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Subject: Polity

  • Explained: Article 142 of the Constitution

    The Supreme Court has exercised the power conferred on it under Article 142 of the Constitution to order the release of former Prime Minister’s assassination convict.

    Supreme Court frees Perarivalan

    What is Article 142?

    Article 142 titled ‘Enforcement of decrees and orders of the Supreme Court and orders as to discovery, etc.’ has two clauses:

    [1] Article 142(1)

    • The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.
    • Any decree so passed or order so made shall be enforceable throughout the territory of India.
    • It may be in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.

    [2] Article 142(2)

    • The Supreme Court shall have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.

    History of Article 142

    • When a draft Constitution was prepared by the drafting committee and placed before the Constituent Assembly, Article 142 was actually numbered as Article 118.
    • It was placed before the Constituent Assembly on May 27, 1949 for debate but got adopted on the same day without any debate.
    • This was possibly because everyone agreed that in order to ensure judicial independence, the highest court of the country must be empowered with plenary power to do complete justice.

    Articles invoked in Perarivalan Case

    • In the case of Perarivalan, the Supreme Court invoked Article 142(1) under which it was empowered to pass any order necessary to do complete justice in any matter pending before it.
    • It held that it was not a fit case to be remanded to the Governor for his consideration under Article 161 of the Constitution.

    Important instances when Article 142 was invoked

    • Bhopal Gas tragedy case: The SC awarded a compensation of $470 million to the victims and held that “prohibitions or limitations or provisions contained in ordinary laws cannot, ipso facto, act as prohibitions or limitations on the constitutional powers under Article 142.”
    • Babri Masjid demolition case: The Supreme Court ordered framing of a scheme by the Centre for formation of trust to construct Ram Mandir at the Masjid demolition site in Ayodhya.
    • Liquor sale ban case: The Supreme Court banned liquor shops within a distance of 500 metres from National as well as State highways in order to prevent drunken driving.

    Try this PYQ from CSP 2019:

    Q.With reference to the Constitution of India, prohibitions or limitations or provisions contained in ordinary laws cannot act as prohibitions or limitations on the constitutional powers under Article 142. It could mean which one of the following?

     

    a. The decisions taken by the Election Commission of India while discharging its duties cannot be challenged in any court of law.

    b. The Supreme Court of India is not constrained in the exercise of its powers by laws made by the Parliament.

    c. In the event of grave financial crisis in the country, the President of India can declare Financial Emergency without the counsel from the Cabinet.

    d. State Legislatures cannot make laws on certain matters without the concurrence of Union Legislature.

     

    [wpdiscuz-feedback id=”auggnj78dn” question=”Please leave a feedback on this” opened=”1″]Post your answers here.[/wpdiscuz-feedback]

     

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  • On marital rape, regressive notions undermine autonomy of women

    Context

    On 11 May, two judges of the Delhi High Court handed down separate judgments in RIT Foundation v Union of India.

    Background

    • Section 375 of the IPC defines “rape” as when a man has sex with a woman without her consent.
    • Exception to Section 375 of IPC:  An exception to Section 375 provides that it is not rape for a husband to have sex with his wife, regardless of consent.

    The two judgements

    1] Violation of rights:

    • In his judgment, Justice Rajiv Shakdher concluded that the marital rape exception violated the rights to life, equality, non-discrimination, and freedom of speech and expression under the Constitution.
    • There is no reasonable basis to distinguish between married and unmarried women.
    • Marriage is a relationship of equals, and women do not forfeit their agency and sexual autonomy upon marriage.

