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Kihoto Hollohan Order (1992)

Mains Paper 2 : Indian Constitution - historical underpinnings, evolution, features, amendments, significant provisions and basic structure |

Note4Students

From UPSC perspective, the following things are important :

Prelims level : About the case

Mains level : Anti-defection Law and issues with it


News

Crisis in K’taka Assembly

  • Various arguments are undergoing in the Supreme Court related to the political crisis in Karnataka.
  • A Senior Advocate has cited the landmark judgment in Kihoto Hollohan vs Zachillhu And Others (1992).
  • It states that the court upheld the sweeping discretion available to the Speaker in deciding cases of disqualification of MLAs.

What was the Kihoto Hollohan case?

  • The Tenth Schedule, which was inserted in the Constitution by the Constitution (52nd Amendment) Act, 1985, popularly known as the “anti-defection law”, provides for the disqualification of MPs and MLAs who defect.
  • The law covering the disqualification of legislators and the powers of the Speaker in deciding such matters became part of the statute book in 1985 when the Tenth Schedule to the Constitution was adopted.
  • A constitutional challenge to the Tenth Schedule was settled by the apex court in Kihoto Hollohan Case.
  • The principal question before the Supreme Court in the case was whether the powerful role given to the Speaker violated the doctrine of Basic Structure.

Extent of the Speaker’s powers

  • Paragraph 6(1) of the Tenth Schedule describes the Speaker’s sweeping discretionary powers. It reads:
  • If any question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final.

What did the Supreme Court rule in Hollohan?

  • The petitioners in Hollohan argued whether it was fair that the Speaker should have such broad powers, given that there is always a reasonable likelihood of bias.
  • The majority judgment authored by Justices M N Venkatachaliah and K Jayachandra Reddy answered this question in the affirmative,
  • The Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House.
  • They are expected to and do take far reaching decisions in the Parliamentary democracy.
  • Vestiture of power to adjudicate questions under the Tenth Schedule in them should not be considered exceptionable.
  • They added that the Schedule’s provisions were “salutory and intended to strengthen the fabric of Indian Parliamentary democracy by curbing unprincipled and unethical political defections.

Dissenting opinions over Speakers Power

  • The tenure of the Speaker, who is the authority in the Tenth Schedule to decide this dispute, is dependent on the continuous support of the majority in the House and, therefore, he does not satisfy the requirement of such an independent adjudicatory authority.
  • Independent adjudicatory machinery for resolving disputes relating to the competence of Members of the House is envisaged as an attribute of the democratic system which is a basic feature of our Constitution
  • The Speaker’s choice as the sole arbiter in the matter violates an essential attribute of the basic feature.
Legislative Council in States: Issues & Way Forward

Human Rights Courts in India

Mains Paper 2 : Indian Constitution - historical underpinnings, evolution, features, amendments, significant provisions and basic structure |

Note4Students

From UPSC perspective, the following things are important :

Prelims level : HR courts

Mains level : HR violations in India and measures to curb them


News

  • The Supreme Court has sought a response from the Central government, the States and the UTs on the prolonged delay for over a quarter of a century to establish exclusive human rights courts in each district and appointing special public prosecutors in them.

HR Courts

  • The Human Rights Act had called for the establishment of special courts in each district to conduct speedy trial of offences arising out of violation and abuse of human rights.
  • Section 30 of the Protection of Human Rights Act, 1993 envisages that a State government, with the concurrence of the CJ of High Court should specify for each district a court of session as a court of human rights for the speedy trial of violation of rights.
  • Section 31 of the Act provides the State government to specify and appoint a special public prosecutor in that court.
  • Sessions Court of the district concerned is considered as the Human Rights Court.
  • Under the Criminal Procedure Code, 1973 a Sessions Judge cannot take cognizance of the offence. He can only try the cases committed to him by the magistrate under Section 193 of the Cr.P.C.

Why need HR courts?

  • To uphold and protect the basic and fundamental rights of an individual it is an indispensable obligation upon the State to provide affordable, effective and speedy trial of offences related to violation of human rights which can only be achieved by setting up special courts in each district as provided under the Act.
  • The recent India Human Rights Report 2018, which was published by the Country Reports on Human Rights Practices for 2018 by US provide a deep reality into the sad state of affairs in India.
  • The report threw light on various rights violations such as police brutality, torture and excess custodial and encounters deaths, horrible conditions in prisons and detention centres, arbitrary arrests and unlawful detention, denial of fair public trial, the petition said.

HR Violations in India

  • From 2001 to 2010, the National Human Rights Commission (NHRC) recorded that 14,231 i.e. 4.33 persons died in police and judicial custody in the country.
  • This includes 1,504 deaths in police custody and 12,727 deaths in judicial custody from 2001-2002 to 2009-2010.
  • A large majority of these deaths being a direct consequence of torture in custody.
Human Rights Issues

United Nations not a State under Article 12: Delhi HC

Mains Paper 2 : Indian Constitution - historical underpinnings, evolution, features, amendments, significant provisions and basic structure |

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Art. 12 and Fundamental Rights

Mains level : Scope and ambit of Art. 12 of Indian Constitution


News

  • The Delhi High Court has ruled that the United Nations is not a State under Article 12 of the Constitution of India and is not amenable to its jurisdiction under Article 226 of the Constitution.

Why such move?

  • An Indian diplomat convicted by a US Federal Court and sentenced to imprisonment and two years of mandatory probation, was released and deported to India in May 2014.
  • In his petition, he claimed that due process was not followed in his case.
  • He had in November 2018, written a letter to the MEA seeking a grant of permission to initiate legal action against the UN under section 86 of Civil Procedure Code, 1908.
  • The provision provides that a foreign State may be sued in any Court with the consent of the Central government.
  • The Ministry replied that the consent of the Government of India is not required to initiate a legal suit against UN as it is not a foreign state and is only an Internal Organization.

Legal immunity to UN and its officials

  • UN and its officials enjoy immunity under the United Nations (Privileges and Immunities) Act, 1947.
  • It also said as per Section 2 of Article II of the Schedule of Act, 1947, UNO has immunity from every form of legal process except in any particular case it has expressly waived its immunity.

