & Ors. vs Union of India (2018) declared that the application of Section 377 IPC to consensual homosexual behaviour was “unconstitutional”.
    • This Supreme Court judgment has been a great victory to the Indian individual in his quest for identity and dignity.
    • It also underscored the doctrine of progressive realisation of rights.

    LGBTQWhat’s next?

    • Overarching legislation is needed to guarantee equality to all persons on the basis of sexual orientation, gender identity and expression, sex, caste, religion, age, disability, marital status, pregnancy, nationality, and other grounds.
    • The law should impose obligations of equality and non-discrimination on all persons, public and private, and in the areas of education, employment, healthcare, land and housing and access to public places.
    • It should provide for civil remedies to stop discriminatory behaviour, costs and damages, and positive action to make reparations.
    • We need an equality law to define what equality would encompass.
    • Supreme Court comes held in its privacy judgment in K.S. Puttuswamy v. Union of India (2017) that equality and liberty cannot be separated, and equality encompasses the inclusion of dignity and basic freedoms.

    Way forward

    • Schools and colleges must effect changes in curricula for a better understanding of the community.
    • People of a different sexual orientation or gender identity often narrate harrowing tales of bullying, discrimination, stigma and ostracization.
    • Gender-neutral restrooms should be compulsory in educational institutes and other places.
    • Parents too need to be sensitised, because the first point of misunderstanding and abuse often begins at home, with teenagers being forced to opt for “conversion” therapies.

    Conclusion

    • Justice Chandrachud, speaking on the fourth anniversary of Johar and the journey ahead, while quoting the Beatles classic “All you need is love”, notes that “simply love is not enough”. Rights are necessary. Which will enhance dignity of the community.

    Mains question

    Q. “Silent segregation” on the grounds of gender, sexual orientation preferences are followed in several houses. Elucidate in context of LGBTQ issues. What Legal remedies are needed for its victims?

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  • Uniform Civil Code

    uniform civil code

    The expert committee formed by the Uttarakhand government to examine ways for the implementation of a Uniform Civil Code (UCC) has launched a website, seeking public opinion on the plan.

    What is a Uniform Civil Code?

    • A Uniform Civil Code (UCC) is one that would provide for one personal civil law for the entire country.
    • This would be applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption etc.

    Basis for Uniform Civil Code

    • Article 44, one of the Directive Principles of the Constitution lays down that the state shall endeavour to secure a UCC 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.

    Personal Laws And Uniform Civil Code: Timeline

    # British period
    During the British Raj, Personal laws were first framed mainly for Hindu and Muslims citizens.

    # Start of 20th Century
    In the beginning of the twentieth century, the demand for a uniform civil code was first put forward by the women activists. The objective behind this demand was the women’s rights, equality and secularism.

    # 1940 – The Idea of Uniform Civil Code is born
    The idea of Uniform Civil Code was tabled by the National Planning Commission (NPC) appointed by the Congress. There was a subcommittee who was to examine women’s status and recommends reforms of personal law for gender equality.

    # 1947 – Question of UCC as a Fundamental Right
    UCC was sought to be enshrined in the Constitution of India as a fundamental right by Minoo Masani, Hansa Mehta, Amrit Kaur and Dr. B.R Ambedkar.

    # 1948 – Constitution Assembly debated UCC
    Article 44 of the Indian Constitution i.e. Directive Principles of State Policy sets implementation of uniform civil laws which is the duty of the state under Part IV.

    # 1950 – Reformist Bill passed
    Reformist bills were passed which gave the Hindu women the right to divorce and inherit property. Bigamy and child marriages are outlawed. Such reforms were resisted by Dr. Rajendra Prasad.

    # 1951 – Dr. Ambedkar Resigns
    Dr. Ambedkar resigned from the cabinet in 1951 when his draft of the Hindu Code Bill was stalled by the Parliament.

    # 1985 – Shah Bano Case
    In this case, a divorced Muslim woman was brought within the ambit of Section 125 of Code of Criminal Procedure, 1973 by the Supreme Court in which it was declared by the Apex court that she was entitled for maintenance even after the completion ofiddatperiod.

    # 1995- Sarla Mudgal v. Union of India
    In this case, Justice Kuldip Singh reiterated the need for the Parliament to frame a Uniform Civil Code, which would help the cause of national integration by removing contradictions based on ideologies. Therefore, the responsibility entrusted on the State under Article 44 of the Constitution whereby a Uniform Civil Code must be secured has been urged by the Supreme Court repeatedly as a matter of urgency.

    # 2000 – Supreme Court advocates UCC
    The case of Lily Thomas v. Union of India (2000),where the Supreme Court said it could not direct the centre to introduce a UCC.

    # 2015 – The Debate lives through
    The apex court refused to direct the government to take a decision on having a UCC.

    # 2016 – Triple Talaq Debate
    When PM asked the Law Commission to examine the issue.

    # 2017 – Ruling of the Triple Talaq case
    Triple Talaq (Talaq -e- biddat) was declared unconstitutional on August 22, 2017.