    2] Issues with Constitutional validity of exception

    • Justice C Hari Shankar took a different view, concluding that the marital rape exception is constitutionally valid.
    • First, the judge held that it is the wrong starting point to assume that a husband who has sex with his wife without her consent “commits rape”.
    • 1] Exclusion from definition argument: The judge noted that the effect of the exception to Section 375 of the IPC is that any sex between a husband and wife, whether or not consensual, is excluded from the definition of rape.
    • That analysis does not bear scrutiny.
    • It makes little difference whether the starting point is that non-consensual sex within marriage should be characterised as rape or, for example, sexual assault.
    • The critical question is whether it is unconstitutional to exclude non-consensual sex from the definition of rape.
    • 2] Preservation of marital institution argument: The judge held that the marital rape exception was “aimed at preservation of the marital institution, on which the entire bedrock of society rests”.
    • The difficulty with that proposition is obvious — is it the policy of the law that marriage is to be preserved at all costs?
    • If so, does that withstand constitutional scrutiny?
    • 3] Impact argument: the judge rejected the challenge to the martial rape exception based on the right to equality on the spurious assumption that the impact on a woman who is raped by her husband cannot “be equated with the impact of a woman who is raped by a stranger”.
    •  No evidence is cited in support of those claims.
    • They also defy logic. Being raped by someone in whom you have reposed trust is likely to have an indelible emotional impact.
    • 4] Reluctance to file complaint: The judge concluded that, as a practical matter, a “majority of Indian women” would be reluctant to file a complaint of rape against their husbands in any event.
    • Even if that were true, it is no reason to disempower, by the operation of the law, women who do have the resolve to make a rape complaint against their husbands from doing so.
    • 5] Creation of new offence: Justice Shankar held that it is not within the court’s power to create a new offence, and striking down the marital rape exception would have that effect.
    • There is no question of creating a new offence — the court would simply be striking down an exception carved out of an existing offence.
    • The only principled basis for the judge’s objection is that it may be unfair to punish someone for rape for conduct that was excluded from the definition of rape when it was undertaken.
    • But that is not a reason to avoid striking down the marital rape exception.
    • The easy solution is for the court to declare that its judgment will apply only to conduct after the date of the judgment.

    Conclusion

    Whether the marital rape exception violates fundamental rights under the Constitution is a question that falls within the Court’s core competency. There is only one reasonable answer to that question.

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  • The ‘Roe’ draft ruling could affect other civil rights

    Context

    The leaked Roe vs Wade draft opinion has been in the news for its possible impact on abortion rights, but it also paves the way for the erosion of gay rights in America.

    Background of abortion rights cases in the U.S.

    •  Almost 50 years earlier, the U.S. Supreme Court held in Roe vs Wade(1973) that it was unconstitutional for states to ban or restrict abortions before fetal viability.
    • Later, Planned Parenthood of Southeastern Pennsylvania vs Casey (1992) reaffirmed Roe’s central holding on viability.
    • In December 2021, the U.S. Supreme Court concluded oral arguments in Dobbs vs Jackson Women’s Health Organization, an ongoing case that looks at a 2018 Mississippi law (The Gestational Age Act) that bans most abortions after 15 weeks.
    • Keeping Roe and Casey in mind, lower courts permanently enjoined the Mississippi law, but the case eventually moved up to the Supreme Court, with the following question: are all pre-viability prohibitions on elective abortions unconstitutional?
    • This question (and the court’s acceptance to answer it) is at the heart of Roe and Casey because the Roe court had already decided that answer in the affirmative back in 1973; and this was re-affirmed in 1992 by the Casey court.
    • The leaked first draft of the court’s majority decision in Dobbs, however, departs from precedent and signals a completely different turn.

    Originalist reading of the US Constitution

    • A running theme in this first draft of the Dobbs judgment was the court’s emphasis on originalism.
    • The very first page of the draft says that “the constitution makes no mention of abortion”.
    • On page 9 it reads “the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned.
    • An originalist reading of the Constitution and an application of similar reasoning as the one applied in this draft opinion (minus the emphasis on protecting “life or ‘potential life”) could invalidate all rights for gay and lesbian Americans.

