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Judicial Reforms

Right of an accused to be defendedPriority 1SC Judgements

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 ArmySC Judgements

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 candidatesPriority 1SC Judgements

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.
Services Sector

SC uphold changes in SC/ST Atrocities LawSC Judgements

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 reformsSC Judgements

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

What are Gram Nyayalayas?Priority 1SC Judgements

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.
Police Reforms – SC directives, NPC, other committees reports

Anticipatory BailSC Judgements

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Anticipatory Bail

Mains level : Purpose of the Anticipatory Bail


  • The Supreme Court has ruled that no time restriction should ordinarily be fixed for anticipatory bail and that it can continue even until the end of the trial.
  • The protection granted under Section 438 of the CrPc should not invariably be limited to a fixed period deciding a reference made to it following “conflicting views of some other benches of the court.

What is anticipatory bail?

  • A Law Dictionary describes ‘bail’ as procuring “the release of a person from legal custody, by undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgement of the court.”
  • As opposed to ordinary bail, which is granted to a person who is under arrest, in anticipatory bail, a person is directed to be released on bail even before arrest made.

Section 438 of the CrPC, 1973, lays down the law on anticipatory bail:

  • Sub-section (1) of the provision reads: “When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.”
  • The provision empowers only the Sessions Court and High Court to grant anticipatory bail.

Rationale behind anticipatory bail

  • Anticipatory bail became part of the new CrPC in 1973 (when the latter replaced the older Code of 1898), after the 41st Law Commission Report of 1969 recommended the inclusion of the provision.
  • The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days.
  • Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.”
  • In the 1980 Gurbaksh Singh Sibbia vs State of Punjab case, a SC bench ruled that S. 438 (1) is to be interpreted in the light of Article 21 of the Constitution (protection of life and personal liberty).

Conditions while granting anticipatory bail

  • While granting anticipatory bail, the Sessions Court or High Court can impose the conditions laid down in sub-section (2).
  • 438(2) reads: When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including —
  1. a condition that the person shall make himself available for interrogation by a police officer as and when required;
  2. a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
  3. a condition that the person shall not leave India without the previous permission of the Court;
  4. such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.”
Wildlife Conservation Efforts

Reintroduction of African Cheetahs in Indian forestsSC Judgements

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 underlinedSC Judgements

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


The Supreme Court through a recent judgment significantly strengthened checks on the government’s power to shut down the Internet. A major aspect of the verdict relates to the Rules passed in 2017 that outline how and when the government can enforce shutdowns.

Checks on the Centre

  • The Centre has never ordered a nationwide Internet shutdown. Still, 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.

Who can pass the orders of Internet Shutdowns?

  • The Rules, issued under the Indian Telegraph Act, 1885, stipulate that only the Home Secretary of the Union or a state can pass an order, and that the order must include the reasons for the decision.
  • The order should be forwarded to a review committee the day after it is issued, and must be reviewed by the committee within five days to assess its compliance with Section 5(2) of The Telegraph Act.
  • Under this the government has the power to block the transmission of messages during a public emergency or for public safety.
  • In the case of the central government, the review committee comprises the Cabinet Secretary and the Secretaries of the Departments of Legal Affairs and Telecommunications.
  • In the case of states, the committee comprises the Chief Secretary, Secretary, Law or Legal Remembrancer In-Charge, Legal Affairs, and a Secretary to the state government (other than the Home Secretary).

Who else can issue such orders?

  • In “unavoidable circumstances”, the order can be issued by an officer of the rank of Joint Secretary or above, authorised by the Centre or the state Home Secretary.
  • Telecom service providers must designate nodal officers to handle such requests.

What laws governed this area before the 2017 Rules were notified?

  • Internet shutdowns were ordered under Section 144 of the CrPC, which gives District Magistrates broad powers during dangerous situations.
  • Even after 2017, many local shutdowns are issued under this law. Section 69(A) of the IT (Amendment) Act, 2008 gives the government powers to block particular websites, not the Internet as a whole.

Issues with the Kashmir Shutdown

  • The Internet shutdown in Kashmir was not compliant with the Rules.
  • The Rules require the suspension to be temporary; also, the orders did not provide reasons for the restrictions.
  • The petitioner contended that the order claims a law-and-order danger, as opposed to a public order danger specified in the Rules.

What did the court say?

