Judicial Reforms

Kesavananda Bharati Case (1973): The judgment that upheld basic structure of India’s constitution

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Features of Basic structure doctrine

Mains level : Basic structure doctrine

Exactly 47 years ago, the Supreme Court passed its landmark judgment in Kesavananda Bharati vs State of Kerala, considered among the most significant constitutional cases in India’s judicial history.

Major judgments of the Supreme Court are mentioned in the newscard. Aspirants are advised to memorize them all with thier key features. UPSC may ask a prelim question mentioning all these judgements and asking which of them are related/not related to the Amendments in the Constitution.  Right from the Shankari Prasad Judgment (1951) to the Ayodhya Judgement (2019), note down all important judgements.

Background

Amending  the Constitution

  • The Constitution of a country is the fundamental law of the land. It is based on this document that all other laws are made and enforced.
  • Under some Constitutions, certain parts are immune from amendments and are given a special status compared to other provisions.
  • Since the Indian Constitution was first adopted, debates have raged as to the extent of power that Parliament should have to amend key provisions.

Early years of Absolute Power

  • In the early years of Independence, the Supreme Court conceded absolute power to Parliament in amending the Constitution, as was seen in the verdicts in Shankari Prasad (1951) and Sajjan Singh (1965).
  • The reason for this is believed to be that in those initial years, the apex court had reposed faith in the wisdom of the then political leadership when leading freedom fighters were serving as Parliamentarians.
  • In subsequent years, as the Constitution kept being amended at will to suit the interests of the ruling dispensation, the Supreme Court in Golaknath (1967) held that Parliament’s amending power could not touch Fundamental Rights, and this power would be only with a Constituent Assembly.

Parliament could make any amendment

  • Article 13(2) reads, “The State shall not make any law which takes away or abridges the right conferred by this Part (Part-III) and any law made in contravention of this clause shall, to the extent of the contravention, be void.”
  • In both the cases, the court had ruled that the term “law” in Article 13 must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent power under Article 368.
  • This means Parliament had the power to amend any part of the constitution including Fundamental rights.

The tussle between Parliament and the judiciary

  • In the early 1970s, the government of then PM Indira Gandhi had enacted major amendments to the Constitution (the 24th, 25th, 26th and 29th) to get over the judgments of the Supreme Court in RC Cooper (1970), Madhavrao Scindia (1970) and the earlier mentioned Golaknath.
  • In RC Cooper, the court had struck down Indira Gandhi’s bank nationalization policy, and in Madhavrao Scindia it had annulled the abolition of privy purses of former rulers.

Background for the Kesavananda Bharati Case

  • All the four amendments, as well as the Golaknath judgment, came under challenge in the Kesavananda Bharati case.
  • Here, relief was sought by the religious figure Swami Kesavananda Bharati against the Kerala government vis-à-vis two state land reform laws.
  • Since Golaknath was decided by eleven judges, a larger bench was required to test its correctness, and thus 13 judges formed the Kesavananda bench.
  • Critics of the doctrine have called it undemocratic since unelected judges can strike down a constitutional amendment. At the same time, its proponents have hailed the concept as a safety valve against majoritarianism and authoritarianism.
  • Noted legal luminaries Nani Palkhivala, Fali Nariman, and Soli Sorabjee presented the case against the government.
  • The majority opinion was delivered by CJI S M Sikri, and Justices K S Hegde, A K Mukherjea, J M Shelat, A N Grover, P Jaganmohan Reddy, and H R Khanna. Justices A N Ray, D G Palekar, K K Mathew, M H Beg, S N Dwivedi, and Y V Chandrachud dissented.

A closer win

  • By a 7-6 verdict, a 13-judge Constitution Bench ruled that the ‘basic structure’ of the Constitution is inviolable, and could not be amended by Parliament.
  • The basic structure doctrine has since been regarded as a tenet of Indian constitutional law.

The judgment in Kesavananda Bharati

  • The Constitutional Bench, whose members shared serious ideological differences, ruled by a 7-6 verdict that Parliament should be restrained from altering the ‘basic structure’ of the Constitution.
  • The court held that under Article 368, which provides Parliament amending powers, something must remain of the original Constitution that the new amendment would change.
  • The court did not define the ‘basic structure’, and only listed a few principles — federalism, secularism, democracy — as being its part.
  • Since then, the court has been adding new features to this concept.

‘Basic structure’ since Kesavananda

  • The basic structure doctrine was first introduced by Justice Mudholkar in the Sajjan Singh case (1965).
  • Major features were notably propounded by Justice Hans Raj Khanna in 1973.
  • The ‘basic structure’ doctrine has since been interpreted to include the supremacy of the Constitution, the rule of law, Independence of the judiciary, doctrine of separation of powers, federalism, secularism, sovereign democratic republic, the parliamentary system of government, the principle of free and fair elections, welfare state, etc.
  • An example of its application is SR Bommai (1994), when the Supreme Court upheld the dismissal of the governments by the President following the demolition of the Babri Masjid, invoking a threat to secularism by these governments.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

No 100% quota for Scheduled Areas

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Indira Sawhney judgment

Mains level : Making reservation system more efficient

  • A Constitution Bench of the Supreme Court held it unconstitutional to provide 100% reservation for tribal teachers in schools located in Scheduled Areas across the country.
  • The Bench was answering a reference made to it in 2016 on whether 100% reservation is permissible under the Constitution.

Reservation in India is a system of affirmative action by the State that provides representation for historically and currently disadvantaged groups in Indian society in education, employment and politics. The 10% EWS quota this year has raised the inevitability for a possible mains question.

No 100% quota

  • The apex court held that it is an obnoxious idea that tribals only should teach the tribals.
  • Merit cannot be denied in toto by providing reservation observed the judgement.
  • Citizens have equal rights, and the total exclusion of others by creating an opportunity for one class is not contemplated by the founding fathers of the Constitution of India.

Invoking Indira Sawhney judgment

  • The court referred to the famous Indira Sawhney judgment (Mandal case- Indra Sawhney v. Union of India 1992), which caps reservation at 50%.
  • The court held that 100% reservation is discriminatory and impermissible.
  • The opportunity of public employment is not the prerogative of few.
  • A 100% reservation to the Scheduled Tribes has deprived SCs and OBCs also of their due representation.

Judicial Reforms

What is Open Court System?

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Open Courts, Art. 142

Mains level : Transparency in judicial functioning

The Supreme Court has invoked its extraordinary Constitutional powers under Article 142 to step away from the convention of open court hearings. It deemed all restrictions imposed on people from entering, attending or taking part in court hearings as lawful in the wake of the COVID-19 pandemic.

What are Open Courts?

