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Subject: Polity

  • Can courts stay laws made by the legislature?

    The Supreme Court’s recent order staying the implementation of three farm laws has been criticised and is seen as violative of the doctrine of Separation of Powers.

    Q. Discuss the role of judicial activism in parliamentary democracy in India.

    What is the issue?

    • In particular, many have questioned the suspension of action under the laws as such interim orders are extremely rare.
    • The court did not accept the Attorney General’s argument that laws made by the legislature should not be ordinarily stayed, as there is a presumption of constitutionality in favour of the laws.

    SC’s justification

    • This court cannot be said to be completely powerless to grant stay of any executive action under a statutory enactment, the Bench observed in its order.
    • This means that it was apparently making a distinction between staying a law and staying its implementation or any action under it.
    • Some may argue, however, that the effect remains the same, as the order operates as a stay on the government invoking its provisions.

    Previous such orders

    • The court also cited an order passed by another Bench of the Supreme Court in September 2020 on the Maratha reservation issue.
    • It directed that admissions to educational institutions for 2020-21 and appointments to posts under the government shall be made without reference to the reservation provided under the relevant legislation.

    Farms laws case is different

    • In the Maratha reservation case, the Bench said interim orders could be passed if an enactment is ex facie unconstitutional or contrary to the law laid down by the Supreme Court.
    • It noted that the quota violated the 50% ceiling mentioned in the Indra Sawhney case (1992) and that the Maharashtra government had not shown any extraordinary situation to justify exceeding the limit.
    • Here, the Court observed that a stay on the farm laws’ implementation may assuage the hurt feelings of farmers and encourage them to come to the negotiating table.

    What are the court’s powers in regard to staying enacted law?

    • Under the broad framework of judicial review, the Supreme Court and High Courts have the power to declare any law unconstitutional.
    • This is on grounds if a law is contrary to any provision of the Constitution or it violates any of the fundamental rights.
    • Another ground is invalidity if the law is repugnant to a central law on the same subject or has been enacted without legislative jurisdiction.

    Criticisms of the move

    • The main criticism is that suspending a law made by the legislature goes against the concept of separation of powers.
    • Courts are expected to defer to the legislature’s wisdom at the threshold of a legal challenge to the validity of a law.
    • The validity of law ought to be considered normally only at the time of final adjudication, and not at the initial stage.
    • The second principle is that there is a presumption that every law enacted by any legislature is constitutional and valid.
    • The onus is on those challenging it to prove that it is not. Therefore, courts are circumspect when hearing petitions seeking suspension of law pending a detailed adjudication.

    Various precedents cited by the Court

    • Case law suggests that in some cases, High Courts indeed stayed the operation of some laws. However, the Supreme Court took a dim view.
    • In 1984, the top court set aside an interim stay granted against the operation of a municipal tax (Siliguri Municipality & Others vs Amalendu Das & Others).
    • In 2013, it removed the stay on some provisions of and regulations under the Cigarettes and Other Tobacco Products Act, 2003 (Health for Millions Trust vs Union of India).
    • It then held that the rules were ex facie unconstitutional and the factors, like, the balance of convenience, irreparable injury and public interest are in favour of passing an interim order.

    Back2Basics: Judicial Activism

    • The term “Judicial Activism” refers to the court’s decision, based on the wisdom that does not go rigidly within the text of the statute passed by the legislature.
    • It goes in favour of the use of judicial power broadly to provide remedies to the wide range of social wrongs for ensuring proper justice.
    • The judiciary performs an active role to uphold constitutional values and ethics under the constitutional pattern.
    • For addressing civic dilemmas, the judiciary applies its intellect and creativity to fill the gap between the positive and normative aspects of legislations.
    • For this reason, judicial activism has emerged.

  • Issues with suspension of the Farm laws

    The article deals with the recent Supreme Court order in which it suspended the implementation of the Farm Acts. This order gives rise to several issues. The article deals with these issues.

    What is the issue

    • The Supreme Court has suspended the implementation of the farm laws.
    • The court created a committee to ascertain the various grievances of the farmers.
    • But the Supreme Court has not clarified the legal basis of this suspension.

