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Subject: Polity

  • SC order on Internet Shutdowns

    Directing the government to mandatorily publish all orders permitting Internet shutdowns, the Supreme Court has for the first time set the stage for challenging suspension orders before courts.

    What triggered the SC?

    • India tops the list of Internet shutdowns globally. According to Software Freedom Law Center’s tracker, there have been 381 shutdowns since 2012, 106 of which were in 2019.
    • The ongoing shutdown in Kashmir is the longest ever in any democratic country.

    The prime mover for Supreme Court

    • The Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017 issued under the Telegraph Act deals with restricting Internet access.
    • It does not provide for publication or notification of the order suspending Internet, the apex court mandated that such orders must be made available to the public.
    • The court declared that it is a “settled principle of law, and of natural justice” that requires publication of such orders, “particularly one that affects lives, liberty and property of people”.
    • This allows individuals to now challenge the orders before courts in J&K and rest of India.

    Internet suspension orders are subjected to Judicial Review

    • In the wake of protests against the new citizenship law, Internet services were suspended temporarily in parts of Uttar Pradesh, Delhi and Karnataka.
    • There should not be excessive burden on free speech even if complete prohibition is imposed, and the government has to justify imposition of such prohibition and explain why lesser alternatives were inadequate, the bench stated.
    • It ruled that Restrictions are to be imposed in an emergency. Hence they must be proportionate to the concern. Their objective must be legitimate rather than cavalier.
    • Authorities must necessarily consider an alternative and least restrictive mechanism before opting to restrict rights. Every decision to impose restriction should be backed by sufficient material and amenable to judicial review.

    Pacing up with technology

    • The bench also noted that the law needs to keep pace with technological development:
    • We need to note that the law should imbibe the technological development and accordingly mould its rules so as to cater to the needs of society.
    • Non-recognition of technology within the sphere of law is only a disservice to the inevitable.

    Justifying the Kashmir shutdown

    • Lastly, the court mandated that all orders regarding the Kashmir case be made public, and to provide essential services such as e-banking and hospitals immediately.
    • What the centre was arguing in this case was that this is a matter of national security given that it pertains to Kashmir with a history of militancy.

  • [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 SC stops short of 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.

  • Curative Petition

    Curative petitions were filed in the Supreme Court by two convicts in the Nirbhaya case after their execution was scheduled.  The case had shocked the nation and led to the tightening of anti-rape laws. Rape, especially gang rape, is now a capital crime.

    Background

    • The concept of Curative petition was evolved by the Supreme Court of India in the matter of Rupa Ashok Hurra vs. Ashok Hurra and Anr. (2002) Judgement.
    • The question was whether an aggrieved person is entitled to any relief against the final judgement/order of the Supreme Court, after dismissal of a review petition.
    • The Supreme Court in the said case held that in order to prevent abuse of its process and to cure gross miscarriage of justice, it may reconsider its judgements in exercise of its inherent powers.

    Curative Petition

    • For this purpose, the court has devised what has been termed as a “curative” petition.
    • In the Curative petition, the petitioner is required to aver specifically that the grounds mentioned therein had been taken in the review petition filed earlier and that it was dismissed by circulation.
    • This has to be certified by a senior advocate. The Curative petition is then circulated to the three senior most judges and the judges who delivered the impugned judgement, if available.
    • No time limit is given for filing Curative petition. It is guaranteed under Article 137 of Constitution of India i.e. powers of the Supreme Court to review of its own judgements and orders.

    Review Petition

    • Article 137 of the Constitution provides that subject to provisions of any law and rule made under Article 145 the Supreme Court of India has the power to review any judgement pronounced (or order made) by it.
    • Thus binding decision of the Supreme Court/High Court can be reviewed in Review Petition.
    • The parties aggrieved on any order of the Supreme Court on any apparent error can file a review petition.
    • Taking into consideration the principle of stare decisis courts generally do not unsettle a decision, without a strong case. This provision regarding review is an exemption to the legal principle of stare decisis.
    • Under Supreme Court Rules, 1966 such a petition needs to be filed within 30 days from the date of judgement or order.
    • It is also recommended that the petition should be circulated without oral arguments to the same bench of judges that delivered the judgement (or order) sought to be reviewed.

