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Type: SC Judgements

SC Judgements are very important for Mains Paper

  • Supreme Court recognizes Sex Work as a ‘Profession’

    In a significant order recognising sex work as a “profession”, the Supreme Court has directed that police should neither interfere nor take criminal action against adult and consenting sex workers.

    What did the Supreme Court say?

    • Sex Work is a profession whose practitioners are entitled to dignity and equal protection under law.
    • Criminal law must apply equally in all cases, on the basis of ‘age’ and ‘consent’.
    • It need not be gainsaid that notwithstanding the profession, every individual in this country has a right to a dignified life under Article 21 of the Constitution, the court observed.
    • The order was passed after invoking special powers under Article 142 of Constitution.

    A caution to the police

    • It is clear that the sex worker is an adult and is participating with consent, the police must refrain from interfering or taking any criminal action.
    • The Bench ordered that sex workers should not be “arrested or penalised or harassed or victimised” whenever there is a raid on any brothel.
    • Since voluntary sex work is not illegal and only running the brothel is unlawful.
    • Basic protection of human decency and dignity extends to sex workers and their children, the court noted.
    • A child of a sex worker should not be separated from the mother merely on the ground that she is in the sex trade, the court held.
    • Further, if a minor is found living in a brothel or with sex workers, it should not be presumed that the child was trafficked.

    Sexual crimes against sex workers

    • The court ordered the police to not discriminate against sex workers who lodge a criminal complaint of offence committed against them is of a sexual nature.
    • Sex workers can also be victims of sexual assault should be provided every facility including immediate medico-legal care.
    • The court said media should take “utmost care not to reveal the identities of sex workers, during arrest, raid and rescue operations.

    Sex work in India

    • According to the Indian Penal Code (IPC), prostitution in its broader sense is not really illegal per se.
    • But there are certain activities which constitute a major part of prostitution that are punishable under certain provisions of the act, which are:
    1. Soliciting prostitution services in public places
    2. Carrying out prostitution activities in hotels
    3. Indulging in prostitution by arranging for a sex worker
    4. Arrangement of a sexual act with a customer

    Various issues faced by Sex Workers

    • Stigma and Marginalization: This is experienced as the major factor that prevents women in sex work from accessing their rights.
    • Denial of basic amenities: Due to this discrimination, women in sex work have been denied safety, proper healthcare, education and, most importantly, the right to practice the business of making money from sex.
    • Risks of violence: People in sex work are not only at a higher risk for violence, but they are also less likely to get protection from the police—often the very perpetrators of this violence.
    • Backwardness: Illiteracy, ignorance and fear of the medical establishment make it difficult for women to access healthcare.
    • Health hazards: Current discourse on HIV/AIDS has served to further stigmatize sex workers by labeling them as “vectors” and “carriers” of the disease.

    Protection against forceful sex work

    • The Immoral Traffic (Prevention) Act, 1986 is an amendment of the original act.
    • As per this act, prostitutes are to be arrested if they are found soliciting their services or seducing others.
    • Furthermore, call girls are prohibited from making their phone numbers public.
    • They can be punished for up to 6 months along with penalties if found doing so.

    Constitutional protection

    Article 23 of the Indian Constitution, amended in 2014, includes the following provisions:

    1. Prohibition of human trafficking and forced labour.
    2. Traffic in human beings and bears and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with the law.
    3. Nothing in this article precludes the State from imposing compulsory service for public purposes, and the State shall not discriminate solely on the basis of religion, race, caste, or class, or any combination thereof, in imposing such service.

    So, where does India stand?

    • Prostitution is not illegal in our country, but soliciting and public prostitution are.
    • Owning a brothel is also illegal, but because places like GB Road are already in place, these laws are rarely enforced.

    What will change in India if the Centre accepts the court’s direction?

    • Sex workers will be accorded equal legal protection.
    • If a sex worker reports a criminal/sexual or other type of offence, the police will take it seriously and act in accordance with the law.
    • If a brothel is raided, the sex workers involved will not be arrested, penalised, harassed, or victimised.
    • Any sex worker who is a victim of sexual assault will be given all of the same services as a survivor of sexual assault, including immediate medical attention.
    • Police will be required to treat all sex workers with dignity and not verbally or physically abuse them, subject them to violence, or coerce them into any sexual activity.

    Where do other countries stand?

    Some countries choose to outright ban the practice, while others have attempted to regulate prostitution and provide health and social benefits to sex workers.

