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Subject: Polity

  • 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.

  • Reservation as right: on Supreme Court judgment

    Context

    The recent Supreme Court judgment, that there is no fundamental right to claim reservation in promotions, has caused some political alarm.

    Received wisdom in affirmative action jurisprudence

    • Presence of sound legal framework for a reservation: The received wisdom in affirmative action jurisprudence is that a series of Constitution amendments and judgments have created a sound legal framework for reservation in public employment, subject to the fulfilment of certain constitutional requirements.
    • Solidification of reservation as an entitlement: It is also accepted that the framework has solidified into an entitlement for the backward classes, including the SCs and STs.

    What does the judgement mean?

    • Reservations are not rights: The latest judgment is a reminder that affirmative action programmes allowed in the Constitution flow from “enabling provisions” and are not rights as such.
    • Not a new legal position: This legal position is not new. Major judgments- these include those by Constitution Benches-note that Article 16(4), on the reservation in posts, is enabling in nature.
    • The state is not bound to provide reservation: In other words, the state is not bound to provide reservations. But if the state provides reservations, it must satisfy the following two criteria-
      • For the backward class: It must be in favour of sections that are backward.
      • Inadequately represented: And inadequately represented in the services based on quantifiable data.
    • What happened in the Uttarakhand case? The Court set aside the Uttarakhand High Court order directing data collection on the adequacy or inadequacy of representation of SC/ST candidates in the State’s services.
      • What was the reasoning? Its reasoning is that once there is a decision not to extend reservation — in this case, in promotions — to the section, the question whether its representation in the services is inadequate is irrelevant.

    Question of government obligation

    • The idea in consonance with the Constitution: The idea that reservation is not a right may be in consonance with the Constitution allowing it as an option.
    • The larger question of the government obligation: But a larger question looms is there no government obligation to continue with affirmative action if-
      • The social situation that keeps some sections backwards.
      • And at the receiving end of discrimination persists?

    Why reservation matters for equality?

    • Reservation as a faced of equality-the SC: Reservation is no more seen by the Supreme Court as an exception to the equality rule; rather, it is a facet of equality.
    • Completion of equality norm: The terms “proportionate equality” and “substantive equality” have been used to show that the equality norm acquires completion only when the marginalised are given a legal leg-up.

    What may be the consequences of this judgement?

    • Possibility of the unequal system: Some may even read into this an inescapable state obligation to extend reservation to those who need it, lest its absence renders the entire system unequal.
    • Possibility of perceptible imbalance: For instance, if no quotas are implemented and no study on backwardness and extent of representation is done, it may result in a perceptible imbalance in social representation in public services.

    Conclusion

    Ensuring adequate representation to disadvantaged sections is a state obligation and the state must play its role in ensuring their representation by appropriate legislation.

     

  • Explained: Uniform Civil Code — the debate, the status

    Last week, while hearing a matter relating to properties of a Goan, the Supreme Court described Goa as a “shining example” with a Uniform Civil Code, observed that the founders of the Constitution had “hoped and expected” a UCC for India but there has been no attempt at framing one.

    What is a Uniform Civil Code?

    • A UCC is one that would provide for one law for the entire country, applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption etc.
    • Article 44 of the Constitution lays down that the state shall endeavour to secure a UCC for the citizens throughout the territory of India.
    • Article 44 is one of the directive principles. These, as defined in Article 37, are not justiciable (not enforceable by any court) but the principles laid down therein are fundamental in governance.
    • Fundamental rights are enforceable in a court of law. While Article 44 uses the words “state shall endeavour”, other Articles in the ‘Directive Principles’ chapter use words such as “in particular strive”; “shall in particular direct its policy”; “shall be obligation of the state” etc.
    • Article 43 mentions “state shall endeavour by suitable legislation” while the phrase “by suitable legislation” is absent in Article 44.
    • All this implies that the duty of the state is greater in other directive principles than in Article 44.

    What are more important — fundamental rights or directive principles?

    • There is no doubt that fundamental rights are more important.
    • The Supreme Court held in Minerva Mills (1980): “Indian Constitution is founded on the bed-rock of the balance between Parts III (Fundamental Rights) and IV (Directive Principles).
    • To give absolute primacy to one over the other is to disturb the harmony of the Constitution”.
    • Article 31C inserted by the 42nd Amendment in 1976, however, lays down that if a law is made to implement any directive principle, it cannot be challenged on the ground of being violative of the fundamental rights under Articles 14 and 19.

    Does India not already have a uniform code in civil matters?

    • Indian laws do follow a uniform code in most civil matters – Indian Contract Act, Civil Procedure Code, Sale of Goods Act, Transfer of Property Act, Partnership Act, Evidence Act etc.
    • States, however, have made hundreds of amendments and therefore in certain matters, there is diversity even under these secular civil laws.
    • Recently, several states refused to be governed by the uniform Motor Vehicles Act, 2019.
    • If the framers of the Constitution had intended to have a Uniform Civil Code, they would have given exclusive jurisdiction to Parliament in respect of personal laws, by including this subject in the Union List.
    • But “personal laws” are mentioned in the Concurrent List. Last year, the Law Commission concluded that a Uniform Civil Code is neither feasible nor desirable.

