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[op-ed snap] Dancing around the Supreme Court

Note4students

Mains Paper 2: Polity| Structure, organization and functioning of the Executive and the Judiciary Ministries and Departments of the Government; pressure groups and formal/informal associations and their role in the Polity.

From UPSC perspective, the following things are important:

Prelims level: Nothing as such.

Mains level: The news-card analyses the recent SC judgement of statutory provisions and rules governing Maharashtra’s dance bars, in a brief manner.


Context

  • Recently, the Supreme Court has struck down several statutory provisions and rules governing Maharashtra’s dance bars.

Background

  • In 2005, the Maharashtra government imposed a ban on dance performances in bars, with the exception of hotels rated three stars and above.
  • The public rationale offered was that these performances were obscene, morally corrupt, and promoted prostitution.
  • Dance performance licenses were cancelled with immediate effect, prompting affected parties to file petitions in the Bombay High Court.
  • The High Court held against the government, resulting in an appeal to the Supreme Court.

Supreme Court’s 2013 ruling

  • The Supreme Court affirmed the High Court’s decision in July 2013, pursuing two lines of reasoning.
  • One, the government could not discriminate between luxury hotels and other establishments seeking licenses for dance performances.
  • Two, the ban had proven to be counterproductive, resulting in the unemployment of over 75,000 women, many of whom were forced by circumstances to engage in prostitution.

Government’s response

  • Rather than implementing the Supreme Court’s decision, the government imposed an outright ban on all dance performances, whether in street bars or upmarket hotels.
  • Although the government’s response addressed the court’s first concern, it failed to address the second.
  • This led to fresh proceedings in the Supreme Court.

Subsequent SC ruling and Govt response

  • While the court saw through the government’s attempt to circumvent its decision, it left room for the government to prohibit obscene dances with a view to protecting the dignity of the dancers.
  • This time the government’s response was more sophisticated and took cues from the Supreme Court’s decision.
  • Rather than seeking to impose a ban on dance performances altogether, it only did so to the extent that these performances were obscene or overtly sexual.
  • However, it imposed a number of other conditions on establishments seeking a license for such performances.

Conditions imposed by the govt to seek licence

  • Applicants were required to “possess a good character” with no criminal antecedents.
  • The establishment could not be within one kilometre of an educational or religious institution.
  • A CCTV camera would need to be fitted at the entrance.
  • Customers could not be permitted to throw coins or currency notes on the dancers, but could add tips to the bill.
  • The permit room (where alcohol was served) and the dance room would need to be separated by a partition.
  • The stage could not be smaller than a prescribed size.
  • Some of these conditions were challenged in the Supreme Court on the basis that they were far too onerous.

SC recent ruling

  • On January 17, the court upheld a few of these conditions, but struck down others.
  • For example, it noted that the CCTV requirement violated the right to privacy of the dancers and the patrons,
  • the “good character” requirement was vague,
  • the partition between the permit room and the dance room was unjustified, and
  • the one kilometre distance requirement was impractical.
  • However, the court found revealing that amongst the dozens of applications filed since the new rules were put in place, not a single one had been approved by the government.
  • The court therefore saw the government’s most recent response as a ban on dance bars masquerading as an attempt to regulate them.

Institutional interaction between governments and the courts

  • These developments yield insights on the institutional interaction between governments and the courts.
  • Through each iteration of this case, the Maharashtra government has responded more swiftly to judicial decisions than the Supreme Court has to the government’s attempts to sidestep them.
  • The final judicial decision in the first round took just short of eight years, while the government’s response took about 11 months.
  • In the second round, the court took a year and three months to make its decision; the government responded in six months.
  • In the third round, the court has taken just short of three years. The government’s response time is to be seen.

Reasons for disparity

  • A number of structural reasons may account for this disparity.
  • Despite heavy caseloads, courts must provide an opportunity for a fair hearing, deliberate, and set out reasons for their decisions.
  • Courts will also typically not consider cases unilaterally, but are dependent on parties to bring proceedings in search of a remedy.
  • Separately, the ban on dance bars has also received a disconcerting level of cross-party political support in Maharashtra, despite the regime changes since 2005.
  • This has meant that legislation has often been enacted unopposed, without any meaningful discussion on the floor of the House.
  • The amendments of 2014, for example, were approved by the Maharashtra Cabinet and sailed through the state legislature within minutes on the following day.

Significant delay on the part of Courts

  • The practical implication of the government being more nimble than the courts is that even when government responses are imperfect, the court produces significant delays.
  • This case outlines the vulnerability of Supreme Court, especially when it depends on the government to comply with its decisions in some positive way, such as by issuing dance bar licenses.
  • Even when the courts exercise the putatively “negative” function of striking down legislation or rules, the level of compliance with their decisions often lies in the hands of the executive.

Existing remedial landscape

  • These developments should also lead courts to introspect about the existing remedial landscape in cases where legislation is challenged.
  • The Supreme Court often deploys the writ of continuing mandamus (issuing a series of interim orders over a period of time to monitor compliance with its decisions) in public interest litigation cases that test the limits of its jurisdiction.
  • It has chosen not to adopt that enforcement strategy in this case, which falls squarely within the four corners of its jurisdiction.
  • While the court cannot direct the enactment of legislation, it can monitor compliance with an order to issue licenses to qualified applicants.