    Implications for other rights

    • Gay rights do not have any place in American history and tradition; it is quite the opposite with American history.
    •  Simply put, a rollback of Roe and Casey could allow state legislatures across the country to re-instate bans or restrictions on gay rights such as limitations on same-sex couple adoptions or sexuality education in schools.
    • Moreover, because the Constitution makes no explicit mention of “privacy”, “sexual orientation”, “gay”, “lesbian”, or “gay rights” anywhere, these rights could be challenged further.
    • The constitutional recognition of same-sex marriage is, after all, only a recent phenomenon, both globally and nationally.
    •  In 1992, the Casey court affirmed what was already decided two decades ago in Roe — namely, that women in America had the “liberty” to an abortion under the Fourteenth Amendment.
    • However, the Dobbs draft ruling discards this right to “liberty” just as it does the right to “privacy”.
    •  By specifically re-defining “liberty” and calling into question its applicability in the case of abortions, the court paves the way for potentially reviewing other “liberty” rights not explicitly mentioned in the Constitution — such as the right to travel ( Kent vs Dulles, 1958), the right to inter-racial marriage ( Loving vs Virginia, 1967), and the right to engage in same-sex activity in private ( Lawrence vs Texas, 2003), among others.

    Conclusion

    The bottom line is that if 50 year-old constitutionally guaranteed rights could be revoked today, then more recent and similarly, situated rights could also be revoked under an originalist reading of the Constitution.

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  • Delimitation fallouts

    Context

    Four years from now, when the delimitation of the constituencies will take place, India’s electoral democracy will stand on an existential crossroads.

    Historical background of North-South tension

    • There was a time, not all that long ago, when English speakers in the south of India routinely referred to our north as ‘Upper India’.
    • The Imperial Legislative Council, with its Central Legislative Assembly as the Lower House and the Council of State as the Upper House, being located in Delhi pushed that upperness further up.
    •  Later, the Constituent Assembly continued the ‘India’s north as India’s peak’ image.
    • Role of Congress: The Indian National Congress was from the very start, aware of the need for India’s regions to be seen as equal, bereft of any asymmetry.
    • Its very third session after Bombay (1885) and Calcutta (1886) was held in Madras (1887, and many times later).
    • The All India Kisan Sabha, the peasant wing of the Communist Party of India, likewise, which had first met in a ‘founder-conference’ in Lucknow in 1936, met at its fifth session in 1940 in Palasa, Srikakulam.
    • These considered arrangements embody the opening Article 1 of our Constitution: India, that is Bharat.

    What would be the Impact of delimitation

    • A delimitation of the constituencies that will elect Members of the Lok Sabha, following the population figures returned by the next decennial Census, is to take place in 2026.
    • Need to increase number of members: We cannot have, should not have, the same number of Members of Parliament — 543 — representing a vastly increased population in the Lok Sabha.
    • Mathematically speaking, the higher the number of people per constituency, the lower the impact each voter has on parliamentary representation — clearly an undesirable situation.
    • Reduced representation to States that stabilised their population: Re-arranging and standardising the number of people per constituency through the scheduled delimitation exercise will inevitably lead to a reduced representation for States that have managed to stabilise their populations, and to a higher representation for States that have not stabilised their populations.
    • Considering the Census data for 2011, almost half (48.6%) of our population (of approximately 1.38 billion) is contributed by the States of Uttar Pradesh, Maharashtra, Bihar, West Bengal and Madhya Pradesh.
    • Issues with population-based marking: A population-based marking out or re-arrangement of constituencies, as envisaged in Article 82 of the Constitution, will have the effect of giving more MPs to the States and Union Territories that have let their numbers grow, and will give markedly less MPs to those that have held their numbers in some check.
    • Realising the anomaly that a delimitation based on Census data would cause, a delimitation freeze was put in position by Prime Minister Indira Gandhi through the 42nd Amendment of the Constitution in 1976. 
    •  This was extended by Prime Minister Atal Bihari Vajpayee through the 84th Amendment.
    • It is this extension that is to end in 2026, placing us at a crossroads.

    Way forward

    • There are two alternatives before us:
    • 1] Onother freeze: One, we go in for another freeze, this time not for any specific period but for until all States have achieved population stabilisation.
    • 2] Mathematically equitable formula: Two, we request demographic and statistical experts to devise a mathematical model along the lines of the ‘Cambridge Compromise’ based on a mathematically equitable “formula” for the apportionment of the seats of the European Parliament between the member-states.