  • The Open court principle requires that court proceedings presumptively be open and accessible to the public and to the media.
  • Open courts are normal court where proceedings of the court are conducted where every person is allowed to watch the proceedings of the court.
  • There are instances where it is not practical to accommodate persons other than parties to the proceedings. Therefore, such proceedings are held in camera.
  • This means that the proceedings are held in a closed room where the public will not have access to watch the proceedings.
  • In criminal cases like rape, it is necessary to protect the identity and modesty of the victim.

Why did the Supreme Court deter Open Court’s norm?

  • A Bench led by CJI said these restrictions were in tune with the social distancing norms and best public health practices advocated to contain the contagion.
  • The court made it clear that public health takes precedence over conventions.
  • Every individual and institution is expected to cooperate in the implementation of measures designed to reduce the transmission of the virus.
  • Open court hearings would mean a congregation of large number of people. This would prove detrimental to the fight against the virus.

Conclusion

  • Access to justice is fundamental to preserve the rule of law in the democracy envisaged by the Constitution of India.
  • The challenges occasioned by the outbreak of COVID-19 have to be addressed while preserving the constitutional commitment to ensuring the delivery of and access to justice to those who seek it..

Way forward

  • Indian courts have been proactive in embracing advancement in technology in judicial proceedings.
  • Judiciary can bank on video-conferencing technologies in the wake of this unprecedented and extraordinary outbreak of a pandemic.

Back2Basics

Article 142 of the Indian Constitution

  • Article 142 allows the Supreme Court to pass any order necessary to do “complete justice” in any case.
  • It supplements the powers already conferred upon the Supreme Court under the Constitution to guarantee that justice is done and in doing so the Court is not restrained by lack of jurisdiction or authority of law.
  • The phrase ‘complete justice’ engrafted in Article 142(1) is the word of wide interpretation to meet situations created by legal errors or result of operation of statute law or law.
  • Thus Article 142 is conceived to give the apex court the powers to meet the situations which cannot be effectively tackled by existing provisions of law.

Also read: 

Supreme Court Removes Manipur MLA Under The 10th Schedule

Judicial Reforms

Right of an accused to be defended

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Right of an accused to be defended

Mains level : Professional ethics for Lawyers (Paper IV)

 

 

Recently the Karnataka High Court observed that it is unethical and illegal for lawyers to pass resolutions against representing accused in court.  This is not the first time that bar associations have passed such resolutions, despite a Supreme Court ruling that these are “against all norms of the Constitution, the statute and professional ethics”.

What does the Constitution say about the right of an accused to be defended?

  • Article 22(1) gives the fundamental right to every person not to be denied the right to be defended by a legal practitioner of his or her choice.
  • Article 14 provides for equality before the law and equal protection of the laws within the territory of India.
  • Article 39A, part of the DPSP, states that equal opportunity to secure justice must not be denied to any citizen by reason of economic or other disabilities, and provides for free legal aid.

What has the Supreme Court said about such resolutions by bar associations?

  • The Supreme Court referred to writer Thomas Paine, who had been tried for treason in England in 1792.
  • Thomas Erskine, Attorney General for the Prince of Wales, was warned of dismissal if he defended Paine, but still took up the brief, saying: “… If the advocate refuses to defend from what he may think of the charge or of the defence, he assumes the character of the Judge…”
  • The Supreme Court cited other historical examples of accused being defended — revolutionaries against British rule; alleged assailants of Mahatma Gandhi and Indira Gandhi; Nazi war criminals at the Nuremberg trials.

A matter of professional ethics

  • The Supreme Court ruled that such resolutions are wholly illegal, against all traditions of the bar and against professional ethics.
  • Every person however wicked, criminal, perverted or repulsive he may be regarded by society has a right to be defended in a court of law and correspondingly and it is the duty of the lawyer to defend him.
  • It said such resolutions were against all norms of the Constitution, the statute and professional ethics, called these a disgrace to the legal community, and declared them null and void.

How are the professional ethics of lawyers defined?

  • The Bar Council of India has Rules on Professional Standards, part of the Standards of Professional Conduct and Etiquette to be followed by lawyers under the Advocates Act.
  • An advocate is bound to accept any brief in the courts or tribunals, at a fee consistent with his standing at the Bar and the nature of the case.
  • The Rules provide for a lawyer refusing to accept a particular brief in “special circumstances”.
  • Last year, The Uttarakhand HC clarified that these special circumstances refer to an individual advocate who may choose not to appear in a particular case, but who cannot be prohibited from defending an accused by any threat of removal of his membership of the bar association.

Women empowerment issues – Jobs,Reservation and education

Permanent Commission to Women in Indian Army

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not Much

Mains level : Debate over suitablity of women in combat roles of Indian Army

 

  • The Supreme Court brought women officers in 10 streams of the Army on a par with their male counterparts in all respects, setting aside longstanding objections of the government.
  • The case was first filed in the Delhi High Court by women officers in 2003 and had received a favourable order in 2010. But the order was never implemented and was challenged by the government.

Women in Army: Background of the case

  • The induction of women officers in the Army started in 1992.
  • They were commissioned for a period of five years in certain chosen streams such as Army Education Corps, Corps of Signals, Intelligence Corps, and Corps of Engineers.
  • Recruits under the Women Special Entry Scheme (WSES) had a shorter pre-commission training period than their male counterparts who were commissioned under the Short Service Commission (SSC) scheme.
  • In 2006, the WSES scheme was replaced with the SSC scheme, which was extended to women officers. They were commissioned for a period of 10 years, extendable up to 14 years.
  • Serving WSES officers were given the option to move to the new SSC scheme or to continue under the erstwhile WSES.
  • They were to be, however, restricted to roles in streams specified earlier — which excluded combat arms such as infantry and armoured corps.

2 key arguments shot down

  • The Supreme Court rejected arguments against a greater role for women officers, saying this violated equality under the law.
  • They were being kept out of command posts on the reasoning that the largely rural rank and a file will have problems with women as commanding officers. The biological argument was also rejected as disturbing.
  • While male SSC officers could opt for permanent commission at the end of 10 years of service, this option was not available to women officers.
  • They were, thus, kept out of any command appointment, and could not qualify for government pension, which starts only after 20 years of service as an officer.
  • The first batch of women officers under the new scheme entered the Army in 2008.

Arguments by the govt.

  • The government put forth other arguments before the Supreme Court to justify the proposal on the grounds of permanent commission, grants of pensionary benefits, limitations of judicial review on policy issues, occupational hazards, reasons for discrimination against women and rationalization on physiological limitations for employment in staff appointments.
  • The apex court has rejected these arguments, saying they are “based on sex stereotypes premised on assumptions about socially ascribed roles of gender which discriminate against women”.
  • It has also said that it only shows the need “to emphasise the need for change in mindsets to bring about true equality in the Army”.