    What are the issues with the suspension?

    • The court’s action, at first sight, is a violation of separation of powers.
    • It also gives the misleading impression that a distributive conflict can be resolved by technical or judicial means.
    • It is also not a court’s job to mediate a political dispute.
    • Its job is to determine unconstitutionality or illegality.
    • Even in suspending laws there needs to be some prima facie case that these lapses might have taken place.
    • It has set a new precedent for putting on hold laws passed by Parliament without substantive hearings on the content of the laws.
    • Also in appointing the committee, the court has violated the first rule of mediation: The mediators must be acceptable to all parties and appointed in consultation with them.

    Conclusion

    The Supreme Court order has given the government a setback while not addressing the concerns of the protesting farmers. The court needs to consider these facts and mend its implications.

  • SC says it intends to stay farm laws

    The Supreme Court has intended to stay the implementation of the controversial agricultural laws while proposing to form an independent committee chaired by a former CJI to resolve the stand-off between the protesting farmers and the Union government.

    Q.The judicial systems in India and the UK seem to be converging as well as diverging in recent times. Highlight the key points of convergence and divergence between the two nations in terms of their judicial practices. (150W, CS Mains 2020)

    Halting the farm laws

    • The Parliament’s power to legislate, drawn from Article 254(1) of the Constitution, can only be restricted if the law violates the Constitution.
    • How the Supreme Court operationalizes its suggestion to stay the operation of the three farm laws and open fresh talks via a committee will be evident.
    • The Supreme Court has previously set up committees, delegating some of its powers to the members to implement or oversee a law or an order of the court.
    • A line of precedents shows that courts have been very cautious while passing interim orders to stay laws passed by the Legislature.

    Narrow grounds

    The implementation of a law can be halted on two narrow grounds:

    • The first ground is legislative competence, that is, if the court finds that the Parliament has no power to legislate on a subject matter.
    • The other two grounds are if the law violates fundamental rights or any other provisions of the Constitution respectively.

    Various precedents

    • In matters involving the constitutionality of any legislation, courts should be extremely loath to pass an interim order,” a Supreme Court bench had said in 2013 ruling on the validity of the Cigarettes and Other Tobacco Products Regulation Act, 2003.
    • At the time of final adjudication, the court can strike down the statute if found ultra vires of the Constitution.
    • Even in 2019, the Supreme Court refused to stay amendments made in 2018 to the SCs and STs Atrocities Prevention Act saying that a law made by Parliament cannot be stayed.
    • The court also refused to stay the Citizenship Amendment Act, 2019, which was also challenged after it drew protests across the country.

    NJAC and Aadhaar Case

    • Even strongly contested legislation such as the National Judicial Appointments Commission (NJAC) and Aadhaar was not stayed by the Supreme Court.
    • They were, instead, stalled by the government for the duration of the protracted legal battles in court.
    • While the NJAC Act, which contemplated a significant role for the executive in judicial appointments, was struck down as being violative of the basic structure, the SC upheld the Aadhaar Act.

    What are the issues with the suspension?

    • The court’s action, at first sight, is a violation of separation of powers.
    • It also gives the misleading impression that a distributive conflict can be resolved by technical or judicial means.
    • It is also not a court’s job to mediate a political dispute.
    • Its job is to determine unconstitutionality or illegality.
    • Even in suspending laws there needs to be some prima facie case that these lapses might have taken place.
    • It has set a new precedent for putting on hold laws passed by Parliament without substantive hearings on the content of the laws.
    • Also in appointing the committee, the court has violated the first rule of mediation: The mediators must be acceptable to all parties and appointed in consultation with them.

    Conclusion

    The Supreme Court order has given the government a setback while not addressing the concerns of the protesting farmers. The court needs to consider these facts and mend its implications.

  • How horizontal, vertical quotas work; what Supreme Court said?

    The Supreme Court last month clarified the position of law on the interplay of vertical and horizontal reservations.

    This newscard is useful for GS paper 1 as well as aspirants with sociology optional. Let us know in the comment box if you want to get a deeper insight.

