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Subject: Polity

  • [24th October 2024] The Hindu Op-ed: The Manipur crisis, the issue of managing diversity

    PYQ Relevance:

    Q) Human right activists constantly highlight the fact that the Armed forces (Special Powers) Act, 1958 (AFSPA) is a draconian act leading to cases of human right abuses by security forces. What sections of AFSPA are opposed by the activists. Critically evaluate the requirement with reference to the view held by Apex Court. (UPSC CSE 2015)

    Q) Analyze internal security threats and transborder crimes along Myanmar, Bangladesh and Pakistan borders including Line of Control (LoC). Also discuss the role played by various security forces in this regard. (UPSC CSE 2020)

    Q) Assess the main administrative issues and socio-cultural problems in the integration process of Indian Princely States. (UPSC CSE 2021)

    Mentor’s Comment: Since 2012, there has been a constant demand led by the Scheduled Tribes Demand Committee of Manipur (STDCM) for granting the Scheduled Tribe (ST) status to the Meitei community. On 20 April 2023, a judge of the Manipur High Court directed the state government to consider the request of the Meitei community to be included in the Scheduled Tribes (ST) list. The Kuki community feared that the ST status would allow the Meiteis to purchase land in the prohibited hilly areas and hence the total shutdown began.

    The ongoing crisis in Manipur, a northeastern state of India, highlights the complexities of managing ethnic diversity in a region marked by historical grievances and socio-political dynamics. Today’s editorial examines the roots of the conflict, the government’s response, and potential pathways to peace.

    _

    Let’s learn!

    Why in the News?

    Since May 2023, over 250 people have died, and tens of thousands have been displaced due to ongoing ethnic clashes primarily between the Meitei and Kuki communities. The violence has intensified again, with at least 11 casualties reported in September 2024.

    What are the historical and socio-political factors contributing to the Manipur crisis?

    1) Historical Factors:

    • Colonial Legacy: Manipur was an independent kingdom before British colonization. In the year 1891 Manipur became a Princely State under British Rule after the Anglo-Manipur War.
      • Later, the Britishers employed a “divide and rule” strategy, which resulted in tensions between the valley-dwelling Meitei and the hill tribes, including the Kukis and Nagas.
    • Forced Merger into India: In 1947, Maharaja Budhachandra signed a Treaty of Accession merging Manipur into India. This merger occurred without adequate consultation with local leaders, leading to widespread discontent among various ethnic groups.
    • Insurgency and Ethnic Clashes: The rise of insurgent groups in the 1960s and 1970s, fueled by demands for autonomy or independence, has led to ongoing violence.
    • The Armed Forces (Special Powers) Act (AFSPA) was introduced in 1980 to manage insurgency but has resulted in increased militarization and human rights abuses, further inflaming local grievances.

    2) Socio-Political Factors

    • Ethnic Identity and Land Rights: Conflicts over land ownership and ethnic identity are central to the crisis. The Meitei community’s recent demand for Scheduled Tribe status has intensified fears among Kukis and Nagas regarding their rights and land security.
    • Government Policies: Central government policies perceived as favoring certain ethnic groups have led to resentment among others. For instance, the withdrawal from Suspension of Operations agreements with Kuki militant groups has raised tensions.
    • Economic Disparities: Developmental disparities between the valley and hill regions have fueled resentment, as marginalized communities feel neglected by state initiatives.
    • Drug Trade and Economic Exploitation: The proximity to the Golden Triangle and porous international borders make Manipur vulnerable to drug trafficking and other cross-border criminal activities.
    • 2023 Violence: A court order regarding Scheduled Tribe status for the Meiteis sparked violent protests, leading to significant casualties and displacement. This incident underscores the fragile nature of inter-community relations in Manipur.

    How has the Indian government’s response impacted the situation in Manipur?