Implications of the judgement

  • The SC has done away with all discrimination on the basis of years of service for grant of PC in 10 streams of combat support arms and services, bringing them on a par with male officers.
  • It has also removed the restriction of women officers only being allowed to serve in staff appointments, which is the most significant and far-reaching aspect of the judgment.
  • It means that women officers will be eligible to tenant all the command appointments, at par with male officers, which would open avenues for further promotions to higher ranks for them.
  • It also means that in junior ranks and career courses, women officers would be attending the same training courses and tenanting critical appointments, which are necessary for higher promotions.

Way Forward

  • The implications of the judgment will have to be borne by the human resources management department of the Army, which will need to change policy in order to comply.
  • But the bigger shift will have to take place in the culture, norms, and values of the rank and file of the Army, which will be the responsibility of the senior military and political leadership.
  • After the Supreme Court’s progressive decision, they have no choice but to bite the proverbial bullet.

Electoral Reforms In India

Political parties to publish the entire criminal history of their candidates

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not Much

Mains level : Paper 2- Making the electoral process free, fair and clean.

 

  • The Supreme Court has strictly ordered political parties to publish the entire criminal history of their candidates for Assembly and Lok Sabha elections along with the reasons that goaded them to field suspected criminals over decent people.

SC’s deadline

  • It ordered political parties to submit compliance reports with the Election Commission of India within 72 hours or risk contempt of court action.
  • The information should be published in a local as well as a national newspaper as well as the parties’ social media handles.
  • It should mandatorily be published either within 48 hours of the selection of candidates or less than two weeks before the first date for filing of nominations, whichever is earlier.
  • The judgment is applicable to parties both at Central and State levels.

Information should be detailed

  • The published information on the criminal antecedents of a candidate should be detailed and include the nature of their offences, charges framed against him, the court concerned, case number, etc.
  • A political party should explain to the public through their published material how the “qualifications or achievements or merit” of a candidate, charged with a crime, impressed it enough to cast aside the smear of his criminal background.
  • A party would have to give reasons to the voter that it was not the candidate’s “mere winnability at the polls” which guided its decision to give him a ticket to contest elections.

Why such a move?

  • It appeared from the last four general elections that there has been an alarming increase in the incidence of criminals in politics.
  • In 2004, 24% of the MPs had criminal cases pending against them; in 2009, that went up to 30%; in 2014 to 34%; and in 2019 as many as 43% of MPs had criminal cases pending against them, SC observed.
  • The judgment was based on a contempt petition about the general disregard shown by political parties to a 2018 Constitution Bench judgment (Public Interest Foundation v. Union of India).
  • In this judgment (2018), this court was cognizant of the increasing criminalisation of politics in India and the lack of information about such criminalisation among the citizenry”, SC observed.

Immediate Reason

  • The immediate provocation is the finding that 46% of MPs have criminal records.
  • The number might be inflated as many politicians tend to be charged with relatively minor offences —“unlawful assembly” and “defamation”.
  • The real worry is that the current cohort of Lok Sabha MPs has the highest (29%) proportion of those with serious declared criminal cases compared to its recent predecessors.

Why are such tainted candidates inducted by political parties?

  • Such candidates with serious records seem to do well despite their public image, largely due to their ability to finance their own elections and bring substantive resources to their respective parties.
  • Some voters tend to view such candidates through a narrow prism: of being able to represent their interests by hook or by crook.
  • Others do not seek to punish these candidates in instances where they are in contest with other candidates with similar records.

Significance of the move

  • Either way, these unhealthy tendencies in the democratic system reflect a poor image of the nature of India’s state institutions and the quality of its elected representatives.
  • The move signified the court’s alarm at the unimpeded rise of criminals, often facing heinous charges like rape and murder, encroaching into the country’s political and electoral scenes.

Way Forward

  • While formally, the institutions of the state are present and subject to the electoral will of the people, substantively, they are still relatively weak and lackadaisical in governance and delivery of public goods.
  • This has allowed cynical voters to elect candidates despite their dubious credentials and for their ability to work on a patronage system.
  • While judicial pronouncements on making it difficult for criminal candidates to contest are necessary, only enhanced awareness and increased democratic participation could create the right conditions for the decriminalization of politics.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

SC uphold changes in SC/ST Atrocities Law

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not Much

Mains level : Protection of SCs and STs against caste based atrocities

 

The Supreme Court has upheld the SCs/STs (Prevention of Atrocities) Amendment Act of 2018, which nullified it’s own controversial March 20, 2018 judgement.  Earlier judgment had diluted the original 1989 legislation, saying they were using its provisions to file false criminal complaints against innocent persons.

Why such ruling?

  • The 2018 Act had nullified a March 20 judgment of the Supreme Court, which allowed anticipatory bail to those booked for committing atrocities against Scheduled Castes and Scheduled Tribes members.
  • The original 1989 Act bars anticipatory bail.
  • The Supreme Court verdict saw a huge backlash across the country. Several died in ensuing protests and property worth crores of rupees was destroyed.
  • The government reacted by filing a review petition in the Supreme Court and subsequently amended the 1989 Act back into its original form.
  • The government had enacted the Amendments, saying the SCs and STs continued to face the same social stigma, poverty and humiliation which they had been subjected to for centuries.

Why was the SC/ST Act enacted?

  • Since crimes against SCs and STs are fundamentally hate crimes, the Rajiv Gandhi enacted the Act in 1989.
  • It gave furtherance to the provisions for abolition of untouchability (Article 17) and equality (Articles 14, 15).

Why it was amended?

  • The Bench reasoned that human failing and not caste is the reason behind the lodging of false criminal complaints.
  • The Supreme Court condemned its own earlier judgment, saying it was against “basic human dignity” to treat all SC/ST community members as “a liar or crook.”
  • Caste of a person cannot be a cause for lodging a false report, the verdict observed.
  • Members of the SCs and STs, due to backwardness, cannot even muster the courage to lodge an FIR, much less, a false one, the judgment noted.

The Subhash Kashinath Mahajan case

  • Mahajan was Director of Technical Education in Maharashtra.
  • Two non-SC officers had made an adverse entry on the character and integrity of a Dalit employee, whom Mahajan in 2011 denied sanction for prosecution against those officers.
  • The denial was challenged on the ground that the state government and not the director was the competent authority.
  • The apex Court held that safeguards against blackmail are necessary as by way of rampant misuse, complaints are largely being filed against public servants with oblique motive for the satisfaction of vested interests.

In what manner had the 2018 judgment diluted provisions for arrest?