Back2Basics

Article 12 of Indian Constitution

  • Most of the Fundamental rights provided to the citizens are claimed against the State and its instrumentalities and not against the private bodies.
  • 13(2) bars the ‘state’ from making any ‘law’ infringing a Fundamental Right.
  • 12 clarifies that the term ‘state’ occurring in Art. 13(2), or any other provision concerning Fundamental Rights, has an expansive meaning.
  • According to Article 12, the term ‘State’ includes:
  1. The Government and Parliament of India: the term “State” includes Government of India (Union Executive) and the Parliament of India (Union Legislature)
  2. The Government and the Legislature of a State i.e., the State Executive and the legislature of each state.
  3. All local authorities; and
  4. Other authorities within the territory of India; or under the control of the Central Government.
  • The term ‘other authorities’ in Article 12 has nowhere been defined.
  1. What about Judiciary?
  • The Judiciary does not have a specific mention in Article 12.
  • However, the school of thought is that since the judiciary has the power to make and enforce laws, it should be considered to be a State.
  • However, since an erroneous judgement may cause the violation of the fundamental rights of a citizen, unreasonable decisions of the Courts are subjected to the tests of Article 14 of the Constitution.

Supreme Court directs RBI to alter disclosure policy

Mains Paper 3 : issues relating to planning, mobilization of resources |

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not Much

Mains level : RBI and autonomy issue


News

  • The Supreme Court gave the RBI “a last opportunity” to withdraw a November 2016 Disclosure Policy to the extent to which it stonewalls revelation of every other kind of information under the Right to Information Act, including the list of willful defaulters and annual inspection reports.

Last warning to RBI

  • The policy was found to be directly contrary to the court’s judgment of December 2015 that the Reserve Bank could not withhold information sought under the RTI Act.
  • The 2015 judgment had rejected the RBI’s argument that it could refuse information sought under the RTI on the grounds of economic interest, commercial confidence, fiduciary relationship or public interest.
  • The court had observed that there was “no fiduciary relationship between the RBI and the financial institutions”.
  • The court, in 2015, reminded the RBI that it had the statutory duty to uphold the interests of the public at large, the depositors, the economy and the banking sector.

Why did RBI refuse?

  • The RBI had refused to provide information to the petitioner, claiming “fiduciary relationship” between itself and the banks in question.
  • Such information, the regulator had then said, was exempted from being revealed under Section 8(1) (d) and (e) of the RTI Act.
  • Section 8 allows the government to withhold from public some information in order to “guard national security, sovereignty, national economic interest, and relations with foreign states”.
  • The information to the petitioners was denied by the RBI despite orders from the Central Information Commissioner (CIC) to do so.
RBI Notifications

Explained: What happens when judges face allegations?

Mains Paper 2 : Executive & Judiciary |

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Grounds for removal of SC Judges

Mains level : Grounds for removal of SC Judges


News

Background

  • Recently allegations of sexual harassment were made by a former employee of the Supreme Court against the CJI.
  • However it was later claimed by a litigant that he was offered to “frame” the CJI.
  • While judges indeed require powerful protection against motivated accusations, due process demands that an expeditious, thorough, fair and impartial probe is carried out in the matter.
  • The extraordinary developments at the country’s highest seat of justice offer an opportunity to revisit some larger questions around its accountability.

The question of ‘good behaviour’

  • Constitution protects judges against the will of the masses, of Parliament, and of the all-powerful executive.
  • A judge of the SC cannot be removed except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session.
  • Such removal can be initiated on the ground of proved misbehaviour or incapacity.

The question of ‘good behaviour’

  • The Constitution does not define ‘misbehavior’ and ‘incapacity’.
  • The Judges (Inquiry) Bill, 2006 sought to establish a National Judicial Council to inquire into allegations of incapacity or misbehavior of judges of the HC and SC.
  • It defined misbehavior as willful or persistent conduct which brings dishonour or disrepute to the judiciary; or willful or persistent failure to perform the duties of a judge; or wilful abuse of judicial office, corruption, lack of integrity; or committing an offence involving moral turpitude.
  • The Judicial Standards and Accountability Bill, 2010, tried to lay down enforceable standards of conduct for judges.
  • It proposed to widen the definition of ‘misbehaviour’ by adding “corruption or lack of integrity which includes delivering judgments for collateral or extraneous reasons, making demands for consideration in cash or kind”, or “any other action… which has the effect of subverting the administration of justice”.
  • Failure to declare assets and liabilities, or wilfully giving false information was also included within the definition of ‘misbehaviour’.

No single definition yet on ‘misbehaviour’

  • In C Ravichandran Iyer vs Justice A M Bhattacharjee & Ors (1995), the Supreme Court said ‘misbehaviour’ could not have a straitjacketed definition.
  • But if the conduct of a judge leads to the credibility of the judiciary being called into question, it should be considered misbehaviour.
  • Misconduct prior to assuming office is not exempt — in 2009, Rajya Sabha passed an impeachment motion against Justice Soumitra Sen of Calcutta High Court for allegedly misappropriating funds several years before he became a judge.

What should be the standard of proof for ‘misbehaviour’?

  • While rejecting the Opposition’s notice for impeachment of CJI, RS chairman cited the “lack of substantial merit”, and said the charges had not been proved beyond reasonable doubt.
  • But impeachment is not a criminal trial.
  • In all civil matters, the standard of proof is the “preponderance of probabilities”.
  • In Australia and South Africa, this is the standard of proof in the impeachment process of judges.
  • India does not currently have a statutory mechanism to examine the misconduct of judges, and short of the complex process of impeachment, there is no mechanism available to make judges accountable.

Allegations against judges

  • While no judge has so far been removed by impeachment, several have faced allegations of corruption, and a couple of them of sexual harassment as well.
  • An allegation of corruption or sexual harassment, if proved, ought to count as misbehaviour or misconduct.

Addressing Sexual harassment at Courts

  • In 1997, the Supreme Court noted that “the present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment in work places”, and laid down the ‘Vishakha Guidelines’.
  • Sixteen years later, Parliament enacted The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
  • The Supreme Court has a Gender Sensitization and Internal Complaints Committee headed by a woman judge, with a majority of woman members.
  • The committee has a laid-down procedure for dealing with complaints of sexual harassment on the premises of the court.
  • But it has no power to deal with complaints against the CJI or judges. In respect of misconduct by judges, the in-house process can be initiated only by the CJI.
  • The Regulations are silent on a situation where the allegation is against the CJI himself.

Accountability must persist with conscience

  • In K Veeraswami vs Union Of India And Others (1991) the Supreme Court ruled that in case of an allegation of corruption against a judge of the Supreme Court, the President would order an investigation in consultation with the CJI.
  • And, if the allegation is against the CJI himself, the President would consult other judges and act on their advice.
  • Prior to this judgment, the Prevention of Corruption Act was applicable only to public servants.
  • Justice K Jagannatha Shetty wrote: “The judiciary has no power of the purse or the sword. It survives only by public confidence.
  • The judge whose character is clouded and whose standards of morality and rectitude are in doubt may not have judicial independence and may not command the confidence of the public.
  • He must voluntarily withdraw from the judicial work and administration.
  • Veeraswami was only about allegations of corruption, but it is being followed for all allegations, including the commission of crimes against judges of constitutional courts.