    Here are a few examples of countries where prostitution is legal:

    • New Zealand: Prostitution has been legal since 2003. There are even licenced brothels operating under public health and employment laws, and they get all the social benefits.
    • France: Prostitution is legal in France, though soliciting in public is still not allowed.
    • Germany: Prostitution is legalised and there are proper state-run brothels. The workers are provided with health insurance, have to pay taxes, and they even receive social benefits like pensions.
    • Greece: The sex workers get equal rights and have to go for health checkups as well.
    • Canada: Prostitution in Canada is legal with strict regulations.

    Conclusion

    • While sex worker collectives have shown tremendous progress in asserting the rights of sex workers across India, they face an uphill battle as the country continues to foster a globalized economy.
    • In the globalized world, sex work will become more institutionalized, functioning through escort services, and will no longer need traditional street brothels.
    • Legislators needs to ensure all rights to the sex workers at par with citizens.

     

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  • States have equal powers to make GST-related Laws: SC

    The Supreme Court has held that Union and State legislatures have equal, simultaneous and unique powers to make laws on Goods and Services Tax (GST) and the recommendations of the GST Council are not binding on them.

    What is the case?

    • The apex court’s decision came while confirming a Gujarat High Court ruling that the Centre cannot levy Integrated Goods and Services Tax (IGST) on ocean freight from Indian importers.

    Key takeaways of the Judgment

    • The recommendations of the GST Council are the product of a collaborative dialogue involving the Union and the States.
    • They are recommendatory in nature. They only have a persuasive value.
    • To regard them as binding would disrupt fiscal federalism when both the Union and the States are conferred equal power to legislate on GST.

    Basis of the Judgment

    • The court emphasised that Article 246A of the Constitution gives the States power to make laws with respect to GST.
    • It treats the Union and the States as “equal units”.
    • It confers a simultaneous power (on Union and States) for enacting laws on GST.
    • Article 279A, in constituting the GST Council, envisions that neither the Centre nor the States are actually dependent on the other.

    What are the articles added/modified to the Constitution by the GST Act?

    (1) Article 246A: Special Provision for GST

    • This Article was newly inserted to give power to the Parliament and the respective State/Union Legislatures to make laws on GST respectively imposed by each of them.
    • However, the Parliament of India is given the exclusive power to make laws with respect to inter-state supplies.
    • The IGST Act deals with inter-state supplies. Thus, the power to make laws under the IGST Act will rest exclusively with the Parliament.
    • Further, the article excludes the following products from the scope of GST until a date recommended by the GST Council:
    1. Petroleum Crude
    2. High-Speed Diesel
    3. Motor Spirit
    4. Natural Gas
    5. Aviation Turbine Fuel

    (2) Article 269A: Levy and Collection of GST for Inter-State Supply

    • While Article 246A gives the Parliament the exclusive power to make laws with respect to inter-state supplies.
    • The manner of distribution of revenue from such supplies between the Centre and the State is covered in Article 269A.
    • It allows the GST Council to frame rules in this regard. Import of goods or services will also be called as inter-state supplies.
    • This gives the Central Government the power to levy IGST on import transactions.
    • Import of goods was subject to Countervailing Duty (CVD) in the earlier scheme of taxation.
    • IGST levy helps a taxpayer to avail the credit of IGST paid on import along the supply chain, which was not possible before.

    (3) Article 279A: GST Council

    • This Article gives power to the President to constitute a joint forum of the Centre and States called the GST Council.
    • The GST Council is an apex member committee to modify, reconcile or to procure any law or regulation based on the context of GST in India.

    (4) Article 286: Restrictions on Tax Imposition

    • This was an existing article which restricted states from passing any law that allowed them to collect tax on sale or purchase of goods either outside the state or in the case of import transactions.
    • It was further amended to restrict the passing of any laws in case of services too.
    • Further, the term ‘supply’ replaces ‘sale or purchase’.

    (5) Article 366: Addition of Important definitions

    Article 366 was an existing article amended to include the following definitions:

    1. GST means the tax on supply of goods, services or both. It is important to note that the supply of alcoholic liquor for human consumption is excluded from the purview of GST.
    2. Services refer to anything other than goods.
    3. State includes Union Territory with legislature.

    Back2Basics: GST Council

    • The GST Council is a federal body that aims to bring together states and the Centre on a common platform for the nationwide rollout of the indirect tax reform.
    • It is an apex member committee to modify, reconcile or to procure any law or regulation based on the context of goods and services tax in India.
    • The GST Council dictates tax rate, tax exemption, the due date of forms, tax laws, and tax deadlines, keeping in mind special rates and provisions for some states.
    • The predominant responsibility of the GST Council is to ensure to have one uniform tax rate for goods and services across the nation.

