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Type: SC Judgements

  • Electoral Reforms In India

    Bureaucrats cannot be State Election Commissioners: SC

    SC Judgements | Polity | Mains Paper 2: Representation Of People’s Act

    Note4Students

    From UPSC perspective, the following things are important:

    Prelims level: Election Commission

    Mains level: Autonomy of the State Election Commission

    The Supreme Court gas held that independent persons and not bureaucrats should be appointed State Election Commissioners.

    No bureaucrats in SEC

    • The judgment came on an appeal against an order of the Bombay High Court which had set aside the election notification issued by the Goa State Election Commission in some municipalities.
    • Justice F. Nariman, in a judgment, said giving government employees the additional charge of State Election Commissioners is a “mockery of the Constitution”.
    • It said government employees holding the post of State Election Commissioners as additional charge should give up the post.
    • The Supreme Court said its direction should be followed strictly.

    Why such a move?

    • Under the constitutional mandate, it is the duty of the State to not interfere with the functioning of the State Election Commission.
    • The independence of Election Commissions cannot be compromised at any cost, the Bench said.

    State Election Commission

    • Under the 73rd and 74th constitutional amendment acts, State Election Commissions were created for every state to conduct elections to panchayats and municipalities.
    • The SECs came into as envisaged in Articles 243K and 243ZA of the Constitution of India.
    • The above Articles provide that the superintendence, direction and control of the preparation of electoral rolls for, and the Conduct of all elections to the Panchayats and Municipalities shall vest in the SEC.
    • The Constitution itself has facilitated provision for smooth, free and fair, regular elections to the Local bodies and has, therefore, entrusted the SEC with the responsibility for holding such elections.
    • In the domain of the elections to the local bodies, the SEC functions independently and has the same powers and duties as that of the Election Commission of India.

    Try this PYQ:

    Q.The Constitution (Seventy-Third Amendment) Act, 1992, which aims at promoting the Panchayati Raj Institutions in the country, provides for which of the following?

    1. Constitution of District Planning Committees.
    2. State Election Commissions to conduct all panchayat elections.
    3. Establishment of State Finance Commissions.

    Select the correct answer using the codes given below:

    (a) Only 1

    (b) 1 and 2 only

    (c) 2 and 3 only

    (d) 1, 2 and 3

    The Election Commissioner

    • The State Election Commissioner is appointed by the Governor.
    • It has the status, salary and allowance of a Judge of a High Court and cannot be removed from office except in the like manner and on the like grounds as a Judge of a High Court.
    • The Election Commissioner is also the Chairman of the Delimitation Commission.

    Its duties

    • The first and foremost duty of the SEC is to prepare the elector rolls of Panchayats, Municipalities and Municipal Corporation and conduct their elections.

    In addition to the above functions, the State Election Commission has also the following functions:

    1. Conduct of elections to the offices of the Mayor/Chairman/President/Deputy Mayor/Vice Chairman/Vice President and the no-confidence motion against them.
    2. Conduct of the Elections to various Standing Committees and their Chairpersons
    3. Determination of disqualification of elected members/Councilors.
    4. Determination of disqualification of elected members on the ground of defection.

    Back2Basics: Election Commission of India (ECI)

    • ECI is an autonomous and permanent constitutional authority responsible for administering election processes in India at the national and state level.
    • The body administers elections to the Lok Sabha, Rajya Sabha, State Legislative Assemblies, State Legislative Councils and the offices of the President and Vice President of the country.
    • The EC operates under the authority of the Constitution per Article 324 and subsequently enacted the Representation of the People Act.
    • The commission has the powers under the Constitution, to act in an appropriate manner when the enacted laws make insufficient provisions to deal with a given situation in the conduct of an election.
    • Being a constitutional authority, EC is amongst the few institutions which function with both autonomy and freedom, along with the country’s higher judiciary, the UPSC and the CAG.

