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Subject: Polity

  • Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.

     

    What is the idea behind a Uniform Civil Code for India?

    Currently, believers of various religions can marry, adopt, inherit property and divorce under their own customs.

    Under a Uniform Civil Code, it is believed, personal laws and sanctioned practices of different religions will be largely harmonised with accepted fair practices for all citizens, under guidelines laid down by Constitution.

    Does the Constitution mention a Uniform Civil Code?

    Article 44 of the Constitution, which is one of the Directive Principles of State Policy, says: “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”

    Directive Principles are not justiciable or mandatory, only a guideline.

     

    Then, what is the debate about?

    Articles 29 and 30 guarantee minorities the right to conserve their culture and script, and run their own educational institutions.

    It was understood that minorities could practise their religion and follow their customs and traditions.

    The Supreme Court asked the central government, whether it was willing to bring a Uniform Civil Code to ride over inconsistent personal laws in different religions.

    There was “total confusion” over the incoherent stipulations about marriage, divorce, adoption, maintenance and inheritance.

    Currently, different laws regulate these aspects for adherents of different religions.

    Is the debate over Uniform Civil Code just a Hindu-Muslim issue?

    Far from it. Parsis, Jains, Sikhs, Christians, apart from of course Hindus and Muslims, have their own civil codes.

    While the Muslim Personal Law is yet to be codified (because of deep divisions within), Christian and Parsi codes were specified before Independence.

    The personal laws of Hindus, Jains, Sikhs and others were codified in the 1950s.

    So, What does our secular Constitution say?

    Article 25, which guarantees the freedom to practise, profess and propagate any religion. By the 42nd Amendment of 1976, India was declared a secular nation.

    The understanding of Article 25, the State and its institutions have not interfered with religious practices, including in relation to various personal laws.

    There is a view that this principle runs contradictory to the idea of secularism which requires the State to be inert to religious considerations, and not tacitly support them by following a practice of non-interference, no matter what.

    Clause (2) of Article 25 empowers the State to frame any law to regulate or restrict “secular activity which may be associated with religious practice”, therefore, it is argued, Article 25 is no bar to having a Uniform Civil Code.

    The inconsistency in personal laws has been challenged on the touchstone of Article 14, which ensures the right to equality.

    Historical Judgements

    Litigants have contended that their right to equality is endangered by personal laws that put them at a disadvantage.

    The first prominent case founded on Article 14 was Shah Bano case (1985) in which the apex court ruled that a Muslim woman was entitled to alimony under the general provisions of the CrPC, like anybody else.

    Following protests from Muslim leaders, Rajiv Gandhi’s government in 1986 got the Muslim Women (Protection of Rights on Divorce) Act passed in Parliament, which nullified the ruling.

    In effect, the verdict did a balancing act between the Shah Bano judgment and the 1986 law.

    In Githa Hariharan vs RBI (1999), the top court adjudicated upon the constitutional validity of certain provisions of the Hindu Minority and Guardianship Act, 1956 and the Guardian Constitution and Wards Act, on a petition claiming they violated Articles 14 by treating the father as the natural guardian of a child under all circumstances.

    It ushered in the principle of equality in matters of guardianship for Hindus, making the child’s welfare the prime consideration.

    That’s some history! what is today’s scenario ?

    The BJP, kept the Uniform Civil Code in its 2014 election manifesto. The BJP and RSS have long demanded it, and cited the example of Goa, which has a common law called the Goa Civil Code.

    What the government tells the court next month will be a test of its political will , and mark the next chapter in the evolution of this debate.

    So, do we really want a Uniform Civil Code? Is there a way forward ?

    Yes, you say? Well, there seems only one way to see through this crazy fog.
    Every aspect of the personal laws must be examined in the light of constitutional guarantees to every Indian, equality, justice, right to life.

    Laws that fail to uphold these basics must be thrown away, Isn’t it ?

    Published with inputs from Arun

  • Judicial Pendency

    Overcoming the backlog of cases: Judicial reform

    A British citizen, Will Pike was paralysed during the 2008 Taj Hotel blasts in 2008. Suing the hotel group for compensation, he wanted the trial to take place in London rather than in India. Accepting his contention, the London court allowed the matter, specifically stating that the trial in India could take some ‘twenty years’. This is a befitting example of the pendency in Indian judicial system and how it needs to be urgently addressed.

