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Government-funded NGOs come under RTI ambit: SC

Mains Paper 2 : NGO, SHG & Civil Society |

Note4Students

From UPSC perspective, the following things are important :

Prelims level : RTI Act

Mains level : Prevention of money laundering through NGOs


News

  • Non-governmental organisations (NGOs) “substantially” financed by the government fall within the ambit of the Right to Information Act, the Supreme Court held in a judgment.

About the judgment

  • NGOs which receive considerable finances from the government or are essentially dependent on the government fall under the category of “public authority” defined in Section 2(h) of the RTI Act of 2005.
  • This means that they have to disclose vital information, ranging from finances to hierarchy to decisions to functioning, to citizens who apply under RTI.
  • An NGO, the court said, may also include societies which are neither owned or controlled by the government, but if they are significantly funded by the government, directly or indirectly, they come under the RTI Act.

Why such move?

  • RTI Act was enacted with the purpose of bringing transparency in public dealings and probity in public life.
  • If NGOs or other bodies get substantial finance from the government we find no reason why any citizen cannot ask for information.
  • With the judgment citizens can find out whether his/her money which has been given to an NGO is being used for the requisite purpose.

‘Substantial’ means how much?

  • The court defined “substantial” as a “large portion.”
  • It does not necessarily have to mean a major portion or more than 50%.
  • No hard and fast rule can be laid down in this regard. Substantial financing can be both direct or indirect.
  • If government gives land in a city free of cost or on heavy discount to hospitals, educational institutions or any such body, this in itself could also be substantial financing, the judgment explained.

Back2Basics

[Burning Issue] RTI amendment Bill

RTI – CIC, RTI Backlog, etc.

Uniform Civil Code

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

Note4Students

From UPSC perspective, the following things are important :

Prelims level : UCC

Mains level : Need for UCC



News

  • The Supreme Court said the nation has still not endeavored to secure for its citizens a Uniform Civil Code (UCC). The government has till date taken no action, said the Court.

A Case for Uniform Civil Code (UCC)

  • UCC is the ongoing point of debate in Indian mandate to replace personal laws which are based on the scriptures and customs of religious community in India.
  • It aims for a common set of rules governing the individuals of their religion.
  • Personal laws are distinguished from public law and cover marriage, divorce, inheritance, adoption and maintenance. Goa has a common family law, thus being the only Indian state to have a UCC.
  • Personal laws were first framed during the British Raj, mainly for Hindu and Muslim citizens.
  • The British feared opposition from community leaders and refrained from further interfering within this domestic sphere.
  • The Special Marriage Act, 1954 permits any citizen to have a civil marriage outside the realm of any specific religious personal law.

Hopes of founders

  • The founders had penned their hope that a uniform set of rules would replace the distinct personal laws of marriage, divorce, etc. based on customs of each religion.
  • Whereas the founders of the Constitution in Article 44 in Part IV dealing with the DPSP had hoped and expected that the State shall endeavour to secure for the citizens a UCC.
  • The court said that the Hindu laws were codified in the year 1956, there has been no attempt to frame a Uniform Civil Code applicable to all citizens of the country.
  • Despite exhortations of this Court in the case of Shah Bano in 1985, the government has done nothing to bring the UCC.

Goa: Leading by example

  • The Supreme Court hailed the State of Goa as a “shining example” where “uniform civil code applicable to all, regardless of religion except while protecting certain limited rights”.
  • Under this Code practised in Goa, a Muslim man whose marriage is registered in the State cannot practice polygamy.
  • A married couple share property equally, pre-nuptial agreements are the order of the day and assets are divided equally between the man and woman on divorce.
  • The judgment came in a case concerning the question whether succession and inheritance of a Goan domicile is governed by the Portuguese Civil Code, 1867 or the Indian Succession Act of 1925.
  • Goa was once a Portuguese colony until it was made part of India.

Law panel’s stand

  • In 2018, a Law Commission of India consultation paper had however said the UCC is “neither necessary nor desirable at this stage” in the country.
  • The Commission said secularism cannot contradict the plurality prevalent in the country.
Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.