    How is the GST Council structured?

    • The GST is governed by the GST Council. Article 279 (1) of the amended Indian Constitution states that the GST Council has to be constituted by the President within 60 days of the commencement of the Article 279A.
    • According to the article, the GST Council will be a joint forum for the Centre and the States. It consists of the following members:
    1. The Union Finance Minister will be the Chairperson
    2. As a member, the Union Minister of State will be in charge of Revenue of Finance
    3. The Minister in charge of finance or taxation or any other Minister nominated by each State government, as members.

    Terms of reference

    • Article 279A (4) specifies that the Council will make recommendations to the Union and the States on the important issues related to GST, such as the goods and services will be subject or exempted from the Goods and Services Tax.
    • They lay down GST laws, principles that govern the following:
    1. Place of Supply
    2. Threshold limits
    3. GST rates on goods and services
    4. Special rates for raising additional resources during a natural calamity or disaster
    5. Special GST rates for certain States

     

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  • Supreme Court frees Perarivalan

    The Supreme Court has invoked its extraordinary powers to do complete justice under Article 142 of the Constitution and ordered the release of A.G. Perarivalan in former PM assassination case.

    Among the factors that sustained Perarivalan’s long battle was the determination and commitment of his mother, Arputham Ammal, who emerged as the face of an anti-death penalty movement, and the sympathy and empathy that he received from people from all walks of life.

    What is the news?

    • A Bench led by Justice L. Nageswara Rao, in its judgment, took into consideration Perarivalan’s long jail term for over 30 years to order his release.
    • The court held that the TN Council of Ministers’ advice to pardon Perarivalan was binding on the Governor under Article 161 (Governor’s power of clemency) of the Constitution.
    • The advice of the State Cabinet is binding on the Governor in matters relating to commutation/remission of sentences under Article 161.

    Note: As per Article 161, the Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends

    What branded Perarivalan as a murderer?

    • He had bought two 9 volt battery cells on behalf of the bomber.
    • These were used to make the bomb explode.
    • This confession statement taken under Section 15(1) of TADA to establish his link with the assassins and his knowledge and role in the assassination.

    Why was this a case for Governor?

    • Perarivalan was not a death sentenced convict.
    • Earlier, the apex court had commuted his death penalty to life sentence for murder in 2014.
    • The Governor had no business forwarding the pardon plea to the President after sitting on it for years together.
    • Had this been a death penalty, the case would have been different.

    Why did the Supreme Court intervene?

    • Governor’s delay to decide Perarivalan’s pardon for more than two years has compelled the apex court to employ its constitutional powers under Article 142 to do justice to Perarivalan.
    • After all, the court said, a Governor’s non-exercise of power under Article 161 of the Constitution was not immune from judicial review.

    What is Article 142?

    • Article 142 provides discretionary power to the Supreme Court.
    • 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.
    • It is usually used in cases involving human rights and environmental protection.

    Other legal aspects of this pardon

    • The Court dismissed the Centre’s argument that the President exclusively, and not the Governor, had the power to grant pardon in a case under Section 302 (murder) of the Indian Penal Code.
    • The court had said that such a contention would render Article 161 a “dead-letter”.
    • This would rather create an extraordinary situation whereby pardons granted by Governors in murder cases for the past 70 years would be rendered invalid.

    Back2Basics:

    Pardoning powers of the President

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  • Mother Nature a ‘living being’ with legal entity: Madras HC

    Holding that it is the right time to confer juristic status to ‘Mother Nature’, Justice S. Srimathy of the Madurai Bench of Madras High Court invoked the ‘parens patriae jurisdiction’, and declared ‘Mother Nature’ as a ‘living being’ having the status of a legal entity.

    What is the news?

    • The Madras HC observed that ‘Mother Nature’ was accorded the rights akin to fundamental rights, legal rights, constitutional rights for its survival, safety, sustenance and resurgence in order to maintain its status and also to promote its health and well-being.

    Legal rights for nature: A backgrounder

    • The movement for legal personhood for the environment and animals began in the 1970s.
    • This concept was articulated by Christopher D. Stone in his thesis, Should Trees Have Standing.
    • In this compelling piece, the author makes an argument for the environment to have independent legal rights, much like what was granted by the judgment of the Uttarakhand High Court in 2017.
    • He highlights how the theory of rights has developed over the years and that many inanimate objects have both rights and legal duties. They can sue and be sued.

    What is the case for Madras HC’s personification of nature?