No man is above the Law

  • The rule of law demands judicial accountability. Accountability makes the exercise of power more efficient and effective.
  • The British constitutional theorist A V Dicey wrote that “no man is above the law [and] every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals”.
  • Legal equality is the cardinal principle of the rule of law, and everyone including judges, must respect it.

Should CJI undergo trial?

  • To place judicial performance beyond scrutiny would be myopic, as liberty without accountability is freedom of the fool.
  • Power without responsibility is the anti-thesis of constitutionalism. Accountability of public officials, including judges, is the very essence of a mature democracy.

Way Forward

  • Judicial accountability promotes at least three discrete values: the rule of law, public confidence in the judiciary, and institutional responsibility.
  • Both judicial independence and judicial accountability are purposive devices designed to serve greater constitutional objectives.
  • Though the independence of the judiciary is a part of the basic structure of the Constitution, it is not an end in itself.
  • In fact, it is an instrumental value defined by the purposes it serves.
Judiciary Institutional Issues

Right to travel abroad is a basic human right: SC

Mains Paper 2 : Indian Constitution - historical underpinnings, evolution, features, amendments, significant provisions and basic structure |

Note4Students

From UPSC perspective, the following things are important :

Prelims level : 1958 Kent vs Dulles Judgment

Mains level : Right to travel abroad


News

  • The right to travel abroad is a genuine and basic human right like marriage and family, the Supreme Court has observed in a recent order.

Right to travel abroad

  • The court was hearing an appeal filed by an IPS officer who was refused permission to take a private trip abroad to visit relatives as he had a departmental enquiry pending against him.
  • The court ruled that the right to travel abroad is an important basic human right for it nourishes independent and self-determining creative character of the individual.
  • The right also extends to private life; marriage, family and friendship are humanities which can be rarely affected through refusal of freedom to go abroad and clearly show that this freedom is a genuine human right.

Referring the 1958 Kent vs Dulles Judgment

  • Setting aside the order, the Supreme Court referred to its Maneka Gandhi judgment upholding the right to travel and the landmark U.S. Supreme Court case of 1958 Kent vs Dulles.
  • The Bench quoted the majority opinion of Justice William O. Douglas in the latter case which said freedom to go abroad has much social value and represents the basic human right of great significance.
  • The court said that this basic human right also extends to private life; marriage, family and friendship.
  • These are part of human nature which can be rarely affected through a refusal of freedom to go abroad.
Right To Privacy

Voting rights of undertrials and convicts

Mains Paper 2 : Indian Constitution - historical underpinnings, evolution, features, amendments, significant provisions and basic structure |

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Article 32, 326

Mains level : Voting rights of Prisoners


News

  • The Supreme Court is hearing a plea questioning an electoral law which denies undertrials and convicts their right to vote.
  • The petition has been moved under Article 32 of the Indian Constitution.

Voting rights of Prisoners

  • Section 62(5) of the RP Act of 1951 mandates that “no person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police”.
  • The provisions however exempt a person held under preventive detention from this rigor.

Invokes violation of FR

  • The petition highlights how the Section sees both an under-trial and a convicted person equally. The former’s guilt is yet to be proved in a court.
  • A person is innocent until proven guilty by law. Despite this, it denies an under-trial the right to vote but allows a detainee the same. However, a person out on bail is allowed to cast his vote.
  • The plea argued that the provision violates the rights to equality, vote (Article 326) and is arbitrary. It is not a reasonable restriction.

Back2Basic

Article 32 of the Indian Constitution

  • The right to move the SC by appropriate proceedings for the enforcement of the Fundamental Rights is guaranteed under this article.
  • The SC shall have power to issue directions or orders or writs any of the FRs.
  • Parliament can empower any other court to issue directions, orders and writs of all kinds (for HC, under 226).
  • The right to move the Supreme Court shall not be suspended except by President during a national emergency (Article 359).
  • Supreme Court has been vested with the powers for to provide a remedy for the protection of the FRs.
  • Only FRs can be enforced under Article 32 and not any other like non-fundamental constitutional rights, statutory rights, customary rights etc.
Electoral Reforms In India

How Justice Chandrachud’s dissent on Aadhaar influenced Jamaica ruling

Mains Paper 2 : Indian Constitution - historical underpinnings, evolution, features, amendments, significant provisions and basic structure |

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not Much

Mains level : Aadhaar and associated issues


News

  • In a recent ruling in Jamaica, its top court stroked down National Identification and Registration Act, which would have allowed collection of biometric information from all citizens to be centrally stored.
  • The apex court of Jamaica relied heavily on Indian SC Justice D Y Chandrachud’s dissenting judgment on the Aadhaar Act last year.

India comes to scene

  • Aadhar data thefts are very well versed in news these days, invoking the dissents for Aadhar.
  • Justice Chandrachud had expressed the sole dissenting opinion in a 4:1 verdict that had upheld the Aadhaar Act.

Dissenting opinion matters

  • The court referred to Justice Chandrachud’s (JC) observation that when biometric systems are adopted in the absence of strong legal frameworks can pose “grave threats to privacy and personal security.
  • Their application can be broadened to facilitate discrimination, profiling and mass surveillance.
  • He also referred to JC’s observations about recent trends indicating reluctance of developed countries to deploy biometric technology including scrapping of the National Id Register and ID cards in the UK.
  • Justice Chandrachud demonstrated a greater sensitivity to the issues of privacy and freedom that is not as evident in the judgments of the majority.
  • He had a clear-eyed view of the dangers of a state or anyone having control over one’s personal information and generally.

Why Indian case is relevant globally?

  • Justice Chandrachud’s observation that absence of an independent regulatory framework renders the Act largely ineffective while dealing with data violations.
  • A fair data protection regime requires establishment of an independent authority to deal with the contraventions of the data protection framework as well as to proactively supervise its compliance.
  • There is a dire need for a strong independent and autonomous body which has the power to examine the operations of the Authority and report to an institution that is independent of the Authority.

Consent at Peril

  • Justice Chandrachud had observed that the “proportionality test failed because the Aadhar Act allowed private entities to use Aadhaar numbers.
  • It would lead to commercial exploitation of the personal data and profiling without consent.
  • Profiling can be used to predict market behaviour and preferences and even influence the choice for political office.
  • These are contrary to privacy protection norms. Susceptibility to communal exploitation renders the relevant provisions arbitrary.
  • The failure to define ‘services and benefits’ also were unreasonable and disproportionate.

