đŸ’„Join UPSC 2027,2028 Mentorship (July Batch) + XFactor Notes & Microthemes PDF
Talk to Mentor

Civilsdaily

Login

Subject: Polity

  • [pib] International Judicial Conference, New Delhi

    The President of India delivered the valedictory address at the International Judicial Conference being organised by the Supreme Court of India, in New Delhi.

    About the Conference

    • The Conference was organized by the Supreme Court of India.
    • The theme of the Conference was ‘Judiciary and the Changing World’.

    Important Topics of discussion at the Conference included :

    1. Gender Justice,
    2. Contemporary Perspectives on Protection of Constitutional Values,
    3. Dynamic Interpretations of the Constitution in a Changing World,
    4. Harmonization of Environment Protection vis-Ă -vis Sustainable Development and
    5. Protection of Right to Privacy in the Internet Age

    Other excerpts:

     “Just-World” Hypothesis

    • The “Just World” fallacy is associated with the actions of bringing fair actions towards education, health, gender equality and other social issues.
    • The Conference introduced the “Just World” concept in the Judicial System of India.
    • By this it aims to take the judicial system of the country to every citizen irrespective of their gender.
    • Also, it aimed to bring upon gender equality in other crucial areas where women have still not earned their recognition, especially the areas of mining and military.

  • [pib] 22nd Law Commission of India

    The Union Cabinet has approved Twenty-second Law Commission of India for a period of three years from the date of publication of the Order of Constitution in the Official Gazette.

    Law Commission of India

    • It is an executive body established by an order of the Government of India. First law commission of independent India was established post the Independence in 1955
    • Tenure: 3 Years
    • Function: Advisory body to the Ministry of Law and Justice for “Legal Reforms in India”
    • Recommendations: NOT binding
    • First Law Commission was established during the British Raj in 1834 by the Charter Act of 1833
    • Chairman: Macaulay; It recommended for the Codifications of the IPC, CrPC etc.

    Composition

    The 22nd Law Commission will be constituted for a period of three years from the date of publication of its Order in the Official Gazette. It will consist of:

    1. a full-time Chairperson;
    2. four full-time Members (including Member-Secretary)
    3. Secretary, Department of Legal Affairs as ex-officio Member;
    4. Secretary, Legislative Department as ex officio Member; and
    5. not more than five part-time Members.

    Terms of reference

    • The Law Commission shall, on a reference made to it by the Central Government or suo-motu, undertake research in law and review of existing laws in India for making reforms therein and enacting new legislations.
    • It shall also undertake studies and research for bringing reforms in the justice delivery systems for elimination of delay in procedures, speedy disposal of cases, reduction in cost of litigation etc.

    The Law Commission of India shall, inter-alia: –

    • identify laws which are no longer needed or relevant and can be immediately repealed
    • examine the existing laws in the light of DPSP and Preamble
    • consider and convey to the Government its views on any subject relating to law and judicial administration that may be specifically referred to it by the Government through Ministry of Law and Justice (Department of Legal Affairs);
    • Consider the requests for providing research to any foreign countries as may be referred to it by the Government through the Ministry of Law and Justice (Department of Legal Affairs);
    • take all such measures as may be necessary to harness law and the legal process in the service of the poor;
    • revise the Central Acts of general importance so as to simplify them and remove anomalies, ambiguities and inequities;

  • A just verdict

    Context

    SC ruling in favour of women officers in the Army is pathbreaking, extends arc of equality.

    What is said in the significance of the judgement?