ANTICIPATORY BAIL

  • In section 18 of the Act, Parliament had laid down that the provision of anticipatory bail under Section 438 of the CrPC of 1973 will not be available to an accused under the Act.
  • The provision of anticipatory bail was introduced for the first time on the recommendation of 41st Law Commission in 1973.
  • It is a statutory right, not part of the right to life and personal liberty under Article 21 of the Constitution, and thus there is no fundamental right to anticipatory bail.
  • In the 2018 judgment, the Court laid down safeguards, including provisions for anticipatory bail and a “preliminary enquiry” before registering a case under the Act.
  • While review the Bench said Section 18 was enacted to instil a sense of deterrence and relied on Kartar Singh (1994) in which the court had held that denial of anticipatory bail does not violate Article 21.

FIR

  • The court had observed that “liberty of one cannot be sacrificed to protect another”, and the “Atrocities Act cannot be converted into charter for exploitation or oppression by unscrupulous persons or by police for extraneous reasons”.
  • He ordered that neither is an FIR to be immediately registered nor are arrests to be made without a preliminary inquiry by an SSP.
  • An arrest can only be made if there is “credible” information and police officer has “reason to believe” that an offence was committed.
  • In the review judgment, Justice Mishra said public servants already have a remedy in false cases under CrPC Section 482 and can get such FIRs quashed by High Courts.
  • He rejected the need of an SSP’s approval for arrest.

PERMISSION

  • In 2018, the court had said that even if a preliminary inquiry is held and a case registered, arrest is not necessary, and that no public servant is to be arrested without the written permission of the appointing authority.
  • The court extended the benefit to other citizens and said they cannot be arrested without the written permission of the SSP of the district.
  • In review the court said that the decision on arrest is to be taken by the investigating authority, not the appointing authority.

Were other provisions diluted?

  • The court had observed that interpretation of Atrocities Act should promote constitutional values of fraternity and integration of the society.
  • This may require ‘check on false implication of innocent citizens on caste lines’.
  • Observing that the law should not result in caste hatred, the court overlooked the fact that the Act had to be enacted due to caste hatred.
  • The review judgment said that such riders for registering a report are wrong and it would give an advantage to upper castes whose complaints can be registered without any such inquiry.

How frequently do SCs/STs face atrocities?

  • A crime is committed against an SC every 15 minutes. Six SC women are raped every day on an average.
  • Between 2007 and 2017, there was a 66 per cent growth in crimes against SCs.
  • Data from the National Crime Record Bureau, which the 2018 judgment was based on, showed cases of rape of SC women had doubled in 10 years.

Assist this newscard with:

[Burning Issue] SC/ST Prevention of Atrocities Act

Police Reforms – SC directives, NPC, other committees reports

Supreme Court panel recommends several prison reforms

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not Much

Mains level : Prision reforms

The Supreme Court has taken up a report on Prison Reforms for hearing on before a Bench led by CJI Sharad A. Bobde.

About the Committee

  • The court had in September 2018 appointed the Justice Roy Committee to examine the various problems plaguing prisons, from overcrowding to lack of legal advice to convicts to issues of remission and parole.
  • Besides Justice Roy, a former Supreme Court judge, the members included an IG, Bureau of Police Research and Development, and the DG (Prisons), Tihar Jail.

Various recommendations

  • Every new prisoner should be allowed a free phone call a day to his family members to see him through his first week in jail.
  • This is among the several recommendations — besides modern cooking facilities, canteens to buy essential items and trial through video-conferencing.
  • The report described the preparation of food in kitchens as “primitive and arduous”.
  • The kitchens are congested and unhygienic and the diet has remained unchanged for years now.

Staffing the prisons

  • The court said overcrowding is a common bane in the under-staffed prisons. The Prison Department has a perennial average of 30%-40% vacancies.
  • Both the prisoner and his guard equally suffer human rights violation.

Speedy trial

  • The undertrial prisoner, who is yet to get his day in court, suffers the most, languishing behind bars for years without a hearing.
  • Speedy trial remains one of the best ways to remedy the unwarranted phenomenon of over-crowding.
  • The report concluded that most prisons are “teeming with undertrial prisoners”, whose numbers are highly disproportionate to those of convicts.
  • It said there should be at least one lawyer for every 30 prisoners.

Judicial Reforms

Gram Nyayalayas

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Gram Nyayalayas

Mains level : Gram Nyayalayas and its jurisdiction

The Supreme Court has directed the states, which are yet come out with notifications for establishing Gram Nyayalayas, to do so within four weeks.

What are Gram Nyayalayas?

  • Gram Nyayalayas were established for speedy and easy access to the justice system in the rural areas across the country.
  • The Gram Nyayalayas Act came into force on October 2, 2009.
  • In terms of Section 3(1) of the Act, it is for the State Governments to establish Gram Nyayalayas in consultation with the respective High Courts.
  • The Act authorizes the Gram Nyayalaya to hold mobile court outside its headquarters.
  • However, the Act has not been enforced properly, with only 208 functional Gram Nyayalayas in the country ( Sept. 2019) against a target of 5000 such courts.
  • The major reasons behind the non-enforcement include financial constraints, reluctance of lawyers, police and other government officials.

Features of the Gram Nyayalayas

  • Gram Nyayalaya are established generally at headquarter of every Panchayat at intermediate level or a group of contiguous panchayat in a district where there is no panchayat at intermediate level.
  • The Gram Nyayalayas are presided over by a Nyayadhikari, who will have the same power, enjoy same salary and benefits of a Judicial Magistrate of First Class.
  • Such Nyayadhikari are to be appointed by the State Government in consultation with the respective High Court.

Jurisdiction

  • A Gram Nyayalaya have jurisdiction over an area specified by a notification by the State Government in consultation with the respective High Court.
  • The Court can function as a mobile court at any place within the jurisdiction of such Gram Nyayalaya, after giving wide publicity to that regards.
  • The Gram Nyayalayas have both civil and criminal jurisdiction over the offences and nature of suits specified in the First, Second and Third schedule of the Act.
  • The pecuniary jurisdiction of the Nyayalayas are fixed by the respective High Courts.
  • Appeals in criminal matter can be made to the Sessions Court in the respective jurisdiction and in civil matters to the District Court within a period of one month from the date of judgment.

Trials

  • Gram Nyayalayas can follow special procedures in civil matters, in a manner it deem just and reasonable in the interest of justice.
  • Civil suits are proceeded on a day-to-day basis, with limited adjournments and are to be disposed of within a period of six months from the date of institution of the suit.
  • In execution of a decree, the Court can allow special procedures following rules of natural justice.
  • Gram Nyayalayas allow for conciliation of the dispute and settlement of the same in the first instance.
  • Gram Nyayalayas has been given power to accept certain evidences which would otherwise not be acceptable under Indian Evidence Act.

Wildlife Conservation Efforts

Reintroduction of African Cheetahs in Indian forests

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Asiatic and African Cheetah

Mains level : Translocation of Species and its impacts

 

The Supreme Court lifted its seven-year stay on a proposal to introduce African cheetahs from Namibia into the Indian habitat on an experimental basis. The plan was to revive the Indian cheetah population.