    THE MAGNITUDE OF THE PROBLEM

    The graphic below states the number of cases pending before the Courts in India. Currently, about 3.25 crore cases are pending in the Indian courts and Judges fear that this number might escalate to about 4 crore cases by the end of 2016. This problem gets escalated due to the crunch of Judges at all levels of Judiciary as seen in the graphic below.

     

    Timely justice is an integral part of access of justice and this huge backlog of cases amounts to denial and derailment of justice. This article will look into the proposed reforms for addressing this systemic problem.

    10 REFORMS FOR ADDRESSING JUDICIAL PENDENCY

    The 245th Law Commission Report on “Arrears and Backlogs: Creating Additional Judicial (W)omanpower has recommended the following measures

    1. Calculating Adequate Judge Strength through a more scientific analysis of data – In this context, the Commission has negated a simplistic method like Judge-Population ratio (Number of judges required per million people) in favour of a Rate of Disposal Method.

    In the Rate of Disposal Method, one looks at the current rate at which judges dispose of cases. Then, given that the institutions and disposal rate remain the same, the Courts would need how many more additional judges to keep pace with the new filings in Court so that the newly instituted cases do not add to the existing backlog.

    2. Judges to be appointed on a Priority basis: India currently has 1/5th of the number of judges it needs and thus, the Judges need to be appointed on a priority basis.

    3. Increasing the age of retirement for Subordinate Court Judges to 62 years.

    4. Creation of Special Courts for traffic/police challan cases: They constitute about 37.4% of the existing pendency before the subordinate courts.

    5. Provision for staff and infrastructure

    6. Periodic Needs Assessment by High Courts: Monitoring the rate of institution and disposal of cases and revising the adequate strength of Judges since a High Court is equipped with all the information relating to the subordinate courts in the State. The Malimath Committee had recommended setting up of Vigilance Cells in each district by the High Court to monitor the performance of subordinate judicial officers.

    7. Uniform data collection and data management methods : to bring in greater transparency.

    8. Need for a system-wide reform: The Commission has recommended the following:
    ● Greater encouragement to Alternative Dispute Resolution (ADR) and Lok Adalats <Can you tell us the difference among various types of ADRs, mediation, arbitration and conciliation? Answer in comments>
    ● Setting up non-mandatory time frames and performance benchmarks for resolution of different types of cases based on rational criteria.

    OTHER RECOMMENDATIONS

    9. Use of Technology : Has been recommended by the 230th Law Commission Report and the Malimath Committee Report to
    (a) Club cases filed on similar points of law, which can be decided on the basis of a single judgment.
    (b) Track old cases, which have become infructuous and dispose them off quickly
    (c) Setting up E-Courts and ushering in E-filing. Has received a major boost under the e-Courts Integrated Mission Mode Project.

    10. Creation of All-India Judicial Service: Provided for under Article 312 of the Indian Constitution. The idea has been mooted by various bodies including the First Judicial Pay Commission and accepted by the Supreme Court. Art 2012 proposal regarding creation of this service has not received responses from all States and this proposal continues to be hanging in the air <can you tell us the procedure of creation of new all India service? Answer in comments>.

    CONCLUSION:

    Many steps are currently being taken by the Government and the Courts to address this problem.

    • Monthly National Lok Adalats are carried out for expeditious disposal of claims.
    • In March 2016, the Monthly Lok Adalat disposed of about 1.5 lakh cases and settled claims worth Rs. 100 crores <Where can one appeal against the decision of Lok Adalats. Also tell us about the jurisdiction of Lok Adalats. Answer in comments>
    • In criminal cases, the setting-up of fast-track Courts and “plea bargaining” have further expedited matters <Can you tell us what’s plea bargaining? Answer in comments>
    • The e-courts project, aimed at providing better Court management and a database of all pending cases with easier filing of important documents is underway.
    • Moreover, the National Litigation Policy 2015 is awaiting ministerial approval and seeks to reverse the trend of Government being the biggest litigant <did you know one of the argument for rejecting NJAC was that govt was the biggest litigant, therefore can have no role in appointment of judges>.

    However, in view of the burgeoning backlog and urgency of reducing backlog, the efforts need to be severely expedited.

    P.S. This article is published with inputs from a CD user  Joyousjojo (name changed on request).