    • The judgement took many constitutional steps further
    • First, the judgement said “engagement of women officers in the Army” has been an “evolutionary process”.
      • It acknowledges that the “physiological features of a woman have no significance to her equal entitlements under the Constitution”.
    • Second, it indicates “a need for change in attitudes and mindsets to recognise the commitment to the values of the Constitution”.
      • The judgement said that reliance on the “inherent physiological differences between men and women” rests on a deeply entrenched stereotypical and constitutionally flawed notion.
      • The above-flawed notion fails to ignore “the solemn constitutional values which every institution in the nation is bound to uphold and facilitate”.
    • Third, this change has to be based on “the right of women officers to equality of opportunity”, which has two “facets”:
      • Non-discrimination on the grounds of sex and-
      • Equality of opportunity for all citizens in employment.
      • State and civil society have to firmly internalise these rights to achieve even the minima of gender justice.
      • Fundamental fallacy: Removal of the “fundamental fallacy” demands non-discrimination and affirmation of the equality of opportunity in public employment. To rule otherwise will constitute “a travesty of justice”.
      • What does this mean for women? This means women now have the same terms of employment as men.
      • No longer will women be forced to retire after 14 years in service, irrespective of their record.
      • They will also have a full pension and other financial benefits.
    • Fourth, Article 14 of the Constitution has been pressed into service as prescribing “a right to rationality” that forbids any “blanket” and “absolute”
      • The burden to justify differentiation on Army: The burden to justify the differentiation between women and men falls “squarely on the Army”, which has to “justify such differentiation with reason”

    Judicial consciousness of policy consciousness

    • Achilles’ heel of the judgement: In fact, the brief remark outlining the judicial consciousness of policy limitations may well prove to be the proverbial Achilles’ heel in future courts.
    • One hopes that the stoic and heroic endeavours of the petitioner army officers and their counsel, will not be visited with the constitutional fates in which the judgement is reversed.
      • And this path-breaking judgment will forever vindicate gender equality and justice.

    Conclusion

    Making gender justice less contingent on the executive’s mood swings is the primary task of the judiciary. Making it immune from judicial re-visitations remains the paramount constitutional duty of all citizens, but more particularly of feminist citizens’ crusade for judicial consistency as a badge for constitutional rights and justice.

  • Explained: Recusals by Judges

    Recently a Supreme Court judge recused himself from hearing a petition filed against the government’s move to charge Omar Abdullah under the Public Safety Act.  The case was finally heard by another bench.

    Rules on Recusals

    • There are no written rules on the recusal of judges from hearing cases listed before them in constitutional courts. It is left to the discretion of a judge.
    • The reasons for recusal are not disclosed in an order of the court. Some judges orally convey to the lawyers involved in the case their reasons for recusal, many do not. Some explain the reasons in their order.
    • The decision rests on the conscience of the judge. At times, parties involved raise apprehensions about a possible conflict of interest.

    Why Judges need recusal?

    • Recusal usually takes place when a judge has a conflict of interest or has a prior association with the parties in the case.
    • For example, if the case pertains to a company in which the judge holds stakes, the apprehension would seem reasonable.
    • Similarly, if the judge has, in the past, appeared for one of the parties involved in a case, the call for recusal may seem right.
    • A recusal inevitably leads to delay. The case goes back to the Chief Justice, who has to constitute a fresh Bench.

    Should the reasons be put on record?

    • In his separate opinion in the NJAC judgment in 2015, Justice (now retired) Kurian Joseph, who was a member of the Constitution Bench, highlighted the need for judges to give reasons for recusal as a measure to build transparency.
    • It is the constitutional duty, as reflected in one’s oath, to be transparent and accountable, and hence, a judge is required to indicate reasons for his recusal from a particular case, Justice Kurian wrote.
    • One of his companion judges on the Constitution Bench, Justice (retired) Madan B. Lokur, agreed that specific rules require to be framed on recusal.
    • The two judges were referring to senior advocate Fali Nariman’s plea to Justice J.S. Khehar, who was then in line to be the next Chief Justice, to recuse himself.
    • But Justice Khehar refused to recuse himself though he admitted that Mr. Nariman’s plea left him in an “awkward predicament”.
    • Justice Khehar reasoned that he did not recuse himself for fear of leaving an impression that he was “scared”.

    What happened in the Judge Loya and Assam detention centres cases?

