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Subject: Polity

  • Still no finality, the third time round

    Context

    There are indications that the new Bodo accord does not spell closure of the statehood movement by Bodo groups.

    Power-sharing experiment under the Sixth Schedule

    • Sixth Schedule expected as a panacea: The experiment of power-sharing and governance under the Sixth Schedule of the Indian Constitution was expected to be the panacea of the ethno-nationalist identity questions in the Northeastern States.
    • Complexities of exclusion: Euphoria, as well as anger over the third Bodo Accord, have, however, held the mirror reflecting the complexities of exclusion of communities in such ethnocentric power-sharing and governance model.

    Specifics of the new Accord

    • The new Accord was signed by the All Bodo Students’ Union (ABSU), United Bodo People’s Organisation and all the four factions of the insurgent outfit- National Democratic Front of Bodoland (NDFB) with Delhi and Dispur on January 27.
      • It promises more legislative, executive and administrative autonomy under the Sixth Schedule to Bodoland Territorial Council (BTC) and expansion of the BTC territory in lieu of statehood.
    • The Bodoland Territorial Area District (BTAD), the autonomous region governed by BTC, will be known as Bodoland Territorial Region (BTR) after demarcation of the augmented territory.

    The emergence of the faultlines in the new Accord

    • What went wrong in the previous Accord? The previous Bodo Accord signed by the erstwhile insurgent outfit, Bodo Liberation Tigers (BLT) with Delhi and Dispur on February 10, 2003, led to the creation of the BTC as a new experiment of territorial autonomy under the Sixth Schedule.
      • No assent by the Governor to any BTC legislation: The constitutionally mandated legislative power of the BTC has been reduced to a farce as the Assam Governor has not given assent to any of the legislation passed by the BTC Legislative Assembly.
    • Intensification of demand for Kamatapur State: Bodo groups have suspended their statehood movement.
      • The new Bodo Accord has triggered the intensification of the movement for Kamatapur State by organisations of the Koch-Rajbongshi community.
      • Overlapping territory: The territory of the demanded Kamatapur State overlaps with the present BTAD, proposed BTR and demanded Bodoland.
    • Demand for ST status: Clamour for Scheduled Tribe (ST) status by the Koch-Rajbongshis, Adivasis and several other non-ST communities has also grown.
    • Faultlines over ST status: Deeper ethnic faultlines in an ethnocentric power-sharing model will become exposed when the Koch-Rajbongshis and the Adivasis are granted ST status, as promised by the government.
      • For, the reservation of seats of BTC is for the STs and not exclusively for the Bodos.
      • The new accord has no clear answer to such critical questions.
      • In BTAD, the ST communities account for 33.50% of the total population and the Bodos account for over 90% of the ST population in the BTAD.
      • The ST populations are an overwhelming majority in territories overseen by nine other autonomous councils under the Sixth Schedule in Assam, Meghalaya, Mizoram and Tripura.
    • Minority governing majority: Such a demographic composition in the BTAD has allowed the space for political mobilisation of other non-Bodo communities.
      • It also allowed the articulation of the campaign that the BTC is a faulty model as it allows the minorities to govern the majorities.
      • Exclusion demand: The organisations of these communities have been demanding exclusion of villages with less than 50% Bodo population from the BTAD.
    • Counter argument by Bodos: Bodo organisations have a counter-argument that non-Bodo is a political identity construction articulated to capture power in the BTAD by certain political forces.
    • The new accord promises to increase the current strength of BTC to 60 from 40 but “without adversely affecting the existing percentage of reservation for tribal[s]”.
    • Constitutional provision for dealing with such situations: Sub-paragraph 2 of the first paragraph of the Sixth Schedule provides that, “If there are different Scheduled Tribes in an autonomous district, the Governor may, by public notification, divide the area or areas inhabited by them into autonomous regions.”
      • However, constitutional amendments were made following the previous Bodo Accord to ensure that this provision shall not apply in respect of the BTAD.
    • What could be the solution to the present situation? The provision of setting up regional autonomous councils under the Sixth Schedule can be explored to create the space for communities aggrieved by exclusion from the power-sharing model of BTC.

    Provision of commission

    • The new accord promises to appoint a commission by the Assam government.
      • What the commission will deal with? It will look into the demands for inclusion of villages with ST majority and contiguous to the BTAD, and exclusion of villages which are contiguous to non-Sixth Schedule areas and have majority non-ST population.
      • However, the core area of the BTAD will continue to have many villages with majority non-ST population which were included for contiguity.