    UCC vs. Right to Freedom of Religion

    1. Article 25 lays down an individual’s fundamental right to religion
    2. Article 26(b) upholds the right of each religious denomination or any section thereof to “manage its own affairs in matters of religion”
    3. Article 29 defines the right to conserve distinctive culture

    Reasonable restrictions on the Freedom of Religion

    • An individual’s freedom of religion under Article 25 is subject to “public order, health, morality” and other provisions relating to FRs, but a group’s freedom under Article 26 has not been subjected to other FRs.
    • In the Constituent Assembly, there was division on the issue of putting UCC in the fundamental rights chapter. The matter was settled by a vote.
    • By a 5:4 majority, the fundamental rights sub-committee headed by Sardar Patel held that the provision was outside the scope of FRs and therefore the UCC was made less important.

    Minority Opinion in the Constituent Assembly

    • Some members sought to immunize Muslim Personal Law from state regulation.
    • Mohammed Ismail, who thrice tried unsuccessfully to get Muslim Personal Law exempted from Article 44, said a secular state should not interfere with the personal law of people.
    • B Pocker Saheb said he had received representations against a common civil code from various organisations, including Hindu organisations.
    • Hussain Imam questioned whether there could ever be uniformity of personal laws in a diverse country like India.
    • B R Ambedkar said “no government can use its provisions in a way that would force the Muslims to revolt”.
    • Alladi Krishnaswami, who was in favour of a UCC, conceded that it would be unwise to enact UCC ignoring strong opposition from any community.
    • Gender justice was never discussed in these debates.

    Enacting and Enforcing UCC

    • Fundamental rights are enforceable in a court of law.
    • While Article 44 uses the words “state shall endeavour”, other Articles in the ‘Directive Principles’ chapter use words such as “in particular strive”; “shall in particular direct its policy”; “shall be obligation of the state” etc.
    • Article 43 mentions “state shall endeavour by suitable legislation” while the phrase “by suitable legislation” is absent in Article 44.
    • All this implies that the duty of the state is greater in other directive principles than in Article 44.

    What are more important — fundamental rights or directive principles?

    • There is no doubt that fundamental rights are more important.
    • The Supreme Court held in Minerva Mills (1980): Indian Constitution is founded on the bed-rock of the balance between Parts III (Fundamental Rights) and IV (Directive Principles).
    • To give absolute primacy to one over the other is to disturb the harmony of the Constitution.
    • Article 31C inserted by the 42nd Amendment in 1976, however, lays down that if a law is made to implement any directive principle, it cannot be challenged on the ground of being violative of the FRs under Articles 14 and 19.

    What about Personal Laws?

    • Citizens belonging to different religions and denominations follow different property and matrimonial laws which are an affront to the nation’s unity.
    • If the framers of the Constitution had intended to have a UCC, they would have given exclusive jurisdiction to Parliament in respect of personal laws, by including this subject in the Union List.
    • “Personal Laws” are mentioned in the Concurrent List.

    Various customary laws

    • All Hindus of the country are not governed by one law, nor are all Muslims or all Christians.
    • Muslims of Kashmir were governed by a customary law, which in many ways was at variance with Muslim Personal Law in the rest of the country and was, in fact, closer to Hindu law.
    • Even on the registration of marriage among Muslims, laws differ from place to place.
    • In the Northeast, there are more than 200 tribes with their own varied customary laws.
    • The Constitution itself protects local customs in Nagaland. Similar protections are enjoyed by Meghalaya and Mizoram.
    • Even reformed Hindu law, in spite of codification, protects customary practices.

     Why need UCC?

    • UCC would provide equal status to all citizens
    • It would promote gender parity in Indian society.
    • UCC would accommodate the aspirations of the young population who imbibe liberal ideology.
    • Its implementation would thus support the national integration.

    Hurdles to UCC implementation

    • There are practical difficulties due to religious and cultural diversity in India.
    • The UCC is often perceived by minorities as an encroachment of religious freedom.
    • It is often regarded as interference of the state in personal matters of the minorities.
    • Experts often argue that the time is not ripe for Indian society to embrace such UCC.

    These questions need to be addressed which are being completely ignored in the present din around UCC.

    1. Firstly, how can uniformity in personal laws are brought without disturbing the distinct essence of each and every component of the society.
    2. Secondly, what makes us believe that practices of one community are backward and unjust?
    3. Thirdly, has other uniformities been able to eradicate inequalities that diminish the status of our society as a whole?

    Way forward

    • It should be the duty of the religious intelligentia to educate the community about its rights and obligations based on modern liberal interpretations.
    • A good environment for the UCC must be prepared by the government by explaining the contents and significance of Article 44 taking all into confidence.
    • Social reforms are not overnight but gradual phenomena. They are often vulnerable to media evils such as fake news and disinformation.
    • Social harmony and the cultural fabric of our nation must be the priority.

     

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