Way Forward: One right cannot be taken away at the behest of another

  • The state failed to demonstrate that the targeted delivery of subsidies entails a necessary sacrifice of the right to individual autonomy, data protection and dignity.
  • The technology deployed in the Aadhaar scheme reduces different constitutional identities into a single identity of a 12-digit number.
  • This infringes the right of an individual to identify her or himself through a chosen means.
  • Aadhaar is about identification and is an instrument which facilitates a proof of identity. It must not be allowed to obliterate constitutional identity.
Aadhaar Card Issues

RBI circular to banks on loan defaulters quashed

Mains Paper 3 : issues relating to planning, mobilization of resources |

Note4Students

From UPSC perspective, the following things are important :

Prelims level : IBC

Mains level : Effectiveness of regulatory mechanism for stressed assets resolution


News

  • The Hon’ble Supreme Court has struck down a Feb-2018 RBI circular giving lender banks six months to resolve their stressed assets or move under the Insolvency Code against private entities who have defaulted in loans worth over Rs. 2000 crore.

About the RBI circular

  • Through a notification issued on Feb 12, 2018 the RBI laid down a revised framework for the resolution of stressed assets, which replaced all its earlier instructions on the subject.
  • Banks were required to immediately start working on a resolution plan for accounts over Rs 2,000 crore, which was to be finalised within 180 days.
  • In case of non-implementation, lenders were required to file an insolvency application.
  • RBI termed it necessary to substitute the existing guidelines with a harmonized and simplified generic framework for resolution of stressed assets.

What did the revised framework replace?

  • The circular went into effect on the same day that it was issued, and all existing schemes for stressed asset resolution were withdrawn with immediate effect.
  • The circular was ostensibly intended to stop the “evergreening” of bad loans the practice of banks providing fresh loans to enable timely repayment by borrowers on existing loans.
  • The RBI warned banks that not adhering to the timelines laid down in the circular, or attempting to evergreen stressed accounts, would attract stringent supervisory and enforcement actions.

Issues with the circular

  • The companies argued that the circular was arbitrary and discriminatory, and therefore, violative of Article 14 of the Constitution.
  • Several companies from the power and shipping sectors had challenged the circular, arguing that the time given by the RBI was not enough to tackle bad debt.
  • The government had earlier asked the RBI to make sector-specific relaxations in the timeline for the implementation of the circular.
  • Power producers, for instance, had argued that the RBI’s ‘one-size-fits-all’ approach was impractical since the sector had to confront external factors that were beyond its control.
  • These factors included the unavailability of coal and gas, and problems arising out of the failure of state governments to honour power purchase agreements.

Impact of SC’s relaxation

  • The order provides immediate relief to companies that have defaulted in repayments, especially those in the power, shipping and sugar sectors.
  • However, many financial sector experts argued that the verdict could delay the process of stressed assets resolution, which had of late picked up pace.
  • Since banks will have the choice of devising resolution plans or going to the National Company Law Tribunal under the IBC, the urgency that the RBI’s rules had introduced in the system could be impacted.
Insolvency and Bankruptcy Code

Right to Self-Defence

Note4students

Mains Paper 2: Polity | Structure, organization & functioning of the Executive & the Judiciary

From the UPSC perspective, the following things are important:

Prelims level: Right to Self-Defence

Mains level: Expanded scope of the aforesaid right


News

  • The right to self-defence extends not only to one’s own body but to protect the person and property of another; the Supreme Court has interpreted the provisions of the Indian Penal Code (IPC).
  • The court acquitted a forest ranger, who was jailed for shooting an alleged sandalwood smuggler in 1988.

Key points of SC ruling

  • The court observed that the right of private defence extends not only to “the defence of one’s own body against any offence affecting the human body but also to defend the body of any other person.
  • The right also embraces the protection of property, whether one’s own or another person’s, against certain specified offences, namely, theft, robbery, mischief and criminal trespass.
  • The court explained that the right does not arise if there is time to have recourse to the protection of the public authorities. Nor does it extend to the infliction of more harm than is necessary.
  • When death is caused, the person exercising the right of self-defence must be under reasonable apprehension of death, or grievous hurt, to himself or to those whom he is protecting, the court explained.

Right to Self-defence

  • Sections 96 to 106 of the IPC deals with the right to private defence.
  • It is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence.
  • A person who faces imminent and reasonable danger of losing his life or limb may in an exercise of self-defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened.
  • It is enough if the accused apprehends that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised, the court ruled.
Judiciary Institutional Issues

Govt.’s prerogative to frame schemes: SC

Note4students

Mains Paper 2: Polity | Separation of powers between various organs

From UPSC perspective, the following things are important:

Prelims level: Art.32 vs Art.226

Mains level: Writ Jurisdiction


News

  • It is the sole prerogative of the government to frame schemes and courts should stay out of governance, the Supreme Court has said in a judgment.
  • A Bench led by Justice A.M. Sapre criticised the Uttarakhand High Court for framing a scheme to regularize hundreds of casual workers engaged by the Border Roads Organisation (BRO) in the construction of roads for Char Dham Yatra pilgrimage.

Courts can only direct

  • The High Court failed to see that it is not the function of the courts to frame any scheme but it is the sole prerogative of the government to do it.
  • All that the High Court, in exercise of its extraordinary power under Article 226 of the Constitution, can do is to direct the government to consider framing an appropriate scheme.
  • Such directions to the government to consider framing a scheme should be with regard to the facts and circumstances of each case.
  • It is only in exceptional cases when the court considers it proper, should it issue appropriate mandatory directions, the Supreme Court held.
  • Instead, in the present case, a single judge of the High Court framed a scheme itself to regularize the services of the casual labourers and granted the benefits similar to those of regular employees under the labour law.

To read more about the Writ Jurisdiction, navigate to the page:

Polity Titbits: Functions/powers of Judiciary

Judiciary Institutional Issues

Life imprisonment is the rule, death penalty the exception: SC

Note4students

Mains Paper 2: Polity | Separation of powers between various organs dispute redressal mechanisms and institutions.

From UPSC perspective, the following things are important:

Prelims level: Not Much

Mains level: Row over capital punishment


News

  • If a court finds it difficult to make a choice between death penalty and life imprisonment, it should opt for the lesser punishment, the Supreme Court said in a recent judgment.