Asiatic cheetahs in India

  • In 1947, Maharaja Ramanuj Pratap Singh of Deoghar of Koriya, Chhattisgarh — who was infamous for shooting over 1,150 tigers — reportedly killed the last known Asiatic cheetah in India.
  • In that year, a few miles from Ramgarh village in the state, the Maharaja killed three of the animals — brothers — during a night drive.
  • After that, the Maharaja’s kin continued to report the presence of a few stragglers in the forests of Surguja district, including a pregnant female, up until the late 1960s.
  • Some more unconfirmed sightings were reported in 1951 and 1952, from the Orissa-Andhra Pradesh border and Chittoor district.
  • The latter sighting is generally accepted to be the final credible sighting of a cheetah in India. In 1952, the cheetah was officially declared extinct from India.

African cheetah and Asiatic cheetah

  • Before Namibia, India had approached Iran for Asiatic cheetahs, but had been refused.
  • The Asiatic cheetah is classified as a “critically endangered” species by the IUCN Red List, and is believed to survive only in Iran.
  • From 400 in the 1990s, their numbers are estimated to have plummetted to 50-70 today, because of poaching, hunting of their main prey (gazelles) and encroachment on their habitat.
  • ‘Critically endangered’ means that the species faces an extremely high risk of extinction in the wild.

Why does NTCA want to reintroduce cheetahs?

  • A section of conservationists has long advocated the reintroduction of the species in the country.
  • Reintroductions of large carnivores have increasingly been recognised as a strategy to conserve threatened species and restore ecosystem functions.
  • The cheetah is the only large carnivore that has been extirpated, mainly by over-hunting in India in historical times.
  • India now has the economic ability to consider restoring its lost natural heritage for ethical as well as ecological reasons.

Why was the project halted?

  • The court was also worried whether the African cheetahs would find the sanctuary a favourable clime as far as abundance of prey is concerned.
  • Those who challenged the plan argued that the habitat of cheetahs needed to support a genetically viable population.

What did court say?

  • The Supreme Court made it clear that a proper survey should be done to identify the best possible habitat for the cheetahs.
  • Every effort should be taken to ensure that they adapt to the Indian conditions.
  • The committee would help, advice and monitor the NTCA on these issues. The action of the introduction of the animal would be left to the NTCA’s discretion.

J&K – The issues around the state

Suspension of the Internet: What the Rules say, what the SC underlined

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Relevant sections of the CrPC and the Telegraph Act

Mains level : Right to internet access and various issues

J&K – The issues around the state

SC order on Internet Shutdowns

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Sec. 144 of CRPC

Mains level : Internet shutdown as an infringement of FR

Directing the government to mandatorily publish all orders permitting Internet shutdowns, the Supreme Court has for the first time set the stage for challenging suspension orders before courts.

What triggered the SC?

  • India tops the list of Internet shutdowns globally. According to Software Freedom Law Center’s tracker, there have been 381 shutdowns since 2012, 106 of which were in 2019.
  • The ongoing shutdown in Kashmir is the longest ever in any democratic country.

The prime mover for Supreme Court

  • The Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017 issued under the Telegraph Act deals with restricting Internet access.
  • It does not provide for publication or notification of the order suspending Internet, the apex court mandated that such orders must be made available to the public.
  • The court declared that it is a “settled principle of law, and of natural justice” that requires publication of such orders, “particularly one that affects lives, liberty and property of people”.
  • This allows individuals to now challenge the orders before courts in J&K and rest of India.

Internet suspension orders are subjected to Judicial Review

  • In the wake of protests against the new citizenship law, Internet services were suspended temporarily in parts of Uttar Pradesh, Delhi and Karnataka.
  • There should not be excessive burden on free speech even if complete prohibition is imposed, and the government has to justify imposition of such prohibition and explain why lesser alternatives were inadequate, the bench stated.
  • It ruled that Restrictions are to be imposed in an emergency. Hence they must be proportionate to the concern. Their objective must be legitimate rather than cavalier.
  • Authorities must necessarily consider an alternative and least restrictive mechanism before opting to restrict rights. Every decision to impose restriction should be backed by sufficient material and amenable to judicial review.

Pacing up with technology

  • The bench also noted that the law needs to keep pace with technological development:
  • We need to note that the law should imbibe the technological development and accordingly mould its rules so as to cater to the needs of society.
  • Non-recognition of technology within the sphere of law is only a disservice to the inevitable.

Justifying the Kashmir shutdown

  • Lastly, the court mandated that all orders regarding the Kashmir case be made public, and to provide essential services such as e-banking and hospitals immediately.
  • What the centre was arguing in this case was that this is a matter of national security given that it pertains to Kashmir with a history of militancy.

Judicial Reforms

Article 142 of the Indian Constitution

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Art. 142

Mains level : Discretionary powers of Judiciary

Recently the Supreme Court has used its extraordinary powers under Article 142 of the Constitution to grant divorce in a case of “irretrievable breakdown of marriage”.

Irretrievable breakdown of marriage

  • It is defined as the situation that exists when either or both spouses are no longer able or willing to live with each other, thereby destroying their husband and wife relationship with no hope of resumption of spousal duties.
  • Currently, Hindu marriage law does not include “irretrievable breakdown of marriage” as a ground for divorce.
  • However, the apex court in a number of cases has provided the said relief using the extraordinary powers that allow it to do “complete justice”.
  • The Law Commission has twice recommended that “irretrievable breakdown” of marriage be included as a new ground for granting divorce to Hindus under this Act and the Special Marriage Act.

Present grounds for divorces

  • The Hindu Marriage Act, 1955, lays down the law for divorce, which applies to Hindus, Buddhists, Jains, and Sikhs.
  • Under Section 13 of the Act, the grounds for divorce include: “voluntary sexual intercourse with any person other than his or her spouse”; “cruelty”; desertion “for a continuous period of not less than two years immediately preceding the presentation of the petition”; “ceasing to be a Hindu by conversion to another religion”; and being “incurably of unsound mind”.
  • In addition, Section 13B provides for “divorce by mutual consent”.
  • Section 27 of The Special Marriage Act, 1954 provides the grounds for grant of divorce in the case of marriages solemnized under that Act.
  • However, neither of the two Acts provide for “irretrievable breakdown of marriage” as a ground for divorce.

What is Article 142 of the Constitution?

  • Article 142 provides discretionary power to the Supreme Court as it states that the court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.
  • Such decree shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament.
  • The provision vests sweeping powers in the Supreme Court for the end of ensuring “complete justice” and is usually used in cases involving human rights and environmental protection.
  • Last month, it was also used during the Ayodhya judgment, making the first such case where it was invoked for a civil dispute over an immovable property that involved private parties.

