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?
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.
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’slegal 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.
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.
AboutArticle 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.
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.
Q) The political and administrative reorganization of states and territories has heen a continuous ongoing process since the mid-nineteenth century. Discuss with examples. (UPSC CSE 2022) Q) To what extent is Article 370 of the Indian Constitution, bearing marginal note “Temporary provision with respect to the State of Jammu and Kashmir”, temporary? Discuss the future prospects of this provision in the context of Indian polity. (UPSC CSE 2016)
Mentor’s Comment: The first assembly election of Jammu and Kashmir (2024), after the revocation of Article 370, represents a pivotal moment in the region’s political landscape. Today’s editorial emphasizes the necessity for the central government to acknowledge and respect the present electoral mandate. With the INDIA bloc gaining control, it is a must for the Centre to facilitate the newly elected government in fulfilling its promises, particularly regarding statehood restoration and local governance.
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Let’s learn!
Why in the News?
The 2024 Jammu and Kashmir Legislative Assembly elections marked a significant political event, being the first assembly elections in over a decade and the first since the revocation of the region’s special status under Article 370.
Major observations during the 2024 Assembly Election:
The Election was conducted in three phases and was crucial for restoring democratic processes in a region historically troubled by conflict and political instability.
Restoration of Self-Rule: The elections represent a crucial step towards restoring some degree of self-rule in Jammu and Kashmir after the revocation of Article 370 in 2019.
It signaled a shift in voter sentiment towards mainstream political parties that advocate for local governance and autonomy.
This outcome could potentially lead to a more representative government that addresses local issues effectively.
Voter Participation and Sentiment: The elections witnessed a robust voter turnout of 63.9%, surpassing previous electoral participation, indicating a renewed faith in democratic processes among the electorate.
This increased engagement suggests that many citizens are seeking to voice their concerns through legitimate political channels rather than through separatist movements or violence
Overview of Article 370:
• Autonomous Status: Article 370 allowed Jammu and Kashmir to have its own constitution, a separate flag, and significant autonomy in internal matters. It limited the Indian Parliament’s power to legislate for the state, requiring state government concurrence for laws beyond defense, foreign affairs, and communications. • Temporary Provision: Drafted in Part XXI of the Constitution, it was intended as a temporary measure until J&K formulated its constitution. The article was meant to ensure that the people of Jammu and Kashmir had a say in their governance. • Instrument of Accession: The article was rooted in the Instrument of Accession signed by Maharaja Hari Singh in 1947, which allowed J&K to join India while retaining certain powers.
What are the challenges expected for the newly formed government?
Political Landscape Dynamics: The JKNC’s victory is seen as a rejection of the BJP’s policies and a call for greater local representation. This shift may also influence future electoral strategies and alliances within the region.
Central Control: The newly elected assembly will still operate under the oversight of a federally appointed lieutenant governor, limiting its autonomy. Major decisions will require central approval, which could stifle local governance initiatives.
Restoration of Article 370: While the regional party JKNC has promised to work towards restoring Article 370, the likelihood of this occurring is uncertain given the central government’s stance.
The central government maintains that this constitutional change is irreversible, complicating any efforts to regain previous autonomy.
Key Recommendations for Governance:
Accelerate Statehood Restoration: The central government should prioritize restoring Jammu and Kashmir’s statehood to foster political stability.
Support Local Governance Initiatives: Empowering local leaders and institutions will enhance democratic engagement and address citizens’ concerns more effectively.
Foster Inclusive Dialogue: Engaging with diverse political factions, including those previously marginalized, can help build a more cohesive political framework.
Conclusion: Respecting the electoral mandate is essential not only for upholding democratic values but also for ensuring that citizens feel represented and heard. As new leadership emerges, both local and central governments must work collaboratively towards restoring peace, stability, and governance that reflects the aspirations of all people in Jammu and Kashmir.
At the National Conference of the District Judiciary, President Droupadi Murmu emphasized the problem of court delays. She pointed out that these delays are causing people to hesitate in approaching the courts.
What are the primary causes of delays in the Indian judicial system?
Ineffective Case Management: The lack of proper scheduling and timelines for filing documents, examining witnesses, and scheduling hearings leads to inefficiencies and prolonged delays.
Lawyers often seek adjournments due to unpredictable scheduling or strategic reasons, leading to repeated postponements of hearings.