Death penalty is exceptional

  • Life imprisonment is the rule to which the death penalty is the exception.
  • The death sentence must be imposed only when life imprisonment appears to be an altogether inappropriate punishment, having regard to the relevant facts and circumstances of the crime.
  • The judgment was based on an appeal filed by a man sentenced to death for the rape and murder of a five-year-old in Madhya Pradesh.
  • The court ordered the convict to serve his life sentence with a minimum of 25 years’ imprisonment without remission.
Death Penalty Abolition Debate

RTI trumps Official Secrets Act, says SC

Note4students

Mains Paper 2: Polity | Structure, organization & functioning of the Executive & the Judiciary

From the UPSC perspective, the following things are important:

Prelims level: OSA, RTI

Mains level: Importance of RTI in enhancing transparency and accountability


News

  • An all-out effort by the government to claim privilege and push the Rafale jets’ pricing details back into the dark zone was rejected by the apex court.

RTI >> OSA

  • But Justice Joseph, one of the three judges on the Bench, asked the government to read out Sections of the Right to Information (RTI) Act, 2005.
  • The judge said the information law has revolutionized governance and overpowered notions of secrecy protected under the Official Secrets Act, 1923.
  • The Section 22 of the RTI Act, which declared the RTI to have an “overriding effect” over OSA.
  • Then Section 24 mandates even security and intelligence organisations to disclose information on corruption and human rights violations.
  • Section 8(2) compels the government to disclose information “if public interest in disclosure outweighs the harm to protected interests.

Govt. Stance

  • The government wants the court to refrain from examining the documents, which have already been published in the media on the purchase of the Rafale fighter aircraft.
  • It claimed the documents were illicitly photocopied from the originals kept in the Ministry of Defence and sneaked into the public domain.
  • The government said the leak was a “conspiracy” to jeopardize national security and friendly relations with France.

Assist this newscard with:

Explained: India’s Official Secrets Act, its history and use


Back2Basics

Right to Information

  • Right to Information (RTI) is an Act of the Parliament of India to provide for setting out the practical regime of right to information for citizens.
  • It replaces the erstwhile Freedom of information Act, 2002.
  • Under the provisions of the Act, any citizen of India may request information from a “public authority” (a body of Government or “instrumentality of State”) which is required to reply expeditiously or within thirty days.
  • The Act also requires every public authority to computerize their records for wide dissemination and to proactively certain categories of information so that the citizens need minimum recourse to request for information formally.
  • Information disclosure in India was restricted by the Official Secrets Act 1923 and various other special laws, which the new RTI Act relaxes.
RTI – CIC, RTI Backlog, etc.

Mediation in Ayodhya dispute

Note4students

Mains Paper 2: Polity | Separation of powers between various organs dispute redressal mechanisms and institutions.

From UPSC perspective, the following things are important:

Prelims level: Legal provisions mentioned in the newscard

Mains level: Arbitration mechanism in India – pros, cons, challenges and way forward


News

  • A Constitution Bench of the Supreme Court has referred the Ayodhya dispute for mediation in a bid to heal minds and hearts.
  • The mediation would start in a week in Faizabad district of Uttar Pradesh of which the disputed area is a part  with the process conducted in-camera.

Legal provisions for Mediation

  1. Under Section 89 of the Civil Procedure Code, judges must ensure that all avenues to resolve a dispute outside the Court have been exhausted.
  2. The Section reads: Where it appears to the Court that there exist elements of a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and give them to the parties for their observations.
  3. After receiving the observations of the parties, the Court may reformulate the terms of a possible settlement and refer the same for:
  • Arbitration (a process by which parties select an independent person, who renders a decision regarding the case)
  • Conciliation (it attempts to make parties come to an agreement, about the problem at hand)
  • Judicial settlement including settlement through Lok Adalat or
  • Mediation
Judiciary Institutional Issues

Why only bureaucrats on information panels, asks SC

Note4students

Mains Paper 2: Polity | Statutory, regulatory & various quasi-judicial bodies

From UPSC perspective, the following things are important:

Prelims level: CIC, SIC

Mains level: Implementation of the RTI Act


News

  • The Central Information Commission (CIC) and State Information Commissions, the country’s apex bodies entrusted to uphold the citizen’s right to information, have been bastions of government employees and their retired counterparts.
  • The apex court has found that “official bias” in favour of bureaucrats and government employees was evident from the very beginning of the process for their appointment.

Getting ‘Eminent Persons’ onboard

  1. The court raised concerns over how government employees or retired ones had consistently been found “more competent and more suitable” than eminent persons from other walks of life.
  2. The Right to Information Act of 2005 law was enacted to ensure accountability in governance.
  3. The act itself requires people from varied domains to man the Commissions.
  4. The apex court directed the government to look beyond bureaucrats and appoint professionals from “all walks of life,” including eminent persons with wide knowledge and experience in law, science and technology, social service, management, journalism as Information Commissioners.

Preventing Official bias

  1. Parliament intended that persons of eminence in public life should be taken as Chief Information Commissioner as well Information Commissioners.
  2. Many persons who fit the criteria have been applying for these posts.
  3. However, a strange phenomenon which we observe is that all those persons who have been selected belong to only one category, namely, public service, i.e., they are the government employees.
  4. In fact, the selection committee, which shortlists candidates for appointment, is itself composed of government employees.
  5. Official bias in favour of its own class is writ large in the selection process.

Other issues with RTI Mechanism

  1. The Supreme Court concluded that the entire RTI mechanism has been choked by rising pendency and growing number of vacancies of Information Commissioners.
  2. Now, the Supreme Court has, for the first time, put the government on a deadline as far as filling vacancies in the Commissions.
  3. The court directed that the process of appointment should commence at least one or two months before the retirement is due.

Back2Basics

Central Information Commission (CIC)

  1. The Central Information Commission (CIC) set up under the Right to Information Act is the authorized quasi judicial body, established in 2005.
  2. It acts upon complaints from those individuals who have not been able to submit information requests due to either the officer not having been appointed, or because the respective Officer refused to receive the application for information under the RTI Act.
  3. The Commission includes 1 Chief Information Commissioner (CIC) and not more than 10 Information Commissioners (IC) who are appointed by the President of India.
  4. CIC and members are appointed by the President of India on the recommendation of a committee consisting of—Prime Minister as Chairperson, the Leader of Opposition in the Lok Sabha; a Union Cabinet Minister to be nominated by the Prime Minister.
RTI – CIC, RTI Backlog, etc.

Supreme Court may curb advocates from speaking on cases

Note4students

Mains Paper 3: Polity | Structure, organization and functioning of the Executive and the Judiciary Ministries

From UPSC perspective, the following things are important:

Prelims level: Not Much

Mains level: Various aspects of the contempt of court


News

Contempt Charges for Public Proclamation

  1. The Supreme Court has agreed to examine the possibility of imposing curbs on advocates airing their views in the media about pending cases and the judges handling them.
  2. The apex court was hearing a plea on contempt petitions filed by the government and the Attorney General of India against a famous civil rights lawyer.
  3. The lawyer’s tweets willfully and deliberately” made a false statement in a case pending in court.