Conclusion

  • A further response from the Maharashtra government now seems inevitable.
  • The court struck down the one kilometre distance requirement, but did not say that any distance requirement would be invalid.
  • While unconstitutional in its present form, it noted that the “good character” requirement could be defined more precisely.
  • These are only two among the many options that are now available to the government in responding to the court’s decision.
  • The court concluded its judgment with the hope that applications for licenses would “now be considered more objectively and with an open mind”.
Issues and Judgments related to SC

[op-ed snap] A renewed attack on privacy: on Aadhaar Bill

Note4students

Mains Paper 2: Governance| Government policies and interventions for development in various sectors and issues arising out of their design and implementation.

From UPSC perspective, the following things are important:

Prelims level: Basics aspects of Aadhar.

Mains level: The newscard discusses key features, issues wrt Aadhaar and Other Laws (Amendment) Bill, 2018, in a brief manner.


Context

  • The Lok Sabha, without any attendant discussion, passed the Aadhaar and Other Laws (Amendment) Bill, 2018.
  • The Bill amends the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, the Indian Telegraph Act, 1885, and the Prevention of Money Laundering Act, 2002.

 

Key features of the Bill:

  1. Offline verification of Aadhaar number holder:The Bill allows ‘offline verification’ of an individual’s identity, without authentication, through modes specified by the Unique Identification Authority of India (UIDAI) by regulations.
  1. During offline verification, the agency must(i) obtain the consent of the individual, (ii) inform them of alternatives to sharing information, and (iii) not collect, use or store Aadhaar number or biometric information.
  2. Voluntary use of Aadhaar to verify identity:The Bill states that an individual may voluntarily use his Aadhaar number to establish his identity, by authentication or offline verification. Authentication of an individual’s identity via Aadhaar, for the provision of any service, may be made mandatory only by a law of Parliament.
  1. Entities using Aadhaar:An entity may be allowed to perform authentication through Aadhaar, if the UIDAI is satisfied that it is (i) compliant with certain standards of privacy and security, or (ii) permitted by law, or (iii) seeking authentication for a purpose specified by the central government in the interest of the State.
  1. Aadhaar number of children:The Bill specifies that at the time of enrolling a child to obtain an Aadhaar number, the enrolling agency shall seek the consent of his parent or guardian. The agency must inform the parent or guardian of (i) the manner in which the information will be used, (ii) the recipients with whom it will be shared, and (iii) their right to access the information. After attaining eighteen years of age, the child may apply for cancellation of his Aadhaar.
  1. Disclosure of information in certain cases:Under the Act, restrictions on security and confidentiality of Aadhaar related information do not apply in case the disclosure is pursuant to an order of a District Court (or above). The Bill amends this to allow such disclosure only for orders by High Courts (or above). The Bill also allows disclosure of information on directions of officers not below the rank of a Secretary.
  1. UIDAI Fund:Under the Act, all fees and revenue collected by the UIDAI shall be credited to the Consolidated Fund of India. The Bill removes this provision, and creates the Unique Identification Authority of India Fund.  All fees, grants and charges received by the UIDAI shall be credited to this fund.  The fund shall be used for expenses of the UIDAI, including salaries and allowances of its employees.
  1. Complaints:The Bill allows the individual to register complaints in certain cases, including impersonation or disclosure of their identity. The Bill defines the Aadhaar ecosystem to include enrolling agencies, requesting agencies, and offline verification-seeking entities. It allows the UIDAI to issue directions to them if necessary for the discharge of its functions under the Act.
  1. Penalties:Under the Bill, the UIDAI may initiate a complaint against an entity in the Aadhaar ecosystem for failure to (i) comply with the Act or the UIDAI’s directions, and (ii) furnish information required by the UIDAI. Adjudicating Officers appointed by the UIDAI shall decide such matters, and may impose penalties up to one crore rupees on such entities.  The Telecom Disputes Settlement and Appellate Tribunal shall be the appellate authority against decisions of the Adjudicating Officer.

Why the amendments are proposed?

  1. While upholding the constitutional validity of Aadhaar, the Supreme Court had struck down Section 57 of the Aadhaar Act, 2016 that permitted private entities like telecom companies or other corporate to avail of the biometric Aadhaar data.
  2. Hence to address the issues like recognising the authentification of those who provided Aadhaar as the identity proof, the amendments are brought in by the government.

Criticism

1. Commercial exploitation

  1. The most strident criticisms of the amendment bill have, however, been reserved for the manner in which it has allowed the private sector to regain access to the Aadhaar infrastructure.
  2. The Bill permits the enactment of a new law allowing the use of Aadhaar by private entities so long as a person voluntarily consents to such authentication.
  3. In contrast to SC ruling which unanimously struck down Section 57 insofar as it applied to private entities.
  4. It would be to enable commercial exploitation of an individual biometric and demographic information by the private entities.
  5. Justice Sikri held that the provision which allows private companies the authority to authenticate identity through Aadhaar, even by securing an individual’s informed consent, the clause is disproportionately contravened the right to privacy.
  6. # Section 57 of the Aadhaar Act allowed both the state and private entities to use the programme to establish an individual’s identity pursuant to a law or a contract. It was on this basis that various notifications were issued allowing corporations of different kinds, including telecom operators, e-commerce firms and banks, to use Aadhaar.

2. Violation of FR

  1. The Supreme Court has found that the operation of Aadhaar by private entities violates fundamental rights, there is today no avenue available for fresh legislative intervention, unless the government chooses to amend the Constitution.
  2. The proposed legislative amendments virtually seek to impose Aadhaar as a prerequisite for the availing of certain basic services.
  3. For example, the amendments proposed state that service providers — telecom companies and banks, respectively, — ought to identify their customers by one of four means: authentication under the Aadhaar Act; offline verification under the Aadhaar Act; use of passport; or the use of any other officially valid document that the government may notify.
  4. Given that only a peripheral portion of India’s population possess passports, Aadhaar is effectively made compulsory.