    Conclusion

    The population-stabilising States of India that is Bharat, which include all the southern States, must continue to enrich our legislative and parliamentary processes as they have been doing since the time of the Imperial Legislative Council, with no penalties having to be paid for their sense of responsibility. We need to limit population, not representation.

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  • Supreme Court frees Perarivalan

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

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

    What is the news?

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

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

    What branded Perarivalan as a murderer?

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

    Why was this a case for Governor?

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

    Why did the Supreme Court intervene?

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

    What is Article 142?

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

    Other legal aspects of this pardon

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

    Back2Basics:

    Pardoning powers of the President

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

    Context

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

    Abuse of sedition law

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

    Significance of the move

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

    Implications of the law

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

    Conclusion

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

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  • How Sikkim became a part of India?

    It was on May 16, 1975 that Sikkim became 22nd state of the Union of India.

    Why in news?

    • While in many modern narratives, the tale of the former kingdom under the Namgyal dynasty acquiring Indian statehood begins in decades close to the 1970s.
    • The real story, according to experts, can only be understood by tracing the events back to 1640s when Namgyal rule was first established.

    Sikkim’s accession into India: A complete timeline

    (1) Attacks during Namgyal Rule

    • Beginning with Phuntsog Namgyal, the first chogyal (monarch), the Namgyal dynasty ruled Sikkim until 1975.
    • At one point, the kingdom of Sikkim included the Chumbi valley (part of China now) and Darjeeling.
    • In the early 1700s, the region saw a series of conflicts between Sikkim, Nepal, Bhutan, and Tibet, which resulted in a shrinking of Sikkim’s territorial boundaries.

    (2) Under East India Company

    • When the British arrived, their expansion plans in the Indian subcontinent included controlling the Himalayan states.
    • The kingdom of Nepal, meanwhile, continued with its attempts to expand its territory.
    • This resulted in the Anglo-Nepalese war (November, 1814 to March, 1816), also known as the Gorkha war, which was fought between the Gorkhali army and the East India Company.
    • Both sides had ambitious expansion plans for the strategically important mountainous north of the Indian subcontinent.
    • In 1814, Sikkim allied with the East India Company in the latter’s campaign against Nepal.
    • The Company won and restored to Sikkim some of the territories that Nepal had wrested from it in 1780.

    (3) Administrative control of British

    • A turning point in the history of Sikkim involves with the appointment of John Claude White as Political Officer of Sikkim.
    • Sikkim by then was a British Protectorate under the Treaty of Tumlong signed in March, 1861.
    • As with most of the Indian subcontinent that the British had under their administrative control, the kingdom of Sikkim, although a protectorate, had little choice in the administration of its own kingdom.
    • The Namgyal monarch could not criticise decisions made by the British, but the ruler did complain about this influx of Nepali migrants into the kingdom.

    (4) Scenario after 1947

    • Three years after India’s Independence in 1947, Sikkim became a protectorate of India.
    • In 1950, a treaty was signed between the then Sikkim monarch Tashi Namgyal and India’s then Political Officer in Sikkim, Harishwar Dayal.
    • A clause in the treaty read: “Sikkim shall continue to be a Protectorate of India and, subject to the provisions of this Treaty, shall enjoy autonomy in regard to its internal affairs.”

    (5) Chinese invasion of Tibet

    • China’s invasion of Tibet in 1949 and Nepal’s attacks on Sikkim throughout the kingdom’s history were cited as reasons why the kingdom needed the support and protection of a powerful ally.
    • Further, the talk of persecution of Tibetans after China’s arrival at the scene generated fear of the possibility of Sikkim suffering a similar fate.

    (6) Dalai Lama’s Arrival

    • In March 1959, the 14th Dalai Lama escaped from Tibet.
    • After the Dalai Lama reached Indian borders, he and his entourage settled at the Tawang monastery in Arunachal Pradesh.
    • A month later, he travelled to Mussoorie, where he met then Prime Minister Jawaharlal Nehru to discuss the future of the Tibetan refugees who had travelled with him.
    • The repercussions of India’s decision to welcome and give refuge to the Dalai Lama sent a message to some in Sikkim that unlike China, aligning with India would guarantee their protection and security.
    • This was the perspective of the ruling elite in Sikkim.