    • The Madras HC has made a personification of nature that focuses on the life-giving and nurturing aspects of nature by embodying it, in the form of the mother.
    • It observed that the court is hereby declaring ‘Mother Nature’ a ‘living being’ having the status of a legal person with all corresponding rights, duties and liabilities of a living person, in order to preserve and conserve it.
    • The State and Central governments are directed to protect ‘Mother Nature’ and take appropriate steps in this regard in all possible ways.

    A different course: Ecological Jurisprudence

    • The onset of climate change and the potential mass extinction of species is accompanied by the gradual closing window of opportunity to take meaningful action.
    • Activists around the world are calling for anthropocentric legal and governance systems to be replaced with ecocentric ones.
    • The last 15 years have seen a dramatic increase in the number of laws based on ecological jurisprudence.
    • Ecological jurisprudence is a philosophy that sees nature not as a set of objects to be exploited but as a community of subjects (humans and non-humans) who are connected through interdependent, reciprocal relationships.

    India’s typical case

    • In 2017, the Uttarakhand HC ruled (in two separate orders) that the Ganga, the Yamuna, their tributaries, and the glaciers and catchments feeding these rivers in Uttarakhand had rights as a “juristic/legal person/living entity”.
    • In 2018, the same HC ruled that the entire animal kingdom had rights similar to that of a living person (Narayan Dutt Bhatt vs Union of India).
    • In March 2020, the Punjab and Haryana High Court passed an order declaring the Sukhna Lake in Chandigarh city a living entity, with rights equivalent to that of a person.

    Beyond Rights

    • Law is a modern human construct. It not only talks in the language of rights and duties that only humans understand but also operationalizes them in a way that can further entrench human-centeredness.
    • In most cases where nature’s rights are recognized in law, they have done so by extending to it the concept of “personhood” in other words, akin to humans and, therefore, having human rights.
    • Hence, any such movement on recognizing the rights of the rest of nature must challenge the fundamental forms of injustices, including capitalism, stateism, anthropocentrism and patriarchy.

    Significance of such status

    • These rights-based laws granting legal personhood for nature aim to shift the legal status of the natural world from being human property to living entities in their own right and subjects of law.
    • This guarantees their right to exist, thrive, evolve and maintain their natural cycles.
    • These rights are not conferred by humans; it is a recognition that these rights have always existed.
    • It lays upon humans the duty to act as guardians for the more-than-human world.

    Issues of implementation

    • Assuming that these rights are recognised, nature or any of its entity cannot represent itself in a court of law.
    • Moreover there is the issue of custodianship.

    What would account for violations?

    • The Uttarakhand court order did not mention what amounted to violation of rights of rivers.
    • In order to be able to truly exercise the rights and implement appropriate redressal, there is a need for a comprehensive definition of the actions that amount to “violation of the rights”.
    • Say, the violation of the rights of rivers may be defined as “any obstruction or impediment that disables the entity from performing its essential ecological functions”.

    Restitution and compensation

    • The New Zealand law has an extensive section lending itself to restitutive, restorative and compensatory action.
    • It acknowledged the government’s decisions and actions for more than a century that resulted in the violation of the health of the Whanganui and the rights, culture and well-being of the indigenous people living along the river.
    • Several specific examples were given, including the dismantling of traditional structures for fishing and river use, a hydroelectric project and mining.
    • Such an acknowledgment is a necessary first step towards seeking appropriate restitutive and compensatory measures.

    Another question: Bioregional Governance

    • Recognizing river ecosystems or other entities of nature as having rights offers the possibility of managing and governing habitats based on the ecological realities of the region.
    • It brings out the bizarre fact that the human-drawn nation state, and political lines on maps in various parts of the world have created conflict situations or disrupted ancient cultural and ecological flows and relations.
    • We need to begin reimagining governance from a bioregional governance point of view.
    • This would also mean bridging the gap between the customary ways of decision making and the current legal frameworks.
    • There is a need for more imaginative lawyers, activists and judges to help move towards an eco-centric and diverse legal framework.

    Way forward

    • There is a need for a comprehensive system to implement and protect their rights.
    • The rights can be safeguarded using the principles of custodianship.
    • The Uttarakhand High Court order named several government functionaries and a couple of independent lawyers as “parents”.
    • An alternative solution is that custodianship or guardianship be given to a body of local communities associated with the river.
    • These communities have traditional or customary rights of the river such as fisherfolk, farmers along the riverbank, and people directly engaged in river-related services.

     

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  • SC Ruling on Sedition Law

    The Supreme Court has fixed May 5 for final hearing of the petitions challenging the constitutionality of the sedition law and made it clear that it will not brook any delay in the form of requests for adjournment.