Criticizing executive, judiciary and bureaucracy cannot be called sedition: SC Judge

Mains Paper 2 : Executive & Judiciary |

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not Much

Mains level : Sedition Law and issues


News

  • Justice Deepak Gupta, judge of Supreme Court, opined about the chilling effect caused by sedition law on legitimate criticism on the organs of state.
  • As citizens, Indians have the right to criticize the government, and criticism cannot be construed as sedition, he said, adding that stifling such criticism will make us a police state.

Sedition and Right to dissent

  • Criticism of the executive, the judiciary, the bureaucracy, the armed forces cannot be termed sedition.
  • If we stifle criticism of these institutions, we shall become a police state instead of a democracy.”
  • There is a very important right which is not spelt out in the Constitution… the right of freedom of opinion, the right of freedom of conscience, by themselves, include the most important right — the right to dissent.

Why is dissent important?

  • Every society has its own rules, and over a period of time, when people stick to only age-old rules and conventions, the society degenerates; it doesn’t develop.
  • New thinkers are born when they disagree with well-accepted norms of the society. If everybody follows the well-trodden path, no new paths will be created and no new vistas of the mind will be found.
  • If a person doesn’t ask questions and raise issues questioning age-old systems, no new systems will develop and horizons of the mind will not expand.
  • New thoughts and religious practices have developed only when they have questioned the old.

A right to expression

  • He said that in a secular country such as India, a non-believer, an atheist, an agnostic, ritualistic or a spiritualist person all has the right to expression.
  • When we talk of dissent, it reminds of Justice H R Khanna in the habeas corpus case.
  • That dissent is more important than any decision that may have come before or after it. Today, it is the rule of law.
  • In a case, a five-member bench was adjudicating on the matter of those detained during the Emergency in 1975, and Justice Khanna was the lone dissenter, while the four other judges in the bench allowed unrestricted powers of detention during the Emergency

Judiciary not above criticism

  • The judge emphasized that allowing a climate for free expression of thoughts and ideas without fear of criminal prosecution is essential for growth of civilization.
  • The judiciary is not above criticism. If Judges of the superior courts were to take note of all the contemptuous communications received by them, there would be no work other than the contempt proceedings.
  • Not only should there be criticism but there must be introspection. When we introspect, we will find that many decisions taken by Judiciary need to be corrected.

(Note: All these are personal opinion of the apex court Judge.)

Judiciary Institutional Issues

Giving voice sample to police does not violate privacy: Supreme Court

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

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Article 20

Mains level : Debate over right to privacy


News

  • In a significant judgment, the Supreme Court has held that a judicial magistrate is empowered to order a person to give a sample of his voice for the purpose of investigation.

Right to privacy is not absolute

  • Directing a person to part with his voice sample to police is not a violation of his fundamental right to privacy.
  • The judgment authored by CJI said that the fundamental right to privacy cannot be construed as absolute and must bow down to compelling public interest.
  • Hence giving voice sample to an investigating agency was not a violation of the fundamental right against self-incrimination.
  • Originally, Article 20 (3) of the Constitution mandated that no person accused of any offence shall be compelled to be a witness against himself.

Not a self-incrimination

  • The Chief Justice compared a voice sample with other impressions like specimen handwriting, or impressions of his fingers, palm or foot collected by police during investigation.
  • The court ruled that giving voice sample by a person did not amount to furnishing of evidence against oneself.
  • A voice sample is given for the reason of comparison with other voices in order to see if they matched and were of the same person.
  • Hence voice sample by itself is not incriminating evidence.

Voiceprint as evidence

  • The 87th Report of the Law Commission of India in 1980 describes a voice print as a “visual recording of voice”.
  • Voiceprints resemble fingerprints, in that each person has a distinctive voice with characteristic features dictated by vocal cavities and articulates.
Right To Privacy

Cabinet approves increasing strength of Supreme Court judges from 31 to 34

Mains Paper 2 : Executive & Judiciary |

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Appointment of Supreme Court Judges

Mains level : Read the attached story


News

  • Against the backdrop of rising cases in the Supreme Court, the Union Cabinet has approved increasing the number of judges in the top court from the present 31 to 34, including the Chief Justice of India.