3. Issue of fraud

  • Allowing private corporations to access and commercially exploit the Aadhaar architecture, as we have already seen, comes with disastrous consequences — the evidence of reports of fraud emanating out of seeding Aadhaar with different services is ever-growing.

4. Disregard to SC judgement

  1. The Supreme Court declared the Section 33(2) as unconstitutional, which allowed an officer of the rank of Joint Secretary to the Government of India to direct disclosure of Aadhaar information in the “interest of national security”
  2. The Bill, merely seeks to substitute the words “Joint Secretary” with “Secretary” in Section 33(2), completely disregarding the Supreme Court’s order demanding inquiry.
Aadhaar Card Issues

Cabinet approves 10% quota for EWS in general category

Note4students

Mains Paper 2: Governance | Mechanisms, laws, institutions & Bodies constituted for the protection & betterment of the vulnerable sections

From the UPSC perspective, the following things are important:

Prelims level: Particulars of the Bill, Various judgments mentioned

Mains level: Viability of providing Reservation to economically weaker sections and legal issues surrounding


News

  • The Union Cabinet has given its nod for a Constitutional amendment Bill providing 10 percent more reservation for economically weaker sections in direct recruitment (in Government jobs) and for admission in higher educational institutions.

Proposed EWS Quota

  1. The proposed amendment Bill will define Economically Weaker Section (EWS) as:
  • One having annual income below Rs 8 lakh;
  • Agriculture land below 5 acres;
  • Residential house below 1,000 sq.ft;
  • Residential plot below 100 yards in notified municipality and residential plot below 200 yards in non-notified municipality area.
  1. The income includes agricultural income; profession etc.

Legal Test of the EWS Quota

(A) Economic Basis

  1. A Constitution Bench of the Supreme Court in the Indira Sawhney Case (1992) specifically ruled whether backward classes can be identified only and exclusively with reference to the economic criterion.
  2. It categorically held that a backward class cannot be determined only and exclusively with reference to economic criterion.
  3. It may be a consideration or basis along with or in addition to social backwardness, but it can never be the sole criterion.

(B) Quota Limit

  1. The judgment declared 50% quota as the rule unless extraordinary situations inherent in the great diversity of this country and the people.
  2. If the government proposes to bring a constitutional amendment to include the 10% quota for “unreserved economically weaker sections, the 11-judge Kesavananda Bharati judgment may stand in the way.
  3. The judgment held that constitutional amendments which offended the basic structure of the Constitution would be ultra vires.
  4. Neither Parliament nor legislatures could transgress the basic feature of the Constitution, namely, the principle of equality enshrined in Article 14.

Exceeding Quota Limit: Sacrificing the Merit

  1. The government proposes to bring the 10% over and above the 49% quota — 7% for SCs, 15% for STs and 27% for Socially and Educationally Backward Classes, including widows and orphans of any caste, which is permitted.
  2. But a total 59% (49%+10%) quota would leave other candidates with just 41% government jobs or seats.
  3. This may amount to “sacrifice of merit” and violate Article 14.

Learning from States

  1. This proposed Bill finds an echo in an ordinance promulgated in Gujarat in 2016 which provided 10% quota to upper castes there.
  2. All the arguments here are based on the 104-page judgment of the Gujarat High Court in the DKVerma versus State of Gujarat, which quashed the ordinance in August 2016.

Reasons: Upholding DPSP

  1. Gujarat had justified the ordinance by referring to how Article 46 of the Constitution, which deals with the Directive Principles of the State Policy, required the State to promote weaker sections.
  2. It had categorised the 10% quota as a ‘reasonable classification’ under Article 14 and not ‘reservation’.
  3. It said the 50% ceiling limit in the Indira Sawhney judgment applied only to SC/ST and SEBC.
  4. The court observed that the “unreserved category itself is a class” and economic criteria was too fluctuating a basis for providing quota.
Minority Issues – Dalits, OBC, Reservations, etc.

SC directs Centre to declare area around national parks as Eco-sensitive

Note4students

Mains Paper 3: Environment | Conservation, environmental pollution and degradation, environmental impact assessment

From UPSC perspective, the following things are important:

Prelims level: ESZs and provisions related to it.

Mains level: Wildlife conservation in India


News

Expand ESZ

  1. The Supreme Court has directed the Union Environment Ministry to declare 10 km area around 21 national parks and wildlife sanctuaries across the country as ‘eco-sensitive zones’.
  2. A Bench led by Justice Madan B. Lokur took the initiative after its amicus curiae informed the court that the State governments have taken no effort to protect the area around these sanctuaries and parks.
  3. The court recorded that the issue has been pending for the past 12 years.

The parks and sanctuaries are:

  • Pobitora sanctuary in Assam;
  • Hemis High Altitude and Kishtewar national parks, Changthang, Hokersar, Trikuta sanctuaries in Jammu and Kashmir;
  • Jogimatti, Thimlapura and Yadahalli Chinkara sanctuaries in Karnataka;
  • Deolgaon Rehekuri and Thane Creek Flamingo sanctuaries and the Malvan marine sanctuary in Maharashtra;
  • Siroi National Park and Khongjaingamba Ching sanctuary in Manipur;
  • Baghmara Pitcher Plant sanctuary in Meghalaya;
  • Fakim and Puliebadze and Rangapahar sanctuaries in Nagaland;
  • Bhimrao Ambedkar bird sanctuary and Pilibhit sanctuary in Uttar Pradesh and
  • Jorepokhri sanctuary in West Bengal.