    It perfectly highlights the heart of the debate on “merit versus reservation”, where reservation is sometimes projected as being anti-merit.

    What are vertical and horizontal reservations?

    • Reservation for Scheduled Castes, Scheduled Tribes, and Other Backward Classes is referred to as vertical reservation.
    • It applies separately for each of the groups specified under the law.
    • Horizontal reservation refers to the equal opportunity provided to other categories of beneficiaries such as women, veterans, the transgender community, and individuals with disabilities, cutting through the vertical categories.

    How are the two categories of quotas applied together?

    • The horizontal quota is applied separately to each vertical category, and not across the board.
    • For example, if women have 50% horizontal quota, then half of the selected candidates will have to necessarily be women in each vertical quota category.
    • This means half of all selected SC candidates will have to be women, half of the unreserved or general category will have to be women, and so on.
    • The interlocking of the two types of reservation throws up a host of questions on how certain groups are to be identified.
    • For example, would an SC woman be put in the category of women or SC? Since quotas are fixed in percentages, what percentage of quota would be attributed to each?

    What was the Saurav Yadav case about?

    • The case was on the technicalities that form a substantial question of law.
    • It was this: Two aspirants had secured 276.5949 and 233.1908 marks respectively.
    • They had applied under the categories of OBC-Female and SC-Female respectively. OBC and SC are vertical reservation categories, while Female is a horizontal reservation category.
    • The two candidates did not qualify in their categories.
    • However, in the General-Female (unreserved-female) category, the last qualifying candidate had secured 274.8298 marks, a score that was lower than the two backwards.
    • The question before the court was that if the underlying criterion for making selections is “merit”.

    What did the court decide?

    • The court ruled against the UP government.
    • It observed if a person belonging to an intersection of the vertical-horizontal reserved category had secured scores high enough to qualify without the vertical reservation.
    • It held that the person would be counted as qualifying without the vertical reservation, and cannot be excluded from the horizontal quota in the general category.
    • If a person in the SC category secures a higher score than the cut-off for the general category, the person would be counted as having qualified under the general category instead of the SC quota.

    What was the government’s argument?

    • The government’s policy was to restrict and contain reserved category candidates to their categories, even when they had secured higher grades.
    • The court said this was tantamount to ensuring that the general category was ‘reserved’ for upper castes.

    What was the court’s reasoning?

    • The court did the math by examining a number of hypothetical scenarios.
    • It concluded that if both vertical and horizontal quotas were to be applied together — and consequently, a high-scoring candidate who would otherwise qualify without any reservation.
    • On the other hand, if a high-scoring candidate is allowed to drop one category, the court found that the overall selection would reflect more high-scoring candidates.
    • In other words, the “meritorious” candidates would be selected.

  • Personal Data Protection Bill 2019

    The Personal Data Protection Bill (2019) has several provisions which could have implications for the privacy of an individual. The article examines such provisions and highlights the need for further debate on the Bill.

    Evolution of privacy as a fundamental right

    • The Supreme Court in MP Sharma v. Satish Chandra (1954) and Kharak Singh v. Uttar Pradesh (1962) had declared that while in certain circumstances the privacy of individuals was to be protected, there was no constitutional right to privacy in and of itself.
    • However, in Puttuswamy v India (2017) the Supreme Court accepted privacy as a fundamental right.
    • This was an important development.

    Rising importance of data

    • The rising importance of data has pushed over 80 countries to pass national laws protecting the collection and use of their citizens’ data by companies and the government.
    • The DPB will have huge commercial and political consequences for India.
    • In India, the Personal Data Protection Bill 2019 (DPB) is currently under consideration by a parliamentary committee.
    • According to Ernst and Young, emerging technologies in India will create $1 trillion in economic value by 2025.
    • Much of this value will be founded on the creation, use, and sale of data, and the DPB will have immense implications as firms scramble to meet new privacy regulations.

