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

States can have sub-groups among SCs/STs: Supreme Court

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Presidential List

Mains level : Quota within Quota debate

A five-judge Bench of the Supreme Court has held that States can sub-classify Scheduled Castes and Scheduled Tribes in the Central List to provide preferential treatment to the “weakest out of the weak”.

Try this question for mains;

Q.Reservation is no more seen by the Supreme Court as an exception to the equality rule; rather, it is a facet of equality. Discuss this in light of the quest for sub-categorisation of Scheduled Castes/Tribes.

What is the sub-categorisation of SCs?

  • States have argued that among the SCs, there are some that remain grossly under-represented despite reservation in comparison to other SCs.
  • This inequality within the SCs is underlined in several reports, and special quotas have been framed to address it.
  • For example, in AP, Punjab, Tamil Nadu and Bihar, special quotas were introduced for the most vulnerable Dalits.
  • In 2007, Bihar set up the Mahadalit Commission to identify the castes within SCs that were left behind.

About the Judgement

  • The judgment is based on a reference to the Constitution Bench the question of law involving Section 4(5) of the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006.
  • The legal provision allows 50% of the reserved Scheduled Castes seats in the State to be allotted to Balmikis and Mazhabi Sikhs.

There lies struggle within castes: SC

  • There is a “caste struggle” within the reserved class as a benefit of reservation is being usurped by a few, the court pointed out.
  • The million-dollar question is how to trickle down the benefit to the bottom rung.
  • It is clear that caste, occupation, and poverty are interwoven.
  • The State cannot be deprived of the power to take care of the qualitative and quantitative difference between different classes… to take ameliorative measures, said the judgment.

Overruling the old judgment

  • With this, the Bench took a contrary view to a 2004 judgment delivered by another Coordinate Bench of five judges in the E.V. Chinnaiah case.
  • The judgment had held that allowing States to unilaterally “make a class within a class of members of the Scheduled Castes” would amount to tinkering with the Presidential list.
  • The judgment is significant as it fully endorses the push to extend the creamy layer concept to the Scheduled Castes and Scheduled Tribes.
  • Citizens cannot be treated to be socially and educationally backwards till perpetuity; those who have come up must be excluded like the creamy layer, the judgment said.

What is the Presidential list?

  • The Constitution, while providing for special treatment of SCs and STs to achieve equality, does not specify the castes and tribes that are to be called SCs and STs.
  • This power is left to the central executive — the President. As per Article 341, those castes notified by the President are called SCs and STs.
  • A caste notified as SC in one state may not be an SC in another state. These vary from state to state to prevent disputes as to whether a particular caste is accorded reservation or not.
  • According to the annual report of the Ministry of Social Justice and Empowerment, there were 1,263 SCs in the country in 2018-19.
  • No community has been specified as SC in Arunachal Pradesh and Nagaland, and Andaman & Nicobar Islands and Lakshadweep.
  • The Constitution treats all Schedule Castes as a single homogeneous group.

Arguments against sub-categorisation

  • The argument is that the test or requirement of social and educational backwardness cannot be applied to SCs and STs.
  • The special treatment is given to the SCs due to untouchability with which they suffer.
  • In a 1976 case, State of Kerala v N M Thomas, the Supreme Court laid down that “Scheduled Castes are not castes, they are class.”
  • The petitioner’s argument against allowing states to change the proportion of reservation is also based on the perception that such decisions will be made to appease one vote-bank or the other.
  • A watertight President’s list was envisaged to protect from such potential arbitrary change.

Way ahead with the Judgement

  • The judgement reasoned that sub-classifications within the Presidential/Central List do not amount to “tinkering” with it.
  • No caste is excluded from the list. The States only give preference to weakest of the lot in a pragmatic manner based on statistical data.
  • Preferential treatment to ensure even distribution of reservation benefits to the more backward is a facet of the right to equality, judgement observed.

Also read:

[Burning Issue] SC judgement on Reservation not being a Fundamental Right

Disasters and Disaster Management – Sendai Framework, Floods, Cyclones, etc.

PM CARES Fund is a “public charitable trust”: SC

Note4Students

From UPSC perspective, the following things are important :

Prelims level : PM CARES Fund

Mains level : Disaster management in India

The Supreme Court has endorsed the PM CARES Fund as a “public charitable trust” to which donors contribute voluntarily.