  • [op-ed snap] The Indian Constitution’s unitary tilt

    Context

    The Centre-State conflict over CAA, and the Constitutional obligation on the state to implement the laws made by the Parliament, has once again brought to the fore the fault lines in the Indian federalism.

    The opposition of the States to the Central law

    • Several state governments have declared that they would not implement the CAA.
    • Legislative Assembly of Kerala passed the resolution stating that the law contradicts the basic values.
    • The resolution is only symbolic.
    • Passage of such a resolution is not constitutionally barred.
    • But it may not be in tune with the federal scheme under the Constitution.

    What are the obligations on the States?

    • Article 256 obligates the State governments to ensure the implementation of the laws made by Parliament.
    • The Centre may give such direction as may appear to be necessary to ensure compliance with the laws made by Parliament.
    • The refusal to enforce the law even after the Centre issues direction would empower the President to impose the President’s Rule in the State.
    • Neither the refusal to implement not the official protests registered by the States carry much legal force.
    • The Calcutta High Court directed the state government to remove anti-CAA advertisements from the website.
    • The High Court barred the state from campaigning against a parliamentary law.

    The diminishing role of the Opposition

    • The parliament has been reduced to a site for procedural formalities.
    • There is a poor understanding of the role of the parliamentary Opposition in Indian politics.
    • Once the elections are over the Opposition is expected not to meddle in the governance.
    • The absence of Leader of Opposition in the Parliament for the last 6 years manifests this attitude.
    • Further, in the absence of the Opposition showing any resilience, national politics seems to be operating without a credible political check.

    The unitary tilt of the Constitution

    • Single-party dominance at the Centre has always revealed the tendency of our Constitution to concentrate the power.
    • The concentration of power is embedded in the very structure of the Constitution.
    • A ‘centrist bias’ of the Constitution further augments the power of single-party dominance.
    • Against the backdrop of the fissiparous tendencies in the backdrop of partition, it was justified for the founders to be hesitant in favour of stronger federalism.

    The rise of Electoral federalism

    • Change in voting patterns.
    • Over the last couple of years, there is huge vote swings between national and State elections in the same constituencies and separated by only a few months.
    • In other words, federalism is not a mere legal division of power, the democracy and voters too are becoming federal.
    • This embrace of electoral federalism may be one of the most significant achievements of Indian democracy.
    • Hence, parties that lose in national elections can still win State elections and form governments.
    • The State governments are thus filling the opposition deficit at the Centre.
    • This shift of opposition from Delhi to State capitals is likely to become the politics over federalism.

    Conclusion

    • The conflict that CAA triggered might become a template for future contestations over the federal question, while the politics seem to be ripe for the advancement of federalism.

     

  • [op-ed snap]A case for inclusion of Tulu language in the Eighth Schedule.

    Context

    With numerous languages in the country, placing all deserving languages on an equal footing will promote social inclusion and national solidarity.

    Figures and facts

    • According to the 2001 Census, India has 30 languages that are spoken by more than a million people each.
    • It also has 122 languages that are spoken by at least 10,000 people each.
    • It also has 1,599 languages, most of which are dialects.
    • These are restricted to specific regions and many of them are on the verge of extinction.
    • Article 29 provides every citizens of India with a distinct culture, language, and script, the right to conserve the same.
    • It is the responsibility of both the state and the citizens of this distinct language, script or culture to preserve the same.

    Eighth schedule and Tulu language

    • Sanskrit has 24,821 speakers and it is in the Eighth Schedule according to the 2011 Census.
    • However, many languages with sizeable speakers are not in the schedule.
    • Bhili/Bhilodi has 1,04,13,637 speakers. Garo has 11,45,323 speakers, Ho has 14,31,344 speakers.
    • Tulu is a Dravidian language whose speakers are concentrated in two coastal districts of Karnataka and in Kasaragod district of Kerala.
    • The Tulu language speakers are larger in numbers than Sanskrit and Manipuri which included in the Eighth Schedule.
    • The cities of Mangaluru, Udupi, and Kasaragod are the epicenter of Tulu culture.

    What are the benefits of being on the Eighth Schedule

    • Tulu would get recognition from Sahitya Academy.
    • The book in Tulu would get translated into other recognised Indian languages.
    • The MP’s and MLA’s could speak in Tulu in the Parliament and Assemblies.
    • Candidates could write all-India competitive examination like the Civil Services exam in Tulu.