    • Military Deployment: The government deployed approximately 17,000 troops and this heavy military presence led to allegations of human rights abuses and a deepening trust deficit between the state and local communities.
      • Curfews were imposed across multiple districts which disrupted daily life and hindered communication among communities.
    • Central Government’s 100-Day Plan: The resolution of the Manipur conflict is part of the new National Democratic Alliance (NDA) government’s 100-day plan. It has also faced criticism for being slow and lacking transparency regarding concrete actions.
    • Humanitarian Response: The government has initiated compensation packages for affected farmers but faces challenges in addressing the broader humanitarian needs of displaced populations.
    • Long-Term Stability Concerns: The situation is compounded by geopolitical factors involving neighboring countries like Myanmar and Bangladesh, necessitating innovative solutions from the government to ensure long-term peace in the region.
    Constitutional Provisions:

    • The Indian Constitution uniquely addresses diversity through special provisions for various states, including Jammu and Kashmir, Maharashtra, Gujarat, Nagaland, Assam, Manipur, Andhra Pradesh, Sikkim, Mizoram, Arunachal Pradesh, and Karnataka.
    • The special provisions aim to ensure equitable development and safeguard cultural identities that seek to reconcile competing interests in northeastern states by institutionalizing power-sharing and representation, promoting autonomy in governance.
    • Article 371F (introduced after Sikkim’s accession in 1975), empowers Parliament to protect the rights of various population sections and grants the Governor special responsibilities for socio-economic advancement.
    • The Supreme Court upheld Article 371F in the R.C. Poudyal case (1993), justifying increased representation for the Bhutia-Lepcha community based on historical context and the need for political stability.
    • Given the increasing violence and displacement in regions like Manipur, revisiting these constitutional provisions is crucial for national interest and social harmony.

    CASE STUDY:

    • Tripura is a model of peace achieved via constitutional measures during its insurgency, particularly through the 6th Schedule, which grants autonomy to tribal areas.  It empowered district councils to legislate on education, land use, and social customs.
    • Tripura Accord (1988) reserved one-third of State Assembly seats for Scheduled Tribes, exceeding their population proportion.
    Unlike Tripura, Manipur is governed by Article 371C, which lacks similar provisions for tribal autonomy and requires Hill Area Committee approval for governance matters.

    What Manipur needs to do?

    • In light of the unique challenges faced by Manipur, it is essential to recognize that, unlike other northeastern states, its District Council lacks veto power, leading to heightened anxieties over over-representation and resource allocation.
    • Thus, true peace and solutions for diversity must be cultivated through Constitutional evolution and Democratic processes, rather than superficial measures.

  • Madarsa Education Act: SC reserves order on appeals against Allahabad HC’s ‘Unconstitutional’ verdict

    Why in the News?

    The Supreme Court reserved its decision on appeals challenging the Allahabad HC’s verdict, which declared the Uttar Pradesh Board of Madarsa Education Act, 2004 as ‘Unconstitutional’.

    What is the UP Madarsa Education Act of 2004?

    • The UP Board of Madarsa Education Act, 2004, was enacted to establish a regulatory framework for madrasas in the state.
    • Aim: To ensure the delivery of quality education in these institutions while aligning them with constitutional principles.
    • Key Provisions: The Act set up the Uttar Pradesh Board of Madarsa Education, responsible for prescribing curricula, conducting examinations, and certifying students in registered madrasas.
    • State Involvement: It allowed the government to provide grants, regulate the functioning of madrasas, and inspect their adherence to standards, ensuring uniformity and compliance with educational norms.

    On what grounds did the Allahabad HC declare the Madarsa Act as ‘Unconstitutional’?

    • Violation of Secularism: The Allahabad High Court ruled that the Act violated the principle of secularism, which is a fundamental aspect of the Indian Constitution.
      • The court held that the state’s direct involvement in the administration and funding of religious institutions like madrasas contradicted the secular character enshrined in the Constitution.
    • Equality Before Law: The Act was also found to contravene Article 14, which ensures equality before the law.
      • The court noted that providing special educational arrangements for madrasas amounted to favoring a particular religious community, which was deemed discriminatory against others.

    What are the key arguments on the Constitutionality of the Madarsa Education Act before the SC?

    • For the Act’s Constitutionality:
      • Promoting Educational Rights: Petitioners argued that the Act was intended to improve the quality of education in madrasas by incorporating modern subjects, thereby fulfilling the state’s obligation under Article 21A (Right to Education).
      • Minority Rights Protection: They contended that the Act safeguarded the rights of religious and linguistic minorities to establish and administer educational institutions of their choice under Article 30.
    • Against the Act’s Constitutionality:
      • State Involvement in Religious Education: Critics argued that the state’s involvement in regulating and funding madrasas blurred the line between state and religion, thus it leads to violating the secular framework.
      • Discriminatory Approach: It was contended that the Act granted privileges to one community’s educational institutions, potentially discriminating against others.
      • Alternative Educational Models: The state’s direct regulation of madrasas was seen as unnecessary when secular education could be provided through other existing educational frameworks.