Judges in Supreme Court

  • At present, the Supreme Court is working with its full sanctioned strength of 31.
  • The Supreme Court (Number of Judges) Act, 1956 was last amended in 2009 to increase the judges’ strength from 25 to 30 (excluding the CJI).
  • The decision of the Cabinet came days after Chief Justice of India Ranjan Gogoi wrote to PM Modi to increase the number of judges in the top court.

Why need more Judges?

  • Due to paucity of judges, the required number of Constitution Benches to decide important cases involving questions of law was not being formed.
  • This rise also aims to expedite disposal of cases to keep pace with the rate of institution.

What are Constitution Benches?

  • Constitution bench is the name given to the benches of the SC which sit to decide any case “involving a substantial question of law as to the interpretation” of the Constitution of India or “for the purpose of hearing any reference” made by the President of India under Article 143.
  • It consist of at least five judges of the court.
  • This provision has been mandated by Article 145 (3) of the Constitution of India.
  • The Chief Justice of India has the power to constitute a Constitution Bench and refer cases to it.
  • Constitution benches have decided many of India’s best-known and most important Supreme Court cases, such as A. K. Gopalan v. State of Madras, Kesavananda Bharati v. State of Kerala (basic structure doctrine) and Ashoka Kumar Thakur v. Union of India (OBC reservations) etc.

Timeline: Number of Judges

  • The original Constitution of 1950 had envisaged a Supreme Court with a Chief Justice and seven puisne judges, leaving it to Parliament to increase this number.
  • The Supreme Court (Number of Judges) Act, 1956 originally provided for a maximum of 10 judges (excluding the CJI).
  • This number was increased to 13 by the Supreme Court (Number of Judges) Amendment Act, 1960, and to 17 in 1977.
  • The working strength of the Supreme court was, however, restricted to 15 judges by the Cabinet (excluding the chief Justice of India) till the end of 1979.
  • But the restriction was withdrawn at the request of the Chief Justice of India.
  • In 1986, the strength of the top court was increased to 25, excluding the CJI.
  • Subsequently, the Supreme Court (Number of Judges) Amendment Act, 2009 further augmented the strength of the court from 25 to 30.

Back2Basics

Eligibility of a judge of the Supreme Court

A citizen of India not exceeding 65 years age as per Article 124 of the constitution who has been

  • a judge of one high court or more (continuously), for at least five years, or
  • an advocate there, for at least ten years, or
  • a distinguished jurist, in the opinion of the president, power conferred by clause(2) of article 124 of the Constitution of India
  • is eligible to be recommended for appointment, a judge of the supreme court
Judiciary Institutional Issues

Too much quota may impact right to equal opportunity: Supreme Court

Mains Paper 2 : Executive & Judiciary |

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not Much

Mains level : Deabte over quotas


News

  • The Bench is examining whether to refer to a Constitution Bench a batch of petitions challenging the validity of a constitutional amendment providing 10% economic quota in government jobs and educational institutions.

Why issue over Quota?

  • The Supreme Court orally remarked that excessive quota may impact the right to equal opportunity guaranteed under the Constitution.
  • The court said quota benefits given to the most “forward” classes, especially to those who had no qualification whatsoever, would result in “excess” reservation and breach equality.
  • Reservation itself is an exception. Reservation is intended to achieve equality of opportunity.

Referring Indra Sawhney case

  • The economic reservation violated the 50% reservation ceiling limit fixed by a nine-judge Bench in the Indra Sawhney case.
  • Further, the 1992 judgment had barred reservation solely on economic criterion.
  • In a 6:3 majority verdict, the apex court, in the Indra Sawhney case, had held that “a backward class cannot be determined only and exclusively with reference to economic criterion.
  • It may be a consideration or basis along with and in addition to social backwardness, but it can never be the sole criterion.

Issue over economically backward quota

  • After a gap of 27 years, the Constitution (103rd Amendment) Act of 2019 has provided 10% reservation in government jobs and educational institutions for the “economically backward” in the unreserved category.
  • The Act amends Articles 15 and 16 of the Constitution by adding clauses empowering the government to provide reservation on the basis of economic backwardness.
  • This 10% economic reservation is over and above the 50% reservation cap.
  • The government however has justified to the apex court that the 10% economic quota law was a move towards a classless and casteless society.
  • It said the law was meant to benefit a “large section of the population of 135 crore people” who are mostly lower middle class and below poverty line.
Minority Issues – Dalits, OBC, Reservations, etc.