    Is there one common personal law for any religious community governing all its members?

    • All Hindus of the country are not governed by one law, nor are all Muslims or all Christians.
    • Not only British legal traditions, even those of the Portuguese and the French remain operative in some parts.
    • In Jammu and Kashmir until August 5, 2019, local Hindu law statutes differed from central enactments.
    • The Shariat Act of 1937 was extended to J&K a few years ago but has now been repealed.
    • Muslims of Kashmir were thus governed by a customary law, which in many ways was at variance with Muslim Personal Law in the rest of the country and was, in fact, closer to Hindu law.
    • Even on registration of marriage among Muslims, laws differ from place to place. It was compulsory in J&K (1981 Act), and is optional in Bengal, Bihar (both under 1876 Act), Assam (1935 Act) and Odisha (1949 Act).
    • In the Northeast, there are more than 200 tribes with their own varied customary laws.
    • The Constitution itself protects local customs in Nagaland. Similar protections are enjoyed by Meghalaya and Mizoram. Even reformed Hindu law, in spite of codification, protects customary practices.

    How does the idea of a UCC relate to the fundamental right to religion?

    • Article 25 lays down an individual’s fundamental right to religion; Article 26(b) upholds the right of each religious denomination or any section thereof to “manage its own affairs in matters of religion”; Article 29 defines the right to conserve distinctive culture.
    • An individual’s freedom of religion under Article 25 is subject to “public order, health, morality” and other provisions relating to fundamental rights, but a group’s freedom under Article 26 has not been subjected to other fundamental rights
    • In the Constituent Assembly, there was division on the issue of putting Uniform Civil Code in the fundamental rights chapter.
    • The matter was settled by a vote. By a 5:4 majority, the fundamental rights sub-committee headed by Sardar Patel held that the provision was outside the scope of fundamental rights and therefore the UCC was made less important than freedom of religion.

    What was the view of Muslim members in the Constituent Assembly?

    • Some members sought to immunise Muslim Personal Law from state regulation.
    • Mohammed Ismail, who thrice tried unsuccessfully to get Muslim Personal Law exempted from Article 44, said a secular state should not interfere with the personal law of people.
    • B Pocker Saheb said he had received representations against a common civil code from various organisations, including Hindu organisations.
    • Hussain Imam questioned whether there could ever be uniformity of personal laws in a diverse country like India.
    • B R Ambedkar said “no government can use its provisions in a way that would force the Muslims to revolt”.
    • Alladi Krishnaswami, who was in favour of a Uniform Civil Code, conceded that it would be unwise to enact Uniform Civil Code ignoring strong opposition from any community.
    • Gender justice was not mentioned in these debates.

    How did the debate on a common code for Hindus play out?

    • In June 1948, Rajendra Prasad, President of the Constituent Assembly, warned Jawaharlal Nehru that to introduce “basic changes” in personal law was to impose “progressive ideas” of a “microscopic minority” on the Hindu community as a whole.
    • Others opposed to reforms in Hindu law included Sardar Patel, Pattabhi Sitaramayya, M A Ayyangar, M M Malaviya and Kailash Nath Katju.
    • When the debate on the Hindu Code Bill took place in December 1949, 23 of 28 speakers opposed it.
    • On September 15, 1951, President Prasad threatened to use his powers of returning the Bill to Parliament or vetoing it.
    • Ambedkar eventually had to resign. Nehru agreed to trifurcation of the Code into separate Acts and diluted several provisions.

  • Victim justice is two steps forward, one step back

    Context

    The recent judgment in Rekha Murarka vs The State Of West Bengal, the SC has held that the victims’ private counsel cannot orally examine or cross-examine the witnesses.

    Place of the victim in the present criminal justice system

    • Removed from the proceedings: Under our criminal justice system, victims find themselves removed from the proceedings.
      • Their identities are reduced to being mere witnesses.
      • The harm they suffer is reduced to being aggravating or mitigating factors at the time of sentencing.
      • Stage props in a larger scheme: With the state appropriating their victimisation, the actual victims become mere stage props in a larger scheme.
    • Need of The victim-centric notion of justice-Law Commission suggestion: In 1996, the 154th Law Commission Report suggested a paradigm shift in India’s criminal justice system towards a victim-centric notion of justice.
      • Partial acceptance: The Code of Criminal Procedure (Amendment) Act, 2009 partially accepted the Law Commission suggestion and granted some rights to the victims of crime.
      • The Act introduced victims’ right to a private counsel under Section 24(8).
      • Move toward victim’s participation: The Code of Criminal Procedure already allowed for pleaders engaged by private persons to submit written arguments with the permission of the court under Sections 301(2) and 302 allowed a person to conduct the prosecution with permission of the court.
      • These sections were read together to partially secure the victims’ right to participation.

