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Subject: Polity

  • 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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  • Sedition law

    Context

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

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

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

    Recommendations and measures

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

    Conclusion

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

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  • Marital Rape

    Context

    On May 10, 2022, a two-judge bench of the Delhi High Court gave a split ruling on marital rape, thus ensuring a future hearing in the Supreme Court.

    Why rape and marriage were seen as mutually exclusive

    • The concepts of rape and marriage were seen as mutually exclusive – they could not be brought together.
    • Across the world, and till very recently, marriage has been explicitly treated as being outside the purview of rape.
    • Even in the Western countries that we associate with the more “advanced” practices of gender equality, marital rape was treated as an exception to the crime of rape till the early 1990s.
    • In the absence of a universal definition, several scholars take marriage to be an institution where a man and a woman live together, have sexual relations and engage in cooperative economic activity.
    • Link between marriage and property: Others have emphasised the link between marriage and property.
    • The dominant form of marriage in the modern West became quite distinctly patriarchal, visible in late 18th-century British law, for instance, whereby a wife became the property of her husband upon marriage.
    • Husbands, therefore, had the right to access their wives sexually, without the question of coercion or consent being on the horizon in the first place.
    • As property, wives had to be protected from the (illegal) sexual access of other men, and here too, their consent was irrelevant.

    Introduction of marital rape

    • If what distinguishes the relationship of husband and wife from other relations between men and women is the legitimate expectation of sexual relations, then the introduction of marital rape signals the entry of a new and equally legitimate expectation: A wife’s consent to sexual relations is essential, and in this, she is no different from other women.
    • Husbands no longer enjoy unquestioned rights over the bodies of their wives — this is what it means for a wife to be a person with bodily integrity.

    Conclusion

    It is strange, indeed, that most parts of the world, India included, became modern while continuing to believe that wives are the property of husbands.

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  • Govt to reconsider Minority Tag for Hindus in some states

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

    Why such move?

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

    Who are the Minorities?

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

    Who are linguistic minorities?

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

    Defining Minorities

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

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

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

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

    Laws specifying minorities

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

     

     

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  • India’s judiciary and the slackening cog of trust

    Context

    Departures from substantive and procedural justice need deep scrutiny as the fallout could severely imperil governance.

    Judicial corruption in India in lower judiciary

    • According to Transparency International (TI 2011), 45% of people who had come in contact with the judiciary between July 2009 and July 2010 had paid a bribe to the judiciary.
    • The most common reason for paying the bribes was to “speed things up”.
    • The Asian Human Rights Commission (AHRC) (April 2013) estimates that for every ₹2 in official court fees, at least ₹ 1,000 is spent in bribes in bringing a petition to the court.
    • Freedom House’s ‘Freedom in the World 2016 report for India’ states that “the lower levels of the judiciary in particular have been rife with corruption” (Freedom House 2016).
    • Allegations of corruption against High Court judges abound.
    • Worse, there are glaring examples of anti-Muslim bias, often followed by extra-judicial killings by the police.
    • Anti-Muslim bias alone may not result in erosion of trust but if combined with unprovoked and brutal violence against them (e.g., lynching of innocent cattle traders) is bound to.

    Forms of judicial corruption

    • Pressure and bribery: Judicial corruption takes two forms: political interference in the judicial process by the legislative or executive branch, and bribery.
    • Despite the accumulation of evidence on corrupt practices, the pressure to rule in favour of political interests remains intense.
    • Court officials coax bribes for free services, and lawyers charge additional “fees” to expedite or delay cases.

    Case pendency

    • According to the National Judicial Data Grid, as of April 12, 2017, there are 24,186,566 pending cases in India’s district courts, of which 2,317,448 (9.58%) have been pending for over 10 years, and 3,975,717 (16.44%) have been pending for between five and 10 years.
    • Vacancies: As of December 31, 2015, there were 4,432 vacancies in the posts of [subordinate court] judicial officers, representing about 22% of the sanctioned strength.
    • In the case of the High Courts, 458 of the 1,079 posts, representing 42% of the sanctioned strength, were vacant as of June 2016.
    • Thus, severe backlogging and understaffing persisted, as also archaic and complex procedures of delivery of justice.

    Understanding the substantive and procedural justice

    • Substantive justice is associated with whether the statutes, case law and unwritten legal principles are morally justified e.g., freedom to pursue any religion,
    • Procedural justice is associated with fair and impartial decision procedures.
    • Outdated laws: Many outdated/dysfunctional laws or statutes have not been repealed because of the tardiness of legal reform both at the Union and State government levels.
    • Worse, there have been blatant violations of constitutional provisions.
    • The Citizenship (Amendment) Act (December 2019) provides citizenship to — except Muslims — Hindus, Buddhists, Sikhs, Jains, Parsis and Christians who came to India from Pakistan, Bangladesh and Afghanistan on or before December 31, 2014.
    • But this goes against secularism and is thus a violation of substantive justice.
    • Alongside procedural delays, endemic corruption and mounting shares of under-trial inmates with durations of three to five years point to stark failures of procedural justice and to some extent of substantive justice.