Freedom carries with it responsibility

  1. The SC Bench agreed that though the flash of cameras and media attention may seem irresistible to some, a line needed to be firmly drawn.
  2. Observing that “freedom carries with it a responsibility”, it noted that some lawyers even used air time to attack judges, whose code of conduct did not allow them to go public.
  3. The bench also observed that some lawyers rushed to the media as soon as their petition was filed.

Damage to the institution

  1. It can be often sees just after a judgement is pronounced it is publicly proclaimed that it is a black day, bringing disrepute to the institution.
  2. When a matter is sub judice, the lawyers are expected to maintain expected to maintain the decorum of the court and should avoid going public and being part of media and TV debate.
  3. The attack on judicial proceedings in a brazen, willful and malicious manner would tend to shake the very foundation of the justice delivery system.
Judiciary Institutional Issues

[op-ed snap] Capable even if disabled

Note4students

Mains Paper 2: Social Justice| Welfare schemes for vulnerable sections of the population by the Centre and States and the performance of these schemes; mechanisms, laws, institutions and Bodies constituted for the protection and betterment of these vulnerable sections.

From UPSC perspective, the following things are important:

Prelims level: Nothing as such.

Mains level: The news-card analyses the recent ruling of the SC in V. Surendra Mohan v. Union of India, in a brief manner.


Context

  • Recently the Supreme Court of India has given a ruling in V. Surendra Mohan v. Union of India case which is regarded by the experts as one of the darkest in India’s disability rights movement.

Supreme Court’s Ruling

  • The Court had to rule on the legality of the Tamil Nadu government’s policy of reserving the post of civil judge only for people whose percentage of blindness does not exceed 40-50%, resulting in the exclusion of the applicant who was 70% blind.
  • It held that the government’s decision was rational and reasonable.
  • It ruled that a judicial officer has to possess a reasonable amount of sight and hearing to discharge her functions.
  • It accepted the claim that impaired vision makes it impossible to perform the functions required of judicial officers, such as assessing the demeanour of witnesses and reading and analysing evidence.
  • It also accepted that asking a blind judicial officer to perform such administrative functions as recording dying declarations and conducting inquiries can result in avoidable complications.

Issue

However, the judgement is being seen as problematic by the experts for four key reasons.

  1. Examples of success
  • The view that a totally blind person cannot thrive as a judge is belied by several examples of successful judges who are blind.
  • One is former South African Constitutional Court judge Zak Yacoob, who has repudiated the notion that one needs to be sighted to assess a witness’s demeanour as being nonsensical,
  • U.S. Court of Appeals DC Circuit judge David S. Tatel, who thinks that it is neither fair nor accurate to impose low expectations on what blind lawyers can do.
  • Yousaf Saleem who last year became Pakistan’s first blind civil judge.

2.  How can a blind person be reasonably expected to thrive as a judge without being excessively dependent and inefficient?

  • However, as the Supreme Court itself noted in 2017, “A lawyer can be just as effective in a wheelchair, as long as she has access to the courtroom and the legal library, as well as to whatever other places and material or equipment that are necessary for her to do her job well.”

3. The Court’s unreasoned assertion is an outcome of their ignorance about the capabilities of the disabled.

  • However, ignorance simply cannot be an excuse.
  • It is simply unacceptable to condemn disabled legal professionals, possessing the intellectual wherewithal to be a judge, to the status of outcasts only because the judges delivering the judgement in this case appear simply not to have bothered to notice the competence of the millions of disabled people who inhabit this world.

4. Reasonable accommodations

  • As to obviating avoidable complications, the reasonable accommodations required by a blind judge may be considered irksome.
  • However, it bears noting that “there is a distinct exhortatory dimension to be recognised in deciding whether an adjustment to assist a disabled person to overcome the disadvantage that she or he has in comparison to an able-bodied person is reasonable.”
  • The constitutional promise of equality cannot be fully realised, if we lack the ability to even pay the price of making reasonable accommodations.

Conclusion

  • When the Supreme Court tells that blindness makes someone intrinsically incapable of becoming a judicial officer, when it declares thousands of blind people as incompetence, its declaration cuts to the core of their confidence about the fairness and robustness of our judicial system.
  • It is how we choose to respond to this institutional display of pure and simple discrimination dressed up as legal reasoning will be reflective of what kind of a society one hope to be.
Minority Issues – Dalits, OBC, Reservations, etc.

[op-ed snap] Dancing around the Supreme Court

Note4students

Mains Paper 2: Polity| Structure, organization and functioning of the Executive and the Judiciary Ministries and Departments of the Government; pressure groups and formal/informal associations and their role in the Polity.

From UPSC perspective, the following things are important:

Prelims level: Nothing as such.

Mains level: The news-card analyses the recent SC judgement of statutory provisions and rules governing Maharashtra’s dance bars, in a brief manner.


Context

  • Recently, the Supreme Court has struck down several statutory provisions and rules governing Maharashtra’s dance bars.

Background

  • In 2005, the Maharashtra government imposed a ban on dance performances in bars, with the exception of hotels rated three stars and above.
  • The public rationale offered was that these performances were obscene, morally corrupt, and promoted prostitution.
  • Dance performance licenses were cancelled with immediate effect, prompting affected parties to file petitions in the Bombay High Court.
  • The High Court held against the government, resulting in an appeal to the Supreme Court.

Supreme Court’s 2013 ruling

  • The Supreme Court affirmed the High Court’s decision in July 2013, pursuing two lines of reasoning.
  • One, the government could not discriminate between luxury hotels and other establishments seeking licenses for dance performances.
  • Two, the ban had proven to be counterproductive, resulting in the unemployment of over 75,000 women, many of whom were forced by circumstances to engage in prostitution.

Government’s response

  • Rather than implementing the Supreme Court’s decision, the government imposed an outright ban on all dance performances, whether in street bars or upmarket hotels.
  • Although the government’s response addressed the court’s first concern, it failed to address the second.
  • This led to fresh proceedings in the Supreme Court.

Subsequent SC ruling and Govt response

  • While the court saw through the government’s attempt to circumvent its decision, it left room for the government to prohibit obscene dances with a view to protecting the dignity of the dancers.
  • This time the government’s response was more sophisticated and took cues from the Supreme Court’s decision.
  • Rather than seeking to impose a ban on dance performances altogether, it only did so to the extent that these performances were obscene or overtly sexual.
  • However, it imposed a number of other conditions on establishments seeking a license for such performances.