Try this question:

Q. The creation of PM CARES fund is violative of the provision of the Disaster Management Act, 2005. Analyse.

What is the case?

  • The petition had argued that the PM-CARES Fund was not subject to CAG audit.
  • It was not under “public scrutiny”. Contributions to it were “100% tax-free”.
  • It was accused that there was statutory fund already in existence under the Disaster Management Act of 2005 to receive contributions to finance the fight against a calamity.

About PM CARES Fund

  • The Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund (PM CARES Fund) were created on 28 March 2020 following the COVID-19 pandemic in India.
  • The fund will be used for combat, containment and relief efforts against the coronavirus outbreak and similar pandemic like situations in the future.
  • The PM is the chairman of the trust. Members will include the defence, home and finance ministers.
  • The fund will also enable micro-donations. The minimum donation accepted for the PM CARES Fund is ₹10 (14¢ US).
  • The donations will be tax-exempt and fall under corporate social responsibility.

What did the Court rule?

  • There is “no occasion” for the Comptroller and Auditor General (CAG) to audit a public charitable trust independent of budgetary support or government money.
  • The court said that PM-CARES is “not open” for a PIL petitioner to question the “wisdom” that created the fund in an hour of need.
  • The court dismissed the idea that the PM CARES was constituted to “circumvent” the National Disaster Response Fund (NDRF).
  • The Bench also refused to direct the transfer of funds from the PM CARES Fund to the NDRF. It said they were two separate entities.

Also read:

PM-CARES Fund

Freedom of Speech – Defamation, Sedition, etc.

Tweets against CJI amounts to Criminal Contempt

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Contempt of Court and its types

Mains level : Contempt of Court and associated issues

A three-judge Bench of the Supreme Court has found a famous civil rights lawyer guilty of criminal contempt by ‘scandalizing the court’.

Try this question for mains:

Q.What is Contempt of Court? Discuss, how free speech can lead to the contempt of courts?

Contempt of Court

  • According to the Contempt of Courts Act, 1971, contempt of court can either be civil contempt or criminal contempt.
  • Civil contempt means willful disobedience to any judgment, decree, direction, order, writ or another process of a court or willful breach of an undertaking given to a court.
  • On the other hand, criminal contempt means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which
  1. Scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court; or
  2. Prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
  3. Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

What did the court rule in this case?

  • The tweets had the effect of attempting to destabilize Indian democracy.
  • A defamatory publication concerning “the judge is a serious impediment to justice”.
  • The court could not ignore the disrespect and disaffection created by the “scurrilous” tweets.
  • If such an attack is not dealt with a requisite degree of firmness, it may affect the national honour and prestige in the comity of nations.

A suo motu action

  • The prior consent of the Attorney General (AG) of India is not required to suo motu initiate the inherent contempt powers of the Supreme Court.
  • The Contempt of Court Act of 1971 cannot limit this power of the court. The statute only provides the procedure in which such contempt is to be initiated.
  • The suo motu contempt powers of the top court are drawn from Article 129 of the Constitution, which says the Supreme Court, as a court of record, has the power to punish for contempt of itself.

What would be the penalty?

  • The Contempt of Court Act of 1971 punishes with imprisonment that may extend to six months or fine of ₹ 2,000 or both.
  • This is provided in case the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court.

Also read:

Explained: What is Contempt of Court?

Women empowerment issues – Jobs,Reservation and education

Hindu Women’s Inheritance Rights

Note4Students

From UPSC perspective, the following things are important :

Prelims level : HUF

Mains level : Women's property right

The Supreme Court has expanded a Hindu woman’s right to be a joint legal heir and inherit ancestral property on terms equal to male heirs.

What is the ruling?

  • The SC Bench ruled that a Hindu woman’s right to be a joint heir to the ancestral property is by birth and does not depend on whether her father was alive or not when the law was enacted in 2005.
  • The Hindu Succession (Amendment) Act, 2005 gave Hindu women the right to be coparceners or joint legal heirs in the same way a male heir does.
  • Since the coparcenary (heirship) is by birth, it is not necessary that the father coparcener should be living as on 9.9.2005, the ruling said.