Overburdened Judges: District court judges are often under pressure to prioritize cases based on higher court directives, skewing case management in favor of meeting deadlines rather than ensuring timely justice.
Incentive Structure for Judges: The “units system” rewards judges for disposing of simpler cases, often causing more complex cases to be delayed or neglected.
Extended Stays and Interim Orders: Litigants may use stays as a strategic delay tactic, reducing the urgency to resolve cases quickly.
Unpredictable Witness Testimonies: Disruptions in the court schedule and procedural delays make it difficult for witnesses to attend court, further contributing to trial delays.
Status of the case pending in India:
Total Pending Cases: As of 2024, there are over 58.59 lakh cases pending in high courts alone, with a staggering total of more than 51 million (5.1 crore) cases across all court levels, including district and Supreme Court.
Long-standing Cases: Nearly 62,000 cases have been pending for over 30 years, with some dating back to 1952. In high courts, about 23% of cases have been pending for over ten years2.
High Court Breakdown: The Allahabad High Court has the highest backlog, with over seven lakh cases pending as of 2018. Meanwhile, the Supreme Court currently has around 83,000 cases pending, marking a significant increase over the past decade despite an increase in the number of judges
What impact do these delays have on public perception and access to justice?
Erosion of Trust: Delays make the judicial process appear slow and ineffective, leading to public hesitation in approaching courts, fearing that litigation will complicate their lives.
Increased Legal Costs: Prolonged cases escalate legal costs for litigants, making justice unaffordable for many.
Reluctance to Seek Justice: The “black coat syndrome” highlights how people avoid courts due to the fear of endless adjournments and delays, diminishing access to timely justice.
Backlog of Cases: The increasing backlog due to delays creates further congestion in the judicial system, perpetuating a cycle of inefficiency.
How can reforms improve the efficiency of the judiciary? (Way forward)
Improved Case Management Systems: Implementation of Case Flow Management Rules with a focus on enforcing timelines for hearings and case disposal can streamline the process.
Reformed Incentive Structures: Reform the “units system” to incentivize judges to handle complex cases more efficiently rather than prioritizing simpler ones.
Predictable Scheduling for Lawyers: Providing clear scheduling information to lawyers can reduce unnecessary adjournments and improve case flow.
Review of Stay Orders: Limiting the duration of stay orders and making them subject to regular review can discourage their misuse as delay tactics.
Introducing real-time case management systems to track case progress and monitor delays could enhance judicial efficiency.
Support for Witnesses: Offering financial compensation and providing predictability in court appearances can encourage witnesses to testify without unnecessary delays.
Q). Discuss the role of the Election Commission of India in the light of the evolution of the Model Code of Conduct. (UPSC CSE 2022)
Q. (a) State the three basic values, universal in nature, in the context of civil services and bring out their importance. (150 words) (b) Distinguish between “Code of ethics” and “Code of conduct” with suitable examples. (UPSC CSE 2018)
Q. (a) Which eminent personality has inspired you the most in the context of ethical conduct in life? Give the gist of his/her teachings. Giving specific examples, describe how you have been able to apply these teachings for your ethical development. (b) There is a heavy ethical responsibility on the public servants because they occupy positions of power, handle huge amounts of public funds, and their decisions have wide-ranging impacts on society and the environment. What steps have you taken to improve your ethical competence to handle such responsibility? (UPSC CSE 2014)
Mentor’s Comment: Gurmeet Ram Rahim Singh is a prominent Indian spiritual leader and the head of the Dera Sacha Sauda sect. In January 2019, he was sentenced to life imprisonment for the murder of journalist Ram Chander Chhatrapati, who had reported on the rape allegations against him. Additionally, he was convicted in October 2021 for the murder of Ranjit Singh, a former Dera manager.
Despite his criminal convictions, Singh maintains a significant following. These challenges are reflected while maintaining law and order in governance and administration. In today’s editorial, we will study the same case and its impacts on democratic values of the Society.
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Let’s learn!
Why in the News?
Gurmeet Ram Rahim Singh, a convicted rapist and murderer, was released on parole just days before the Haryana Assembly elections.
This is his 15th parole, which is often coinciding with elections, raising concerns from the opposition party about electoral conduct violations.
A parole is a conditional release of a prisoner before they have completed their full sentence.
What legal challenges have been raised against this Parole?
Violates Model Code of Conduct: The Haryana Congress has formally petitioned the Election Commission of India to prevent Singh’s parole, arguing that it could influence voters during the upcoming assembly elections affecting democratic values.