    • In 2018, petitioners in the Judge Loya case sought the recusal of Supreme Court judges, Justices A.M. Khanwilkar and D.Y. Chandrachud, from the Bench as they both hailed from the Bombay High Court.
    • The case banked on the written statements of two judges from that High Court, both saying that Judge Loya’s death was from natural causes. The court refused the request and called it a “wanton attack”.
    • Recusal, the court observed, would mean abdication of duty. Maintaining institutional civilities are distinct from the “fiercely independent role of the judge as adjudicator”, the court explained.
    • In May 2019, in the middle of a hearing of a PIL filed by activist Harsh Mander about the plight of inmates in Assam’s detention centres, the then-Chief Justice Ranjan Gogoi was asked to recuse himself.
    • In a lengthy order, Justice Gogoi said a litigant cannot seek recusal of the judge. “Judicial functions, sometimes, involve performance of unpleasant and difficult tasks, which require asking questions and soliciting answers to arrive at a just and fair decision.
    • If the assertions of bias as stated are to be accepted, it would become impossible for a judge to seek clarifications and answers,” the court observed.

  • System Risk Indicator (SyRI)

    • In a first anywhere in the world, a court in the Netherlands recently stopped a digital identification scheme for reasons of exclusion.
    • This has a context for similar artificial intelligence (AI) systems worldwide, especially at a time when identity, citizenship and privacy are pertinent questions in India.

    SyRI

    • Last week, a Dutch district court ruled against an identification mechanism called SyRI (System Risk Indicator), because of data privacy and human rights concerns.
    • It held SyRI was too invasive and violative of the privacy guarantees given by European Human Rights Law as well as the EU’s General Data Protection Regulation.
    • The Dutch Ministry of Social Affairs developed SyRI in 2014 to weed out those who are most likely to commit fraud and receive government benefits.
    • Legislation passed by Dutch Parliament allowed government agencies to share 17 categories of data about welfare recipients such as taxes, land registries, employment records, and vehicle registrations with a private company.
    • The company used an algorithm to analyse data for four cities and calculate risk scores.

    What were the arguments in court?

    • After taking into account community concerns, civil society groups and NGOs launched a legal attack on this case of algorithmic governance.
    • Legal criticism mounted, alleging that the algorithm would begin associating poverty and immigrant statuses with fraud risk.
    • The Dutch government defended the programme in court, saying it prevented abuse and acted as only a starting point for further investigation instead of a final determination.
    • The government also refused to disclose all information about how the system makes its decisions, stating that it would allow gaming of the system.
    • The court found that opaque algorithmic decision-making puts citizens at a disadvantage to challenge the resulting risk scores.
    • The Netherlands continuously ranks high on democracy indices.

    How relevant is this for India?

    • Similar to the Supreme Court’s Aadhaar judgment setting limits on the ID’s usage, the Hague Court attempted to balance social interest with personal privacy.
    • However, the Aadhaar judgment was not regarding algorithmic decision-making; it was about data collection.
    • The ruling is also an example of how a data protection regulation can be used against government surveillance.
    • India’s pending data protection regulation, being analysed by a Joint Select Committee in Parliament, would give broad exemptions to government data processing in its current form.
    • India’s proposed regulation is similar to the US in the loopholes that could be potentially exploited.

  • Political parties to publish the entire criminal history of their candidates

     

    • The Supreme Court has strictly ordered political parties to publish the entire criminal history of their candidates for Assembly and Lok Sabha elections along with the reasons that goaded them to field suspected criminals over decent people.

    SC’s deadline

    • It ordered political parties to submit compliance reports with the Election Commission of India within 72 hours or risk contempt of court action.
    • The information should be published in a local as well as a national newspaper as well as the parties’ social media handles.
    • It should mandatorily be published either within 48 hours of the selection of candidates or less than two weeks before the first date for filing of nominations, whichever is earlier.
    • The judgment is applicable to parties both at Central and State levels.

    Information should be detailed

    • The published information on the criminal antecedents of a candidate should be detailed and include the nature of their offences, charges framed against him, the court concerned, case number, etc.
    • A political party should explain to the public through their published material how the “qualifications or achievements or merit” of a candidate, charged with a crime, impressed it enough to cast aside the smear of his criminal background.
    • A party would have to give reasons to the voter that it was not the candidate’s “mere winnability at the polls” which guided its decision to give him a ticket to contest elections.

    Why such a move?

