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Subject: Polity

  • Death Penalty in India (Annual Statistics Report 2019)

    Trial courts in India delivered 102 death sentences in 2019, over 60% fewer than the 162 death sentences passed in 2018.

    Highlights of the Report

    • In 2019, fewer death sentences overall were delivered.
    • 1 out of 2 sentences for sexual violence-murder; in 3 out of 4 sexual violence-murder death sentences, children were the killer’s victims.
    • The courts were, however, especially unforgiving of murders that involved sexual violence — the proportion of death sentences imposed for murders involving sexual offences was at a four-year high in 2019 at 52.94%.
    • 2019 also saw the highest number of confirmations by High Courts in four years; 17 out of the 26 confirmations (65.38%) were in offences of murder involving sexual violence.
    • The Supreme Court, primarily during the tenure of the previous CJI Gogoi, listed and heard 27 capital cases, the most in a year since 2001.

    Project 39A

    • These are the headline findings in the fourth edition of The Death Penalty in India: Annual Statistics, published by Project 39A at the National Law University (NLU), Delhi.
    • Project 39A is a research and litigation initiative focussed on the criminal justice system, and especially issues of legal aid, torture, death penalty, and mental health in prisons.
    • The report tracked news of death sentences awarded by trial courts published online by news organisations in English and Hindi.
    • It checked these numbers against judgments uploaded to websites of High Court and district courts.

  • Suspension of the Internet: What the Rules say, what the SC underlined

  • Explained: Article 131, on which Kerala has based its challenge to the CAA

    • The Kerala government moved the Supreme Court against the Citizenship (Amendment) Act becoming the first state to challenge the law.
    • It filed a petition under Article 131 of the Constitution and asked for the law to be declared unconstitutional and in violation of Articles 14 (equality before law), 21 (protection of life and personal liberty) and 25 (freedom of conscience and free profession, practice, and propagation of religion).

    What is Article 131 of the Constitution?

    • The Article vests the Supreme Court with original jurisdiction over disputes occurring between states or between states and the Centre.
    • The original jurisdiction of a court means the power to hear a case for the first time, as opposed to appellate jurisdiction, in which the court reviews the decision of a lower court.
    • Unlike the original jurisdiction under Article 32 (which gives the top court the power to issue writs, etc.), the jurisdiction in Article 131 is exclusive, meaning it is only the Supreme Court which has this authority.
    • Under Article 226, the High Courts too have the power to issue writs, directions etc.

    Original jurisdiction

    • Article 131 reads, “Original jurisdiction of the Supreme Court. — Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute —

    (a) between the Government of India and one or more States; or
    (b) between the Government of India and any State or States on one side and one or more other States on the other; or
    (c) between two or more States,
    if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends:

    • The said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagement, sanad, or other similar instrument which, having been entered into or executed before the commencement of this Constitution.
    • However they continue in operation after such commencement, or which provides, that the said jurisdiction shall not extend to such a dispute.

    What kinds of disputes are covered under Article 131?

    • In ‘State of Rajasthan vs Union of India’, 1977, the Supreme Court ruled that the existence or extent of a legal right is a precursor before a suit under Article 131 is entertained. But mere wrangles between governments have no place in the scheme of that Article.
    • Similarly, in the 1978 case, ‘State of Karnataka vs Union of India’, which involved the Centre’s authority to order an inquiry into a state Chief Minister’s conduct, jurisdiction under Article 131 was held valid.
    • In the present case filed by Kerala, central legislation (CAA) is being challenged. In 2011, a two-judge Supreme Court Bench in ‘Madhya Pradesh v Union of India’ had held such a suit was not maintainable.
    • Later in 2013, another two-judge Bench in ‘State of Jharkhand v State of Bihar and Another’ disagreed with the previous verdict and referred the matter to a larger Bench. Kerala’s plaint relies on the 2013 verdict.

  • [op-ed snap] Naga peace plan lost in haze of optics, obstinacy

    Context

    The government-imposed deadline of October 31 for concluding talks with Naga groups has passed. And nothing concrete has come out of the Framework Agreement signed in 2015.