What is the 2005 law?

  • The Mitakshara school of Hindu law codified as the Hindu Succession Act, 1956 governed succession and inheritance of property but only recognised males as legal heirs.
  • The law applied to everyone who is not a Muslim, Christian, Parsi or Jew by religion.
  • Buddhists, Sikhs, Jains and followers of Arya Samaj, Brahmo Samaj are also considered Hindus for the purposes of this law.
  • In a Hindu Undivided Family, several legal heirs through generations can exist jointly.

Background

  • Traditionally, only male descendants of a common ancestor along with their mothers, wives and unmarried daughters are considered a joint Hindu family.
  • The legal heirs hold the family property jointly.
  • Women were recognised as coparceners or joint legal heirs for partition arising from 2005.
  • The 174th Law Commission Report had also recommended this reform in Hindu succession law.
  • Even before the 2005 amendment, Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu had made this change in the law, and Kerala had abolished the Hindu Joint Family System in 1975.

What did the law bring in?

  • Section 6 of the Act was amended that year to make a daughter of a coparcener also a coparcener by birth “in her own right in the same manner as the son”.
  • The law also gave the daughter the same rights and liabilities “in the coparcenary property as she would have had if she had been a son”.
  • The law applies to ancestral property and to intestate succession in personal property — where succession happens as per law and not through a will.

How did the case come about?

  • While the 2005 law granted equal rights to women, questions were raised whether the law applied retrospectively and if the rights of women depended on the living status of their father.
  • Different benches of the Supreme Court had taken conflicting views on the issue. Different High Courts had also followed different views of the top court as binding precedents.
  • The Prakash v Phulwati (2015) case held that the benefit of the 2005 amendment could be granted only to “living daughters of living coparceners” as on September 9, 2005 (the date when the amendment came to force).
  • In February 2018 a bench headed by Justice A K Sikri held that the share of a father who died in 2001 will also pass to his daughters as coparceners during the partition of the property as per the 2005 law.

The present case

  • These conflicting views led to a reference to a three-judge Bench in the current case.
  • The ruling now overrules the verdicts from 2015 and April 2018.
  • It settles the law and expands on the intention of the 2005 legislation to remove the discrimination as contained in section 6 of the Hindu Succession Act, 1956.
  • It gave equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have.

What was the government’s stand?

  • The solicitor argued in favour of an expansive reading of the law to allow equal rights for women. He referred to the objects and reasons of the 2005 amendment.
  • The Mitakshara coparcenary law not only contributed to discrimination on the ground of gender but was oppressive and negated the fundamental right of equality guaranteed by the Constitution.

Anti Defection Law

The Kihoto Hollohan Judgment and its Significance

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Highlights of the Judgment

Mains level : Issues over Speaker's discretion in Anti-defection

The 28 YO Kihoto Hollohan judgment has found its relevance in the case of ousted Rajasthan Dy. CM and some MLAs who were issued a notice under the anti-defection law.

Try this question from CSP 2019:

Q.The Ninth Schedule was introduced in the Constitution of India during the prime-ministership of:

(a) Jawaharlal Nehru

(b) Lal Bahadur Shastri

(c) Indira Gandhi

(d) Morarji Desai

Under debate: Speaker’s power

  • The power for this disqualification is vested in the Speaker, who is usually a nominee of the ruling party.
  • Since no action was taken by the Speaker on the disqualification petitions, a writ petition was filed before the High Court of Manipur in Imphal seeking directions to decide on the petition.
  • However, the court did not pass an order.
  • It said that the larger issue of whether a High Court can direct a Speaker to decide a disqualification petition within a certain timeframe is pending before a Constitution Bench of the Supreme Court.
  • The parties are left with the option to move the apex court or wait for the outcome of the cases pending before it.

The Kihoto Hollohan Judgment

  • The 1992 judgment of the Supreme Court in the Kihoto Hollohan versus Zachillu and Others has said that “judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman.
  • Nor would interference be permissible at an interlocutory stage of the proceedings said the Supreme Court.
  • The only exception for any interlocutory interference can be cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequence.