Eco-sensitive Zones

  1. Eco-Sensitive Zones (ESZs) or Ecologically Fragile Areas (EFAs) are areas notified by the MoEFCC around Protected Areas, National Parks and Wildlife Sanctuaries.
  2. The purpose of declaring ESZs is to create some kind of “shock absorbers” to the protected areas by regulating and managing the activities around such areas.
  3. They also act as a transition zone from areas of high protection to areas involving lesser protection.
  4. The Environment (Protection) Act, 1986 does not mention the word “Eco-Sensitive Zones”.
  5. However, Section 3(2)(v) of the Act, says that Central Government can restrict areas in which any industries, operations or processes or class of industries, operations or processes shall be carried out  or shall not, subject to certain safeguards.
  6. Besides Rule 5(1) of the Environment (Protection) Rules, 1986 states that central government can prohibit or restrict the location of industries and carrying on certain operations or processes on the basis of certain considerations.
  7. The same criteria have been used by the government to declare No Development Zones (NDZs).

Defining its boundaries

  1. An ESZ could go up to 10 kilometres around a protected area as provided in the Wildlife Conservation Strategy, 2002.
  2. Moreover, in case where sensitive corridors, connectivity and ecologically important patches, crucial for landscape linkage, are beyond 10 km width, these should be included in the Eco-Sensitive Zones.
  3. Further, even in the context of a particular Protected Area, the distribution of an area of ESZ and the extent of regulation may not be uniform all around and it could be of variable width and extent.
Wildlife Conservation Efforts

India gets first witness protection scheme

Note4students

Mains Paper 2: Governance | Mechanisms, laws, institutions & Bodies constituted for the protection & betterment of these vulnerable sections

From UPSC perspective, the following things are important:

Prelims level: Particulars of the scheme

Mains level: Importance of protection for Witness in major trials


News

Background

  • The issue came up when the Supreme Court was hearing a PIL plea seeking protection for witnesses in rape cases, involving a self-proclaimed godman as key accused in Madhya Pradesh.

Supreme Court asks for implementation

  1. The Supreme Court has brought in place a witness protection regime in the country noting that one of the main reasons for witnesses turning hostile is that they are not given security by the State.
  2. A Bench of Justices A.K. Sikri and S. Abdul Nazeer said Witness Protection Scheme, 2018 will come into effect immediately across all States.
  3. The court said the scheme, which aimed to enable a witness to depose fearlessly and truthfully, would be the law of the land till Parliament enacted suitable legislation.

Witness Protection Scheme, 2018

  1. Under it, witness protection may be as simple as providing a police escort to the witness up to the courtroom.
  2. In more complex cases involving organised criminal group, extraordinary measures will be taken such as offering temporary residence in a safe house, giving a new identity, and relocation at an undisclosed place.
  3. The objective of this Scheme is to ensure that the investigation, prosecution and trial of criminal offences is not prejudiced because witnesses are intimidated or frightened to give evidence without protection from violent or other criminal recrimination.
  4. The scheme shall extend to the whole of the India except the State of Jammu & Kashmir.
  5. During the  course  of  investigation  or  trial  of  any  serious  offence,  an application  for  seeking  identity  protection  can  be  filed  in  the  prescribed  form before the Competent Authority.
  6. The scheme has three categories of witnesses based on the threat perception, and the states should start enforcing it:

Category ‘A’

  • Where the threat extends to life of witness or his family members and their normal way of living is affected for a substantial period, during investigation/trial or even thereafter.

Category ‘B’

  • Where the threat extends to safety, reputation or property of the witness or his family members, only during the investigation process or trial.

Category ‘C’

  • Where the threat is moderate and extends to harassment or intimidation of the witness or his family member’s, reputation or property, during the investigation process.

Other Provisions

  1. Witness Protection Fund means the fund created for bearing the expenses incurred during the implementation of Witness Protection Order passed by the Competent Authority under this scheme;
  2. Witness Protection Order means an order passed by the Competent  Authority detailing the steps to be taken for ensuring the safety of witness from threats to his or his family member’s life, reputation or property.  *It also includes interim order, if any passed, during the pendency of Witness Protection Application;
  3. Witness Protection Cell means a dedicated Cell of State/UT Police or Central Police Agencies assigned the duty to implement the witness protection order. It shall be responsible for the security as per witness protection order.

Proposed Rights to be entitled to the Witness

  • Right to give evidence anonymously
  • Right to protection from intimidation and harm
  • Right to be treated with dignity and compassion and respect of privacy
  • Right to information of the status of the investigation and prosecution of the crime
  • Right to secure waiting place while at Court proceedings
  • Right to transportation and lodging arrangements

With inputs from official website of  NALSA

Judiciary Institutional Issues

Supreme Court to direct states to implement draft witness protection scheme

Note4students

Mains Paper 2: Governance | Mechanisms, laws, institutions & Bodies constituted for the protection & betterment of these vulnerable sections

From UPSC perspective, the following things are important:

Prelims level: Particulars of the draft scheme

Mains level: Importance of protection for Witness in major trials


News

  • The Supreme Court said that it would direct all the states to implement the draft witness protection scheme framed by the Centre in consultation with the National Legal Services Authority (NALSA).

Background

  1. The issue of witness protection scheme had cropped up earlier when the top court was hearing a public interest litigation (PIL) seeking protection for witnesses in rape cases involving a self-styled preacher.
  2. The court had asked the Centre to a draft scheme for witness protection in the country as specific provisions in this regard were already there in the National Investigation Agency (NIA) Act.
  3. The SC was told that the draft scheme has now been finalised and would be made into a law in due course.
  4. However till then the court should direct the states to start implementing it.