    Yuelu Proclamation

    • It was made by UNESCO at Changsha, The People’s Republic of China, in 2018.
    • It says the protection and promotion of linguistic diversity help to improve social inclusion and partnerships.
    • It helps reduce the gender and social inequality between different native speakers.
    • It guarantee the rights for native speakers of endangered, minority, indigenous languages, as well as non-official languages and dialects to receive education, enhance the social inclusion level and social decision-making ability by encouraging them to participate in a series of actions to promote cultural diversity, endangered language protection, and the protection of intangible cultural heritage.

    Conclusion

    • Tulu, along with other deserving languages, should be included in the Eighth Schedule of the Constitution in order to substantially materialise the promise of equality of status and opportunity mentioned in the Preamble.

  • State can regulate minority institutions, says Supreme Court

    The Supreme Court has held that the state is well within its rights to introduce a regulatory regime in the “national interest” to provide minority educational institutions with well-qualified teachers in order for them to “achieve excellence in education.”

    Article 30 is not absolute

    • The verdict said that Article 30(1) (right of minorities to establish and administer educational institutions of their choice) was neither absolute nor above the law.
    • The regulatory law should however balance the dual objectives of ensuring standard of excellence as well as preserving the right of the minorities to establish and administer their educational institutions.
    • Regulations that embrace and reconcile the two objectives should be reasonable.
    • The managements of minority institutions cannot ignore such a legal regime by saying that it is their fundamental right under Article 30.

    Serving the national interest

    • A regulation framed in the national interest must necessarily apply to all institutions regardless whether they are run by majority or minority as the essence of Article 30(1) is to ensure equal treatment between the majority and minority institutions.
    • An objection can certainly be raised if an unfavorable treatment is meted out to an educational institution established and administered by minority.
    • But if ensuring of excellence in educational institutions is the underlying principle behind a regulatory regime and the mechanism of selection of teachers is so designed to achieve excellence in institutions, the matter may stand on a completely different footing.

    Striking a balance

    • The court explains how to strike a “balance” between the two objectives of excellence in education and the preservation of the minorities’ right to run their educational institutions.
    • For this, the court broadly divides education into two categories – secular education and education “directly aimed at or dealing with preservation and protection of the heritage, culture, script and special characteristics of a religious or a linguistic minority.”
    • When it comes to the latter, the court advocated “maximum latitude” to be given to the management to appoint teachers.
    • The court reasons that only “teachers who believe in the religious ideology or in the special characteristics of the concerned minority would alone be able to imbibe in the students admitted in such educational institutions, what the minorities would like to preserve, profess and propagate.”
    • However, minority institutions where the curriculum was “purely secular”, the intent must be to impart education availing the best possible teachers.

  • A case for including Tulu in the Eighth Schedule

    According to the 2001 Census, India has 30 languages that are spoken by more than a million people each. Additionally, it has 122 languages that are spoken by at least 10,000 people each. It also has 1,599 languages, most of which are dialects. Tulu is one such language with considerable number of speakers.

    Speakers of Tulu

    • Tulu is a Dravidian language whose speakers are concentrated in two coastal districts of Karnataka and in Kasaragod district of Kerala.
    • Kasaragod district is called ‘Sapta bhasha Samgama Bhumi (the confluence of seven languages)’, and Tulu is among the seven.
    • The Census reports 18,46,427 native speakers of Tulu in India.
    • The Tulu-speaking people are larger in number than speakers of Manipuri and Sanskrit, which have the Eighth Schedule status.

    Schedule VIII languages

    • Among the legion of languages in India, the Constitution has 22 languages. They are protected in Schedule VIII of the Constitution.
    • But many languages that are kept out of this favoured position are in some ways more deserving to be included in the Eighth Schedule.
    • For example, Sanskrit, an Eighth Schedule language, has only 24,821 speakers (2011 Census).
    • Manipuri, another scheduled language, has only 17,61,079 speakers. However, many unscheduled languages have a sizeable number of speakers.

    Why does Tulu deserve a place in the Schedule?