    What are the wider Implications of the SC’s decision on the Madarsa Education Act?

    • Impact on Minority Educational Rights: If the Supreme Court upholds the Act, it may strengthen the right of minorities to receive state support for their educational institutions.
      • Conversely, striking down the Act could set a precedent for limiting state involvement in religious institutions.
    • Revisiting the Secularism Principle: The ruling could lead to a reassessment of how secularism is interpreted, particularly concerning state interactions with minority educational institutions.
    • Implications for Other Religious Schools: The judgment could have broader ramifications for other religious institutions that receive government aid or regulation, potentially prompting similar legal challenges.
    • Integration of Madrasas into Mainstream Education: If the Act is declared unconstitutional, the state may need to find alternative ways to integrate madrasa students into the formal educational system without compromising on their cultural and religious needs.

    What reforms are necessary to modernize madrasa education and address public perceptions?

    • Curriculum Integration: Need to introduce a balanced curriculum that combines religious studies with modern subjects like science, mathematics, and social studies to make madrasa education more holistic and aligned with mainstream education standards.
    • Teacher Training and Certification: Ensure that madrasa teachers receive proper training in contemporary pedagogy and modern subjects.
    • Infrastructure Development: Improve madrasa facilities to provide a conducive learning environment. This includes better classrooms, libraries, laboratories, and access to technology for digital learning.
    • Monitoring and Evaluation: Establish a framework to regularly assess and monitor the quality of education in madrasas.
    • Vocational and Skill-Based Training: Incorporate vocational courses and skill development programs to equip students with practical skills that can improve their employability.
    • Awareness Programs: Need to run awareness campaigns to inform the community about the value of modernizing madrasa education.

    Way forward: 

    • Reform the Act to Align with Secular Principles: Amend the Act to focus on educational standards without direct state involvement in religious affairs, ensuring compliance with constitutional values of secularism and equality.
    • Promote Inclusive Educational Models: Integrate madrasa education into the mainstream system by introducing modern subjects while respecting cultural and religious contexts, allowing students to benefit from both secular and religious education.

    Back2Basics: Minority Educational Institutions in India:

    Details
    Constitutional Provision Article 30(1) of the Constitution of India grants linguistic and religious minorities the right to establish and administer educational institutions of their choice.
    Legislative Framework National Commission for Minority Educational Institutions Act, 2004 safeguards the educational rights of minorities as per Article 30(1).
    Definition A “Minority Educational Institution” is defined as a college or institution established or maintained by a person or group from amongst the minorities (Section 2(g) of the Act).
    Judicial Precedent In T.M.A. Pai Foundation vs. State of Karnataka (2002), the Supreme Court ruled that minority status is determined by state demographics, not national population.
    Rights of Minority Institutions Article 29 protects the interests of minorities by allowing them to conserve their distinct language, script, or culture.

    • Minority institutions do not have an absolute right to appoint staff;
    • This was upheld in the context of the West Bengal Madrasah Service Commission Act, 2008.
    Recognized Minority Communities Muslims, Sikhs, Christians, Buddhists, Jains, and Zoroastrians (Parsis) are recognized as minority communities under the National Commission for Minorities Act of 1992.
    Significance Minority educational institutions play a crucial role in preserving the cultural and linguistic heritage of minority communities while providing access to education.

    Mains PYQ:

    Q National Education Policy 2020 conforms with the Sustainable Development Goal-4 (2030). It intends to restructure and reorient the education system in India. Critically examine the statement. (UPSC IAS/2020)

  • National Company Law Appellate Tribunal (NCLAT)

    Why in the News?

    The Supreme Court has overturned the National Company Law Appellate Tribunal’s (NCLAT) order that approved a deal between an edtech firm and the Board of Control for Cricket in India (BCCI) to settle an overdue payment.