    Conditions for access to data and issues

    • The bill establishes a number of conditions for companies to follow.
    • For one, it would require digital firms to obtain permission from users before collecting their data.
    • It also declares that users who provide data are, in effect, the owners of their own data.
    • So that the users will be able to control the data their online selves produce, and may request firms to delete it, just as European internet-users’ “right to be forgotten”.
    • But the bill stipulates that critical or sensitive personal data, related to information such as religion, or to matters of national security, must be accessible to the government if needed to protect national interest.
    • Critics have suggested that such open-ended access could lead to misuse.
    • Even B N Srikrishna, who chaired the committee that drafted the original bill has also expressed concerns about this provision.
    • Other major concern is about Data Protection Authority (DPA).

    Concerns about Data Protection Authority

    • The bill outlines the establishment of a Data Protection Authority (DPA).
    • The DPA will be charged with managing data collected by the Aadhaar programme.
    • It will be led by a chairperson and six committee members, appointed by the central government on the recommendation of a selection committee.
    • But this selection committee will be composed of senior civil servants, raising questions about the board’s independence.
    • The government’s power to appoint and remove members at its discretion also stokes fears about its ability to influence this independent agency.
    • Unlike similar institutions, such as the Reserve Bank of India or the Securities and Exchange Board, the DPA will not have an independent expert or member of the judiciary on its governing committee.

    Consider the question “Discuss the various provision of Personal Data Protection Bill 2019 for the protection of individual’s privacy. What are the concerns over the various provisions of the Bill?”

    Conclusion

    The DPB is a unique opportunity for India, a country with some 740 million internet users, to forge a pathbreaking agenda that will act as a standard-setter in the still-developing field of national data protection legislation.

  • Supreme Court cleared New Delhi’s Central Vista Project

    The Hon’ble Supreme Court has allowed the central vista project to go ahead.

    Try this MCQ first:

    Q.The architecture of the present Parliament House of India is inspired from:

    a) Ekattarso Mahadeva Temple

    b) Virupaksa Temple

    c) Dilwara Temples

    d) Brihaddeswara Temple

    The Central Vista Project

    • The project aims to renovate and redevelop 86 acres of land in Lutyens’s Delhi.
    • In this, the landmark structures of the government, including Parliament House, Rashtrapati Bhavan, India Gate, North Block and South Block, etc. stand.
    • This dream project of redeveloping the nation’s administrative heart was announced by the Ministry of Housing and Urban Affairs on September 13, 2019.

    Litigation over the project

    • A petition was filed in the Supreme Court in April 2020, challenging the Centre’s change-of-land-use notification of March 2020 with regard to the 86 acres of land.
    • The petitioner submitted that the order violated the citizen’s Right to Life guaranteed under Article 21 by depriving people of open and green spaces.
    • The petition also argued that the notification violated the Master Plan of Delhi 2021.
    • Subsequently, the court heard the challenge on three main grounds: change of land use; violations of municipal law; and violations of environmental law.

    What has the court held?

    • In a 2:1 majority verdict, the court has held that there are no infirmities in the approvals granted.
    • The verdict held that the central government’s change of land use for the project in the Master Plan of Delhi 2021 is also a lawful exercise of its powers.

    History of Lutyens’s Delhi

    • At his coronation as Emperor of India on December 12, 1911, Britain’s King George V had announced the transfer of the seat of the Government of India from Calcutta to the ancient Capital of Delhi.
    • Thereafter, a 20-year-long project to build modern New Delhi was spearheaded by architects Edwin Lutyens and Herbert Baker.
    • They built Parliament House, Rashtrapati Bhavan, North and South Blocks, Rajpath, India Gate, National Archives and the princes’ houses around India Gate.
    • New Delhi was unveiled in 1931.

    Must read:

    New Parliament Building

  • Electoral Bond Scheme

    A recent order passed by CIC in an appeal against the State Bank of India (SBI) has once again highlighted the issues with the Electoral Bond Scheme. The article deals with this issue.