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

    Supreme Court directive on Quota in Promotions

    SC Judgements | Polity | 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 15, 16

    Mains level: Quota in Promotion debate

    The Supreme Court has asked Attorney General to compile the various issues being raised by States with regard to the 2006 M. Nagaraj case, which had upheld the application of creamy layer principle to members of the SC/ST communities in promotions.

    Must read edition: Reservation not a Fundamental Right

    What is the case about?

    • The Centre’s plea came despite the Supreme Court, in September 2018, in Jarnail Singh case, reiterating the Nagaraj judgment of 2006.
    • The 2006 judgment required the States to show quantifiable data to prove the ‘backwardness’ of a community to provide quota in promotion in public employment,
    • The 2018 judgment, which was authored by Justice Rohinton F. Nariman, had refused the government’s plea to refer the 2006 Nagaraj judgment to a seven-judge Bench.
    • It had while modifying the part of the Nagaraj verdict, rejected the Centre’s argument that Nagaraj misread the creamy layer concept by applying it to SC/ST.

    Nagaraj Case

    • In Jarnail Singh vs Lachhmi Narain Gupta (2018), the court dealt with a batch of appeals 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 the 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 the 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.”

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  • Women empowerment issues – Jobs,Reservation and education

    Adultery Law and the Armed Forces

    SC Judgements | Indian Society | Mains Paper 1: Salient features of Indian Society

    Note4Students

    From UPSC perspective, the following things are important:

    Prelims level: Sect 497 of IPC

    Mains level: Adultery Laws and the associated gender bias

    The Supreme Court has admitted a petition filed by the Ministry of Defence (MoD) seeking to exempt armed forces personnel from the ambit of a Constitution Bench judgment of 2018 that decriminalized adultery.

    Q.  Personnels of the Indian Armed Forces constitute a ‘Distinct Class’.

    Discuss this statement in context to the extension of IPC section 497 to the Armed forces.

    What was the 2018 historic Judgment?

    • The Supreme Court had struck down Section 497 of the Indian Penal Code, which criminalized adultery.
    • It also declared Section 198 of the Criminal Procedure Code as unconstitutional, which deals with the procedure for filing a complaint about the offence of adultery.

    Important observations of the judgment

    • Section 497 was unconstitutional and is violative of Article 21 (Right to life and personal liberty) and Article 14 (Right to equality).
    • The court observed that two individuals may part if one cheats, but to attach criminality to infidelity is going too far. How married couples deal with adultery is absolutely a matter of privacy.
    • Besides, there is no data to back claims that abolition of adultery as a crime would result in “chaos in sexual morality” or an increase of divorce.
    • Any provision of law affecting individual dignity and equality of women invites the wrath of the Constitution.
    • It’s time to say that a husband is not the master of the wife. Legal sovereignty of one sex over other sex is wrong, ruled the court.
    • Marriage does not mean ceding autonomy of one to the other. Ability to make sexual choices is essential to human liberty. Even within private zones, an individual should be allowed her choice.

    What about Armed forces?

    • The judgment of 2018 created “instability”. It allowed personnel charged with carrying on an adulterous or illicit relationship to take cover under the judgment.
    • The bench had then referred the case to the CJI to pass appropriate orders to form a five-judge Bench to clarify the impact of the 2018 judgment on the armed forces.
    • This case is now being under the observation of the apex court.

    Govt. stance over this

    • The MoD has sought for an exemption to this decriminalization in the petition.
    • It said that there will always be a concern in the minds of the Army personnel who are operating far away from their families under challenging conditions about the family indulging in untoward activity.
    • The petition goes on to say that personnel of the Army, Navy and the Air Force were a “distinct class”. They were governed by special legislation, the Army Act, the Navy Act and the Air Force Act.
    • Adultery amounted to unbecoming conduct and a violation of discipline under these three Acts.
    • Unlike Section 497, the provisions of the three Acts did not differentiate between a man and a woman if they were guilty of an offence.