    Three-Judge Bench Observations in Byju’s Case

    • The Supreme Court’s bench, led by CJI, noted that there were procedural lapses in the settlement process between Byju’s and the BCCI.
    • The settlement occurred without the approval of the Insolvency Resolution Professional (IRP), who was responsible for overseeing Byju’s affairs following his appointment by the NCLT.
    • The bench ruled that the NCLAT’s approval of the settlement, issued in August 2024, was invalid due to the lack of necessary approvals from the IRP.

    About National Company Law Appellate Tribunal (NCLAT):

    Details
    Establishment Established on 1 June 2016 under the Companies Act, 2013.
    Purpose Serves as an appellate authority to hear appeals against orders of the National Company Law Tribunal (NCLT).
    Jurisdiction Hears appeals related to:
    – Decisions made by NCLT
    – Orders of the Insolvency and Bankruptcy Board of India (IBBI)
    – Orders from the Competition Commission of India (CCI).
    Appeals to Supreme Court Decisions of NCLAT can be appealed to the Supreme Court of India.
    Composition Comprises a Chairperson and other members appointed by the central government, with the Chairperson typically being a retired judge of the Supreme Court or High Court.
    Functions Reviews and adjudicates matters related to company law and insolvency, ensuring justice against NCLT orders.
    Location Headquartered in New Delhi.
    Significance Plays a critical role in corporate governance, maintaining transparency and accountability in the corporate sector.
    Relationship with NCLT NCLT acts as the adjudicating authority, while NCLAT provides a platform for appeals, ensuring a checks-and-balances system.
    Integration with IBC Supports the objectives of the Insolvency and Bankruptcy Code, 2016, streamlining insolvency resolution processes.

     

    PYQ:

    [2018] How far do you agree with the view that tribunals curtail the jurisdiction of ordinary courts? In view of the above, discuss the constitutional validity and competency of the tribunals in India.

  • Secularism is a core part of the Constitution: SC

    Why in the News?

    On Monday, October 21, 2024, the Supreme Court affirmed that secularism is an integral and fundamental component of the Basic Structure of the Constitution.

    Is Secularism an Unamendable Part of the Indian Constitution?

    • Part of the Basic Structure: The Supreme Court has consistently held that secularism is an essential and indelible part of the Basic Structure of the Indian Constitution. This means that even though the Preamble was amended in 1976 to include the word “secular,” the principles of secularism were considered inherent in the Constitution from the start.
    • Kesavananda Bharati Case (1973): The landmark judgment established the “Basic Structure Doctrine,” which states that certain fundamental features of the Constitution cannot be altered or destroyed through amendments. Secularism, along with democracy, rule of law, and judicial review, was deemed a part of this unamendable structure.
    • Equality and Fraternity: The right to equality (Article 14) and the emphasis on fraternity in the Constitution have been interpreted by the judiciary to embody secularism as a core value, ensuring the protection of all religions and the principle of state neutrality in religious matters.
    • Indira Gandhi’s 42nd Amendment (1976): The amendment officially added the term “secular” to the Preamble, though the court’s view is that secularism was always implicitly present in the spirit of the Constitution.

    How Does Indian Secularism Differ from Western Models?

    • Equal Respect for All Religions (Sarva Dharma Sambhava): Indian secularism emphasizes the equal respect and treatment of all religions, rather than the strict separation of religion and state seen in Western secular models.
    • State Intervention for Social Reform: Unlike Western secularism, where religion is often seen as a strictly private affair, Indian secularism allows the state to engage with religious institutions to reform practices that may be discriminatory or harmful (e.g., abolition of untouchability or regulation of religious endowments).

    What Implications Do Challenges to Secularism Have for Indian Democracy?

    • Erosion of Minority Rights: The rise of majoritarian politics, fueled by Hindu nationalism, threatens minority rights and equality before the law, with accusations of fostering an environment where attacks on minorities are tolerated.
    • Centralization of Power: The concentration of power has weakened institutional autonomy, curtailed civil liberties, and marginalized minority voices, impacting the democratic principles of secularism and dissent.
    • Impact on Governance and International Relations: Religious considerations in policymaking can result in discriminatory practices, harm India’s international reputation regarding human rights, and attract global criticism.