    P.P.S. If you want to write explainers for CD, mail us your explainer at hello@civilsadily.com

  • Alternative Dispute Resolution Mechanism – NCA, Lok Adalats, etc.

    Do we really need a National Court of Appeal?

    The Supreme Court recently admitted an SLP (Special Leave Petition) under Article 136 of the Constitution on the setting up of a National Court of Appeal (NCA) with regional benches which will act as final courts of appeal in civil, criminal, revenue and labour matters <Can you tell us, what is SLP in comments>.

    In 1987, in the case of Bihar Legal Support Society v. the Chief Justice of India, the proposal to set up the National Court of Appeal was mooted and welcome by the then Chief Justice P N Bhagwati. The current petition by Chennai based lawyer has once, again brought the issue to the fore.

    The Supreme Court will set up a Constitution Bench to decide on the proposed NCA as primarily, it raises the following question related to the interpretation of the Constitution Answer in comments>.

    As of now, the Supreme Court is the final court of appeal in all cases. With the NCA, the role of the Apex Court would be restricted to hearing only constitutional and public law cases. Would this amount to tinkering with the ‘basic structure’ of the Constitution?

    REASONS WHY NCA COULD BE A WELCOME PROPOSITION?

    Given the never-ending and ever –increasing case-load on the Apex Court, the NCA could be a welcome change on the following grounds:
    (a) Clearing the massive backlog: With the huge pendency of cases in all three levels of Judiciary, the National Court of Appeal with its regional benches may prove to be crucial in clearing the massive backlog of cases. About 98% of the Apex Court’s time is wasted on routine matters like bail pleas, dishonor of cheques, traffic violations, correcting errors in HC judgments.

    With the NCA hearing matters pertaining to civil, criminal, labour and revenue laws, Supreme Court would be able to concentrate on the more important public law concerns.

    (b) Restoring the Apex position of the Apex Court: With the Supreme Court getting an opportunity to hear exclusively on constitutional and public law matters, its position as the final arbiter on constitutional cases and on developing the law will be further strengthened.

    This is in tune with the scenario in England, UK and Wales where the Supreme Court only rules on matters of constitutional importance or sets a new legal precedent.

    (c) Greater access to justice: Access to justice is a fundamental right for all under the Indian Constitution. In the Indian scenario, this is proportionate to the distance from Supreme Court. As per a recent survey, majority of cases come from northern states like 14% from Delhi High Court in comparison to southern states like only 2.5% of cases from Kerala High Court and even fewer from North-eastern States. Setting up NCA with regional benches will help in reducing travelling expenses, with a better cost-benefit ratio.

    WHY SHOULD THE STATUS QUO BE MAINTAINED?

    The Centre has been challenging the move to set up the NCA on the following grounds:

    (a) Dilution of the powers of Apex Court: Currently, many citizens resort to Article 136 of the Constitution in any sort of matter. With the subject matter of disputes being divided amongst NCA and the Supreme Court, Supreme Court’s exclusive power to entertain appeals under Article 136 will be significantly diluted.

    (b) Compromise the unified structure of the Judiciary: Currently, there is one Apex Court with the High Court in states followed by subordinate courts. This integrated structure will suffer a backseat with NCA somewhere in the middle between High Courts and Supreme Court Answer in comments>.

    Moreover, earlier proposals to set up Regional Benches of the Supreme Court with one bench in each region have been rejected by the Supreme Court on the ground that it will affect the unitary character of the Judiciary and that there can be only one Supreme Court.

    For providing greater access to citizens from far-flung areas, it has been proposed that there could be dedicated courtrooms with video conferencing facilities for litigants and lawyers from far-flung areas. This will avoid the need of setting up regional benches and even NCA to a great extent.

    (c) Large-scale Constitutional amendments required: For bringing the NCA into existence, several provisions of the Constitution related to independence of Judiciary, hierarchy of Courts, powers of Supreme Court etc. will have to be amended. Moreover, Article 136 of the Constitution is a part of the basic structure and in view of the decision in Keshvananda Bharati case, limiting the powers of Supreme Court through NCA will be extremely difficult.

