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Subject: Polity

  • [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/

  • 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.