    Way forward: 

    • Strengthen Legal Safeguards: Reinforce constitutional provisions that protect secularism by ensuring strict enforcement of anti-discrimination laws and promoting inclusive policies that uphold the principles of equality, fraternity, and state neutrality in religious matters.
    • Promote Civic Education on Secularism: Increase public awareness and education about the significance of secularism in India’s constitutional framework to foster social harmony and counter identity-based politics, reinforcing the values of pluralism and unity in diversity.

  • New ‘Lady Justice’ Statue

    justice

    Why in the News?

    • The Chief Justice of India unveiled a new ‘lady justice’ statue at the Supreme Court.
      • This new statue replaces the previous version and is clothed in a saree, holds scales in one hand, and the Indian Constitution in the other, with its eyes uncovered—symbolizing that justice sees all equally.

    About the Lady Justice Statue:

    Details
    History
    • Introduced during colonial rule, becoming a common feature in Indian courthouses.
    • Depicted in the Calcutta High Court (1872) and the Bombay High Court, with variations in blindfold status.
    Modern Depiction In 2024, a new 6-foot statue was unveiled by the Supreme Court of India, created by Vinod Goswami.
    Symbolism Absence of the blindfold signifies that “law is not blind,” promoting the idea of equality in justice.
    Origins Traces back to Greek mythology with Themis and Roman mythology with Justitia, traditionally depicted with a blindfold, scales, and a sword.
    Notable Changes
    • Symbolizes that “the law is not blind,” emphasizing equality in justice.
    • Adorned in a Saree, reflecting Indian heritage and tradition.
    • Holds a copy of the Indian Constitution instead of a sword, representing rights and fairness.
    • Continues to hold scales, emphasizing the need for balance in weighing evidence and arguments.
    • Breaks free from colonial influences, aligning with contemporary Indian values.
    • Signifies a justice system that is aware, inclusive, and rooted in constitutional principles.
    • Positioned in the Judges’ Library of the Supreme Court, highlighting its significance in Indian jurisprudence.

  • Minority Institutions

    Why in the News?

    • The Supreme Court stated that laws regulating institutions run by religious or linguistic minorities do not inherently violate the principle of secularism.
      • The CJI made this observation while hearing a challenge to the Allahabad High Court’s decision to strike down the Uttar Pradesh Board of Madrasa Education Act, 2004.

    Why do we need to discuss this?

    • The 2004 Act regulated madrasas in Uttar Pradesh, and the High Court concluded that it violated secular principles.
    • It had ordered the transfer of madrasa students to regular schools, which affected nearly 17 lakh students across 16,000 madrasas in the state.
      • Petitioners pointed out that the High Court believed that madrasas violated Article 28 of the Constitution, which prohibits religious instruction in institutions fully funded by the State.

    Key Observations made by the SC:

    • A law regulating a minority institution does not, by itself, violate secularism.
    • The CJI referred to the Hindu Religious Endowments and Charitable Institutions Act, which regulates the administration of religious institutions in many states, from Maharashtra to Tamil Nadu.
    • The CJI emphasized that the State has the right to legislate to improve the quality of education in government-aided minority-run institutions.
    • He noted that children attending madrasas need a broad-based education to learn essential subjects required to lead a proper life and become worthy citizens.

    About Minority Educational Institutions in India:

    Details
    Constitutional Provision Article 30(1) of the Constitution of India grants linguistic and religious minorities the right to establish and administer educational institutions of their choice.
    Legislative Framework National Commission for Minority Educational Institutions Act, 2004 safeguards the educational rights of minorities as per Article 30(1).
    Definition A “Minority Educational Institution” is defined as a college or institution established or maintained by a person or group from amongst the minorities (Section 2(g) of the Act).
    Judicial Precedent In T.M.A. Pai Foundation vs. State of Karnataka (2002), the Supreme Court ruled that minority status is determined by state demographics, not national population.
    Rights of Minority Institutions Article 29 protects the interests of minorities by allowing them to conserve their distinct language, script, or culture.

    • Minority institutions do not have an absolute right to appoint staff;
    • This was upheld in the context of the West Bengal Madrasah Service Commission Act, 2008.
    Recognized Minority Communities Muslims, Sikhs, Christians, Buddhists, Jains, and Zoroastrians (Parsis) are recognized as minority communities under the National Commission for Minorities Act of 1992.
    Significance Minority educational institutions play a crucial role in preserving the cultural and linguistic heritage of minority communities while providing access to education.