    Steps take  towards securing justice for victims

    • Right to legal assistance to victims of sexual assault: In the case of Delhi Domestic Working Women’s Forum v. Union of India (1994), the SC called for the extension of the right to legal assistance to victims of sexual assault at the pre-trial stages.
    • The SC opinion over asymmetry in rights of victims and the accused: In Mallikarjun Kodagali (Dead) … vs The State Of Karnataka (2018), the Court accepted that under the criminal justice system, the rights of the accused far outweigh the rights of the victim.
    • Introduction of victim impact statement right to appeal against the adverse order: The Supreme Court not only called for the introduction of a victim impact statement in order to guarantee the participation of the victim in the trial proceedings.
      • The SC also reinstated the victims’ right to appeal against an adverse order.

    Provisions on the international level for the victim’s participation

    • Despite these advances, the scheme of victim participation remains far removed from the ideals embedded in the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power; India is a signatory.
      • What does the declaration require? It requires that the views and concerns of victims should be allowed and considered at all appropriate stages without prejudice to the accused.
    • Need to increase the victims’ advocate’s role: Presently, the victims’ advocate has an extremely limited role to play wherein he “assists” the prosecutor rather than represent the interests of the victim before the court.
      • The only substantial opportunity provided to a private counsel is after the closing of evidence when written arguments may be submitted to the court only after seeking the permission of the court.
    • Contrast with ICC: In contrast, the International Criminal Court (ICC) provides for victim participation at the stage of-
      • First, a challenge to the jurisdiction of the ICC.
      • Second, framing of charges.
      • Third, opening and closing statements.
      • Fourth, making a written submission wherever the personal interests of the victims are affected.
      • And finally, for presenting witnesses to give evidence on issues relating to the personal interests of the victims.

    What the SC judgement means

    • Missed opportunity: The Supreme Court in Rekha Murarkahas missed the opportunity to forward the jurisprudence on victim justice and rectify the lacunae in our laws.
      • Instead, the judgment goes against the jurisprudential current specified above.
      • Indeed, the victim’s right to participation cannot be secured by restricting the rights of the accused.
    • Why the victim’s advocate is not allowed the right to participate in the SC’s opinion: According to the judgment, a victim’s advocate cannot be allowed the right to participate because-
      • First- Insistence by the victim’s counsel to examine a witness deliberately left out by the prosecution may weaken the prosecution’s case;
      • Second– The trial will derogate into a “vindictive battle” between the victim’s counsel and the accused.
      • Third- A lack of experience on the part of the victim’s counsel may lead to lapses.
    • The problem in the SC ruling: The judgment further assumes that prosecutions effectively take the victim’s needs into account.
      • SC ignored why the need for private counsel arise: The judgement ignores the fact that the need for a private counsel arises precisely because intentional or unintentional prosecutorial lapses directly lead to injustice to the victims.
      • The court expects the victim’s counsel to make the prosecutor aware of any aspects that have not been addressed in the examination of witnesses or the arguments advanced by the public prosecutor.
      • In the process, it assumes that the prosecutor will address such lapses.

    Conclusion

    Under the role currently envisaged in our criminal justice system, the public prosecutor cannot sufficiently take into account the interests, needs and requirements of the victims. The cause of victim justice would be greatly served if the Supreme Court decided to revisit its reasoning and assumptions to appropriately amend this provision in light of the above.

     

     

  • Explained: What is Mandamus?

    • The Supreme Court has ruled that reservation in the matter of promotions in public posts is not a fundamental right, and a state cannot be compelled to offer the quota if it chooses not to.
    • It ruled that there  is no fundamental right which inheres in an individual to claim reservation in promotions.
    • Hence no mandamus can be issued by the court directing state governments to provide reservations,” the bench of Justices L Nageswara Rao and Hemant Gupta said.

    What is ‘Mandamus’?

    • Mandamus is among the “prerogative writs” in English common law — meaning the extraordinary writs or orders granted by the Sovereign when ordinary legal remedies are inadequate.
    • These are habeas corpus, mandamus, prohibition, certiorari, and quo warranto.
    • In India, the Supreme Court can issue prerogative writs under Article 32 of the Constitution, and the High Courts under Article 226.
    • Mandamus literally means ‘we command’. When issued to a person or body, the writ of mandamus demands some activity on their part.
    • It orders the person or body to perform a public or quasi-public duty, which they have refused to perform, and where no other adequate legal remedy exists to enforce the performance of that duty.

    When is it used?

    • The writ cannot be issued unless the legal duty is of public nature, and to whose performance the applicant of the writ has a legal right.
    • The remedy is of a discretionary nature — a court can refuse to grant it when an alternative remedy exists.
    • However, for enforcing fundamental rights, the alternative remedy argument does not hold as much weight, since it is the duty of the Supreme Court and the High Courts to enforce fundamental rights.
    • When a public officer or government does an act that violates the fundamental right of a person, the court would issue a writ of mandamus against such authorities so that the person’s rights are not infringed.
    • The writ can also be issued against inferior courts or other judicial bodies when they have refused to exercise their jurisdiction and perform their duty.

    Limitations

    • Under Article 361, mandamus cannot be granted against the President or Governor of a State, “for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties”.
    • The writ also cannot be issued against a private individual or body, except where the State is in collusion with the private party for contravening a provision of the Constitution or a statute.