    Events so far

    • Framework Agreement with Naga rebel leader Thuingaleng Muivah was signed in 2015.
      • The agreement expresses an intent to work towards the final agreement.
      • The progress on the said agreement has stalled since then.
    • Problem with the Framework Agreement: It was signed only with Muivah’s leading faction, National Socialist Council of Nagalim (Isak-Muivah), or NSCN (I-M).
      • Exclusion of major players: The agreement excluded half a dozen more groups, besides Naga citizenry in Nagaland and contiguous Naga homelands in the neighbouring states of Manipur, Arunachal Pradesh, and Assam.
      • This weakened the process.

    Efforts made by the government

    • Appointment of an interlocutor: The government-appointed R.N. Ravi as the government’s interlocutor. That move signalled the seriousness from the government’s side.
    • Reach out toward the other players: The government reached out to Nagas across the board.
    • The government reached out to other rebel factions, much to the irritation of NSCN (I-M), and began peace talks with them in end-2017.
    • A breakaway faction of I-M’s arch enemies, NSCN’s Khaplang, joined the process in 2019.
    • Government-led outreach attempted to bring on board non-Naga people in Manipur, Arunachal Pradesh, and Assam.

    What is offered in the process and related issues

    • Disarmament, rehabilitation, and assimilation: A talks with I-M spelt out disarmament, rehabilitation, and assimilation of cadres and leaders through induction in paramilitary forces and political structures
    • Expanded legislature: An expanded legislature in Nagaland, for inducting the rebels and more legislative representation and relative autonomy in Naga homelands outside Nagaland.
    • Disagreement over flang and the separate state-constitution: Other Naga rebel groups agreed to what was offered by the government.
    • I-M remained intransigent over the dual use of a Naga flag alongside the Indian flag, and its constitution—
    • This I-M-scripted constitution is regressive, offers far less than what Nagas enjoy under Indian constitutional provisions, and effectively proposes Muivah as the overarching figure of Naga politics, development and destiny.
    • Unacceptance by the other groups: This is evidently unacceptable to numerous Nagas—let alone non-Nagas—for whom Muivah, a Tangkhul Naga from Manipur’s Ukhrul region, remains a divisive figure.

    Conclusion

    There is a need to reconcile the difference between the different groups and reach a proposed agreement as soon as possible for the welfare of the communities and the region as a whole.

  • [op-ed snap] The warp and weft of religious liberty

    Context

    While extending the scope and extent of the freedom of religion, the SC would face the difficult question of balancing it with the other provisions and rights enshrined in the Constitution.

    What the 9-Judge bench will deliberate on?

    • The establishment of the Bench emanated out of an order of reference made on review petitions filed against the Sabarimala judgment.
    • The scope and extent of religious liberty: It will answer a series of wide-ranging questions and expound the scope and extent of the Constitution’s religious liberty clauses.
    • It will also deliberate on cases including the practice of female genital mutilation and the rights of Parsi women to enter fire temples.

    The question of balance

    • Within the Constitution of India, there are two impulses that may, at times, come into conflict with one another.
    • First impulse-Religious freedom: India is a pluralist and diverse nation, where groups and communities — whether religious or cultural — have always played an important role in society.
      • Religious freedom: Following up on this impulse, the Constitution recognises both the freedom of religion as an individual right (Article 25), as well as the right of religious denominations to manage their own affairs in matters of religion (Article 26).
    • The second impulse-Protection of an individual: The second impulse, recognises that while the community can be a source of solidarity at the best of times, it can also be a terrain of oppression and exclusion.
      • So, both Articles 25 and 26 are subject to public order, morality, and health.
      • Article 25 is also subject to other fundamental rights guaranteed by the Constitution, and to the state’s power to bring in social reform laws.