    What is the Sedition Law?

    • Section 124A of the Indian Penal Code lays down the punishment for sedition. The IPC was enacted in 1860, under the British Raj.
    • The then British government in India feared that religious preachers on the Indian subcontinent would wage a war against the government.
    • Particularly after the successful suppression of the Wahabi/Waliullah Movement by the British, the need was felt for such law.
    • Throughout the Raj, this section was used to suppress activists in favor of national independence, including Tilak and Mahatma Gandhi, both of whom were found guilty and imprisoned.

    What is Sedition?

    • The Section 124A defines sedition as:

    An offence committed when “any person by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India”.

    • Disaffection includes disloyalty and all feelings of enmity.
    • However, comments without exciting or attempting to excite hatred, contempt or disaffection, will not constitute an offense.
    • Sedition is a non-bailable offense.
    • Punishment under Section 124A ranges from imprisonment up to three years to a life term with/without a fine.

    Sedition as a cognizable offense

    • Sedition was made a cognizable offense for the first time in history in India during the tenure of Prime Minister Indira Gandhi in 1973, that is, arrest without a warrant was now permissible.
    • In 1962 the Supreme Court of India interpreted the section to apply only if there is, say, “incitement to violence” or “overthrowing a democratically elected government through violent means”.

    Is it constitutionally valid?

    • Violative of FRs: Two high courts had found it unconstitutional after Independence, as it violated the freedom of speech and expression.
    • Reasonable restrictions: The Constitution was amended to include ‘public order’ as one of the ‘reasonable restrictions’ on which free speech could be abridged by law.
    • Kedar Nath Case: Thereafter, the Supreme Court, in Kedar Nath Singh v. State of Bihar (1962) upheld its validity.
    • Limited use: At the same time, it limited its application to acts that involve “intention or tendency to create disorder” or incitement to violence.
    • Strong criticism doesn’t amount to sedition: Thus, even strongly worded remarks, as long as they do not excite disloyalty and enmity, or incite violence, are not an offence under this section.

    Why the controversy now?

    • Frequent use: In recent times, the resort to this section is seen as disturbingly frequent.
    • Curbing dissent: Activists, cartoonists and intellectuals have been arrested under this section, drawing criticism from liberals that it is being used to suppress dissent and silence critics.
    • Misuse for propaganda: Authorities and the police who invoke this section defend the measure as a necessary step to prevent public disorder and anti-national activities.
    • Irrelevance: Many of them have also been detained under the National Security Act and UAPA.

    What is being debated about it?

    • Demand for its scrapping: Liberals and rights activists have been demanding the scrapping of Section 124A.
    • Provision is outdated: It is argued that the provision is “overbroad”, i.e., it defines the offence in wide terms threatening the liberty of citizens.
    • Various calls for its reconsideration: The Law Commission has also called for a reconsideration of the section.
    • Tyranny of the law: It has pointed that Britain abolished it more than a decade ago and raised the question of whether a provision introduced by the British to put down the freedom struggle should continue to be law in India.
    • Doctrine of severability: Some argue that a presumption of constitutionality does not apply to pre-constitutional laws as those laws have been made by foreign legislature or bodies.

    Way forward

    • India is the largest democracy in the world and the right to free speech and expression is an essential ingredient of democracy.
    • The sedition law should not be abolished as some measures are needed to check communal violence & insurgency activities like Naxals.
    • The definition of sedition should be narrowed down, to include only the issues pertaining to the territorial integrity of India as well as the sovereignty of the country.
    • Section 124A should not be misused as a tool to curb free speech.

     

    Try answering this PYQ:

    Q.With reference to Rowlatt Satyagraha, which of the following statements is/are correct?

    1. The Rowlatt Act was based on the recommendations of the ‘Sedition Committee’.
    2. In Rowlatt Satyagraha, Gandhiji tried to utilize the Home Rule League.
    3. Demonstrations against the arrival of Simon Commission coincided with Rowlatt Satyagraha.

    Select the correct answer using the code given below:

    (a) 1 only

    (b) 1 and 2 only

    (c) 2 and 3 only

    (d) 1, 2 and 3

     

    [wpdiscuz-feedback id=”kvzwyjlonz” question=”Please leave a feedback on this” opened=”1″]Post your answers here.[/wpdiscuz-feedback]

    Also read

    [Burning Issue] Should sedition law be scrapped?

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  • No Fundamental or Absolute Right to receive Foreign Donations: Supreme Court

    The Supreme Court upheld amendments introducing restrictions in the Foreign Contribution Regulation Act (FCRA) while holding that no one has a fundamental or absolute right to receive foreign contributions.