Witness Protection

  1. Witness Protection  may  be  as simple  as  providing  a  police  escort  to  the Courtroom,  offering  temporary  residence  in  a  safe  house  or  using  modern communication   technology  for   recording   of testimony.
  2. In other  more  complex  cases,  where  cooperation  by  a  witness  is critical  to  successful  prosecution  of  a    powerful  criminal  group,  extraordinary measures are required to ensure the witness’s safety viz. anonymity, relocation of  the  witness  under  a  new  identity  in  a  new,  undisclosed  place  of

Draft Witness Protection Scheme

  1. The objective of this Scheme is to ensure that the investigation, prosecution and trial of criminal offences is not prejudiced because witnesses are intimidated or frightened to give evidence without protection from violent or other criminal recrimination.
  2. The schme shall extend to the whole of the India except the State of Jammu & Kashmir.
  3. During the  course  of  investigation  or  trial  of  any  serious  offence,  an application  for  seeking  identity  protection  can  be  filed  in  the  prescribed  form before the Competent Authority.
  4. The scheme has three categories of witnesses based on the threat perception, and the states should start enforcing it:

Category ‘A’

  • Where the threat extends to life of witness or his family members and their normal way of living is affected for a substantial period, during investigation/trial or even thereafter.

Category ‘B’

  • Where the threat extends to safety, reputation or property of the witness or his family members, only during the investigation process or trial.

Category ‘C’

  • Where the threat is moderate and extends to harassment or intimidation of the witness or his family member’s, reputation or property, during the investigation process.

Other Provisions

  1. Witness Protection Fund means the fund created for bearing the expenses incurred during the implementation of Witness Protection Order passed by the Competent Authority under this scheme;
  2. Witness Protection Order means an order passed by the Competent  Authority detailing the steps to be taken for ensuring the safety of witness from threats to his or his family member’s life, reputation or property. It also includes interim order, if any passed, during the pendency of Witness Protection Application;
  3. Witness Protection Cell means a dedicated Cell of State/UT Police or Central Police Agencies assigned the duty to implement the witness protection order. It shall be responsible for the security as per witness protection order

Proposed Rights to be entitled to the Witness

  • Right to give evidence anonymously
  • Right to protection from intimidation and harm
  • Right to be treated with dignity and compassion and respect of privacy
  • Right to information of the status of the investigation and prosecution of the crime
  • Right to secure waiting place while at Court proceedings
  • Right to transportation and lodging arrangements

With inputs from:  NALSA

Judiciary Institutional Issues

Long cohabitation is presumed marriage: SC

Note4students

Mains Paper 1: Social issues | Role of women & women’s organization

From UPSC perspective, the following things are important:

Prelims level: Not Much

Mains level: Legal status of live in relationship in India


News

Court Favors Maintenance

  1. The Supreme Court has upheld the presumption that a couple who live together as husband and wife are legally married and the woman can claim maintenance under Section 125 of the CrPC.
  2. The bench observed that it is fairly well settled that the law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for a number of years.
  3. Citing past judgments the Bench quoted that where a man, who lived with a woman for a long time and even though they may not have undergone legal necessities of a valid marriage, should be made liable to pay the woman maintenance if he deserts her.

Legal Loopholes

  1. The man should not be allowed to benefit from the legal loopholes by enjoying the advantages of a de facto marriage without undertaking the duties and obligations.
  2. Any other interpretation would lead the woman to homelessness and destitution which the provision of maintenance in Section 125 is meant to prevent.
  3. The judgment was based on an appeal filed by a woman against a Karnataka High Court decision of June 2009.
  4. The High Court set aside a family court order, directing the man she lived with since 1998, and had two children by, to pay maintenance.
  5. The family court had ordered him to pay the woman ₹3000 and the children ₹2500 each on a monthly basis.
  6. The court said they were accepted as husband and wife by society.
Women empowerment issues: Jobs,Reservation and education

No double jeopardy bar if there was no trial: Supreme Court

Note4students

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

From UPSC perspective, the following things are important:

Prelims level: Fundamental rights and their interpretation

Mains level: Read the attached story


News

  • The bar of double jeopardy does not arise if an accused was discharged of a criminal offence, even before the commencement of trial, on the basis of an invalid sanction for prosecution held the Supreme Court.

Background

  1. The corruption case was filed by the Aizawl police in February 2009 for misappropriation of public money.
  2. During inquiry, it was detected that the respondent had acquired valuable assets disproportionate to known sources of income.
  3. The first invalid sanction for prosecution was issued by the Commissioner-Secretary, Department of Personnel & Administrative Reforms (DP & AR) directly without the Governor’s approval.
  4. Following the discharge of the accused by the special court, the Governor accorded a fresh sanction in December 2013.
  5. The judgment is based on an appeal filed by the State of Mizoram against an order passed by the Gauhati High Court in August 2015.
  6. It upheld a Special Court decision to decline to entertain a second chargesheet filed in a corruption case against the accused, Dr. C. Sangnghina, on the ground of double jeopardy.

SC Ruling

  1. Article 20 (2) of the Constitution mandates that a person cannot be prosecuted or punished twice for the same offence.
  2. A Bench of Justices R. Banumathi and Indira Banerjee held in a judgment that if an accused has not been tried at all and convicted or acquitted, the principles of double jeopardy cannot be invoked at all.
  3. If an earlier order of sanction was found to be invalid, there is no bar for the competent authority to issue a proper order of sanction for prosecution.
  4. The courts are not to quash or stay the proceedings under any Act merely on the ground of an error, omission or irregularity in the sanction granted by the authority unless it is satisfied that such error, omission or irregularity has resulted in failure of justice, the SC observed.