RTI – CIC, RTI Backlog, etc.

Supreme Court’s observations on “use and abuse of RTI”

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Public Office, RTI Act

Mains level : Read the attached story

The Hon’ble CJI has called for a “filter” to check “abuse” of the Right to Information (RTI) Act.

These remarks came a month after the Supreme Court declared the office of the CJI a public authority under the ambit of the RTI. Over the years, the apex court has stressed the importance of transparency under RTI at times, and also remarked on its overuse at other times.

For a stronger RTI, the Supreme Court looped in for:

Providing rightful information

  • The Public Information Officers under the guise of one of the exceptions given under Section 8 of RTI Act, have evaded the general public from getting their hands on the rightful information that they are entitled to, SC has observed.
  • The ideal of ‘Government by the people’ makes it necessary that people have access to information on matters of public concern.
  • The free flow of information about affairs of Government paves way for debate in public policy and fosters accountability in Government.
  • It creates a condition for ‘open governance’ which is a foundation of democracy.”

Bringing NGOs under RTI Act

  • In 2019, a SC bench has declared that NGOs are not beyond the RTI Act. This was based on an examination of the question whether NGOs are substantially financed by the government.
  • The Bench observed that substantial means a large portion. It does not necessarily have to mean a major portion or more than 50%.
  • To give an example, if a land in a city is given free of cost or on heavy discount to hospitals, educational institutions or such other body, this in itself could also be substantial financing.
  • Merely because financial contribution of the State comes down during the actual funding, will not by itself mean that the indirect finance given is not to be taken into consideration.
  • Because of this observation, the spotlight falls of several NGOs that have been getting public money and were not covered under the RTI.
  • There are societies directly controlled by politicians, but fighting cases that they are not covered under the transparency law.

SC on the overuse of RTI

Time consumed in replying

  • According to estimates, nearly 60-70 lakh RTI applications are filed in India every year, and activists have questioned whether addressing these would require 75% of the time of government staff.
  • Several public authorities have used this observation while denying information, ignoring the fact in the same case, the Supreme Court had ordered disclosure of the requisite information.
  • In CBSE & Anr vs Aditya Bandhopadhyay and Others in 2011, the SC said: The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties.

Personal and Public

  • In Girish Ramchandra Deshpande vs CIC & Ors in October 2012, the SC Bench observed, “The performance of an employee/officer in an organisation is primarily a matter between the employee and the employer.
  • Normally these aspects are governed by the service rules which fall under the expression ‘personal information’, the disclosure of which has no relationship to any public activity or public interest.
  • On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual.
  • If the appellate authority (any) is satisfied that the larger public interest justifies the disclosure of such information, appropriate orders could be passed but the petitioner cannot claim those details as a matter of right.
  • Various public authorities have used this order to deny information on cases/inquiries going on against government officials.

Back2Basics

The RTI Act

  • Under the RTI Act, 2005, Public Authorities are required to make disclosures on various aspects of their structure and functioning.
  • This includes (i) disclosure on their organisation, functions, and structure, (ii) powers and duties of its officers and employees, and (iii) financial information.

Its genesis

  • It was the Supreme Court that had sown the seeds of the RTI Act when, in 1975, in State of UP vs Raj Narain Case.
  • Justice K K Mathew observed, “The people of this country have a right to know every public act, everything that is done in a public way by their public functionaries.
  • They are entitled to know the particulars of every public transaction in all its bearing.
  • Their right to know is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary when secrecy is claimed for transactions which can at any rate have no repercussion on public security.
  • Before the RTI Act, the Supreme Court advocated for the people’s right to know in Union of India Vs Association for Democratic Reforms in 2002.

Women Safety Issues – Marital Rape, Domestic Violence, Swadhar, Nirbhaya Fund, etc.

Death penalty in India

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not Much

Mains level : Capital Punishment and its justification


The horrific December 16, 2012, Delhi bus gangrape case is rapidly moving towards its final conclusion.

Death Penalty

  • Article 21 ensures the Fundamental Right to life and liberty for all persons.
  • It adds no person shall be deprived of his life or personal liberty except according to procedure established by law.
  • This has been legally construed to mean if there is a procedure, which is fair and valid, then the state by framing a law can deprive a person of his life.
  • While the central government has consistently maintained it would keep the death penalty in the statute books to act as a deterrent, and for those who are a threat to society, the Supreme Court too has upheld the constitutional validity of capital punishment in “rarest of rare” cases.

Various judgments related to Death Penalty

  • The Supreme Court has always said that the death sentence should be given rarely.
  • In ‘Mithu vs State of Punjab’ (1983), the Supreme Court ruled that the mandatory death penalty is unconstitutional.
  • It struck down Section 303 in the IPC, which entailed a mandatory death sentence for a person who commits murder while serving a life term in another case.
  • The Supreme Court ruled Section 303 violated Articles 14 (right to equality) and 21 (right to life) since an unreasonable distinction was sought to be made between two classes of murders.
  • Similarly, the Supreme Court ruled in ‘State of Punjab vs Dalbir Singh’ in 2012 that mandatory death penalty as punishment for crimes under Section 27 (3) of the Arms Act, 1959, was unconstitutional.
  • In ‘Jagmohan Singh vs State of UP’ (1973), then in ‘Rajendra Prasad vs State of UP’ (1979), and finally in ‘Bachan Singh vs State of Punjab’ (1980) the Supreme Court affirmed the constitutional validity of the death penalty.
  • It said that if capital punishment is provided in the law and the procedure is a fair, just and reasonable one, the death sentence can be awarded to a convict.
  • This will, however, only be in the “rarest of rare” cases, and the courts should render “special reasons” while sending a person to the gallows.

What is a “rarest of rare” case?

  • The principles of what would constitute the “rarest of rare” were laid down by the top court in the landmark judgment in ‘Bachan Singh’.
  • Two prime questions, the top court held, may be asked and answered.
  • First, is there something uncommon about the crime which renders the sentence of imprisonment for life inadequate and calls for a death sentence?
  • Second, are there circumstances of the crime such that there is no alternative but to impose the death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offenders?
  • Courts have agreed that the Delhi gangrape case meets the test of rarest of rare.

Avenues available to a death-row convict

  • After a trial court awards the death penalty, the sentence must be confirmed by a High Court.
  • The sentence cannot be executed till the time the High Court confirms it, either after deciding the appeal filed by the convict, or until the period allowed for preferring an appeal has expired.
  • If the High Court confirms the death penalty and it is also upheld by the Supreme Court, a convict can file a review petition.
  • If the review petition is rejected, the convict can file a curative petition for reconsideration of the judgment.
  • In 2014, a Constitution Bench of the Supreme Court ruled that a review petition by a death-row convict will be heard by a three-judge Bench in open court. Such cases were earlier being heard by two-judge Benches in the judges’ chamber.
  • A curative petition is still heard in judges’ chambers.