    What is FCRA?

    • The FCRA regulates foreign donations and ensures that such contributions do not adversely affect internal security.
    • First enacted in 1976, it was amended in 2010 when a slew of new measures was adopted to regulate foreign donations.
    • The FCRA is applicable to all associations, groups and NGOs which intend to receive foreign donations.
    • It is mandatory for all such NGOs to register themselves under the FCRA.
    • The registration is initially valid for five years and it can be renewed subsequently if they comply with all norms.

    Why was FCRA enacted?

    • The FCRA sought to consolidate the acceptance and utilisation of foreign contribution or foreign hospitality by individuals, associations or companies.
    • It sought to prohibit such contributions from being used for activities detrimental to national interest.

    What was the recent Amendment?

    • The FCRA was amended in September 2020 to introduce some new restrictions.
    • The Government says it did so because it found that many recipients were wanting in compliance with provisions relating to filing of annual returns and maintenance of accounts.
    • Many did not utilise the funds received for the intended objectives.
    • It claimed that the annual inflow as foreign contributions almost doubled between 2010 and 2019.
    • The FCRA registration of 19,000 organisations was cancelled and, in some cases, prosecution was also initiated.

    How has the law changed?

    There are at least three major changes that NGOs find too restrictive.

    • Prohibition of fund transfer: An amendment to Section 7 of the Act completely prohibits the transfer of foreign funds received by an organisation to any other individual or association.
    • Directed and single bank account: Another amendment mandates that every person (or association) granted a certificate or prior permission to receive overseas funds must open an FCRA bank account in a designated branch of the SBI in New Delhi.
    • Utilization of funds: Fund All foreign funds should be received only in this account and none other. However, the recipients are allowed to open another FCRA bank account in any scheduled bank for utilisation.
    • Shared information: The designated bank will inform authorities about any foreign remittance with details about its source and the manner in which it was received.
    • Aadhaar mandate: In addition, the Government is also authorised to take the Aadhaar numbers of all the key functionaries of any organisation that applies for FCRA registration or for prior approval for receiving foreign funds.
    • Cap on administrative expenditure: Another change is that the portion of the receipts allowed as administrative expenditure has been reduced from 50% to 20%.

    What is the criticism against these changes?

    • Arbitrary restrictions: NGOs questioning the law consider the prohibition on transfer arbitrary and too heavy a restriction.
    • Non-sharing of funds: One of its consequences is that recipients cannot fund other organisations. When foreign help is received as material, it becomes impossible to share the aid.
    • Irrationality of designated bank accounts: There is no rational link between designating a particular branch of a bank with the objective of preserving national interest.
    • Un-ease of operation: Due to Delhi based bank account, it is also inconvenient as the NGOS might be operating elsewhere.
    • Illogical narrative: ‘National security’ cannot be cited as a reason without adequate justification as observed by the Supreme Court in Pegasus Case.

    What does the Government say?

    • Zero tolerance against intervention: The amendments were necessary to prevent foreign state and non-state actors from interfering with the country’s polity and internal matters.
    • Diversion of foreign funds: The changes are also needed to prevent malpractices by NGOs and diversion of foreign funds.
    • Fund flow monitoring: The provision of having one designated bank for receiving foreign funds is aimed at making it easier to monitor the flow of funds.
    • Ease of operation: The Government clarified that there was no need for anyone to come to Delhi to open the account as it can be done remotely.

    What did the Supreme Court observed now?

    • The apex court reasoned that unbridled inflow of foreign funds may destabilise the sovereignty of the nation.
    • The petitioners have argued that the amendments suffered from the “vice of ambiguity, over-breadth or over-governance” and violated their fundamental rights.
    • But the court countered that the amendments only provide a strict regulatory framework to moderate the inflow of foreign funds into the country.
    • Free and uncontrolled inflow of foreign funds has the potential to impact the socio-economic structure and polity of the country.
    • No one can be heard to claim a vested right to accept foreign donations, much less an absolute right, said the verdict.

    Supreme Court’s assessment of Foreign Funds

    • Philosophically, foreign contribution (donation) is akin to gratifying intoxicant replete with medicinal properties and may work like a nectar.
    • However, it serves as a medicine so long as it is consumed (utilised) moderately and discreetly, for serving the larger cause of humanity.
    • Otherwise, this artifice has the capability of inflicting pain, suffering and turmoil as being caused by the toxic substance (potent tool) — across the nation.