Conditions imposed by the govt to seek licence

  • Applicants were required to “possess a good character” with no criminal antecedents.
  • The establishment could not be within one kilometre of an educational or religious institution.
  • A CCTV camera would need to be fitted at the entrance.
  • Customers could not be permitted to throw coins or currency notes on the dancers, but could add tips to the bill.
  • The permit room (where alcohol was served) and the dance room would need to be separated by a partition.
  • The stage could not be smaller than a prescribed size.
  • Some of these conditions were challenged in the Supreme Court on the basis that they were far too onerous.

SC recent ruling

  • On January 17, the court upheld a few of these conditions, but struck down others.
  • For example, it noted that the CCTV requirement violated the right to privacy of the dancers and the patrons,
  • the “good character” requirement was vague,
  • the partition between the permit room and the dance room was unjustified, and
  • the one kilometre distance requirement was impractical.
  • However, the court found revealing that amongst the dozens of applications filed since the new rules were put in place, not a single one had been approved by the government.
  • The court therefore saw the government’s most recent response as a ban on dance bars masquerading as an attempt to regulate them.

Institutional interaction between governments and the courts

  • These developments yield insights on the institutional interaction between governments and the courts.
  • Through each iteration of this case, the Maharashtra government has responded more swiftly to judicial decisions than the Supreme Court has to the government’s attempts to sidestep them.
  • The final judicial decision in the first round took just short of eight years, while the government’s response took about 11 months.
  • In the second round, the court took a year and three months to make its decision; the government responded in six months.
  • In the third round, the court has taken just short of three years. The government’s response time is to be seen.

Reasons for disparity

  • A number of structural reasons may account for this disparity.
  • Despite heavy caseloads, courts must provide an opportunity for a fair hearing, deliberate, and set out reasons for their decisions.
  • Courts will also typically not consider cases unilaterally, but are dependent on parties to bring proceedings in search of a remedy.
  • Separately, the ban on dance bars has also received a disconcerting level of cross-party political support in Maharashtra, despite the regime changes since 2005.
  • This has meant that legislation has often been enacted unopposed, without any meaningful discussion on the floor of the House.
  • The amendments of 2014, for example, were approved by the Maharashtra Cabinet and sailed through the state legislature within minutes on the following day.

Significant delay on the part of Courts

  • The practical implication of the government being more nimble than the courts is that even when government responses are imperfect, the court produces significant delays.
  • This case outlines the vulnerability of Supreme Court, especially when it depends on the government to comply with its decisions in some positive way, such as by issuing dance bar licenses.
  • Even when the courts exercise the putatively “negative” function of striking down legislation or rules, the level of compliance with their decisions often lies in the hands of the executive.

Existing remedial landscape

  • These developments should also lead courts to introspect about the existing remedial landscape in cases where legislation is challenged.
  • The Supreme Court often deploys the writ of continuing mandamus (issuing a series of interim orders over a period of time to monitor compliance with its decisions) in public interest litigation cases that test the limits of its jurisdiction.
  • It has chosen not to adopt that enforcement strategy in this case, which falls squarely within the four corners of its jurisdiction.
  • While the court cannot direct the enactment of legislation, it can monitor compliance with an order to issue licenses to qualified applicants.

Conclusion

  • A further response from the Maharashtra government now seems inevitable.
  • The court struck down the one kilometre distance requirement, but did not say that any distance requirement would be invalid.
  • While unconstitutional in its present form, it noted that the “good character” requirement could be defined more precisely.
  • These are only two among the many options that are now available to the government in responding to the court’s decision.
  • The court concluded its judgment with the hope that applications for licenses would “now be considered more objectively and with an open mind”.
Issues and Judgments related to SC

[op-ed snap] A renewed attack on privacy: on Aadhaar Bill

Note4students

Mains Paper 2: Governance| Government policies and interventions for development in various sectors and issues arising out of their design and implementation.

From UPSC perspective, the following things are important:

Prelims level: Basics aspects of Aadhar.

Mains level: The newscard discusses key features, issues wrt Aadhaar and Other Laws (Amendment) Bill, 2018, in a brief manner.


Context

  • The Lok Sabha, without any attendant discussion, passed the Aadhaar and Other Laws (Amendment) Bill, 2018.
  • The Bill amends the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, the Indian Telegraph Act, 1885, and the Prevention of Money Laundering Act, 2002.

 

Key features of the Bill:

  1. Offline verification of Aadhaar number holder:The Bill allows ‘offline verification’ of an individual’s identity, without authentication, through modes specified by the Unique Identification Authority of India (UIDAI) by regulations.
  1. During offline verification, the agency must(i) obtain the consent of the individual, (ii) inform them of alternatives to sharing information, and (iii) not collect, use or store Aadhaar number or biometric information.
  2. Voluntary use of Aadhaar to verify identity:The Bill states that an individual may voluntarily use his Aadhaar number to establish his identity, by authentication or offline verification. Authentication of an individual’s identity via Aadhaar, for the provision of any service, may be made mandatory only by a law of Parliament.
  1. Entities using Aadhaar:An entity may be allowed to perform authentication through Aadhaar, if the UIDAI is satisfied that it is (i) compliant with certain standards of privacy and security, or (ii) permitted by law, or (iii) seeking authentication for a purpose specified by the central government in the interest of the State.
  1. Aadhaar number of children:The Bill specifies that at the time of enrolling a child to obtain an Aadhaar number, the enrolling agency shall seek the consent of his parent or guardian. The agency must inform the parent or guardian of (i) the manner in which the information will be used, (ii) the recipients with whom it will be shared, and (iii) their right to access the information. After attaining eighteen years of age, the child may apply for cancellation of his Aadhaar.
  1. Disclosure of information in certain cases:Under the Act, restrictions on security and confidentiality of Aadhaar related information do not apply in case the disclosure is pursuant to an order of a District Court (or above). The Bill amends this to allow such disclosure only for orders by High Courts (or above). The Bill also allows disclosure of information on directions of officers not below the rank of a Secretary.
  1. UIDAI Fund:Under the Act, all fees and revenue collected by the UIDAI shall be credited to the Consolidated Fund of India. The Bill removes this provision, and creates the Unique Identification Authority of India Fund.  All fees, grants and charges received by the UIDAI shall be credited to this fund.  The fund shall be used for expenses of the UIDAI, including salaries and allowances of its employees.
  1. Complaints:The Bill allows the individual to register complaints in certain cases, including impersonation or disclosure of their identity. The Bill defines the Aadhaar ecosystem to include enrolling agencies, requesting agencies, and offline verification-seeking entities. It allows the UIDAI to issue directions to them if necessary for the discharge of its functions under the Act.
  1. Penalties:Under the Bill, the UIDAI may initiate a complaint against an entity in the Aadhaar ecosystem for failure to (i) comply with the Act or the UIDAI’s directions, and (ii) furnish information required by the UIDAI. Adjudicating Officers appointed by the UIDAI shall decide such matters, and may impose penalties up to one crore rupees on such entities.  The Telecom Disputes Settlement and Appellate Tribunal shall be the appellate authority against decisions of the Adjudicating Officer.