    Evaporating of euphoria over the accord

    • Failure in uniting the four factions: Euphoria among the Bodos over the accord is also fast evaporating with efforts to unite all the four factions of NDFB having turned futile.
      • The factions are divided into two camps.
      • The new accord will be the pivot of political mobilisation in the BTAD during the forthcoming BTC elections due in April.
    • Revival in homeland demand: A shift in the political equilibrium in the BTC resulting from a likely expansion of the ST list in Assam has the potential to keep the Bodos out of power in the BTC and push Bodo organisations to revive their homeland demand

    Conclusion

    Peace will continue to be fragile in Assam’s Bodo heartland until an all-inclusive power-sharing and governance model is evolved under the provisions of the Sixth Schedule.

     

     

     

     

  • When a court pronounces a verdict, without giving reasons

    Context

    In a highly unusual move, a nine-judge Bench of the Supreme Court resorted to a non-speaking order as it ruled affirmatively on the preliminary issue arising out of the Sabarimala review petition.

    Departure from norms

    • The importance of a ‘reasoned decision’ in a constitutional democracy committed to the rule of law, is self-evident.
      • Its importance cannot be overstated and this curious departure from the norm merits close analysis.
    • Time and again, the Supreme Court has unequivocally endorsed and underlined the requirement of giving reasons in support of the order.
      • The SC has often chastised subordinate institutions for their failure to supplement their orders with reasons.

    Importance of ‘reasoned decision’

    • The juristic basis for the ‘reasoned decision’: The juristic basis for this has also been explored in a number of cases.
    • In various decisions, the court has ruled that speaking orders promote-
      • Judicial accountability and transparency.
      • Inspire public confidence in the administration of justice; and
      • Introduce clarity and minimise the chances of arbitrariness.
    • Quotes from various judgements: In addition to being a “healthy discipline for all those who exercise power over others”, recording of reasons has been described by the Supreme Court as the “heartbeat of every conclusion”; the “life blood of judicial decision making”; and a cherished principle of “natural justice”.
    • The Madhya Pradesh Industries Ltd case: In this case Justice Subba Rao K. stated:
      • “The condition to give reasons introduces clarity and excludes or at any rate minimises arbitrariness;”
      • “… it gives satisfaction to the party against whom the order is made; and it also enables an appellate or supervisory court to keep the tribunals within bound… Speaking order will at its best be reasonable and at its worst be at least a plausible one.”

    Devaluation by the SC and implications

    • Implicit rules: The need for a court to provide an intellectual substrate for its decisions is also implicit in the expression “pronounce judgment” in Supreme Court Rules, 2013.
      • According to settled decisions, the same signifies “judicial determination by reasoned order”.
    • However, when it came to applying the principle to its own verdict, the apex court has inadvertently devalued the importance of concurrent reporting of reasons.
      • The court seems to have downplayed the fact that it may be coming across as inarticulate at best and indecisive at worst.
    • Undermining integrity: Besides undermining institutional integrity, a decision’s authority as a binding precedent is also potentially compromised by this omission.

    Culture of justification

    • The term “transformative constitutionalism” has recently found currency in constitutional adjudication (Navtej Joharand Joseph Shine).
      • The Supreme Court is yet to articulate a comprehensive theory of the concept but it has been fleshed out in other jurisdictions.
    • From authority to justification: For example, Pius Langa, former Chief Justice of the Constitutional Court of South Africa, argued that “transformative constitutionalism” entails a transformation of legal culture from one “based on authority” to the one “based on justification”.
    • Karl Klare (the scholar who coined the term) posited that it may be legitimately expected of constitutional adjudication to “innovate and model intellectual and institutional practices appropriate to a culture of justification”.

    Conclusion

    In light of the above, it can be concluded that the practice of issuing non-speaking orders and giving post-hoc rationalisations later is an anathema to the principle of constitutional governance. Duty to give reasons is an incident of the judicial process and constitutional justice should not be a matter of afterthought.

     

     

     

  • Explained: Assam-Mizoram Boundary Dispute

     

    Assam is at the centre of a fresh inter-State border row in the northeastern region. The Mizoram government has sought the revision of the boundary with Assam, based on the Bengal Eastern Frontier Regulation (BEFR) of 1873 and the Inner Line of the Lushai Hills Notification of 1993.