    Way forward

    • The court said charity could be found at home. NGOs could look within the country for donors.
    • Fundamental rights have to give way in the larger public interest to the need to insulate the democratic polity from the “adverse influence of foreign contributions”.
    • The third-world countries may welcome foreign donations, but it is open to a nation, which is committed and enduring to be self-reliant.
    • An unregulated inflow of foreign donations would only indicate that the government was incapable of looking after its own affairs and needs of its citizens.

     

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  • Wearing hijab is not essential part of religion: Karnataka HC

    The Karnataka High Court has upheld the ban on the wearing of hijab (head scarf) by students in schools and colleges in the State.

    [Burning Issue] Freedom of religion and attire

    The Judgment

    • The judgment was delivered by a three-judge bench comprising Chief Justice Ritu Raj Awasthi, Justice Krishna S. Dixit and Justice J.M. Khazi.
    • It rejected all the petitions filed by girl students of pre-university colleges in Udupi district.

    Key takeaways

    • The HC held that wearing hijab is not an essential religious practice in Islam and is not, therefore, protected under by the right to freedom of religion guaranteed by Article 25 of the Constitution.
    • The court said it was a reasonable restriction that was constitutionally permissible.
    • The Bench also upheld the legality of the order prescribing guidelines for uniforms in schools and pre-university colleges under the provisions of the Karnataka Education Act, 1983.
    • The court said that school uniform will cease to be a uniform if hijab is also allowed.

    What else did the court observe?

    • The Bench also spoke about the possibility of some “unseen hands” behind the hijab row to engineer social unrest and disharmony.
    • It expressed dismay over the issue being blown out of proportion by the powers that be.

    Reactions on the Judgment

    • Some factions have said that the order is a blow to right to education for Muslim women.
    • Other see it as an empowerment of women.
    • Feminists says that it’s not about an item of clothing, it’s about the right of a woman to choose how she wants to dress.
    • The Leftists perceived it as a blow against the universal right to education without discrimination, guaranteed by the law and the Constitution of India.

     

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  • States must decide on SC/ST quota in promotions: Supreme Court

    The Supreme Court has refused to lay down the criteria for determining the inadequacy of representation for granting reservation in promotions for Scheduled Caste and Scheduled Tribe candidates in government jobs.

    What did the court held?

    • The court stuck firm by the decisions of its Constitution Benches in the Jarnail Singh and M. Nagaraj case that the question of adequate representation of SC/ST communities ought to be left to the respective States to determine.
    • It held ‘cadre’, and not class or group or the entire service, as the unit for the purpose of collection of quantifiable data for giving promotion quotas.

    Why such decision?

    • Determination of inadequate representation depends upon myriad factors of states which this Court cannot envisage.
    • Laying down of criteria for determining the inadequacy of representation would result in curtailing the discretion given to the State governments.

    Quota in Promotions: A timeline

    What was the case?

    • The Union government has been pressing for reservation in promotion proportionate to the population of SCs and STs as per a 1995 judgment by the top court in the RK Sabharwal case.
    • It wants it to be left open to the Centre and states to decide on promotional avenues for SCs and STs.
    • It claims that the condition regarding the collection of quantifiable data to show the inadequacy of representation of SCs/STs is “vague”.
    • Advocates representing the general category have contended that the reservation cannot be for an indefinite period and that it must stop as soon as the upper ceiling has been reached.
    • Further, they have emphasized that reservation in promotion should be cadre-based only after quantifiable data is collected and the creamy layer has been excluded.

    Defying the need for quantifiable data

    • Attorney General sought to convince the court that the roster system, based on the proportionate population of SCs/STs, has been working quite well in all government departments.
    • The condition of collecting quantifiable data on inadequacy of representation of SCs/STs may not be required at all.
    • He urged that there is no need to verify any further or collect quantifiable data after the roster system.

    What is the Nagraj Case?

    • Article 16(4A) of Indian Constitution allows reservations to SCs and STs in promotions, as long as the government believes that they are not adequately represented in government services.
    • In 2006, a Constitution bench’s ruling in the M Nagaraj case made it incumbent upon the state to collect quantifiable data showing inadequacy of representation in public employment.
    • This was to be done in addition to maintaining overall administrative efficiency.

    Related 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.

    Why such demand for quotas in promotion?

    • The Attorney General has said that it is tough for a member of the SC/ST to reach the ‘Group A’ category jobs.
    • The time has come for the apex court to firm up and draw the basis for reservation in promotions for SC/ST candidates to fill up vacancies in top jobs.
    • The Bench referred to records filed before it to note that there was low representation of SC/ST category in Group A jobs.
    • Instead of improving the situation in the Group A ranks, the court said, efforts are on to ensure adequate representation in Groups B and C.
    • This was not fair, it remarked.