Kihoto Hollohan Order (1992)

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

Note4Students

From UPSC perspective, the following things are important :

Prelims level : About the case

Mains level : Anti-defection Law and issues with it


News

Crisis in K’taka Assembly

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

What was the Kihoto Hollohan case?

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

Extent of the Speaker’s powers

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

What did the Supreme Court rule in Hollohan?

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

Dissenting opinions over Speakers Power

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

Human Rights Courts in India

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

Note4Students

From UPSC perspective, the following things are important :

Prelims level : HR courts

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


News

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

HR Courts

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

Why need HR courts?

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

HR Violations in India

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

United Nations not a State under Article 12: Delhi HC

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

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Art. 12 and Fundamental Rights

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


News

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

Why such move?

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

Legal immunity to UN and its officials

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

Back2Basics

Article 12 of Indian Constitution

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

Supreme Court directs RBI to alter disclosure policy

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

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not Much

Mains level : RBI and autonomy issue


News

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

Last warning to RBI

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

Why did RBI refuse?

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

Explained: What happens when judges face allegations?

Mains Paper 2 : Executive & Judiciary |

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Grounds for removal of SC Judges

Mains level : Grounds for removal of SC Judges


News

Background

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

The question of ‘good behaviour’

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

The question of ‘good behaviour’

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

No single definition yet on ‘misbehaviour’

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

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

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

Allegations against judges

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

Addressing Sexual harassment at Courts

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

Accountability must persist with conscience

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

No man is above the Law

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

Should CJI undergo trial?

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

Way Forward

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

Right to travel abroad is a basic human right: SC

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

Note4Students

From UPSC perspective, the following things are important :

Prelims level : 1958 Kent vs Dulles Judgment

Mains level : Right to travel abroad


News

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

Right to travel abroad

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

Referring the 1958 Kent vs Dulles Judgment

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

Voting rights of undertrials and convicts

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

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Article 32, 326

Mains level : Voting rights of Prisoners


News

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

Voting rights of Prisoners

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

Invokes violation of FR

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

Back2Basic

Article 32 of the Indian Constitution

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

How Justice Chandrachud’s dissent on Aadhaar influenced Jamaica ruling

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

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not Much

Mains level : Aadhaar and associated issues


News

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

India comes to scene

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

Dissenting opinion matters

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

Why Indian case is relevant globally?

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

Consent at Peril

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

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

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

RBI circular to banks on loan defaulters quashed

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

Note4Students

From UPSC perspective, the following things are important :

Prelims level : IBC

Mains level : Effectiveness of regulatory mechanism for stressed assets resolution


News

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

About the RBI circular

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

What did the revised framework replace?

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

Issues with the circular

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

Impact of SC’s relaxation

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

Right to Self-Defence

Note4students

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

From the UPSC perspective, the following things are important:

Prelims level: Right to Self-Defence

Mains level: Expanded scope of the aforesaid right


News

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

Key points of SC ruling

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

Right to Self-defence

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

Govt.’s prerogative to frame schemes: SC

Note4students

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

From UPSC perspective, the following things are important:

Prelims level: Art.32 vs Art.226

Mains level: Writ Jurisdiction


News

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

Courts can only direct

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

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

Polity Titbits: Functions/powers of Judiciary

Judiciary Institutional Issues

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

Note4students

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

From UPSC perspective, the following things are important:

Prelims level: Not Much

Mains level: Row over capital punishment


News

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

Death penalty is exceptional

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

RTI trumps Official Secrets Act, says SC

Note4students

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

From the UPSC perspective, the following things are important:

Prelims level: OSA, RTI

Mains level: Importance of RTI in enhancing transparency and accountability


News

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

RTI >> OSA

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

Govt. Stance

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

Assist this newscard with:

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


Back2Basics

Right to Information

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

Mediation in Ayodhya dispute

Note4students

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

From UPSC perspective, the following things are important:

Prelims level: Legal provisions mentioned in the newscard

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


News

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

Legal provisions for Mediation

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