    Issues with the scheme

    • The scheme creates banking instruments for a donation of funds to political parties facilitated by the SBI.
    • It conceals the identity of the donors and donees as well as the amount of donation.
    • In effect, the scheme is not transparent, promotes arbitrariness, and is therefore illegal.
    • The scheme facilitates undisclosed quid pro quo arrangements between donors, who are likely to be corporates, and political parties.
    • The Supreme Court held that the freedom of speech and expression also contained the fundamental right of a voter to secure information about the candidates.
    • When the voter is permitted to know if an electoral candidate is facing any cases, she should be equally entitled to know who is financing the expenses of the party and its candidate.

    CIC order and RTI Act

    • The CIC, in an earlier order, deemed political parties to be public authorities under the RTI Act.
    • In the present order, the CIC  has upheld the contention of the SBI that it is not required to furnish the details of donors, donees, and donations, under the RTI Act.
    • In doing so, SBI has relied on two grounds provided under Section 8 of the RTI Act.
    • Section 8 exempts disclosure of information if it has been held in a fiduciary capacity and that there was no public interest involved in the application.
    • However,  any exemption provided under Section 8 should be read-only in a very narrow sense.
    • Section 8(2) directs that when public interest outweighs any harm to protected interests, the information sought may be accessed.
    • Therefore, it overrides the grounds erroneously relied upon by the CIC.
    • The public interest in the present matter is indisputable.

    Consider the question “What are the various provisions in the Electoral Bond Scheme? How some of its provisions could come in conflict with the RTI Act.”

    Conclusion

    By suppressing knowledge of political financing, we are breaking the basic bonds of democracy holding the country together. An unsettled law is as dangerous as bad law. The Court must conclusively settle the questions around the constitutionality of electoral bonds.

  • Governor’s role in calling an Assembly Session

    In yet another tug-of-war between Kerala Governor and CM, the Governor has turned down a request to summon a special sitting of the Assembly to debate the new three central farm laws.

    Q.The political nature of the office of the Governor, especially in Opposition-ruled states, has been underlined in several instances by courts. Discuss.

    Governor and Assembly Session

    • The Governor shall from time to time summon the House or each House of the Legislature of the State to meet at such time and place as he thinks fit…” says Article 174 of the Constitution.
    • The provision also puts on the Governor the responsibility of ensuring that the House is summoned at least once every six months.
    • Although it is the Governor’s prerogative to summon the House, according to Article 163, the Governor is required to act on the “aid and advice” of the Cabinet.
    • So when the Governor summons the House under Article 174, this is not of his or her own will but on the aid and advice of the Cabinet.

    Can the Governor refuse the aid and advice of the Cabinet?

    • There are a few instances where the Governor can summon the House despite the refusal of the Chief Minister who heads the Cabinet.
    • When the CM appears to have lost the majority and the legislative members of the House propose a no-confidence motion against the CM, then the Governor can decide on his or her own on summoning the House.
    • But the actions of the Governor, when using his discretionary powers can be challenged in court.

    Precursors set by the Supreme Court

    • A number of rulings by the Supreme Court have settled the position that the Governor cannot refuse the request of a Cabinet that enjoys the majority in the House unless it is patently unconstitutional.
    • The latest in the line of rulings is the landmark 2016 Constitution Bench ruling in which the Supreme Court looked into the constitutional crisis in Arunachal Pradesh.
    • The Governor had imposed President’s Rule in the state of Arunachal.
    • In ordinary circumstances during the period when the CM enjoy the confidence of the majority, the power vested under Article 174 must be exercised with the aid and advice of the CM and his CoM.
    • In the above situation, he/she has precluded [from taking] an individual call on the issue at his own will, or in his own discretion, the verdict said.
    • The court read: the power to summon the House as a “function” of the Governor and not a “power” he enjoys.

    What Sarkaria Commission had said?

    • The Sarkaria Commission of 1983, reviewed the arrangements between the Centre and the states, had said that so long as the CoM enjoys the confidence of the Assembly, its advice in these matters, unless patently unconstitutional must be deemed as binding on the Governor.
    • It is only where such advice if acted upon, would lead to an infringement of a constitutional provision if the CoM has ceased to enjoy the confidence of the Assembly.

    What happens if the Kerala government insists on holding the special session?