    • It appeared from the last four general elections that there has been an alarming increase in the incidence of criminals in politics.
    • In 2004, 24% of the MPs had criminal cases pending against them; in 2009, that went up to 30%; in 2014 to 34%; and in 2019 as many as 43% of MPs had criminal cases pending against them, SC observed.
    • The judgment was based on a contempt petition about the general disregard shown by political parties to a 2018 Constitution Bench judgment (Public Interest Foundation v. Union of India).
    • In this judgment (2018), this court was cognizant of the increasing criminalisation of politics in India and the lack of information about such criminalisation among the citizenry”, SC observed.

    Immediate Reason

    • The immediate provocation is the finding that 46% of MPs have criminal records.
    • The number might be inflated as many politicians tend to be charged with relatively minor offences —“unlawful assembly” and “defamation”.
    • The real worry is that the current cohort of Lok Sabha MPs has the highest (29%) proportion of those with serious declared criminal cases compared to its recent predecessors.

    Why are such tainted candidates inducted by political parties?

    • Such candidates with serious records seem to do well despite their public image, largely due to their ability to finance their own elections and bring substantive resources to their respective parties.
    • Some voters tend to view such candidates through a narrow prism: of being able to represent their interests by hook or by crook.
    • Others do not seek to punish these candidates in instances where they are in contest with other candidates with similar records.

    Significance of the move

    • Either way, these unhealthy tendencies in the democratic system reflect a poor image of the nature of India’s state institutions and the quality of its elected representatives.
    • The move signified the court’s alarm at the unimpeded rise of criminals, often facing heinous charges like rape and murder, encroaching into the country’s political and electoral scenes.

    Way Forward

    • While formally, the institutions of the state are present and subject to the electoral will of the people, substantively, they are still relatively weak and lackadaisical in governance and delivery of public goods.
    • This has allowed cynical voters to elect candidates despite their dubious credentials and for their ability to work on a patronage system.
    • While judicial pronouncements on making it difficult for criminal candidates to contest are necessary, only enhanced awareness and increased democratic participation could create the right conditions for the decriminalization of politics.

  • Ninth Schedule of the Indian Constitution

    A parliamentarian has said in an interview that reservation should be put under the Ninth Schedule of the Constitution.  His comments came days after the Supreme Court ruled that reservation in the matter of promotions in public posts was not a fundamental right and that a state cannot be compelled to offer quota if it chooses not to.

    What is the Ninth Schedule?

    • The Ninth Schedule contains a list of central and state laws which cannot be challenged in courts.
    • Currently, 284 such laws are shielded from judicial review.
    • The Schedule became a part of the Constitution in 1951, when the document was amended for the first time.
    • It was created by the new Article 31B, which along with 31A was brought in by the government to protect laws related to agrarian reform and for abolishing the Zamindari system.
    • While most of the laws protected under the Schedule concern agriculture/land issues, the list includes other subjects, such as reservation.
    • A Tamil Nadu law that provides 69 per cent reservation in the state is part of the Schedule.

    Article 31A and 31 B

    • While Article 31A extends protection to ‘classes’ of laws, A. 31B shields specific laws or enactments.
    • Article 31B also has retrospective operation: meaning if laws are inserted in the Ninth Schedule after they are declared unconstitutional, they are considered to have been in the Schedule since their commencement, and thus valid.
    • Although Article 31B excludes judicial review, the apex court has said in the past that even laws under the Ninth Schedule would be open to scrutiny if they violated fundamental rights or the basic structure of the Constitution.

  • Six years on, Lokpal is a non-starter

    Context

    More than six years after the Lokpal law received the President’s assent, the institution of the Lokpal is yet to play any significant role in tackling corruption in the country.

    Delay in appointment

    • Five-year delay in appointment: For more than five years, the chairperson and members of the Lokpal were not appointed.
      • LoP issue: The government claimed that since no one could be recognised as the Leader of the Opposition (LoP) after the 2014 general election, the committee responsible for selecting members of the Lokpal could not be constituted.
      • This malady could have been easily remedied by either recognising the leader of the single largest party in Opposition in the Lok Sabha as the LoP, or by amendment as was done for the selection committee of the CBI Director.
      • However, neither recourse was taken.