  • The court said that because the Rules require the order to be in accordance with Section 5(2) of The Telegraph Act, the order must be during a “public emergency” or in the “interest of public safety”.
  • Also, the suspension must be “necessary” and “unavoidable”.
  • In furtherance of the same, the State must assess the existence of an alternate less intrusive remedy,” the court said.
  • The Bench also said that the State should make the orders freely available, even though the Suspension Rules do not specify this.
  • The Rules also don’t specify a time limitation for the shutdown, the use of “Temporary” in the title notwithstanding. The Bench decided that an indefinite suspension is “impermissible”.
  • Ultimately, the court ordered the government to review its order, ruling that the freedom of speech and trade on the Internet is a fundamental right.

Way Forward

  • Law and technology seldom mix like oil and water.
  • There is a consistent criticism that the development of technology is not met by equivalent movement in the law.
  • In this context, 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.
J&K – The issues around the state

SC order on Internet ShutdownsPriority 1SC Judgements

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 ConstitutionSC Judgements

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”SC Judgements

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 IndiaPriority 1SC Judgements

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, appealsExplainedSC Judgements

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 postingsSC Judgements

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 businessSC Judgements

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 EssentialitySC Judgements

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 saysSC Judgements

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.
President’s Rule

Explained: President’s Rule in MaharashtraPriority 1SC Judgements

Note4Students

From UPSC perspective, the following things are important :

Prelims level : President's Rule

Mains level : SR Bommai Judgment


While recommending President’s Rule in Maharashtra, Governor noted that a situation has arisen when the formation of a stable government is not possible even 15 days after the election results had been declared.

What’s the issue?

  • It has been argued that governor’s decision is based on “objective material” and not on a political whim or fancy, if one goes by the Supreme Court verdict in the 1994 S.R. Bommai case.

President’s Rule

  • President’s rule is the suspension of state government and imposition of direct central government rule in a state.

How it is imposed?

  • President’s Rule implies the suspension of a state government and the imposition of direct rule of the Centre.
  • This is achieved through the invocation of Article 356 of the Constitution by the President on the advice of the Union Council of Ministers.
  • Under Article 356, this move can be taken “(1) If the President, on receipt of the report from the Governor of the State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution…”

How long President’s Rule can last

  • A proclamation of President’s Rule can be revoked through a subsequent proclamation in case the leader of a party produces letters of support from a majority of members of the Assembly, and stakes his claim to form a government.
  • The revocation does not need the approval of Parliament.
  • Any proclamation under Article 356 —which stands for six months — has to be approved by both Houses in the Parliament session following it.
  • This six-month time-frame can be extended in phases, up to three years.

The S.R. Bommai Case

  • R. Bommai v. Union of India (1994) was a landmark judgment of the Supreme Court of India, where the Court discussed at length provisions of Article 356 of the Constitution of India and related issues.
  • The judgement attempted to curb blatant misuse of Article 356 of the Constitution of India, which allowed President’s rule to be imposed over state governments.
  • Article 356 (1) has been deliberately drafted in a narrow language by the Founding Fathers so that political parties in the Centre does not misuse it to subvert federalism, it had noted.
  • The expression used in the Article is ‘if the President is satisfied”, the court had observed.
  • In other words, the President has to be convinced of or should have sufficient proof of information with regard to or has to be free from doubt or uncertainty about the state of things indicating that the situation in question has arisen.
  • The court had stated that although the sufficiency or otherwise of the material cannot be questioned, the legitimacy of inference drawn from such material is “certainly open to judicial review”.

What it directed?

  • The judgment had explained that in a multi-party political system, chances are high that the political parties in the Centre and the State concerned may not be the same.
  • Article 356 cannot be used for the purpose of political one-upmanship by the Centre.
  • Hence there is a need to confine the exercise of power under Article 356[1] strictly to the situation mentioned therein which is a condition precedent to the said exercise,” the court had said.

Conditions for Prez Rule

  • Where after general elections to the assembly, no party secures a majority, that is, Hung Assembly.
  • Where the party having a majority in the assembly declines to form a ministry and the governor cannot find a coalition ministry commanding a majority in the assembly.
  • Where a ministry resigns after its defeat in the assembly and no other party is willing or able to form a ministry commanding a majority in the assembly.
  • Where a constitutional direction of the Central government is disregarded by the state government.
  • Internal subversion where, for example, a government is deliberately acting against the Constitution and the law or is fomenting a violent revolt.
  • Physical breakdown where the government willfully refuses to discharge its constitutional obligations endangering the security of the state.