    (7) Public discontent against monarchy

    • The period between the 1950s and the 1970s marked growing discontent in Sikkim.
    • Primarily, there was anger against the monarchy because of growing inequality and feudal control.
    • Anti-monarchy protests grew in 1973, following which the royal palace was surrounded by thousands of protesters.
    • Indian troops arrived after the monarch was left with no choice but to ask New Delhi to send assistance.
    • Finally, a tripartite agreement was signed in the same year between the chogyal, the Indian government, and three major political parties, so that major political reforms could be introduced.

    (8) Attempts for constitutional development

    • A year later, in 1974, elections were held, where the Sikkim State Congress led by Kazi Lhendup Dorji won, defeating pro-independence parties.
    • That year, a new constitution was adopted, which restricted the role of the monarch to a titular post, which Palden Thondup Namgyal bitterly resented.
    • In the same year, India upgraded Sikkim’s status from protectorate to “associated state”, allotting to it one seat each in the Lok Sabha and Rajya Sabha.
    • Opposed to the move, the monarch attempted to bring international attention to it soon after.

    (9) Finally accession into India

    • A referendum was held in 1975 where an overwhelming majority voted in favour of abolishing the monarchy and joining India.
    • A total 59,637 voted in favour of abolishing the monarchy and joining India, with only 1,496 voting against.
    • Sikkim’s new parliament, led by Kazi Lhendup Dorjee, proposed a bill for Sikkim to become an Indian state, which was accepted by the Indian government.

     

    Also try this PYQ:

    Q.The latitudes that pass through Sikkim also pass through:

    (a) Rajasthan

    (b) Punjab

    (c) Himachal Pradesh

    (d) Jammu & Kashmir

     

    [wpdiscuz-feedback id=”pbi6jukf5c” question=”Please leave a feedback on this” opened=”1″]Post your answers here.[/wpdiscuz-feedback]

     

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  • In abeyance of Section 124A, a provisional relief

    Context

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

    What was the basis for the reconsideration?

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

     Section 125A and issues with it

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

    Conclusion

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

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  • Public opinion cannot influence jurisprudence

    Context

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

    Background of the US Supreme Court

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

    Paying attention to the public opinion

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

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

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

    Conclusion

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

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  • With delimitation over, a look at the slate for J&K

    Context

    Fresh delimitation was necessary for Jammu and Kashmir since the State had been divided into two Union Territories and elections could only be held under the Jammu and Kashmir Reorganisation Act, 2019.

    Issues with the report of the Delimitation Commission

    • The central question of why Jammu has gained six Assembly seats and the Valley only one has been brushed under general remarks on methodology with no explanation of how that methodology was applied.
    • Nor does it explain why Jammu’s Muslim-majority seats now comprise less than a quarter of the province’s total seats, though Muslims comprise over a third of the province’s population.
    • The commission’s recommendations further complicate the issue.
    • They propose that the President nominate Pandit migrants to two Assembly seats — why is there no reference to Pandits who remain in the Valley?
    • Indeed, the only overarching guideline which the report does describe in some detail is the commission’s desire to match the boundaries of Assembly and parliamentary constituencies.
    • Most of these questions were addressed to the commission during its consultation phase.
    •  By choosing not to do so they lost a valuable opportunity to display transparency and dispel suspicion of bias.

    Way forward

    • The only hope for a peace process in Jammu and Kashmir is if there is a clean election, statehood is speedily restored, and the new Assembly determines whether or in which form special status is required. 
    • The better option is to hold elections for existing constituencies and let the new assembly approve or query the delimitation report.
    • In fact, the commission itself proposed that the report be placed before the legislative assembly, a recommendation that makes sense only if new delimitation comes into force after and not before elections.
    • Urgent as elections are, attention to fundamental freedoms is even more important.

    Conclusion

    The peace process in Jammu and Kashmir needs to address the concerns of the people related to the restoration of statehood, and clean elections.

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