Even if granted parole, he needs to face stringent conditions, including a ban on entering Haryana, delivering public speeches, or engaging in any political activities.
Public Opposition and Legal Scrutiny: There is significant public outcry with groups like the Shiromani Gurdwara Parbandhak Committee. Concerns have been raised about potential law and order issues stemming from his influence
Judicial Oversight: The state government has assured that all parole applications are processed legally, adhering to the Haryana Good Conduct Prisoner (Temporary Release) Act, 2022. The frequent granting of parole has led to calls for reforms in the system to prevent misuse.
What role needs to be played by the Political Parties and the ECI?
Political Parties: The ruling party in Haryana defends the decision to grant parole to Gurmeet Ram Rahim Singh, claiming due process was followed. While the opposition party opposes the parole, their previous activities had similar views.
Political parties need to learn from former personalities like PM Atal Bihari Vajpayee and Manmohan Singh, who prioritized the ‘Rule of Law’ over political gain.
Election Commission’s Scrutiny: The Election Commission of India (ECI) needs to intervene and cancel Singh’s parole, arguing it undermines democratic values, especially before elections.
Need for Judicial Oversight: The judiciary has previously played a crucial role in addressing Singh’s crimes, and there is hope for continued judicial vigilance against unjust paroles.
Conclusion: The ongoing saga of Singh’s crimes and convictions reflects a broader societal struggle against superstition and injustice, as emphasized by the late rationalist Narendra Dabholkar. ECI should establish stricter guidelines and oversight mechanisms regarding parole applications, particularly for individuals convicted of serious crimes.
Climate activist Sonam Wangchuk was detained at the Delhi border on Monday night while leading a group of protesters seeking to petition the Central government for Ladakh’s inclusion in the Sixth Schedule of the Constitution, along with other demands for greater autonomy for the region.
What is Asymmetrical federalism?
Asymmetrical federalism refers to a system where some regions or states within a country have more autonomy or special provisions than others. This contrasts with symmetrical federalism, where all states or regions have equal powers.
Example in India: The Indian Constitution follows asymmetrical federalism, where certain regions like those under the Fifth and Sixth Schedules or specific northeastern states have special provisions and greater autonomy compared to other states.
Which are the other States seeking constitutional safeguards?
Ladakh: The Union Territory of Ladakh has seen increasing demands for inclusion in the Sixth Schedule of the Constitution to safeguard its indigenous culture and provide greater autonomy.
Arunachal Pradesh: The state has passed a resolution seeking inclusion in the Sixth Schedule to grant more autonomy to its tribal populations.
Manipur: The Hill Area Committee in Manipur has also demanded inclusion in the Sixth Schedule for its tribal areas, particularly the ‘Hill areas’.
Do the Fifth and Sixth schedules grant areas under them more autonomy?
Fifth Schedule: Grants special protections to ‘scheduled areas’ in 10 states. These areas are governed by Tribes Advisory Councils (TACs) and Governors, who have the power to regulate land transfers, businesses, and the applicability of laws.
Sixth Schedule: Provides greater autonomy to ‘tribal areas’ in four northeastern states (Assam, Meghalaya, Mizoram, and Tripura) through Autonomous District Councils (ADCs).
ADCs have more legislative, executive, and financial powers, including the ability to regulate land use, social customs, and taxation.
Why did the British create provisions for ‘excluded’ and ‘partially excluded’ areas?
British Policy of Isolation: To avoid unrest and rebellion among the tribal populations, the British adopted a policy of ‘isolation’ by creating ‘excluded’ and ‘partially excluded’ areas in tribal regions under the Government of India Act, 1935.
Excluded Areas: These were mostly in the northeastern hilly regions, where the Governor had the authority to legislate.
Partially Excluded Areas: These included tribal regions in Central and Eastern India, where laws from central and provincial legislatures were applicable but with modifications, ensuring minimal interference with tribal customs and governance.
Conclusion: The government should initiate meaningful consultations with local stakeholders in regions like Ladakh, Arunachal Pradesh, and Manipur to address concerns about cultural preservation and autonomy, ensuring that any constitutional reforms reflect the aspirations of the indigenous populations.