     

    PYQ:

    [2011] In India, if a religious sect/community is given the status of a national minority, what special advantages it is entitled to?

    1. It can establish and administer exclusive educational institutions.

    2. The President of India automatically nominates a representative of the community to Lok Sabha.

    3. It can derive benefits from the Prime Minister’s 15-Point Programme.

    Which of the statements given above is/are correct?

    (a) 1 only

    (b) 2 and 3 only

    (c) 1 and 3 only

    (d) 1, 2 and 3

  • SC upholds Section 6A of Citizenship Act as valid

    Why in the News?

    On October 17, 2024, political parties widely welcomed the Supreme Court’s decision upholding Section 6A of the Citizenship Act, addressing citizenship under the Assam Accord.

    What is Section 6A?

    • Section 6A of the Citizenship Act, added in 1985, grants citizenship to immigrants in Assam who entered between January 1, 1966, and March 25, 1971, under the Assam Accord provisions.

    What are the implications of upholding Section 6A for citizenship in Assam?

    • Legal Recognition of the Assam Accord: The verdict reinforces the Assam Accord’s legal status, acknowledging the cut-off date of March 25, 1971, for granting citizenship to immigrants. This solidifies the Accord’s role as a foundational legal document addressing the state’s citizenship issues.
    • Clarifying Citizenship Status: The ruling provides legal clarity on the citizenship status of individuals who entered Assam between January 1, 1966, and March 25, 1971. They are granted citizenship if they comply with specific conditions, while those arriving post-1971 are deemed illegal immigrants.
    • Impact on the NRC Process: The decision may influence the National Register of Citizens (NRC) process in Assam by determining who is eligible for inclusion. The cut-off date could guide the verification of citizenship claims, potentially affecting those at risk of being declared stateless.

    How does this ruling interact with existing immigration laws and policies?

    • Consistency with the Foreigners Act: The ruling aligns with existing immigration policies under the Foreigners Act, where illegal immigrants are identified and potentially deported.
    • Implications for Deportation and Detection: The verdict mandates continued efforts to detect and deport illegal immigrants who arrived post-March 25, 1971.
      • This may intensify identification and deportation processes, requiring robust legal and administrative mechanisms.
    • Role in NRC and Citizenship Amendment Act (CAA) Debate: The ruling interacts with ongoing discussions about the CAA, which grants citizenship to non-Muslim migrants from neighboring countries who entered before December 31, 2014.

    What are the broader constitutional implications of this decision?

    • Federalism and Regional Autonomy: The judgment upholds Assam’s unique historical and cultural context, recognizing the state’s special legal provisions under the Assam Accord.
    • Right to Equality and Non-discrimination: By validating different cut-off dates for citizenship determination in Assam compared to the rest of India, the ruling raises questions about equal treatment and the uniformity of laws across the country.
    • Judicial Endorsement of Accord-based Legislation: The ruling sets a precedent for upholding legislation based on historical accords or regional agreements.

    Way forward: 

    • Full Implementation of the Assam Accord: Ensure the complete execution of all clauses of the Accord, including detecting, deleting, and deporting illegal immigrants, while providing support to those recognized as citizens to integrate smoothly into society.
    • Strengthen Legal and Administrative Frameworks: Enhance the infrastructure for the NRC process, deportation mechanisms, and border management to maintain consistency in immigration policies, while addressing humanitarian concerns for affected individuals.

  • What is the ‘Doctrine of Coverture’ in English common law?

    Why in the News?

    The Marital Rape Exception (MRE), rooted in the doctrine of coverture from English common law, has long sparked debates about the legal autonomy of women within marriage.

    Marital Rape Exception (MRE): What is it?

    • The MRE is found in Exception 2 to Section 375 of the Indian Penal Code (IPC), 1860, and its equivalent, Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023.
      • According to these provisions, sexual intercourse or sexual acts by a man with his wife do not constitute rape if the wife is above 18 years of age.

    Why discuss this?

    • This legal immunity for husbands has been challenged for violating fundamental rights, and now, a three-judge Bench led by CJI D.Y. Chandrachud is set to examine the constitutional validity of this exception.
    • The outcome of this case could redefine the boundaries of consent and bodily autonomy within the institution of marriage in India.