Back2Basics

Article 20 of the Indian Constitution

  1. The Article 20 is one of the pillars of fundamental rights guaranteed by the Constitution of India. It mainly deals with protection of certain rights in case of conviction for offences.
  2. When an individual as well as corporations are accused of crimes, the provisions of Article 20 safeguard their rights.
  3. The striking feature of the Article 20 is that it can’t be suspended during an emergency period.
  4. The Article has set certain limitations on the legislative powers of the Union and State legislatures.

Ex Post Facto Legislation 

  • The clause (1) of Article 20 protects individuals against ex post facto legislation, which means no individual can be convicted for actions that were committed before the enactment of the law.
  • In other words, when a legislature declares an act to be an offence or provides a penalty for an offence, it can’t make the law retroactive so as to prejudicially affect the individuals who have committed such acts prior to the enactment of that law.

Immunity from Double Punishment 

  • The Constitution of India prohibits double punishment for the same offence. That is reflected in the clause (2) of Article 20, which safeguards an individual from facing multiple punishments or successive criminal proceedings for the same crime.
  • According to this clause, no person shall be prosecuted and punished for the same offence more than once.
  • If someone has been put on trial and punished in a previous proceeding of an offence, he can’t be prosecuted and punished for the same proceedings of an offence again in subsequent proceeding. If any law provides for the double punishment, it will be considered void.

No immunity from Proceedings

  • Although Article 20 disapproves of the doctrine of ‘Double Jeopardy’, it does not give immunity from proceedings before a court of law or tribunal.
  • Hence, a public servant who has been punished for an offence in a court of law may yet be subjected to departmental proceedings for the same offence.
  • It is to be noted that Article 20 provides protection against double punishment only when the accused has been ‘prosecuted’ and ‘punished’ once.
  • Also, the Article does not prevent subsequent trial and conviction for another offence even if the two offences have some common aspects.

Immunity from Self-Incrimination

  • The immunity from self-incrimination is conferred in the Article 20(3) of the constitution which states that the accused can never be compelled to be a witness against himself. In short, no individual can be forced to accuse himself.
  • The scope of this immunity has, prima facie, been widened by the Supreme Court by interpreting the word ‘witness’ as inclusive of both oral and documentary evidence.
  • Hence, no person can be compelled to furnish any kind of evidence, which is reasonably likely to support a prosecution against him.
  • This ‘Right to Silence’ is not called upon in case any object or document is searched and seized from the possession of the accused.
  • For the same reason, the clause does not bar the medical examination of the accused or the obtaining of thumb-impression or specimen signature from him.

This immunity is only limited to criminal proceedings. 

  • The Article 20 (3) can be rightfully used as an anchor only by those accused of an offence and against whom an FIR has been lodged, which in normal course would result in prosecution.

 

Judiciary Institutional Issues

SC moves to make festivals less noisy

Note4students

Mains Paper 3: Environment | Conservation, environmental pollution and degradation, environmental impact assessment

From UPSC perspective, the following things are important:

Prelims level:  New regulations regarding selective ban on Fire Crackers

Mains level: Particulars of the Judgmen


News

Context

  1. Bursting of firecrackers has seen a substantial increase in PM 2.5 level, which is a very serious health hazard.
  2. To this effect the SC judgment has come on the basis of a petition filed by two infants a six-month-old and 14-month-old through their fathers in 2015.
  3. They said the air pollution caused by various factors, especially firecrackers, made Delhi a gas chamber.
  4. They  had pleaded for their right to life.

Highlights of the Judgment

  1. The Court held that bursting of crackers during Diwali is not the only reason for worsening air quality, at the same time; it definitely contributes to air pollution in a significant way.
  2. It referred to studies by the Central Pollution Control Board (CPCB) to show that post-Diwali pollution was lesser in 2017, after the ban imposed some restrictions on sale and manufacture of crackers, than in 2016.

A Perfect balance

  1. The Supreme Court has finally struck a balance between the interests of the firecracker industry and the right to public health.
  2. It has allowed the manufacture and sale of only “green” and reduced-emission or “improved” crackers, while banned those that are loud and toxic to man, animal and the environment.
  3. The court held that only green or improved crackers would be used during religious festivals and other occasions, including weddings.

Prescribed Time Limit

  1. The judgment reduced the time for bursting crackers during Deepavali and other festivals to two hours: between 8 p.m. and 10 p.m.
  2. For Christmas and New Year, the time slot allowed is just half-an-hour, between 11.55 p.m. and half-past midnight.
  3. The reduced time window is applicable across the country.

Regulating the Sale

  1. The court banned the manufacture, sale and use of joined firecrackers (series crackers or ‘laris’), holding that they caused huge air, noise and solid waste problems.”
  2. The sale of green and improved crackers would be only through licensed traders.
  3. It banned online sale through e-commerce websites.
  4. Any e-commerce company found selling crackers online will be hauled up for contempt of court, and the court may eventually also pass orders of monetary penalties.

Ban on certain Chemicals

  1. The use of Barium salt which is used to give only attractive green colour, but emits poisonous gas causing respiratory problem has been banned by the Court.
  2. Aluminum is used as fuel in fireworks to give white brilliant sparkle. Aluminium may cause skin problems.
  3. The Court has also directed Petroleum and Explosives Safety Organization (PESO) to review the clinical composition of fireworks, particularly reducing Aluminium content.