Issues with delayed execution

  • The law provides for a long process before the execution of the convicts actually takes place.
  • The unexplained delay in execution can be a ground for commutation of death penalty, and an inmate, his or her kin, or even a public-spirited citizen could file a writ petition seeking such commutation.

Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

Explained: Creamy layer principle in SC, ST quota for promotion: judgments, appeals

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Read the attached story

Mains level : Creamy Layer clause and its issues

The Centre has urged the Supreme Court to refer to a larger Bench its decision last year that had applied the creamy layer principle to promotions for Scheduled Castes and Scheduled Tribes in government jobs.

What was the case about?

  • In Jarnail Singh vs Lachhmi Narain Gupta (2018), the court dealt with a batch of appeals relating to two reference orders, first by a two-judge Bench and then by a three-judge Bench, on the correctness of the Supreme Court’s judgment in M Nagaraj & Others vs Union of India (2006).
  • The Nagaraj case, in turn, had arisen out of a challenge to the validity of four Constitution amendments, which the court eventually upheld.

What were these amendments?

  • 77th Amendment: It introduced Clause 4A to the Constitution, empowering the state to make provisions for reservation in matters of promotion to SC/ST employees if the state feels they are not adequately represented.
  • 81st Amendment: It introduced Clause 4B, which says unfilled SC/ST quota of a particular year, when carried forward to the next year, will be treated separately and not clubbed with the regular vacancies of that year to find out whether the total quota has breached the 50% limit set by the Supreme Court.
  • 82nd Amendment: It inserted a proviso at the end of Article 335 to enable the state to make any provision for SC/STs “for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State”.
  • 85th Amendment: It said reservation in promotion can be applied with consequential seniority for the SC/ST employee.

What is Art. 335 about?

  • Article 335 of the Constitution relates to claims of SCs and STs to services and posts.
  • It reads: “The claims of the members of the SC’s and ST’s shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.”

How did the Nagaraj case proceed?

  • The petitioners claimed that these amendments were brought to reverse the effect of the decision in the Indra Sawhney case of 1992 (Mandal Commission case).
  • In that case the Supreme Court had excluded the creamy layer of OBCs from reservation benefits.
  • The court said reservation should be applied in a limited sense, otherwise it will perpetuate casteism in the country.
  • It upheld the constitutional amendments by which Articles 16(4A) and 16(4B) were inserted, saying they flow from Article 16(4) and do not alter the structure of Article 16(4).

Extending to SC’s and ST’s: A directive for the State

  • The SC ruled that “the State is not bound to make reservation for SC/ST in matter of promotions.
  • However if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment.
  • It is made clear that even if the State has compelling reasons, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.
  • In other words, the court extended the creamy layer principle to SCs and STs too.

What happened in the subsequent Jarnail Singh case?

  • The Centre argued that the Nagaraj judgment needed to be revisited for two reasons.
  • Firstly, asking states “to collect quantifiable data showing backwardness is contrary to the Indra Sawhney v Union of India case where it was held that SC’s and ST’s are the most backward among backward classes.
  • And it is, therefore, presumed that once they are contained in the Presidential List under Articles 341 and 342 of the Constitution of India, there is no question of showing backwardness of the SCs and STs all over again.
  • Secondly, the creamy layer concept has not been applied in the Indra Sawhney case to SC/ST’s; the Nagaraj judgment, according to the government, “has misread” the Indra Sawhney judgment to apply the concept to the SCs and STs.

How did the court rule?

  • Last year, a five-judge Constitution Bench refused to refer the Nagaraj verdict to a larger bench.
  • However, it held as “invalid” the requirement laid down by the Nagaraj verdict that states should collect quantifiable data on the backwardness of SCs and STs in granting quota in promotions.
  • It said that the creamy layer principle — of excluding the affluent among these communities from availing the benefit —will apply.
  • The whole object of reservation is to see that backward classes of citizens move forward so that they may march hand in hand with other citizens of India on an equal basis.
  • This will not be possible if only the creamy layer within that class bag all the coveted jobs in the public sector and perpetuate themselves, leaving the rest of the class as backward as they always were, the Bench said.
  • This being the case, it is clear that when a Court applies the creamy layer principle SC/ST’s, it does not in any manner tinker with the Presidential List under Articles 341 or 342.
  • It is only those persons within that group or sub-group, who have come out of untouchability or backwardness by virtue of belonging to the creamy layer, who are excluded from the benefit of reservation.

What happens now?

  • The Centre, while praying that the 2018 judgment be referred to a larger Bench, has referred once again to the 1992 Indra Sawhney judgment, submitting that the Supreme Court then did not apply the creamy layer concept to SCs and STs.
  • The Bench has said it will hear the matter within few weeks.

Supreme Court strikes down rules on tribunal postings

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Various tribunals

Mains level : Not Much

A Constitution Bench of the Supreme Court struck down in entirety Rules framed by the government under the Finance Act of 2017 to alter the appointments to 19 key judicial tribunals, including the Central Administrative Tribunal.

Why it was struck down?

  • The Section 184 of the Finance Act, 2017 suffered from excessive delegation of legislative functions.
  • It was under Section 184 that the 2017 Rules regarding appointment of tribunals were framed.
  • One of the major grounds of challenge to the Finance Act was on the ground that the same was passed as a Money Bill.
  • It was the petitioners’ case that the passage of the Finance Act in the form of a Money Bill’ was entirely inappropriate and amounted to a fraud on the Constitution.
  • The petitions had stated that the provisions of Finance Act 2017 affected the powers and structures of various judicial tribunals such as National Green Tribunal, Income Tax Appellate Tribunal, National Company Law Tribunal and National Company Law Appellate Tribunal.

What did the court ruled?

  • The court ordered the Centre to re-formulate the Rules within six months strictly in conformity with the principles delineated by the Supreme Court.
  • The new set of Rules to be formulated by the Central Government shall ensure non-discriminatory and uniform conditions of service, including assured tenure.
  • The court further ordered the Union Ministry of Law and Justice to conduct a ‘Judicial Impact Assessment’ of tribunals to analyse the ramifications of the changes caused by the Finance Act, 2017.

Insolvency and Bankruptcy Code

Right to carry on business

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Right to carry on business

Mains level : Issues over IBC

The Supreme Court has increased the time limit for the corporate resolution to extend beyond the mandated 330 days. The judgment is significant for India’s fledgling corporate resolution process under the Insolvency and Bankruptcy Code.