     

    Split Verdict by the Delhi High Court in 2022:

    1. Justice Rajiv Shakdher’s Opinion:

    • Declared the Marital Rape Exception (MRE) unconstitutional.
    • Argued that the MRE violates a woman’s bodily autonomy and expression.
    • Criticized the exception as being rooted in patriarchy and misogyny.
    • Held that the classification of marital rape as different from rape outside marriage is unreasonable and arbitrary.
    • Emphasized that forced sex outside marriage is treated as “real rape,” while the same act within marriage is not.

    2. Justice C. Hari Shankar’s Opinion:

    • Upheld the Marital Rape Exception, considering it legal within the framework of marriage.
    • Argued that sexual relations within marriage are a legitimate expectation.
    • Expressed concerns that allowing prosecution of husbands for non-consensual sex would be antithetical to the institution of marriage as understood in Indian society.
    • Believed that introducing the possibility of husbands being seen as rapists within marriage would undermine the institution of marriage.

    Doctrine of Coverture from English Common Law:

    • The doctrine states that upon marriage, a woman’s legal existence was essentially merged with that of her husband.
    • The married woman was legally dependent on her husband, losing autonomy over her legal rights and property.
    • Impact on Women’s Rights:
      • Under this doctrine, a wife had no independent legal identity during marriage.
      • Women could not own property, enter contracts, or bring legal claims without their husband’s approval.
      • The husband had control over the wife’s body and actions, including sexual relations.
    • Influence on Marital Rape Exception:
      • The doctrine formed the basis for the original Marital Rape Exception in British common law.
      • It implied that a wife gave permanent consent to sexual relations upon marriage, which could not be withdrawn.
      • This legal reasoning was adopted in many British colonies, including India, and continues to influence Indian law today.
    • Modern Rejection:
      • England abolished the Marital Rape Exception in 1991 in the case of R v. R, recognizing that the doctrine of coverture no longer reflected the status of women in modern society.
      • Despite this, the doctrine’s influence persists in India’s legal system, particularly through the Marital Rape Exception in BNS.

    PYQ:

    [2024] The soul of new law, Bhartiya Nyay Sanhita (BNS) is Justice, Equality and Impartiality based on Indian culture and ethos. Discuss this in the light of major shift from a doctrine of punishment to justice in the present judicial system. 

  • Article 142 of the Indian Constitution

    Why in the News?

    The Supreme Court declined a PIL seeking directions under Article 142 to include sexual offences against men, trans-persons, and animals in the Bharatiya Nyaya Sanhita (BNS), which replaced the Indian Penal Code (IPC).

    Supreme Court’s Observations:

    • The petitioner argued that the new BNS omitted Section 377 of the IPC, which previously criminalized ‘unnatural sex’ and carnal intercourse involving a man, woman, or animal.
    • In the Navtej Singh Johar v. Union of India (2018) case, the Supreme Court struck down Section 377 to the extent that it criminalized consensual sexual acts between adults.
    • Non-consensual homosexual acts remained punishable under this provision.
    • The BNS does not include provisions criminalizing sexual offences against men, trans persons, and animals.
    • During the hearing, the bench comprising CJI DY Chandrachud and Justices JB Pardiwala and Manoj Misra stated that:
      • The Court cannot direct Parliament to create or reintroduce an offence.
      • The creation of offences falls within the parliamentary domain, not under the court’s jurisdiction, even with Article 142.

    About Article 142:

    Details
    Definition • Grants discretionary power to the Supreme Court to pass orders or decrees necessary for complete justice in matters before it.
    • Allows the court to act beyond the limits of statutory law if required.
    Purpose • Ensures justice is delivered in cases where regular laws may not provide adequate remedies.
    • Aims to empower the Supreme Court to address extraordinary situations effectively.
    Key Clauses • Article 142(1): Allows the Supreme Court to pass enforceable orders across India for doing complete justice.
    • Article 142(2): Empowers the court to secure attendance, discovery of documents, or punishment for contempt.
    Notable Cases • Bhopal Gas Tragedy (1989): Supreme Court awarded $470 million compensation, bypassing limitations of ordinary law.
    • Ayodhya Case (2019): Directed the formation of a trust for Ram Mandir construction.• Liquor Sale Ban (2016): Imposed a 500-metre ban on liquor shops along highways using Article 142, extending it beyond central government orders.
    Constructive Application • Invoked for environmental protection, such as in the Taj Mahal cleanup.
    • Justice for undertrials by addressing systemic delays in the judicial process.
    Controversies • Accusations of judicial overreach in certain cases, where actions have seemingly breached the separation of powers principle.
    • Supreme Court Bar Association v. Union of India: Clarified that Article 142 should supplement, not replace the law.
    Impact on Governance • Empowers the Supreme Court with a tool for upholding justice, but raises debates over checks and balances in a democratic system.