Green Crackers at the Manufacturers rescue

  1. Recently the CSIR have formulated eco-friendly crackers, which would not only cause reduced emissions, but would help people get a reprieve from noise pollution during festivities.
  2. Green crackers are basically reduced emission crackers wherein we reduce some harmful components, like Barium, Aluminum and Chromium which are conventionally used to get different colours.
  3. Though their commercial use has not yet began but are expected to be adopted by manufacturers very soon.

Way Forward: Endeavoring Article 21 to effect

  1. The judgment said that the right to health was part of the fundamental right to life under Article 21 and it assumed greater importance.
  2. It held that the right to health of millions is far more important than averting an economic loss to the firecracker industry.
Air Pollution

2013 Justice Verma panel report wanted changes to sexual harassment law

Note4students

Mains Paper 1: Social issues | Social empowerment

From UPSC perspective, the following things are important:

Prelims level: MeToo movement

Mains level: The newscard discusses efficacy of present mechanism to curb sexual harassment at workplaces based on Verma Committee recommendations of 2013.


News

Context

  1. The WCD minister has recently announced its plan to set up a panel of judges to look into the legal and institutional framework to curb sexual harassment at workplaces following the #MeToo campaign on social media.
  2. However, as early as 2013, the Justice J.S. Verma Committee, in its report on gender laws which would have proven efficient to tackle issue.

Justice Verma Committee Recommendations

  1. The panel was formed in the aftermath Nirbhaya gangrape Case in 2012 and the ensuing nationwide protests, and submitted its report on January 23, 2013.
  2. At that time of the submission of the report, the SHWWA bill had already been pending in Upper house of Parliament.
  3. The Committee termed the Bill “unsatisfactory” and said it did not reflect the spirit of the Vishakha guidelines — framed by the Supreme Court in 1997 to curb sexual harassment at the workplace.
  4. The report noted that an ICC under the SHWWA would be “counter-productive” as dealing with such complaints in-house could discourage women from filing complaints.
  5. Instead, the committee proposed forming an employment tribunal to receive and adjudicate all complaints.
  6. To ensure speedy disposal of complaints, the Committee proposed that the tribunal should not function as a civil court but may choose its own procedure to deal with each complaint.
  7. The panel also said that the time-limit of three months to file a complaint should be done away with and a complainant should not be transferred without her consent.

Onus on employer

  1. The Committee said any unwelcome behaviour should be seen from the subjective perception of the complainant, thus broadening the scope of the definition of sexual harassment.
  2. The Verma panel said an employer could be held liable:
  • if he or she facilitated sexual harassment,
  • permitted an environment where sexual misconduct becomes widespread and systemic,
  • where the employer fails to disclose the company’s policy on sexual harassment and ways in which workers can file a complaint
  • if employer fails to forward a complaint to the tribunal.
  1. The company would also be liable to pay compensation to the complainant.

Encouraging Women to file complaints

  1. The panel also made several suggestions to encourage women to come forward and file complaints.
  2. For instance, it opposed penalizing women for false complaints and called it an abusive provision intended to nullify the objective of the law.
Women empowerment issues: Jobs,Reservation and education

SC tags Tripura NRC plea with Assam case

Note4students

Mains Paper 1: Social Issues | Population & associated issues

From UPSC perspective, the following things are important:

Prelims level: National Register of Citizens (NRC), Citizenship Act, 1955

Mains level: Updation of NRC and its implications on demography as well as security situation.


News

Update NRC for Tripura: SC

  1. The Supreme Court has issued notice to the government to update the National Register of Citizens (NRC) in Tripura, as is being done in Assam, in order to detect and deport the “illegal immigrants” from Bangladesh.
  2. The PIL asked the Court to direct authorities to update the NRC with respect to Tripura in terms of Rules 3 and 4 of The Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 by taking July 19, 1948 as the cut-off date as provided for in Article 6 of the Constitution.

Bangladeshi Influx: An external aggression

  1. The petition contended the “influx” of illegal immigrants into Tripura amounted to ‘external aggression’ under Article 355 of the Constitution.
  2. The presence of illegal immigrants violates the political rights of the citizens of Tripura said the PIL.

Tripura facing demographic changes

  1. Uncontrolled influx of illegal migrants from Bangladesh to Tripura has caused huge demographic changes in Tripura.
  2. Tripura was a predominantly tribal State, but now it has become a non-tribal State.
  3. Indigenous people who were once the majority has now become a minority in their own land claimed the PIL.
Citizenship and Related Issues

Supreme Court opens Sabarimala temple to women of all ages

Note4students

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

From UPSC perspective, the following things are important:

Prelims level: Fundamental rights involved

Mains level: Temple entry issue and all aspects related to it.


News

Context

  1. The Supreme Court  in a majority opinion of 4:1 lifted the centuries-old practice of prohibiting women to enter the Lord Ayyappa temple at Sabarimala in Kerala.
  2. The Court condemned the prohibition as hegemonic patriarchy.

Entry ban is Un-Constitutional

  1. The main opinion shared that on one side we pray to goddesses; on the other, women of a certain age are considered ‘impure’.
  2. This dualistic approach is nothing but patriarchy practised in religion.
  3. It said that exclusion on grounds of biological and physiological features like menstruation was unconstitutional as it was violative of the right to equality and dignity of women.
  4. However the Nair Service Society countered the apex court’s observations about patriarchy.
  5. The prohibition was not based on misogyny but the celibate nature of the deity.

Entry ban  is a form of untouchability

  1. In a concurring opinion, Justice D.Y. Chandrachud held that to treat women as the children of a lesser God was to blink at the Constitution.
  2. The logic behind the ban was that presence of women deviated men from celibacy (brahmacharya).
  3. This was placing the burden of a men’s celibacy on women thus, stigmatizing women and stereotyping them.
  4. Individual dignity of women could not be at the mercy of a mob.