    Background

    • Since 1962 most of the state borders of states carved out of Assam were divided following the myopic vision of the Central government.
    • On ground these borders still do not run in sync with the tribal territories and identities, creating repetitive conflicts in the region and disturbing its peace.
    • Assam finds itself at the center of all the conflicts since most of the neighboring states were carved out of its territory since independence.
    • This was done to consolidate the Indian Union at the time by catering to the aspirations of the local tribes and including them in the mainstream by giving them independent statehoods.

    What is the dispute?

    • Mizoram shares a 123-km border with southern Assam and has been claiming a 509-square mile stretch “occupied” by the neighbouring State.
    • Mizoram used to be the Lushai Hills district of Assam before being made a Union Territory in 1972 and a State in 1987.
    • Both States have been disputing an extensive stretch of this boundary.

    About Bengal Eastern Frontier Regulation

    • The Inner Line Regulations, commonly referred to as the Inner Line Permit system (ILP), first gained legal effect through the Bengal Eastern Frontier Regulation, 1873.
    • At present the BEFR continues to apply, but only in present-day Arunachal Pradesh, Nagaland and Mizoram.
    • It had been lifted in the whole of Assam, as well as the entirety of present-day Meghalaya.
    • The BEFR allows Arunachal Pradesh, Manipur, Mizoram and Nagaland not to let non-resident Indians in without an inner-line permit for a temporary stay.

    Present status of ILP

    • The Foreigners (Protected Areas) Order, 1958 is the modern embodiment of the ILP.
    • This Order was passed in furtherance of the Foreigners Act, 1946.
    • The Order defined the ‘inner line’ throughout present-day India starting from Jammu and Kashmir and ending at Mizoram.
    • This inner line is different from the one envisioned in the Bengal Frontier Regulations.
    • This line represents the furthest point up to the international border where a foreigner can visit on the strength of a visa alone.

  • More psychological than an empowering voter option

    Context

    The recently-concluded Delhi Assembly elections were the 45th Assembly polls since the inception of the none of the above (NOTA) option in 2013. And Delhi, although mostly urban, is widely regarded as the microcosm of India.

    NOTA in Delhi

    • Delhi’s preference to NOTA is less than the national average.
    • From 0.63% in 2013, Delhi polled 0.39% of those favouring NOTA in 2015, a statistically significant reduction indeed.
      • It now increased to 46% in 2020; again statistically significant.
    • While 96% of the constituencies had a reduced percentage of NOTA votes in 2015 than 2013, the NOTA percentage has increased in 71% constituencies this year.
    • In the Lok Sabha elections, Delhi polled 0.47% and 0.52% of those favouring NOTA, in 2014 and 2019, respectively.
    • Takeaway: Roughly one in 200 voters of Delhi opted for NOTA in the last six to seven years, with relatively larger support for NOTA in reserved constituencies.

    Gujarat and Maharashtra examples

    • Interestingly, in the 2017 Gujarat Assembly elections, despite being 1.8%, NOTA got more votes than any political party other than the Indian National Congress and the Bharatiya Janata Party (except the Independents).
    • Again, in the 2019 Maharashtra Assembly election, NOTA became a runner-up in two constituencies – Latur (Rural) and Palus-Kadegaon.
    • Do these cases mark any significant shift in the voter mindset?

    Essence and scope of NOTA

    • Not a right to reject: In 2013, India became the 14th country to institute negative voting through NOTA.
      • However, it is not a “right to reject”.
    • Toothless option: NOTA in India is a toothless option.
      • Former Chief Election Commissioner of India S.Y. Quraishi, had observed in an article: “Even if there are 99 NOTA votes out of a total of 100, and candidate X gets just one vote, X is the winner, having obtained the only valid vote. The rest will be treated as invalid or ‘no votes’.”
    • Not right to select: NOTA enfeebles the electorate as it does not empower to “select” either.
    • Democratic means to express resentment: Certainly NOTA provides democratic means to express resentment anonymously rather than boycotting the polls outright.
      • A group of women activists in Kerala out on the road urging people not to elect any candidate if no woman was present in the fray.
      • A youth group in Tamil Nadu that campaigned for NOTA as a protest vote against corruption.
    • Pleas to extend the scope of NOTA: There have been pleas to extend the scope of NOTA.
      • Recommendation of re-elections: In 2018, a former CEC, T.S. Krishnamurthy, has recommended holding elections again in those constituencies where the victory margin is less than the total numbers of NOTA.
      • Right to reject in place of NOTA: A PIL has been filed in Madras High Court seeking the full right to reject in place of NOTA.