    Finding the middle ground

    • The middle ground involves respecting and balancing the following-
      • The autonomy of communities: It involves respecting the autonomy of cultural and religious communities.
      • Individual rights: It involves ensuring that individual rights are not entirely sacrificed at the altar of the community.
    • Essential practice doctrine: Over the years, the Supreme Court has found the middle ground by carving out a jurisprudence that virtually allows it to sit in theological judgments.
      • What is constitutionally protected? It recognising that it is only those practices that are “essential” to religion that enjoys constitutional protection.
      • Any other ritual is seen as secular and amenable to the state’s interference.
      • This doctrine was used to rule, in 2004, that the performance of the Tandava dance was not an essential tenet of the religious faith of the Ananda Margis.
      • The SC said that the “essential religious practices” test is indeed the only way it can reconcile the two impulses.

    Anti-exclusion principle

    • What are the options with the SC?
      • Continue with the “essential practice” doctrine: One option before the nine-judge Bench would simply be to affirm existing jurisprudence, as it stands.
      • Anti-exclusion principle: The second option would be to ask whether the effect of the disputed religious practice is to cause harm to individual rights.
      • The enquiry, thus, is not whether the practice is truly religious, but whether its effect is to subordinate, exclude, or otherwise send a signal that one set of members is entitled to lesser respect and concern than others.
      • In Sabrimala case — both the concurring opinion of Justice D.Y. Chandrachud and the dissenting opinion of Justice Indu Malhotra agreed that this ought to be the test.
    • Protection of dissenters
      • Top-down nature: Many religious communities, norms, and practices are shaped and imposed from above, by community leaders, and then enforced with the force of social sanction.
      • Dissenters are then faced with an impossible choice: Either comply with discriminatory practices or make a painful exit from the community.
      • Judicial intervention: It is here that the Constitution can help by ensuring that the oppressed and excluded among communities can call upon the Court for aid.

    Conclusion

    • The nine-judge Bench will face a difficult and delicate task of constitutional interpretation. Much will ride upon its decision: the rights of women in particular and of many other vulnerable groups in general.
    • Also will depend on its decision the constitutional vision of ensuring a life of dignity and equality to all, both in the public sphere and in the sphere of community.

  • Explained: Doctrine of ‘Presumption of Constitutionality’

    Recently the Supreme Court declined urgent hearing on a plea seeking to declare the CAA as constitutional and said that there was already a “presumption of constitutionality” to a law passed by Parliament.  CJI has said that the court’s role was to examine the validity, and not declare a law constitutional.

    Doctrine of Presumption of Constitutionality

    • The term ‘presumption of constitutionality’ is a legal principle that is used by courts during statutory interpretation — the process by which courts interpret and apply a law passed by the legislature, such as Parliament.
    • In the 1992 Supreme Court case ‘ML Kamra v New India Assurance’, Justice K Ramaswamy said: “The court ought not to interpret the statutory provisions, unless compelled by their language, in such a manner as would involve its unconstitutionality.
    • The legislature of the rule making authority is presumed to enact a law which does not contravene or violate the constitutional provisions.
    • Therefore, there is a presumption in favour of constitutionality of a legislation or statutory rule unless ex facie it violates the fundamental rights guaranteed under Part III of the Constitution.
    • If the provisions of a law or the rule is construed in such a way as would make it consistent with the Constitution and another interpretation would render the provision or the rule unconstitutional, the Court would lean in favour of the former construction. ” (“ex facie” meaning ‘on the face’)

    When does this apply?

    • It is a cardinal principle of construction that the Statute and the Rule or the Regulation must be held to be constitutionally valid unless and until it is established they violate any specific provision of the Constitution.
    • Further it is the duty of the Court to harmoniously construe different provisions of any Act or Rule or Regulation, if possible, and to sustain the same rather than striking down the provisions out right.
    • The presumption is not absolute, however, and does not stand when there is a gross violation of the Constitution.

    Limitations to the doctrine

    • A three-judge Bench in ‘NDMC v State of Punjab’ (1996) spoke of the limitations to the doctrine.
    • The Bench observed that the Doctrine is not one of infinite application; it has recognised limitations.
    • The Court has consistently followed a policy of not putting an unnatural and forced meaning on the words that have been used by the legislature in the search for an interpretation which would save the statutory provisions.

  • Private Property is a Human Right: Supreme Court

    The right to property is a human right, the Supreme Court has recently ruled.

    What did the court say?