    Constitutional backing for an exception

    • These special laws imposed restrictions on the fundamental rights of the personnel, who function in a peculiar situation requiring utmost discipline.
    • The three laws were protected by Article 33 of the Constitution, which allowed the government to modify the fundamental rights of the armed forces personnel.

    The core idea behind govt. proposition

    • One has to remember that the armed forces exist in an environment wholly different and distinct from civilians. Honour is a sine qua non of the service.
    • The provisions of the Acts should be allowed to continue to govern the personnel as a “distinct class”, irrespective of the 2018 judgment.
    • This is because, the discipline necessary for the performance of duty, crucial for national safety, would break down.
    • It said the court would not, at the time, have been appraised of the different circumstances under which the armed forces operated.

    Back2Basics: Article 33 of the Indian Constitution

    • It deals with the power of Parliament to modify the rights conferred by this Part III in their application etc.
    • Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to-

    (a) the members of the Armed Forces; or

    (b) the members of the Forces charged with the maintenance of public order; or

    (c) persons employed in any bureau or other organisation established by the State for purposes of intelligence or counterintelligence; or

    (d) persons employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation referred to in clauses (a) to (c), be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them

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  • Women empowerment issues – Jobs,Reservation and education

    Supreme Court’s guidelines for deserted Wives and Children

    SC Judgements | Polity | Mains Paper 1: Role Of Women & Women Organization

    Note4Students

    From UPSC perspective, the following things are important:

    Prelims level: Not Much

    Mains level: Alimony

    The Supreme Court has laid down uniform and comprehensive guidelines for family courts, magistrates and lower courts to follow while hearing the applications filed by women seeking maintenance from their estranged husbands’.

    Debate: Alimony as a right of women or a feminist taboo

    Why such a judgement?

    • Usually, maintenance cases have to be settled in 60 days, but they take years, in reality, owing to legal loopholes.
    • The top court said women deserted by husbands are left in dire straits, often reduced to destitution, for lack of means to sustain themselves and their children.
    • Despite a plethora of maintenance laws, women were left empty-handed for years, struggling to make ends meet after a bad marriage.

    What did the Court say?

    • The Supreme Court has held that deserted wives and children are entitled to alimony/maintenance from the husbands from the date they apply for it in a court of law.
    • To ensure that judicial orders for grant of maintenance are duly enforced by husbands, the court said a violation would lead to punishments such as civil detention and even attachment of the property of the latter.
    • The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife, if he is able-bodied and has educational qualifications, the court declared.
    • Both the applicant wife and the respondent-husband have to disclose their assets and liabilities in a maintenance case.
    • Other factors such as “spiralling inflation rates and high costs of living” should be considered, but the wife should receive alimony which fit the standard of life she was used to in the matrimonial home.

    Covering expenses

    • The expenses of the children, including their education, basic needs and other vocational activities, should be factored in by courts while calculating the alimony.
    • Education expenses of the children must be normally borne by the father. If the wife is working and earning sufficiently, the expenses may be shared proportionately between the parties.

    Permanent alimony

    • The court opined it would not be equitable to order a husband to pay his wife permanent alimony for the rest of her life, considering the fact that in contemporary society marriages do not last for a reasonable length of time.
    • Anyway, the court said, the duration of marriage should be accounted for while determining the permanent alimony.

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  • Freedom of Speech – Defamation, Sedition, etc.

    Right to Protest

    SC Judgements | Polity | 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: Right to Protest

    Mains level: Right to Protest and restrictions over it

    The Supreme Court has found the indefinite “occupation” of a public road by the Shaheen Bagh protestors unacceptable.