Time limits

  • As of now, the time limit for resolution process is mandatorily 330 days in all cases.
  • If debts are not resolved and the bankrupt firm cannot be brought back to its feet within this time-frame, the only option left is liquidation of its assets to pay creditors.
  • The court said that the provision saying the 330-day mark should be followed in the ‘ordinary course’.
  • Extension of time should be granted by the NCLT if parties are able to prove there is very little time left in the resolution process and the delay has been caused by ‘tardy’ legal proceedings.

Why extension?

  • A Bench led by Justice Nariman in a judgment, observed that many litigants suffer the prospect of liquidation for no fault of theirs.
  • Delay in legal proceedings leads to the resolution process being dragged beyond the 330-day mark.

How is Article 19 involved?

  • Justice Nariman said it would be arbitrary to let litigants suffer liquidation unnecessarily.
  • The court held the mandatory nature of the 330-day mark as a violation of Article 14 (right to equal treatment) of the Constitution and an excessive and unreasonable restriction on the litigant’s right to carry on business under Article 19(1)(g) of the Constitution.

Back2Basics

Article 19

According to Article 19, all citizens shall have the right—

  • to freedom of speech and expression;
  • to assemble peaceably and without arms;
  • to form associations or unions or co-operatives;
  • to move freely throughout the territory of India;
  • to reside and settle in any part of the territory of India; and
  • the right to acquire, hold and dispose of property (deleted after 44th CAA, 1978)
  • to practise any profession, or to carry on any occupation, trade or business.

Judicial Reforms

Doctrine of Essentiality

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Doctrine of Essentiality

Mains level : Constitutional significance of Doctrine of Essentiality

Context

The Supreme Court has decided to refer the Sabarimala temple case to a larger 7-judge Bench.

This reopens not only the debate on allowing women of menstruating age into the Ayyappa temple but the larger issue of whether any religion can bar women from entering places of worship.

The case for Sabarimala

  • The majority opinion in the 2018 Sabarimala verdict had said that women have a fundamental right to equality in accessing public places which includes places of worship.
  • However, since the Sabarimala verdict will essentially be heard afresh, the constitutional debate on gender equality will open up once again.
  • The review gives the ‘devotees’ and the Sabarimala temple authorities who have battled the Supreme Court verdict a foot in the door to have the verdict potentially overturned.

What is the Supreme Court’s Doctrine of Essentiality?

  • The doctrine of “essentiality” was invented by a seven-judge Bench of the Supreme Court in the ‘Shirur Mutt’ case in 1954.
  • It is a contentious doctrine evolved by the court to protect only such religious practices which were essential and integral to the religion.
  • The court held that the term “religion” will cover all rituals and practices “integral” to a religion, and took upon itself the responsibility of determining the essential and non-essential practices of a religion.
  • Referring to the Ayodhya case, the Constitution Bench had ruled in 1994 that A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in open.

How has the doctrine been used in subsequent years?

  • The ‘essentiality doctrine’ of the Supreme Court has been criticised by several constitutional experts.
  • Scholars of constitutional law have argued that the essentiality/integrality doctrine has tended to lead the court into an area that is beyond its competence, and given judges the power to decide purely religious questions.
  • As a result, over the years, courts have been inconsistent on this question — in some cases they have relied on religious texts to determine essentiality.
  • In others it relied on the empirical behaviour of followers, and in yet others, based on whether the practice existed at the time the religion originated.

Issues over the doctrine

  • In the beginning, the court engaged with the question of whether untouchability, manifested in restrictions on entry into temples, was an “essential part of the Hindu religion”.
  • After examining selected Hindu texts, it came to the conclusion that untouchability was not an essential Hindu practice.
  • The idea of providing constitutional protection only to those elements of religion which the court considers “essential” is problematic as it assumes that one element or practice of religion is independent of other elements or practices.
  • So, while the essentiality test privileges certain practices over others, it is, in fact, all practices taken together that constitute a religion.

How does essentiality square up against religious freedom?

  • Freedom of religion was meant to guarantee freedom to practice one’s beliefs based on the concept of “inward association” of man with God.
  • The apex court in ‘Ratilal Panachand Gandhi vs The State of Bombay and Ors’ (March 18, 1954) acknowledged that “every person has a fundamental right to entertain such religious beliefs as may be approved by his judgment or conscience”.
  • The framers of the Constitution wanted to give this autonomy to each individual. Scholars have argued that the essentiality test impinges on this autonomy.
  • The apex court has itself emphasised autonomy and choice in its Privacy (2017), 377 (2018), and Adultery (2018) judgments.

Judicial Reforms

CJI’s office comes under ambit of RTI Act, SC says

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Public Office, RTI Act

Mains level : Read the attached story

The office of the Chief Justice of India is a public authority and falls under the ambit of Right to Information Act, the Supreme Court ruled today.

What’s the issue?

  • The five-judge bench of CJI Ranjan Gogoi, Justices N V Ramana, D Y Chandrachud, Deepak Gupta and Sanjiv Khanna passed the judgment on an appeal filed by the Supreme Court administration.
  • The appeal challenged the 2010 order of the Delhi high court which held that the CJI’s office comes under the ambit of the Right to Information Act.
  • Oppositions to the plea had contended that courts had time and again given a slew of directions to infuse transparency in the functioning of various institutions.
  • The bench had agreed that there should be transparency, but added there was a need to do balancing.

Who is a “Public Authority”?

In 2011, the Punjab-Haryana High Court while deciding on 24 civil writ petitions against the Central/State Information Commissioners had held that if any person, or body, satisfies the following conditions then it would “squarely fall within the ambit and scope of definition of ‘public authorities'” and would be “legally required to impart the indicated information as envisaged under the RTI Act” –

  • the institution cannot come into existence and function unless registered and regulated by the provisions of a legislation; or
  • the State Government has some degree of control over it through the medium of Acts/Rules; or
  • it is substantially financed by means of funds provided directly, or indirectly, by the appropriate Government; or
  • the mandate and command of the provisions of the RTI Act along with its Preamble, aims, objects and regime extends to their public dealing; or
  • the larger public interest and totality of the other facts and circumstances emanating from the records suggest that such information may be disclosed.

The Delhi High Court order

  • In a landmark verdict on January 10, 2010, the Delhi High Court had held that the office of the Chief Justice of India comes within the ambit of the RTI law.
  • It said that the judicial independence was not a judge’s privilege, but a responsibility cast upon him.
  • The 88-page judgment was then seen as a personal setback to the then CJI, KG Balakrishnan, who has been opposed to disclosure of information relating to judges under the RTI Act.

RTI < < Judiciary

  • The apex court said that the right to privacy and confidentiality is an important aspect and has to be balanced while taking a decision on giving out information from the CJI’s office.
  • The CJI-led bench added that transparency cannot be allowed to run counter to right to privacy.
  • The bench said that the information commissioner must apply test of proportionality while entertaining applications seeking information from the CJI’s office.
  • However it must keep in mind right to privacy and independence of judiciary.