     

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  • Supreme Court upholds validity of OBC quota in NEET admissions

    The Supreme Court has pronounced its decision upholding the constitutional validity of providing 27% quota to Other Backward Classes (OBC) in NEET All India Quota (AIQ) seats for UG and PG medical courses.

    What is the issue?

    • The petitioners, several NEET aspirants, had argued that since the top court had limited reservation to 50% in the Indira Sawhney judgment, the government should have first applied to the court before tinkering with the quota calculations.
    • The court further confirmed that there was no need for the Centre to have got the prior consent of the Supreme Court before introducing OBC quota in the AIQ seats under NEET.
    • The court reasoned that material affluence of certain individual members of a socially backward group or ‘creamy layer’ could not be used against the entire group to deny it the benefits of reservation.

    What is the background of this case?

    • The government introduced OBC/EWS quota before the counselling of NEET counselling.
    • The candidates applying for NEET PG were not provided any information on the distribution of the seat matrix.
    • Such information is provided by the counselling authority only after the counselling session is to begin.

    Key observations of the Apex Court

    • The SC has held that reservation is not at odds with merit.
    • It observed that ‘merit’ could not be narrowed to the limit of success in open competitive exams.
    • Merit of a person is a sum total of “lived experiences” and his or her struggle to overcome cultural and social setbacks, observed the SC.

    Why is this a landmark judgment?

    • Merit cannot be reduced to narrow definitions of performance in an open competitive examination, which only provides formal equality of opportunities , said the SC.
    • Current competencies are assessed by competent examinations but are not reflective of excellence, capability and potential of an individual.

    Major justifications for Reservations

    • Exams did not reflect how social, economic and cultural advantages that accrued to certain classes contributed to their success in them, the court noted.
    • Examinations are not a proxy for merit.
    • Merit should be socially contextualized and re-conceptualized.
    • Reservation is not at odds with merit but furthers its distributive impact, Justice Chandrachud observed.

    Constitutionality of the decision

    • The court held that the power of the State governments to provide reservations under Article 15 (4) and (5) of the Constitution was not an “exception” to Article 15 (1).
    • It enshrines the mandate that “the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, and place of birth or any of them”.
    • The court held that the power of the State government to craft reservations for the OBC amplified the principle of “substantive equality” manifested through Article 15 (1).

    Implications: Victory for States

    • In a significant victory for States such as Tamil Nadu, the court confirmed their power to make “special provisions” and provide reservations in educational admissions, whether in aided or unaided institutions.
    • TN provides government jobs for the advancement of “any socially and educationally backward classes of citizens or for the SCs and STs”.

     

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  • Farmers have Right to Protest, but can’t block roads: SC

    The Supreme Court has said farmers protesting at Delhi borders against the three farms laws have the right to agitate but they cannot block roads indefinitely.

    For students with Sociology optional, can someone list the differences between- Dissent, Protest, Agitation and Movement?

    What is Protest?

    • When a group, community, or even a person goes up to protest, it is usually to showcase their disapproval or demur against any action, policy, statement, etc of state or government or any organization.
    • Mostly the flow of protest is driven through political waves that also demonstrate the collective organization of people to make the government or state address their issues and take steps to overcome them.

    Issues with ongoing protest in Delhi

    • The question as to the absolute nature of the right to protest is not even a question in the true sense here.
    • We have seen the vandalism protest at Red Fort last year.
    • Hence the rights mentioned above are subject to reasonable restrictions under 19 (2) and 19 (3) on grounds such as sovereignty and integrity of India, and public order.

    Right to Protest in India

    • The right to protest is the manifestation of three FRs:
    1. Right to Freedom of Assembly
    2. Right to Freedom of Association and
    3. 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.

    In detail: Article 19(1)

    It states that All citizens shall have the right:

    • (a) to freedom of speech and expression;
    • (b) to assemble peaceably and without arms;
    • (c) to form associations or unions;
    • (d) to move freely throughout the territory of India;
    • (e) to reside and settle in any part of the territory of India; and
    • (f) omitted
    • (g) to practice any profession, or to carry on any occupation, trade or business

    Do you know?

    Right to Internet is a fundamental right and is an essential part of freedom of speech and expression. One might get confused if it is an FR under Article 21.

    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.
    • Article 19(2) imposes reasonable restrictions on this.
    • The court held it was entirely the responsibility of the administration to prevent encroachments in public spaces.

    Conclusion

    • 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.

     

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