    • At present, Tulu is not an official language in India or any other country. Efforts are being made to include Tulu in the Eighth Schedule of the Constitution.
    • If included in the Eighth Schedule, Tulu would get recognition from the Sahitya Akademi. Tulu books would be translated into other recognised Indian languages.
    • The Yuelu Proclamation, made by the UNESCO at Changsha, The People’s Republic of China, in 2018 calls for protection and promotion of linguistic diversity.

    Conclusion 

    • India must accommodate this plethora of languages in its cultural discourse and administrative apparatus.
    • Article 29 of the Constitution provides that a section of citizens having a distinct language, script or culture have the right to conserve the same.
    • Placing of all the deserving languages on equal footing will promote social inclusion and national solidarity. It will reduce the inequalities within the country to a great extent.

  • [op-ed snap]Secularism’s Brexit moment

     

    Context

    In India, the debate on the issue of secularism needs to be based on a more principled and practical basis.

    Change in public discourse

    • Popular skepticism of secularism has been growing these days.
    • Secularism is being increasingly discounted not only by the hardliners but also by the moderate middle.
    • It is no longer taboo to raise questions that were formerly the preserve of the fringe.
    • Today, democracy is taken for granted by all the Indians. No one raises questions over its utility.
    • Secularism need to be elevated to the same level as is the democracy today, where no one raises the question on its utility.

    What are the issues with the defenders of secularism?

    • Rather than make case for secularism, its champions indulge in name-calling and citing the example from the past to tarnish and shut down critics.
    • They also cite the Constitution in their support-without realising that it is this very document’s secular thrust that has became suspect.
    • They also assume the obvious correctness of their cosmopolitan worldview.

    What changes need to be made?

    • They must make a case for secularism anew-principled and practical.
    • On principled basis-individual equality, freedom of conscience and personal habits.
    • On a practical basis-no country can flourish by degrading their minority.
    • They must stress the India’s plurality and “live and let live” culture, syncretic traditions and long history of respect and accommodation of differences.
    • They also need to show some humility.
    • They also have to show openness to fair-minded criticism.

    Conclusion

    These suggestions are urgently needed to be followed by those arguing in the defence of secularism otherwise there is a very real possibility of a large section of a society losing faith in secularism. In this anxious hours India needs to engage in open and self-critical debate-rather than polarising polemic.

     

     

     

  • [op-ed snap] When defection is a mere detour for an MLA

    Context

    In the recently concluded by-election in Karnataka, most of the disqualified MLA’s were re-elected. This set of the event lay down a well-structured framework to sidestep the law, it even set a dangerous precedent for neutralising the consequences of the Anti-Defection Law altogether.

    Historical background

    • Defection is not new to the Indian political landscape.
    • An independent MLA from Haryana had switched parties three times in two weeks in 1967.
    • The recurrence of this phenomenon led to the 1985 Anti-Defection Law.

    Provisions of the law

    • The law defined three grounds for disqualification-Giving up party membership, violation of whip, and abstaining from voting.
    • Before the amendment, the law allowed for a “split” in the party if at least one-third of the MLAs defect.
    • 91st Constitutional Amendment in 2003 deleted the provision allowing split.
    • Resignation is not the condition for disqualification.
    • This loophole was exploited by the MLAs in Karnataka while they resigned.
    • The resignation was not accepted by the speaker of the house and declared the MLAs disqualified.
    • Law puts no time constraint on the speaker to decide on the resignation of MLAs.

    Speaker as a tribunal under law

    • The law originally protected the Speaker’s decision from judicial review.
    • This safeguard was struck down in Kihoto Hollohan v. Zachillhu and Others (1992).
    • In this case, the SC upheld the Speaker’s discretionary power, it underscored that the Speaker functioned as a tribunal under the law.
    • This made the Speaker’s decision subject to judicial review.
    • The same was said in Shrimanth Balasaheb Patel & Others v. Speaker Karnataka Legislative Assembly & Others (2019).

     

    Neutral role of the SC

    • The SC struck down ban on Karnataka disqualified MLAs from contesting election till 2023.
    • This effectively removed the only possible permanent solution to the problem.

     

    Way forward

    The minimum period limit of six years is needed to ensure that the defectors are not allowed to enter the election fray for at least one election cycle which is five years.

  • Legislative Council in States: Issues & Way Forward