    • A citizen’s right to own private property is a human right. The state cannot take possession of it without following due procedure and authority of law, the Supreme Court has held in a recent judgment.
    • The state cannot trespass into the private property of a citizen and then claim ownership of the land in the name of ‘adverse possession’.
    • Grabbing private land and then claiming it as its own makes the state an encroacher.
    • Article 300A required the state to follow due procedure and authority of law to deprive a person of his or her private property, the Supreme Court reminded the government.

    Adverse possession

    • A welfare state cannot be permitted to take the plea of adverse possession, which allows a trespasser i.e. a person guilty of a tort, or even a crime, to gain legal title over such property for over 12 years.
    • The State cannot be permitted to perfect its title over the land by invoking the doctrine of adverse possession to grab the property of its own citizens.

    Back2Basics

    Right to Property

    • The Constitution of India originally provided for the right to property under Articles 19 and 31.
    • Article 19 guaranteed to all citizens the right to acquire, hold and dispose of property.
    • Article 31 provided that “no person shall be deprived of his property save by authority of law.” It also provided that compensation would be paid to a person whose property has been taken for public purposes.
    • The 44th Amendment of 1978 removed the right to property from the list of fundamental rights.
    • A new provision, Article 300-A, was added to the constitution, which provided that “no person shall be deprived of his property save by authority of law”.

    What if one is deprived of his/her properties?

    • Thus, if a legislator makes a law depriving a person of his property, there would be no obligation on the part of the state to pay anything as compensation.
    • The aggrieved person shall have no right to move the court under Article 32.
    • Thus, the right to property is no longer a fundamental right, though it is still a constitutional right. If the government appears to have acted unfairly, the action can be challenged in a court of law by aggrieved citizens.

  • [op-ed of the day] Human rights are not solely an ‘internal matter’

    Context

    The human rights situation in Jammu and Kashmir following the dilution of Article 370 and the passage of the Citizenship (Amendment) Act (CAA) have brought renewed international focus on India’s human rights practice.

    Evolution of the modern Human Rights

    • Classical approach: Countries made agreements on the premise that a sovereign state had the exclusive right to take any action it thought fit to deal with its nationals.
      • No recognition of individuals’ rights:  Classic international law governed the conduct between states and did not recognise the rights of individuals.
    • The classical notion was challenged in the 19th century.
    • Modern Human Rights:  Slavery Convention adopted by the League of Nations prohibiting the slave trade heralded the first human rights treaty.
      • It was based on the principle of dignity of a human being.
    • The Universal Declaration of Human Rights: Adopted in 1948 by the United Nations, was the first comprehensive international human rights document.
    • The weakening of Unrestricted sovereignty: The evolution of international human rights law is also about the gradual weakening of the concept of unrestricted sovereignty.

    India and Human Rights

    • Unwarranted international scrutiny: The Indian government’s response to its human rights practice has always been that international scrutiny is unwarranted.
      • Why India claims so?: Since the country is the largest democracy in the world with an independent judiciary, free media, and an active civil society no international scrutiny is required.
      • Indian has always assured the international community that the judiciary (the SC) would provide adequate remedies to victims of human rights violations.
      • These claims sound less credible after the recent developments in J&K and the passage of the CAA.
    • Human rights and Discriminatory nature of CAA: Non–discrimination is a fundamental principle of human rights.
      • The Office of the High Commissioner for Human Rights (OHCHR) said that CAA is fundamentally discriminatory in nature”.

    Role of Civil Society and Media

    • Media’s questionable role: Responding to international concerns the Indian government also refers to the role of free media and civil society in protecting human rights.
      • However, the media’s role in J and K and after CAA is questionable.
    • Weakened Civil Society: The government has imposed various curbs on it since 2014.
      • It has become difficult for it to receive foreign contribution.
      • Use of FRCA: Since 2014, the government has canceled the registration of about 14,000 NGOs under the Foreign Contribution Regulation Act (FCRA).