    Conclusion

    Exercise of extra-constitutional authority by the central and State governments, weakening of accountability mechanisms, widespread corruption in the lower judiciary and the police, with likely collusion between them, the perverted beliefs of the latter towards Muslims, other minorities and lower caste Hindus, a proclivity to deliver instant justice, extra-judicial killings, filing FIRs against innocent victims of mob lynching have left deep scars on the national psyche.

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

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

    Do you know?

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

    What is the news?

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

    The President of India

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

    Electing the President

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

    Qualifications to become the President of India

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

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

    Actual course of election

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

    Electoral College composition-

    (1) Legislative Assemblies of the States:

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

    (2) Council of States:

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

    (2) House of the People:

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

    Uniformity in the scale of representation of states

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

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

    Single vote system

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

    MPs and MLAs vote balance

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

    Quotas:

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

    Voters’ preference:

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

    Why need Proportional representation?

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

    Why is President indirectly elected?

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

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

     

  • A new track for capital punishment jurisprudence

    Context

    A recent trend in the evolution of jurisprudence around the death penalty in India may reset judicial thinking around sentencing and have long-term ramifications in the awarding of capital punishment.

    New thinking in the jurisprudence around capital punishment

    • Capital punishment once delivered by the court of sessions (“sentencing court”) is required under law, specifically Chapter 28 of the Code of Criminal Procedure, to be confirmed by the jurisdictional High Court (“confirming court”).
    • Over the last six months or so, while dealing with appeals against confirmation of the death sentence, the Supreme Court of India has examined sentencing methodology from the perspective of mitigating circumstances more closely.
    • The Court has also initiated a suo motu writ petition (criminal) to delve deep into these issues on key aspects surrounding our understanding of death penalty sentencing.
    • Bachan Singh vs State of Punjab (1980), the leading case on this point, calls for mitigating and aggravating circumstances to be balanced against each other and laid down the principle that the death penalty ought not to be awarded unless the alternative of life imprisonment is “unquestionably foreclosed”.
    • It is also an equally well-established legal principle that in a sentencing hearing, the accused must necessarily be provided with sufficient opportunity to produce any material that may have bearing on the sentencing exercise.
    • When read in conjunction with the ratio decidendi of the Bachan Singh case, it is incumbent upon the sentencing court and the confirming court to ensure that the question of reform and rehabilitation of a convicted person has been examined in detail for these courts to come to a definitive conclusion that all such options are unquestionably foreclosed.

    Lack of judicial uniformity

    •  A report by the National Law University Delhi’s Project 39A (earlier known as the “Centre on the Death Penalty”) titled ‘Matters of Judgment’ found that there is no judicial uniformity or consistency when it comes to awarding the death sentence.
    •  In the report titled ‘Death Penalty Sentencing in Trial Courts’ (also authored by Project 39A), findings reported from a study of cases involving death sentencing between 2000 and 2015 in Delhi, Maharashtra and Madhya Pradesh have showed that courts have been lax in assessing the aspect of reformation while undertaking the sentencing exercise.
    • The Court, in Mofil Khan vs State of Jharkhand (2021), held that the “the State is under a duty to procure evidence to establish that there is no possibility of reformation and rehabilitation of the accused.
    • Undoubtedly, the onus has been placed on the State to lead evidence to show that no reformation is possible and for the sentencing courts to be satisfied that a thorough mitigation analysis was done before the death sentence is awarded.

    Mitigation investigation

    • For a complete mitigation investigation, professionals trained in psychology, sociology and criminology are required in addition to legal professionals.
    • Taking cognisance of the value of a holistic approach to mitigation investigation, the Court in Manoj & Ors vs State of Madhya Pradesh (2022) issued directions to the State to place before the court all “report(s) of all the probation officer(s)” relating to the accused and reports “about their conduct and nature of the work done by them” while in prison.
    •  The order also directs that a trained psychiatrist and a local professor of psychology conduct a psychiatric and psychological evaluation of the convict.

    Conclusion

    The intervention of the Supreme Court of India in, hopefully, framing guidelines around incorporation of a mitigation analysis and consideration of psycho-social reports of the prisoner at the time of sentencing is timely and necessary.

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  • Centre-Delhi Row heads to Constitution Bench

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

    What is a Constitution Bench?

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

    Constitution benches are set up when the following circumstances exist:

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

    Why in news now?

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

    What is the 2018 Judgment all about?

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

    When power tussle began

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

    Issue over control of administrative services

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

    Back2Basics: Article 239AA

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

     

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

    Context

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

    Background of the Roe v Wade case

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

    Implications of overturning Roe v Wade

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

    How does Roe v Wade apply in the Indian context?

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

    Conclusion

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

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