     

    PYQ:

    [2019] With reference to the Constitution of India, prohibitions or limitations or provisions contained in ordinary laws cannot act as prohibitions or limitations on the constitutional powers under Article 142. It could mean which one of the following?

    (a) The decisions taken by the Election Commission of India while discharging its duties cannot be challenged in any court of law.

    (b) The Supreme Court of India is not constrained in the exercise of its powers by laws made by the Parliament.

    (c) In the event of grave financial crisis in the country, the President of India can declare Financial Emergency without the counsel from the Cabinet.

    (d) State Legislatures cannot make laws on certain matters without the concurrence of Union Legislature.

  • Why did Delhi HC allow a 60-year-old couple to access their dead son’s sperm?

    Why in the News?

    The Delhi High Court recently permitted a couple in their sixties to access their late son’s sperm sample, thus opening the door for posthumous assisted reproduction.

    About the Present Case:

    • The Delhi HC allowed a couple in their sixties to access their deceased son’s sperm sample for posthumous assisted reproduction, marking a significant legal ruling.
    • The son, who passed away from cancer in 2020, had cryopreserved his sperm at a hospital. The hospital refused to release the sample without a court order since there were no guidelines for cases without a surviving spouse.
    • The parents sought court intervention to carry on their son’s legacy, with the assurance that they would take full responsibility for any child born through surrogacy using the sperm sample.

    What is the ART Act?

    • The Assisted Reproductive Technology (ART) Act, 2021 regulates fertility treatments and artificial insemination procedures in India.
    • It provides guidelines for posthumous retrieval of sperm but is limited to cases where the deceased is married, allowing the surviving partner to seek sperm retrieval.
    • The Ministry of Health and Family Welfare stated that the current legislation does not account for “postmortem grandparenthood” cases, where grandparents seek to use a deceased individual’s sperm.

    What are present International practices?

    • Uruguay: Allows posthumous reproduction with written consent valid for one year.
    • Belgium: Permits posthumous reproduction after a six-month waiting period following death, and the request must be made within two years.
    • Victoria, Australia: Requires written or oral consent before witnesses, approval from a “patient review panel,” and counseling for the parent.
    • Canada and the UK: Both require written consent for posthumous reproduction.
    • Israel: Limits the use of a deceased individual’s sperm to the female partner, with some exceptions allowing parents to use it. The Delhi High Court ruling referenced a similar case in Israel involving a 19-year-old soldier.

    Precedents and Concerns:

    • Legal Precedent for Non-Spousal Claims: The Delhi High Court’s ruling sets a precedent where parties other than a spouse, such as parents, can claim the right to access a deceased individual’s cryopreserved reproductive material.
      • This expands the legal interpretation beyond the scope typically covered by existing laws, which usually prioritize the spouse’s consent.
    • Ethical and Consent Issues: Posthumous reproduction raises ethical concerns, particularly regarding the presumed consent of the deceased individual.
      • Determining whether the deceased intended for their reproductive material to be used after death can be complex, especially when explicit written consent is not available.
    • Child Welfare Considerations: The ruling highlights concerns about the future child’s welfare, who would grow up without one genetic parent.

    Way forward: 

    • Establish Clear Legal Guidelines: Develop comprehensive legal frameworks for posthumous reproduction, addressing scenarios beyond spousal claims and ensuring explicit consent requirements to guide such cases.
    • Prioritize Child Welfare and Ethical Considerations: Implement safeguards like mandatory counseling, ethical review panels, and consideration of the child’s best interests in decisions involving posthumous assisted reproduction.