Why the amendments are proposed?

  1. While upholding the constitutional validity of Aadhaar, the Supreme Court had struck down Section 57 of the Aadhaar Act, 2016 that permitted private entities like telecom companies or other corporate to avail of the biometric Aadhaar data.
  2. Hence to address the issues like recognising the authentification of those who provided Aadhaar as the identity proof, the amendments are brought in by the government.

Criticism

1. Commercial exploitation

  1. The most strident criticisms of the amendment bill have, however, been reserved for the manner in which it has allowed the private sector to regain access to the Aadhaar infrastructure.
  2. The Bill permits the enactment of a new law allowing the use of Aadhaar by private entities so long as a person voluntarily consents to such authentication.
  3. In contrast to SC ruling which unanimously struck down Section 57 insofar as it applied to private entities.
  4. It would be to enable commercial exploitation of an individual biometric and demographic information by the private entities.
  5. Justice Sikri held that the provision which allows private companies the authority to authenticate identity through Aadhaar, even by securing an individual’s informed consent, the clause is disproportionately contravened the right to privacy.
  6. # Section 57 of the Aadhaar Act allowed both the state and private entities to use the programme to establish an individual’s identity pursuant to a law or a contract. It was on this basis that various notifications were issued allowing corporations of different kinds, including telecom operators, e-commerce firms and banks, to use Aadhaar.

2. Violation of FR

  1. The Supreme Court has found that the operation of Aadhaar by private entities violates fundamental rights, there is today no avenue available for fresh legislative intervention, unless the government chooses to amend the Constitution.
  2. The proposed legislative amendments virtually seek to impose Aadhaar as a prerequisite for the availing of certain basic services.
  3. For example, the amendments proposed state that service providers — telecom companies and banks, respectively, — ought to identify their customers by one of four means: authentication under the Aadhaar Act; offline verification under the Aadhaar Act; use of passport; or the use of any other officially valid document that the government may notify.
  4. Given that only a peripheral portion of India’s population possess passports, Aadhaar is effectively made compulsory.

3. Issue of fraud

  • Allowing private corporations to access and commercially exploit the Aadhaar architecture, as we have already seen, comes with disastrous consequences — the evidence of reports of fraud emanating out of seeding Aadhaar with different services is ever-growing.

4. Disregard to SC judgement

  1. The Supreme Court declared the Section 33(2) as unconstitutional, which allowed an officer of the rank of Joint Secretary to the Government of India to direct disclosure of Aadhaar information in the “interest of national security”
  2. The Bill, merely seeks to substitute the words “Joint Secretary” with “Secretary” in Section 33(2), completely disregarding the Supreme Court’s order demanding inquiry.
Aadhaar Card Issues

Cabinet approves 10% quota for EWS in general category

Note4students

Mains Paper 2: Governance | Mechanisms, laws, institutions & Bodies constituted for the protection & betterment of the vulnerable sections

From the UPSC perspective, the following things are important:

Prelims level: Particulars of the Bill, Various judgments mentioned

Mains level: Viability of providing Reservation to economically weaker sections and legal issues surrounding


News

  • The Union Cabinet has given its nod for a Constitutional amendment Bill providing 10 percent more reservation for economically weaker sections in direct recruitment (in Government jobs) and for admission in higher educational institutions.

Proposed EWS Quota

  1. The proposed amendment Bill will define Economically Weaker Section (EWS) as:
  • One having annual income below Rs 8 lakh;
  • Agriculture land below 5 acres;
  • Residential house below 1,000 sq.ft;
  • Residential plot below 100 yards in notified municipality and residential plot below 200 yards in non-notified municipality area.
  1. The income includes agricultural income; profession etc.

Legal Test of the EWS Quota

(A) Economic Basis

  1. A Constitution Bench of the Supreme Court in the Indira Sawhney Case (1992) specifically ruled whether backward classes can be identified only and exclusively with reference to the economic criterion.
  2. It categorically held that a backward class cannot be determined only and exclusively with reference to economic criterion.
  3. It may be a consideration or basis along with or in addition to social backwardness, but it can never be the sole criterion.

(B) Quota Limit

  1. The judgment declared 50% quota as the rule unless extraordinary situations inherent in the great diversity of this country and the people.
  2. If the government proposes to bring a constitutional amendment to include the 10% quota for “unreserved economically weaker sections, the 11-judge Kesavananda Bharati judgment may stand in the way.
  3. The judgment held that constitutional amendments which offended the basic structure of the Constitution would be ultra vires.
  4. Neither Parliament nor legislatures could transgress the basic feature of the Constitution, namely, the principle of equality enshrined in Article 14.

Exceeding Quota Limit: Sacrificing the Merit

  1. The government proposes to bring the 10% over and above the 49% quota — 7% for SCs, 15% for STs and 27% for Socially and Educationally Backward Classes, including widows and orphans of any caste, which is permitted.
  2. But a total 59% (49%+10%) quota would leave other candidates with just 41% government jobs or seats.
  3. This may amount to “sacrifice of merit” and violate Article 14.

Learning from States

  1. This proposed Bill finds an echo in an ordinance promulgated in Gujarat in 2016 which provided 10% quota to upper castes there.
  2. All the arguments here are based on the 104-page judgment of the Gujarat High Court in the DKVerma versus State of Gujarat, which quashed the ordinance in August 2016.

Reasons: Upholding DPSP

  1. Gujarat had justified the ordinance by referring to how Article 46 of the Constitution, which deals with the Directive Principles of the State Policy, required the State to promote weaker sections.
  2. It had categorised the 10% quota as a ‘reasonable classification’ under Article 14 and not ‘reservation’.
  3. It said the 50% ceiling limit in the Indira Sawhney judgment applied only to SC/ST and SEBC.
  4. The court observed that the “unreserved category itself is a class” and economic criteria was too fluctuating a basis for providing quota.
Minority Issues – Dalits, OBC, Reservations, etc.