    Conclusion

    • It is possible for the Indian government, due to its diplomatic clout, to avoid robust intervention by the UN Human Rights Council and other UN human rights mechanisms.
    • But it would be difficult to avoid scrutiny by the international community. So, the government must take steps to allay international concerns and avoid situations where it is seen as a violator of human rights.

  • [op-ed snap] Eloquently reticent: On validity of J&K curbs

    Context

    The SC verdict on the restrictions has some important takeaways.

    What the SC verdict means

    • Infinite ban on internet impermissible:  It states categorically that an indefinite ban on the internet is impermissible, but fails to direct the restoration of services. 
    • Section 144 and legitimate expression of opinion: The SC said that Section 144 of the Code of Criminal Procedure “cannot be used as a tool to prevent the legitimate expression of opinion or grievance or exercise of any democratic rights”.
    • No ruling on the Govt. actions: The disappointing aspect of the verdict is the court’s failure to give a ruling on the validity of the government’s actions.
      • The ruling fails to hold the government to account for the manner in which it exercised its powers.
      • It states categorically that an indefinite ban on the internet is impermissible, but fails to direct the restoration of services.
      • The SC does not go beyond directing the authorities to review all their orders and restrictions forthwith.

    The key takeaways from the verdict

    • Internet use constitutionally protected: The use of the Internet as a medium for free speech as well as for trade and commerce is constitutionally protected.
    • Test of proportionality: It also lays down that any reasonable restriction on fundamental rights, be it an Internet ban or a Section 144 order, will have to survive the test of proportionality.
      • The proportionality test means that is, the restriction should be proportionate to the necessity for such a measure.
      • At the same time, it cautions against the “excessive utility” of the proportionality doctrine in matters of national security.
    • No secret orders: The government is bound to publish all orders it passes regarding such restrictions so that they can be challenged in a court of law.
      • While the government’s stand that it could not produce all the orders on the restrictions imposed the SC did not strike them down on that ground.

    Conclusion

    The SC judgment, while laying down some important principles in a fundamental rights case, appears to have the character of an advisory opinion.

     

     

  • SC underlines restrictions on use of Sec 144

    In its order on Jammu and Kashmir the Supreme Court made the following points with regard to the use of Section 144 of the Code of Criminal Procedure (CrPC), 1973.

    Key takeaways of the order

    • Sec 144 cannot be used to suppress the legitimate expression of opinion or grievance, or the exercise of democratic rights
    • When Sec 144 is imposed for reasons of apprehended danger, that danger must be an “emergency”.
    • The imposition of Sec 144 must strike a balance between the rights of the individual and the concerns of the state.
    • Powers under Sec 144 should be exercised in a reasonable and bona fide manner, and the order must state material facts in order to enable judicial review.

    What is Section 144?

    • Section 144 CrPC, a law retained from the colonial era, empowers a district magistrate, a sub-divisional magistrate or any other executive magistrate specially empowered by the state government in this behalf to issue orders to prevent and address urgent cases of apprehended danger or nuisance.
    • The magistrate has to pass a written order which may be directed against a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area.
    • In emergency cases, the magistrate can pass these orders without prior notice to the individual against whom the order is directed.

    What powers does the administration have under the provision?

    • The magistrate can direct any person to abstain from a certain act or to take a certain order with respect to certain property in his possession or under his management.
    • This usually includes restrictions on movement, carrying arms and from assembling unlawfully. It is generally believed that assembly of three or more people is prohibited under Section 144.
    • However, it can be used to restrict even a single individual. Such an order is passed when the magistrate considers that it is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, of an affray.
    • However, no order passed under Section 144 can remain in force for more than two months from the date of the order, unless the state government considers it necessary.
    • Even then, the total period cannot extend to more than six months.

    Why is it criticised so often?

    • The criticism is that it is too broad and the words of the section are wide enough to give absolute power to a magistrate that may be exercised unjustifiably.
    • The immediate remedy against such an order is a revision application to the magistrate himself.
    • An aggrieved individual can approach the High Court by filing a writ petition if his fundamental rights are at stake.
    • However, fears exist that before the High Court intervenes, the rights could already have been infringed.

    Also read: 

    https://www.civilsdaily.com/news/explained-how-section-144-crpc-works/