    Right to Protest

    • The right to protest is the manifestation of the right to freedom of assembly, the right to freedom of association, and the right to freedom of speech.
    • The Constitution of India provides the right of freedom, given in Article 19 with the view of guaranteeing individual rights that were considered vital by the framers of the constitution.
    • The Right to protest peacefully is enshrined in Article 19(1) (a) guarantees the freedom of speech and expression; Article 19(1) (b) assures citizens the right to assemble peaceably and without arms.
    • Article 19(2) imposes reasonable restrictions on the right to assemble peaceably and without arms.

    What did the Court say?

    • The court said the protest, considered an iconic dissent mounted by mothers, children and senior citizens of Shaheen Bagh against the Citizenship (Amendment) Act, became inconvenient to commuters.
    • The judgment upheld the right to peaceful protest against the law but made it unequivocally clear that public ways and public spaces cannot be occupied, and that too indefinitely.
    • Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone.
    • The present case was not even one of the protests taking place in an undesignated area but was a blockage of a public way which caused grave inconvenience to commuters.

    Reasonable restrictions do exist in practice

    • Fundamental rights do not live in isolation. The right of the protester has to be balanced with the right of the commuter. They have to co-exist in mutual respect.
    • The court held it was entirely the responsibility of the administration to prevent encroachments in public spaces.

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

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

    SC Judgements | Polity | Mains Paper 2: Laws, Institutions & Bodies Constituted For The Vulnerable Sections

    Note4Students

    From UPSC perspective, the following things are important:

    Prelims level: Presidential List

    Mains level: Quota within Quota debate

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

    Try this question for mains;

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

    What is the sub-categorisation of SCs?

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

    About the Judgement

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

    There lies struggle within castes: SC

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

    Overruling the old judgment

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

    What is the Presidential list?

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

    Arguments against sub-categorisation

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

    Way ahead with the Judgement

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

    Also read:

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

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

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

    SC Judgements | Enviro & Biodiversity | Mains Paper 3: Disaster Management

    Note4Students

    From UPSC perspective, the following things are important:

    Prelims level: PM CARES Fund

    Mains level: Disaster management in India

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

    Try this question:

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

    What is the case?

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

    About PM CARES Fund

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

    What did the Court rule?

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

    Also read:

    PM-CARES Fund

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  • Freedom of Speech – Defamation, Sedition, etc.

    Tweets against CJI amounts to Criminal Contempt

    SC Judgements | Polity | Mains Paper 2: Executive & Judiciary

    Note4Students

    From UPSC perspective, the following things are important:

    Prelims level: Contempt of Court and its types

    Mains level: Contempt of Court and associated issues

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

    Try this question for mains:

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

    Contempt of Court

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

    What did the court rule in this case?

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

    A suo motu action

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

    What would be the penalty?

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

    Also read:

    Explained: What is Contempt of Court?

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  • Women empowerment issues – Jobs,Reservation and education

    Hindu Women’s Inheritance Rights

    SC Judgements | Trivia | Mains Paper 1: Role Of Women & Women Organization

    Note4Students

    From UPSC perspective, the following things are important:

    Prelims level: HUF

    Mains level: Women's property right

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

    What is the ruling?

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

    What is the 2005 law?

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

    Background

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

    What did the law bring in?

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

    How did the case come about?

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

    The present case

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

    What was the government’s stand?

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

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  • Anti Defection Law

    The Kihoto Hollohan Judgment and its Significance

    SC Judgements | Polity | Mains Paper 2: Parliament & State Legislatures

    Note4Students

    From UPSC perspective, the following things are important:

    Prelims level: Highlights of the Judgment

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

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

    Try this question from CSP 2019:

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

    (a) Jawaharlal Nehru

    (b) Lal Bahadur Shastri

    (c) Indira Gandhi

    (d) Morarji Desai

    Under debate: Speaker’s power

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

    The Kihoto Hollohan Judgment

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

    Free speech

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

    Exceptions to the Kihoto Judgment

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

    Back2Basics

    https://www.civilsdaily.com/news/explained-anti-defection-law-and-its-evolution/

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