    Truncated appointment committee

    • Special invitee: The leader of the largest Opposition party in the Lok Sabha was invited for meetings of the selection committee as a ‘special invitee’.
      • Which he declined on grounds that it was mere tokenism.

    Non-starter

    • More than 10 months later, however, evidence suggests that the Lokpal is a non-starter.
    • No rules prescribing the form: Till date, the government has not made rules prescribing the form for filing complaints to the Lokpal.
    • No rules regarding asset disclosure: The Central government has also failed to formulate rules regarding asset disclosure by public servants.
    • In order to ensure independent and credible action on allegations of corruption, the Lokpal was empowered under the law to set up its own inquiry wing headed by a Director of Inquiry and its own prosecution wing headed by a Director of Prosecution.
    • The Inquiry and prosecution wing not set up yet: The inquiry and prosecution wings of the anti-corruption ombudsman are yet to be set up.
      • The Lokpal has also not appointed the Director of Inquiry or Prosecution.
      • Regulations for inquiry and investigation not made: Regulations which the Lokpal was obligated to make under the law are yet to be made, including those specifying the manner and procedure of conducting preliminary inquiry and investigation.
    • Legal veracity of the decisions uncertain: Since necessary procedures to operationalise the law are yet to be put in place, the legal veracity of the decisions of the Lokpal could potentially be challenged in a court of law.

    Conclusion

    The failure to operationalise the Lokpal in an effective manner lays bare the lack of will of the government. It took nearly half a century for the Lokpal law to be enacted from the time the need for the oversight institution was first articulated. The government must act to have an effective, independent and empowered Lokpal.

  • SC uphold changes in SC/ST Atrocities Law

     

    The Supreme Court has upheld the SCs/STs (Prevention of Atrocities) Amendment Act of 2018, which nullified it’s own controversial March 20, 2018 judgement.  Earlier judgment had diluted the original 1989 legislation, saying they were using its provisions to file false criminal complaints against innocent persons.

    Why such ruling?

    • The 2018 Act had nullified a March 20 judgment of the Supreme Court, which allowed anticipatory bail to those booked for committing atrocities against Scheduled Castes and Scheduled Tribes members.
    • The original 1989 Act bars anticipatory bail.
    • The Supreme Court verdict saw a huge backlash across the country. Several died in ensuing protests and property worth crores of rupees was destroyed.
    • The government reacted by filing a review petition in the Supreme Court and subsequently amended the 1989 Act back into its original form.
    • The government had enacted the Amendments, saying the SCs and STs continued to face the same social stigma, poverty and humiliation which they had been subjected to for centuries.

    Why was the SC/ST Act enacted?

    • Since crimes against SCs and STs are fundamentally hate crimes, the Rajiv Gandhi enacted the Act in 1989.
    • It gave furtherance to the provisions for abolition of untouchability (Article 17) and equality (Articles 14, 15).

    Why it was amended?

    • The Bench reasoned that human failing and not caste is the reason behind the lodging of false criminal complaints.
    • The Supreme Court condemned its own earlier judgment, saying it was against “basic human dignity” to treat all SC/ST community members as “a liar or crook.”
    • Caste of a person cannot be a cause for lodging a false report, the verdict observed.
    • Members of the SCs and STs, due to backwardness, cannot even muster the courage to lodge an FIR, much less, a false one, the judgment noted.

    The Subhash Kashinath Mahajan case

    • Mahajan was Director of Technical Education in Maharashtra.
    • Two non-SC officers had made an adverse entry on the character and integrity of a Dalit employee, whom Mahajan in 2011 denied sanction for prosecution against those officers.
    • The denial was challenged on the ground that the state government and not the director was the competent authority.
    • The apex Court held that safeguards against blackmail are necessary as by way of rampant misuse, complaints are largely being filed against public servants with oblique motive for the satisfaction of vested interests.

    In what manner had the 2018 judgment diluted provisions for arrest?