    • Since the Governor’s powers are limited with regard to summoning the House, there can be no legal ground to deny a request for summoning the session.
    • In such a political row, the Governor’s refusal can also be challenged in court.

  • What is Inner-Line Permit?

    Union Home Minister has said that Inner-Line Permit (ILP) had been the Centre’s biggest gift to Manipur since its statehood.

    Note the states where ILP is required.

    The Inner Line

    • A concept drawn by colonial rulers, the Inner Line separated the tribal-populated hill areas in the Northeast from the plains.
    • To enter and stay for any period in these areas, Indian citizens from other areas need an Inner Line Permit (ILP).
    • Arunachal Pradesh, Nagaland and Mizoram are protected by the Inner Line, and lately, Manipur was added (in December last year).
    • The concept originates from the Bengal Eastern Frontier Regulation Act (BEFR), 1873.

    Its’ Inception

    • The policy of exclusion first came about as a response to the reckless expansion of British entrepreneurs into new lands which threatened British political relations with the hill tribes.
    • The BEFR prohibits an outsider’s — “British subject or foreign citizen” — entry into the are beyond the Inner Line without a pass and his purchase of land there.
    • On the other hand, the Inner Line also protects the commercial interests of the British from the tribal communities.
    • After Independence, the Indian government replaced “British subjects” with “Citizen of India”.
    • Today, the main aim of the ILP system is to prevent settlement of other Indian nationals in the States where the ILP regime is prevalent, in order to protect the indigenous/tribal population.

  • Deconstructing the opposition between merit and reservation

    The Supreme Court in recent judgement in Saurav Yadav Vs. State of Uttar Pradesh made it clear that reservation and merit are not mutually exclusive. The article deals with this issue.

    Vertical Vs. Horizontal reservation

    • Articles 15(4) and 16(4) enable vertical reservation based on slotting the population in terms of SC, ST, OBC, and General Category.
    • But there is also a class of reservations that cuts across all these categories and are referred to as horizontal reservation.
    • Horizontal reservation includes a reservation for women differently-abled persons, freedom fighters, army veterans, etc.

    Specifying the relationship between horizontal and vertical reservation

    • In cases like Anil Kumar Gupta v/s State of Uttar Pradesh, the Court had made it clear that horizontal reservation ought to be generally understood in compartmentalized terms: recognition of inequalities within each vertical category.
    •  In a particular case, candidates were excluded from competing from the General Category positions even though they have scored more, simply because they were OBC.
    • However, some state governments are trying to use the open category seats as a quota for general category candidates.
    • The High Courts had been giving contrary directions: Uttar Pradesh and Madhya Pradesh excluded reserved category women for consideration in the general category.
    • Rajasthan and Gujarat, amongst others, included them.
    • The Supreme Court, in a three-judge bench, ruled against the UP government and clarified the relationship between horizontal and vertical reservations.

    Analyzing the judgment

    • The judgments reiterate the principle that groups eligible for horizontal reservation cannot be excluded from the open category seats because they are from other vertically reserved category communities, like SC or OBC.
    • Women from all categories are eligible to be considered for the open category.
    • It also made it clear that the open category seats are not meant to be a quota for the non-reserved categories.

    Merit Vs. Reservation

    • The Court has often contrasted merit with reservation.
    • But this has always been a mistaken view of the relationship between merit and reservation.
    • In principle, reservation is an instrument for identifying merit in individuals from historically marginalized communities.
    • The Court is saying that by excluding the adjustment of OBC women who had scored higher against general category seats, the UP government was ironically using the General Category to exclude meritorious candidates.
    • When the Court is using the term merit, it is simply pointing out that certain selection criteria are being used.
    • Such selection criteria are also within particular reserved categories: which is also a function of selection criteria, in this case, marks.
    • From this point of view, even those who advocate reservation do not fully give up on the meritocratic criteria of selection — they just apply it differentially.
    • What the Court was concerned with is fairness in the application of the selection criteria within the overall framework of reservation.

    Conclusion

    What the court is trying to say something more interesting: Members of the reserved category must be fully considered as falling under the rubric of being potentially meritorious.