    Cases of extending the scope of NOTA

    • Maharashtra SEC order: In June 2018, the Maharashtra State Election Commission (SEC) issued an order that said:
      • “If it is noticed while counting that NOTA has received the highest number of valid votes, the said election for that particular seat shall be countermanded and a fresh election shall be held for such a post.”
    • NOTA as a fictional candidate in Haryana: In November 2018, the SEC of Haryana went a step further and issued an order where NOTA is treated like a “fictional candidate” in municipal polls from December 2018.
      • If NOTA gets the maximum vote, none of the “real” candidates will be declared elected, and the elections will be cancelled and held afresh.
      • What is more, the candidates securing votes less than NOTA would be barred from contesting in that re-election.
    • Example from Indonesia: Interestingly, in Makassar, Indonesia, the only candidate in the 2018 election for mayor received 35,000 less votes than NOTA, which forced a repeat election in 2020.

    The optimism expressed by the Supreme Court on NOTA

    • The SC’s anticipation: While introducing NOTA, the Supreme Court anticipated that “there will be a systemic change and the political parties will be forced to accept the will of the people and field candidates who are known for their integrity.”
      • Thus, its percentage should either increase to enforce the political parties to field candidates with “integrity”.
      • Or NOTA percentage should consistently decrease if the electorates feel that the system has achieved the desired level of cleansing.
    • No increase or decrease in NOTA votes: In contrast, the share of NOTA votes in India remained around a meagre level of 1% on an average; 1.11% in the 2014 Lok Sabha, and 1.08% in 2019, if we consider constituency-wise averages.
    • What this represents? This perhaps represents a confused state of mind of the electorate. Has the perceived cynicism of Indian voters regarding the right to reject been exaggerated?

    Would NOTB- None of The Below more advantageous?

    • Last option disadvantage? Is NOTA, as the last button of all EVMs in the country, a psychological issue as far as the electorates are concerned?
    • First position on ballot advantage: A 2004 article in The Journal of Politics, have discussed the possible advantage of the first position in the ballot, at least in the U.S. context.
    • NOTB instead of NOTA: Although there is no such concrete study to gauge the Indian voter’s mindset, one wonders whether using NOTB (‘none of the below’) instead of NOTA- with such an option as the first on the electronic voting machine — might produce a significantly different outcome or not.
      • An experiment, after changing the rule suitably, can be attempted, at least.

    Conclusion

    Extending the scope of NOTA by empowering it with the right to reject along with other changes like placing NOTA at the top of EVM would help in making the election process clean and fair.

     

     

     

     

  • Rights, duties and the Constitution

    Context

    At an International Judicial Conference 2020 this weekend, the Chief Justice of India, S.A. Bobde, drew attention to the Constitution’s Fundamental Duties chapter.

    The logic of duties

    • Wide range of duties: The first thing to note is that as citizens, there exists a wide range of duties that bind us in everyday life.
      • Duties towards the state and individual: These duties are owed both to the state and to other individuals.
    • Legal duties: We have a legal duty to pay our taxes, to refrain from committing violence against our fellow-citizens, and to follow other laws that Parliament has enacted.
      • Breach of these legal duties triggers financial consequences (fines), or even time in jail.
    • Following the duties is price for living in the society: At any given time, therefore, we are already following a host of duties, which guide and constrain how we may behave.
      • This is the price that must be paid for living in society, and it is a price that nobody, at least, in principle, objects to paying.
    • Self-contained whole: Our duties and the consequences we bear for failing to keep them, therefore, exist as a self-contained whole.
      • Co-existence and sacrifice: The peaceful co-existence requires a degree of self-sacrifice, and that if necessary, this must be enforced through the set of sanctions.