    ANTICIPATORY BAIL

    • In section 18 of the Act, Parliament had laid down that the provision of anticipatory bail under Section 438 of the CrPC of 1973 will not be available to an accused under the Act.
    • The provision of anticipatory bail was introduced for the first time on the recommendation of 41st Law Commission in 1973.
    • It is a statutory right, not part of the right to life and personal liberty under Article 21 of the Constitution, and thus there is no fundamental right to anticipatory bail.
    • In the 2018 judgment, the Court laid down safeguards, including provisions for anticipatory bail and a “preliminary enquiry” before registering a case under the Act.
    • While review the Bench said Section 18 was enacted to instil a sense of deterrence and relied on Kartar Singh (1994) in which the court had held that denial of anticipatory bail does not violate Article 21.

    FIR

    • The court had observed that “liberty of one cannot be sacrificed to protect another”, and the “Atrocities Act cannot be converted into charter for exploitation or oppression by unscrupulous persons or by police for extraneous reasons”.
    • He ordered that neither is an FIR to be immediately registered nor are arrests to be made without a preliminary inquiry by an SSP.
    • An arrest can only be made if there is “credible” information and police officer has “reason to believe” that an offence was committed.
    • In the review judgment, Justice Mishra said public servants already have a remedy in false cases under CrPC Section 482 and can get such FIRs quashed by High Courts.
    • He rejected the need of an SSP’s approval for arrest.

    PERMISSION

    • In 2018, the court had said that even if a preliminary inquiry is held and a case registered, arrest is not necessary, and that no public servant is to be arrested without the written permission of the appointing authority.
    • The court extended the benefit to other citizens and said they cannot be arrested without the written permission of the SSP of the district.
    • In review the court said that the decision on arrest is to be taken by the investigating authority, not the appointing authority.

    Were other provisions diluted?

    • The court had observed that interpretation of Atrocities Act should promote constitutional values of fraternity and integration of the society.
    • This may require ‘check on false implication of innocent citizens on caste lines’.
    • Observing that the law should not result in caste hatred, the court overlooked the fact that the Act had to be enacted due to caste hatred.
    • The review judgment said that such riders for registering a report are wrong and it would give an advantage to upper castes whose complaints can be registered without any such inquiry.

    How frequently do SCs/STs face atrocities?

    • A crime is committed against an SC every 15 minutes. Six SC women are raped every day on an average.
    • Between 2007 and 2017, there was a 66 per cent growth in crimes against SCs.
    • Data from the National Crime Record Bureau, which the 2018 judgment was based on, showed cases of rape of SC women had doubled in 10 years.

    Assist this newscard with:

    [Burning Issue] SC/ST Prevention of Atrocities Act

  • Private Members Bill

    A member in Rajya Sabha appeared to abandon his plan of introducing a private member’s Bill on the Uniform Civil Code (UCC), a code that would be applicable to all religious communities in personal matters such as marriage, divorce, inheritance and adoption.

    Private Member’s Bill

    • A private member’s Bill is different from a government Bill and is piloted by an MP who is not a minister. An MP who is not a minister is a private member.
    • Individual MPs may introduce private member’s Bill to draw the government’s attention to what they might see as issues requiring legislative intervention.

    Difference between private and government Bills

    • While both private members and ministers take part in the lawmaking process, Bills introduced by private members are referred to as private member’s Bills and those introduced by ministers are called government Bills.
    • Government Bills are backed by the government and also reflect its legislative agenda.
    • The admissibility of a Private Bill is decided by the Chairman in the case of the Rajya Sabha and the Speaker in the case of the Lok Sabha.
    • Before the Bill can be listed for introduction, the Member must give at least a month’s notice, for the House Secretariat to examine it for compliance with constitutional provisions and rules on legislation.
    • While a government Bill can be introduced and discussed on any day, a private member’s bill can only be introduced and discussed on Fridays.

    Has a private member’s bill ever become a law?

    • No private member’s Bill has been passed by Parliament since 1970.
    • To date, Parliament has passed 14 such Bills, six of them in 1956.
    • In the 14th Lok Sabha, of the over 300 private member’s Bills introduced, roughly four per cent were discussed, the remaining 96 per cent lapsed without a single dialogue.
    • The selection of Bills for discussion is done through a ballot.