    The solution does not lie with creating courts of appeal because it would not bring down litigation. The Supreme Court has to exercise restraint on the manner of interference under its constitutional power. Today people take chances and come to Supreme Court on every issue, including challenging an adjournment order – Attorney General

    Law Commission Recommendation 

    • Law Commission in its 229th report submitted to the government in 2009 recommended setting up of four regional benches at Delhi, Chennai/Hyderabad, Kolkata and Mumbai to deal with appeals arising out of high courts. Earlier 125th report had recommended setting up of NCA Answer in comments>.
    • It said, if necessary Article 130 may be amended to implement its suggestion that Cassation Benches may be set up in four regions, while the Constitution Bench sits in Delhi . < Is Law commission a constitutional or statutory or executive body? Answer in comments>

    But the Supreme Court rejected it in 2010, saying dividing the Supreme Court would affect the country’s unitary character. A Full Court comprising all SC judges reiterated its earlier resolutions passed in 1999, 2001, 2004 and 2006 in this regard.

    CONCLUSION: The burgeoning backlog of cases plaguing all the three levels of judiciary demand more resources and institutional reforms to deal with the problem. However, any proposals to set up institutions like the NCA will require Constitutional amendments and major Legislative will to go through. This at present is not forthcoming. The idea of a National Court of Appeal requires consideration, but in a manner that would not undermine the undoubted authority of the Supreme Court of India. The next hearing for the matter is slated up for April 4.

    P.S. This article is published with inputs from a CD user  Joyousjojo (name changed on request).

    P.P.S. If you want to write explainers for CD, mail us your explainer at hello@civilsadily.com

  • Euthanasia Mercy Killing

  • Prime Minister’s Office : Important Updates

  • President’s Rule

    The Case that changed the fate of President’s Rule

    The indiscriminate use of President’s rule to thwart away the state governments who did not meet the ideology of Union led to the landmark verdict in the S.R. Bommai vs Union Of India, 1994, which curtailed the misuse of Article 356.

    Article 356, what? 

    Under Article 356, the President can dismiss a State Government or dissolve a State Assembly or keep it under suspended animation in the event of a failure of the constitutional machinery in that State.

    Lets know the background of the case, shall we?

    In the 1970s & 1980s, it almost became common practice for the central govt. to dismiss state govts led by opposition parties.

    • The Indira Gandhi regime and post-emergency Janata Party were noted for this practice.
    • Indira Gandhi’s government between 1966-1977 is known to have imposed President’ rule in 39 times (not states).
    • In 1989, Karnataka CM S.R. Bommai was denied an opportunity to test his majority in the Assembly by the Governor and his govt. was dismissed.

    What do the Constitutional Experts have to say on Art. 356?

    Article 356 has always been the focal point of a wider debate of the federal structure of government in Indian polity.

    • Dr. B R Ambedkar had envisaged that Art. 356 shall remain the dead letter in the Indian constitution.
    • The Sarkaria Commission on central-state relations has recommended that Article 356 must be used very sparingly, in extreme cases, as a measure of last resort, when all the other alternatives fail to prevent or rectify a breakdown of constitutional machinery in the state.

    What was the S.R. Bommai case?

    S.R. Bommai vs Union of India, delivered in March 1994, had sharply limited the constitutional power vested in the Central Government to dismiss a State government.

    SC established strict guidelines for imposing President’s rule. This case laid down the conditions under which State govts may be dismissed, and mechanisms for that process.

    In terms of the legality of the imposition of President’s Rule in States under Article 356, the SC in this case overruled its own precedent in the case of State of Rajasthan v Union of India 1977 case.

    Let’s briefly understand the State of Rajasthan v Union of India 1977 case

    • SC held that the power of the President to impose President’s Rule is not above and beyond judicial review entirely.
    • The court might insist on substantial evidence in support of the Centre’s charges against a state if the latter accuses the Centre of acting mala fide.

    The Court in the Bommai case, narrowed down the circumstances and the manner in which such powers could be exercised.

    What are conditions for the valid exercise Article 356?

    There was a shift in constitutional jurisprudence as the principle of federalism was part of the basic structure of the Constitution, and this principle could only be deviated from in exceptional and extraordinary circumstances, i.e. where constitutional rule was not possible in the State.