    The logic of rights

    • Understanding the logic through history: Rights, on the other hand, follow a different logic entirely. This is a logic that is best understood through history.
      • Two concerns: At the time of the framing of the Indian Constitution and its chapter on Fundamental Rights, there were two important concerns animating the Constituent Assembly.
      • Treatment as subjects: The first was that under the colonial regime, Indians had been treated as subjects.
      • Their interests did not count, their voices were unheard, and in some cases — for example, the “Criminal Tribes”- they were treated as less than human.
      • Holocaust example: Apart from the long and brutal history of colonialism, the framers also had before them the recent example of the Holocaust, where the dignity of more than six million people had been stripped before their eventual genocide.
    • The first role of fundamental rights chapter: To stand as a bulwark against dehumanisation.
      • Dignity and equality guaranteed: Every human being no matter who they were or what they did had a claim to basic dignity and equality that no state could take away, no matter what the provocation.
      • Unconditional right: One did not have to successfully perform any duty, or meet a threshold of worthiness, to qualify as a rights bearer. It was simply what it meant to be human.
    • Second role of the fundamental rights: To stand against the hierarchy.
      • Removing the subordination and degradation: The axes of gender, caste and religion had all served to keep masses of individuals in permanent conditions of subordination and degradation.
      • Equalising and democratising: Through guarantees against-
      • Forced labour.
      • Against “untouchability”.
      • Against discriminatory access to public spaces, and others.
      • Fundamental rights were meant to play an equalising and democratising role throughout society, and to protect individuals against the depredations visited on them by their fellow human beings.
    • Significance of the above two roles
      • Transformative purpose: The twin principles of anti-dehumanisation and anti-hierarchy reveal the transformative purpose of the fundamental rights chapter.
      • The recognition that true democracy could not exist without ensuring that at a basic level, the dignity and equality of individuals were protected, both from the state as well as from social majorities.
      • Rise from subject to citizen: It was only with these guarantees could an individual rise from the status of subject to that of the citizen.
      • And, as should be clear by now, it was only after that transformation had been wrought, that the question of duties could even arise.
    • Importance of the language of the duty:
      • The language of duties can play an important role in a society that continues to be divided and unequal.
      • In such a society, those who possess or benefit from entrenched structural and institutional power (starting with the state, and going downwards) certainly have a “duty” not to use that power to the detriment of those upon whom they wield it.
      • That is precisely what the guarantees against “untouchability”, forced labour, and discriminatory access in the Constitution seek to accomplish.

    Issue of conflating duties and rights

    • The problem lies in the conflation of rights and duties.
    • In that context, it is always critical to remember Dr B.R. Ambedkar’s words in the Constituent Assembly (which were also cited by the CJI in his speech): that the fundamental unit of the Constitution remains the individual.
    • If the position of the individual and the Constitution’s commitment to combating hierarchy is kept in mind, then the language of duties can be understood in its proper context.
    • Chances of duties leading to unpleasant consequences: Without the moral compass of rights and their place in the transformative Constitutional scheme the language of duties can lead to unpleasant consequences.
      • It can end up entrenching existing power structures by placing the burden of “duties” upon those that are already vulnerable and marginalised.
    • The constitution is about rights: It is for this reason that, at the end of the day, the Constitution, a charter of liberation, is fundamentally about rights.

    Conclusion

    It is only after guarantee to all the full sum of humanity, dignity, equality, and freedom promised by the Constitution, that we can ask of them to do their duty. Perhaps, then, it is time to update Hind Swaraj for the constitutional age: “real duties are the result of the fulfilment of rights”.

  • Kalasa-Banduri Nala Project

     

    The cost of Kalasa-Banduri Nala Project on the Mahadayi River skyrockets by 1,674% since inception. It rose from about ₹94 crores (2000) to ₹1,677.30 crores (2020) due to the ongoing inter-State river water dispute.

    Kalasa-Banduri Nala Project

    • The project is undertaken by the Government of Karnataka to improve drinking water supply to the three districts of Belagavi, Dharwad, and Gadag.
    • It was planned in 1989; Goa raised an objection to it.
    • It involves building across Kalasa and Banduri, two tributaries of the Mahadayi river to divert water to the Malaprabha, a tributary of Krishna River.
    • Malaprabha river supplies the drinking water to Dharwad, Belgaum, and Gadag districts.

    About Mahadayi Water Dispute

    • The Mahadayi river basin drains an area of 2032 square kilometres of which 375 square km lies in Karnataka, 77 sq km in Maharashtra and the remaining in Goa.
    • It originates in the Belagavi district of Karnataka, briefly passes through Maharashtra and flows through Goa (where its known as Mandovi), and drains to the Arabian Sea.
    • Since the eighties, Karnataka has been was contemplating linking of Mahadayi with Malaprabha river, a tributary of Krishna.
    • In 2002, Karnataka gave the idea a shape in the form of the Kalasa-Bhanduri project.
    • Goa strongly opposed it as Mahadayi is one of the two rivers the State is dependent on and thus Mahadayi Water Disputes Tribunal was set up in 2010.

    Read more about the Mahadayi Dispute and award of the tribunal at:

    https://www.civilsdaily.com/news/verdict-of-mahadayi-water-disputes-tribunal-comes/

  • [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-à-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.