Free speech

  • The ruling party in Rajasthan has challenged the constitutionality of Paragraph 2(1)(a) of the Tenth Schedule which makes “voluntarily giving up membership of a political party” liable for disqualification.
  • The MLAs have said the provision infringes into their right to express dissent and is a violation of their fundamental right to free speech as a legislator.
  • The Rajasthan HC Bench explained that the reason for limiting the role of courts in ongoing defection proceedings is that the “office of the Speaker is held in the highest respect and esteem in parliamentary traditions.

Exceptions to the Kihoto Judgment

  • The judgment had said that even the scope of judicial review against an order of a Speaker or Chairman in anti-defection proceedings would be confined to jurisdictional errors.
  • That is if its infirmities are based on a violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity.

Back2Basics

Explained: Anti-defection law and its evolution

Temple entry for women : Gender Equality v/s Religious Freedom

Padmanabhaswamy Temple Verdict by the Supreme Court

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not Much

Mains level : Managing religious institutions in India, Devsom Boards etc.

Reversing the 2011 Kerala High Court decision, the Supreme Court upheld the right of the Travancore royal family to manage the property of deity at Sree Padmanabha Swamy Temple in Thiruvananthapuram.

Try this question from CSP 2016:

Q.In the context of the history of India, consider the following pairs

Term              Description
1.  Eripatti Land, revenue from which was set apart for the maintenance of the village tank
2. Taniyurs Villages donated to a single Brahmin or a group of Brahmins
3. Ghatikas Colleges generally attached to the temples

Which of the pairs given above is/are correctly matched?

a) 1 and 2

b) 3 only

c) 2 and 3

d) 1 and 3

What did the apex Court say?

  • The court said that as per customary law, the shebait rights (right to manage the financial affairs of the deity) survive with the members of the family even after the death of the last ruler.
  • The ruling ends the legal battle the temple and members of the royal family have fought with the government for decades over control of one of the richest temples in the world.

What is the case about?

  • The central legal question was whether the heirs of the last Ruler of Travancore could claim to be the “Ruler of Travancore” after the death of the ruler in 1991.
  • The court examined this claim within the limited meaning of that term according to the Travancore-Cochin Hindu Religious Institutions Act, 1950 to claim ownership, control and management of the ancient Temple.

Earlier cases of ownership: A background

  • All the temples which were under the control and management of the erstwhile Princely States of Travancore and Cochin were under the control of the Travancore and Cochin Devaswom Boards before 1947.
  • However, as per the Instrument of Accession signed, since 1949, the administration of the Padmanabhaswamy Temple was “vested in trust” in the Ruler of Travancore.
  • The state of Kerala was carved out in 1956 but the temple continued to be managed by the erstwhile royals.

The legal battle

  • In 1971, privy purses to the former royals were abolished through a constitutional amendment stripping their entitlements and privileges.
  • The move was upheld in court in 1993 and the last ruler of Travancore who died during the pendency of this case continued to manage the affairs of the temple till then.
  • In 1991, when the last ruler’s brother took over the temple management, it created a furore among devotees who moved the courts leading to a long-drawn legal battle.

Is the temple the property of the royal family?

  • The character of the temple was always recognised as a public institution governed by a statute.
  • The argument of the royal family is that the temple management would vest with them for perpetuity, as per custom.
  • Even though the last ruler executed a detailed will bequeathing his personal properties, he had not included the Sree Padmanabhaswamy Temple as his personal property or dealt with it in his will.

What about the treasure in the vaults?

  • A consequence of who has administrative rights over the temple is whether the vaults of the temple will be opened.
  • In 2007, the heir claimed that the treasures of the temple were the family property of the royals.
  • Several suits were filed objecting to this claim and a lower court in Kerala passed an injunction against the opening of the vaults.
  • The Kerala High Court in the 2011 ruling passed an order that a board be constituted to manage the affairs of the temple, ruling against the royal family.

What impact would this ruling have?

  • Since 2011, the process of opening the vaults has led to the discovery of treasures within the Padmanabhaswamy temple, prompting a debate on who owns temple property and how it should be regulated.
  • Despite being a secular country that separates religion from the affairs of the state, Hindu temples, its assets are governed through statutory laws and boards heavily controlled by state governments.
  • This system came into being mainly through the development of a legal framework to outlaw untouchability by treating temples as public land; it has resulted in many legal battles.

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.