    • The majority enjoyed by the Council of Ministers(CoM) in the state shall be tested on the floor of the house and not subjectively decided by the Governor.
    • Center shall give a warning and a time-period of 1 week to the concerned state.
    • Courts cannot question the advice tendered by the CoM to the President, but court can scrutinizethe material basis of the satisfaction of President.
    • Until the proclamation is approved by the Parliament, President shall not take any irreversibleaction, i.e. he should not dissolution of assembly.
    • Courts have the power to reverse the actions of President, if the Art. 356 is used inappropriately.
    • Art. 356 shall be used sparingly, otherwise it will destroy the constitutional balance between the Center & States.
    Published with inputs from Pushpendra | Image: Frontline

  • Panchayati Raj Institutions: Issues and Challenges

  • Jallikattu Debate

    • Jallikattu is a bull taming sport played in Tamil Nadu as a part of Pongal celebrations on Mattu Pongal day.

    • Jallikattu is derived from the words ‘calli’ (coins) and ‘kattu’ (tie), which means a bundle of coins is tied to the bull’s horns. In older times, the tamer sought to remove this bundle from the animal’s head to win gold or silver.

    • The southern parts of Tamil Nadu witness bull-taming the most, with Alanganallur near Madurai hosting the largest and most famous of these events.

    source
    • Background
    • Factors against the ban
    • Arguments favouring the ban
    • View of SC
    • What can government do?
    • International experience
    • Way ahead

    Factors against the ban

    • Jallikattu is an ancient sport which has continued since colonial times. So it is an ancient tradition which should be preserved and not banned.
    • In Jallikattu, the objective is to obtain the ‘Jallikattu’ a pouch which contains the reward coins called ‘Jalli’ tied to the horns of the bulls. While the players are not allowed to carry weapons of any kind or wear protective gears, the bulls on the other hand will not have nose rings or ropes.
    • Plus, they’re equipped with a pair of sharp horns which can gore a human within seconds. So it’s actually the bull which has the upper hand in this match.
    • Jallikattu is what’s keeping the native breed of cows from going extinct, according to some local people which is a huge problem for western cattle industry.

    Arguments favouring the ban

    • During Jallikattu, bulls are purposefully scared and petrified and then made to run across the crowd, destroying anything that would come in their way. Various cruel means are adopted to scare and anger the bull like pinching, nailing, stabbing with sticks that have nails at the edges, twisting their tails and even forcefully making them drink alcohol and other drugs. The ropes around their nose are painfully yanked and then they are dragged into the crowd of people who further anger the bull.
    • According to the documents by PETA, these bulls also break their bones in order to escape from the crowd continuously trying to toture them. Casualty and death of humans are also alarmingly high during this game.
    • What started as a simple act of bravado has become an act of cruelty towards animals.
    • The bulls are kept in the waiting area for hours, subjecting it to the scorching sun. The bulls used in the sport are also denied food and water.
    • Due to this sport, innumerable human lives, both of the participants and the audience, have also been lost, as the bulls try to flee from the pain.

    View of SC

    • Supreme court in 2014 banned the sport jallikattu as it violates provisions of Prevention of Cruelty to Animals Act (PCA) and militates the constitutional duty of treating animals with compassion, Article 51A (g).
    • It also reiterated the expansive reading it had given in the past, to Article 21 (Right to Life), which prohibits any disturbance to the environment, including animals, considered essential for human life.

    What can government do?

    The Government must find alternate methods to continue it without hurting the animal or people. Following are some of the alternatives:

    1. Follow the famous Spanish bullfighting example where measures taken to avoid lethal damage
    2. Put effective protection (barricades, speaker announcements, clear demarcation) so that people are not hurt
    3. Create awareness regarding apathy faced by animals. Sports personalities, film stars, eminent jurists can come forward

    International experience

    • The tradition of bullfighting in Spain is cited to legitimise the conduct of Jallikattu and present it as a viable tourist attraction.
    • It is significant that the Spanish state of Catalonia banned the sport in 2012 after a prolonged ‘culture versus rights’ debate.
    • In 2002, Germany took animal rights to a new level by giving animals constitutional protection.

    Way ahead

    • Those who want the sport to be legalised have called for an amendment to the PCA Act and measures to revoke the 2011 notification of the Ministry of Environment and Forests (MoEF) which barred the use of bulls as performing animals.
    • Trying to allow an event that legitimises cruelty to animals would be a direct insult to the carefully reasoned writ of the Supreme Court, a complete negation of the PCA Act and its objectives, and would take the country back by a few steps in the crucial area of Right to Life.

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