Fouling factors

The imposition of President’s Rule in a state would be improper under the following situations:

  • Where a ministry resigns or is dismissed on losing majority support in the assembly and the governor recommends imposition of President’s Rule without probing the possibility of forming an alternative ministry.
  • Where the governor makes his own assessment of the support of a ministry in the assembly and recommends imposition of President’s Rule without allowing the ministry to prove its majority on the floor of the Assembly.
  • Where the ruling party enjoying majority support in the assembly has suffered a massive defeat in the general elections to the Lok Sabha such as in 1977 and 1980.
  • Internal disturbances not amounting to internal subversion or physical breakdown.
  • Maladministration in the state or allegations of corruption against the ministry or stringent financial exigencies of the state.
  • Where the state government is not given prior warning to rectify itself except in case of extreme urgency leading to disastrous consequences.
  • Where the power is used to sort out intra-party problems of the ruling party, or for a purpose extraneous or irrelevant to the one for which it has been conferred by the Constitution.

Similar precedents

  • This is not the first time President’s Rule has been imposed following an election that did not lead to government formation.
  • For instance, no party could mobilise a majority in the Bihar Assembly following elections in February 2005.
  • President’s Rule, which was imposed on March 7, 2005, lasted 262 days until November 24 . It was lifted after fresh elections in October-November.
  • A hung verdict in the J&K elections of 2002 led to the imposition of President’s Rule for 15 days, from October 18 to November 2 that year.
  • In the UP Assembly elections of 2002, no party could secure a majority. This led to the imposition of President’s Rule for 56 days, from March 3 to to May 2, 2002.
Judicial Appointments Conundrum Post-NJAC Verdict

Explained: Second Judges Case, 1993ExplainedSC Judgements

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Collegium system

Mains level : Issues over Judicial appointments and transfers


  • A Bench of the Supreme Court, led by CJI Ranjan Gogoi, has dismissed a bunch of petitions seeking a review of the court’s judgment in the Second Judges Case in 1993, which led to the Collegium system of appointment of judges.

Collegium System

  • The Collegium of judges is the Indian Supreme Court’s invention.
  • It does not figure in the Constitution, which says judges of the Supreme Court and High Courts are appointed by the President and speaks of a process of consultation.
  • In effect, it is a system under which judges are appointed by an institution comprising judges.
  • After some judges were superseded in the appointment of the CJI in the 1970s, and attempts made subsequently to effect a mass transfer of High Court judges across the country.
  • Hence there was a perception that the independence of the judiciary was under threat. This resulted in a series of cases over the years.

What was the Second Judges Case of 1993?

  • In The Supreme Court Advocates-on-Record Association (SCARA) Vs Union of India, 1993, a nine-judge Constitution Bench overruled the decision in S P Gupta, and devised a specific procedure called ‘Collegium System’ for the appointment and transfer of judges in the higher judiciary.
  • The Case accorded primacy to the CJI in matters of appointment and transfers while also ruling that the term “consultation” would not diminish the primary role of the CJI in judicial appointments.

CJI’s role

  • The role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter.
  • Here the word ‘consultation’ would shrink in a mini form.
  • Should the executive have an equal role and be in divergence of many a proposal, germs of indiscipline would grow in the judiciary.
  • Ushering in the collegium system the recommendation should be made by the CJI in consultation with his two seniormost colleagues, and that such recommendation should normally be given effect to by the executive.
  • It added that although it was open to the executive to ask the collegium to reconsider the matter if it had an objection to the name recommended.
  • If, on reconsideration, the collegium reiterated the recommendation, the executive was bound to make the appointment.

Criticisms of the Judgement

  • Critics argue that the system is non-transparent since it does not involve any official mechanism or secretariat.
  • It is seen as a closed-door affair with no prescribed norms regarding eligibility criteria or even the selection procedure.
  • There is no public knowledge of how and when a collegium meets, and how it takes its decisions.
  • Lawyers too are usually in the dark on whether their names have been considered for elevation as a judge.

What efforts have been made to address these concerns?

  • The government of 1998-2003 had appointed the Justice M N Venkatachaliah Commission to opine whether there was need to change the Collegium system.
  • The Commission favoured change, and prescribed a National Judicial Appointments Commission (NJAC) consisting of the CJI and two seniormost judges, the Law Minister, and an eminent person from the public, to be chosen by the President in consultation with the CJI.
  • The NDA 2 regime had NJAC as one of its priorities, and the constitutional amendment and NJAC Act were cleared swiftly.
  • In 2015, a Constitution Bench declared as unconstitutional the NJAC Bill.
  • The Bench sealed the fate of the proposed system with a 4:1 majority verdict that held that judges’ appointments shall continue to be made by the collegium system in which the CJI will have “the last word”.
  • Justice J Chelameswar wrote a dissenting verdict, criticising the collegium system by holding that “proceedings of the collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks”.

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Explained: Collegium of Judges