Q). “The diverse nature of India as a multi-religious and multi-ethnic society is not immune to the impact of radicalism which is seen in her neighborhood? Discuss along with strategies to be adopted to counter this environment. (UPSC CSE 2014)
Q). What are the challenges to our cultural practices in the name of Secularism? (UPSC CSE 2019)
Q). Customs and traditions suppress reason leading to obscurantism. Do you agree? (UPSC CSE 2020)
Q). Are tolerance, assimilation, and pluralism the key elements in the making of an Indian form of secularism? Justify your answer. (UPSC CSE 2022)
Mentor’s Comment: Sometimes, the religious sentiments among the public infringes the very particulates of the secular governance. The Waqf (Amendment) Bill 2024 has also sparked same controversy in India, particularly among the Muslim community and various political leaders. Critics argue that the bill threatens the autonomy of Waqf properties, which are religious endowments, by increasing government control and including non-Muslim members in Waqf boards.
However, the Joint Parliamentary Committee (JPC) reviewing the bill received an overwhelming response from the public, with conflicting reports on the number of suggestions submitted that ranged from 1.25 crore to 5 crore, which prompted some government officials to question the legitimacy of this feedback. In today’s editorial, we will have a look at more extra edges that we need to consider while drafting this new law for the Waqf Boards all over India.
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Let’s learn!
Why in the News?
The Waqf (Amendment) Bill 2024 has sparked significant controversy in India, particularly among the Muslim community and various political leaders.
The Fundamental Rights enshrined in Part III of the Constitution, prohibits the state from enacting laws that infringe religious rights, declaring any such laws void.
However, this freedom is subject to considerations of public order, morality, and health, allowing for state intervention only when necessary to maintain societal harmony.
What does the Indian Constitution say about Religious freedom?
• Article 26 guarantees every religious denomination the right to manage its affairs, including the establishment of religious institutions and the ownership of property. • Also, as in Article 13(2), the state is forbidden to make any law that takes away or abridges the rights conferred by this Part, declaring that any law made in contravention of this clause shall be void.
What are the criticisms faced by the Waqf Bill 2024?
Potential Misuse of the Power: The bill proposes 44 amendments to the existing Waqf Act of 1995, including the replacement of Waqf tribunals with District Collectors for property disputes. The opponents labeled this as a politically motivated move to weaken the Muslim community.
Threatens the Religious Autonomy: The Religious Endowments Act, of 1863 says that the ‘members of the said committee shall be appointed from among persons professing the religion for religious establishments”. Secondly, the UP’s Sri Kashi Vishwanath Temple Act, 1983 provides that no non-Hindu is eligible to be a member of its management at any level.
However, the MinorityAffairsMinistry has proposed through the Waqf Bill 2024 that two member seats each in the Central Waqf Council and all the State Waqf Boards be reserved for ‘non-Muslims’.
The All India Muslim Personal Law Board (AIMPLB) and other organizations have mobilized against the bill, claiming it undermines constitutional rights and could exacerbate communal tensions
Lack of Consultation: The Justice Rajinder Sachar Committee spent 18 months gathering data to draft the Waqf (Amendment) Act 2013, which strengthened the Waqf law in India. Unlike previous committees, the current Ministry did not engage with key stakeholders such as the Central Waqf Council or Muslim organizations before drafting the bill.
Why the reconstitution of CWC is necessary?
The Ministry is urged to quickly reconstitute the Central Waqf Council (CWC) according to existing waqf laws to oversee data collection from states. For two years, it needs to monitor state Waqf Boards and manage waqf properties closely that have been hindered so far. The reasons are as follows:
Membership Changes: The 2024 Bill proposes reducing Muslim membership in the CWC and State Waqf Boards from 100% to less than 50%, raising concerns about community representation.
Legal Concerns: The Bill aims to remove the requirement for CWC officials to be Muslim, contradicting constitutional rights related to religious management.
Women’s Representation: Confusion exists over the proposal for female representation in the CWC, which was already established in a previous amendment.
Re-registration Requirement: Existing waqfs must re-register under a new government-controlled portal, risking legal rights for those who fail to comply.
Removal of Donor’s Will: The Bill proposes discontinuing the mandatory implementation of the donor’s will, compromising existing waqf governance.
Way Forward: The Waqf (Amendment) Bill 2024 represents a significant shift in the governance and management of Waqf properties in India. As the Bill undergoes review, stakeholders must ensure that it balances the need for reform with the preservation of community rights and interests, fostering a system that genuinely serves its intended religious and charitable purposes.