Entry ban isn’t fundamental to religion

  1. The Sabarimala prohibition was a prejudice against women, which was zealously propagated and was not an essential part of religion.
  2. The majority view declared Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act of 1965, which mandates the prohibition in Sabarimala temple, as ultra vires the Constitution.
  3. The CJI and Justice Khanwilkar held that the Rule violated the fundamental right of a Hindu woman to offer worship at a place of her choice. Right to worship is equally available to men and women.

Dissenting Opinions against the Ruling

  1. Justice Indu Malhotra, the lone woman judge on the Constitution Bench, dissented from the majority opinion.
  2. She held that the determination of what constituted an essential practice in a religion should not be decided by judges on the basis of their personal viewpoints.
  3. She held that essentiality of a religious practice or custom had to be decided within the religion. It was a matter of personal faith.
  4. Constitutional morality in a pluralistic society gave freedom to practice even irrational or illogical customs and usages.

Ruling is contrary to Art. 25

  1. Harmonization of fundamental rights with religion included providing freedom for diverse sects to practise their customs and beliefs.
  2. The Judge held that there were strong, plausible reasons to show that Ayyappa devotees had attributes of a religious denomination.
  3. They have distinct names, properties. Besides, the Sabarimala temple was not funded out of the Consolidated Fund.
Temple entry for women : Gender Equality v/s Religious Freedom

Adultery no longer a criminal offence as SC scraps Section 497 of IPC

Note4students

Mains Paper 1: Social issues | Social empowerment

From UPSC perspective, the following things are important:

Prelims level: Adultery, Section 497 IPC

Mains level: The newscard puts end to the long driven debate against IPC Sec. 497. Make note of all justifications made by the Court.


News

Scrapping IPC Sec. 497

  1. A five-judge Constitution Bench, led by CJI Dipak Misra held that adultery is not a crime and struck it off the Indian Penal Code.
  2. The bench observed that Section 497 (adultery) of the Code “commands” married couples to remain loyal to each other.
  3. The Bench also held Section 198 (2) of the CrPC, which gives the cuckolded husband the exclusive right to prosecute his wife’s lover, manifestly arbitrary.

A matter of choice

  1. The court observed that two individuals may part if one cheats, but it is not viable to attach criminality to the infidelity caused by adultery.
  2. 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
  3. How married couples deal with adultery is absolutely a matter of privacy.

Wife not a commodity

  1. Adultery is not a crime if the husband allows or consents to his wife’s extra-marital affair.
  2. Section 497 treats a married woman as her husband’s possession.
  3. The provision is a reflection of the social dominance of men prevalent 150 years ago and the biblical orders of the colonial government.

Codified Patriarchy phased out

  1. Justice D.Y. Chandrachud, in his separate view, termed Section 497 as a “codified rule of patriarchy”.
  2. Marriage does not mean ceding autonomy of one to the other.
  3. Ability to make sexual choices is essential to human liberty.
  4. Society imposes impossible virtues on a woman. It objectifies her and says she should be pure.
  5. If the woman involved in the extra-marital affair happens to be single and has no husband who is wronged, the law treats the situation with total unconcern.

Doctrine of Coverture

  1. Justice Indu Malhotra, reading her opinion the last on the Bench, held that Section 497 is based on the Doctrine of Coverture.
  2. Coverture was a legal doctrine whereby, upon marriage, a woman’s legal rights and obligations were subsumed by those of her husband.
  3. Coverture arises from the legal fiction that a husband and wife are one person.
  4. This doctrine, not recognised by the Constitution, holds that a woman loses her identity and legal right with marriage, is violative of her fundamental rights.
Women Safety Issues – Marital Rape, Domestic Violence, Swadhar, Nirbhaya Fund, etc.

Supreme Court Okays Constitutional Validity of Aadhaar

Image Source

Note4students

Mains Paper 2: Governance | Government policies and interventions for development in various sectors and issues arising out of their design and implementation.

From UPSC perspective, the following things are important:

Prelims level: Various articles of the Aadhaar Act

Mains level: The newscard ends the debate surrounded by Aadhaar. Every statement of the Judgment is vitally important.


News

Context

  1. The Hon’ble Supreme Court in a majority opinion upheld Aadhaar as a reasonable restriction on individual privacy.
  2. Aadhaar aims to fulfils the government’s “legitimate aim” to provide dignity to a large, marginalized population living in abject poverty.
  3. The Constitution does not exist for a few or minority of the people of India, but ‘We the People’,” the Supreme Court observed.

A Money Bill

  1. Upholding the passage of the Aadhaar Act as a Money Bill, the Court said neither were individuals profiled nor their movements traced.
  2. This is when Aadhaar was used to avail government benefits under Section 7 of the Aadhaar Act of 2016.
  3. The statute only sought “minimal” biometric information, and this did not amount to invasion of privacy.

Bar on bank-mobile link

  • The majority opinion upheld the PAN-Aadhaar linkage, but declared linking Aadhaar with bank accounts and mobile SIM cards unconstitutional.

Insulating children from the Aadhaar regime

  1. The card was not necessary for children aged between six and 14 under the Sarva Shiksha Abhiyan as right to education was a fundamental right.
  2. Statutory bodies like CBSE and UGC cannot ask students to produce their Aadhaar cards for examinations like NEET and JEE.
  3. Permission of parents and guardians was a must before enrolling children into Aadhaar.
  4. Children once they attained the age of majority could opt out of Aadhaar.

Aadhaar not a hurdle for Divyangs, Elderly

  1. Validating Aadhaar use was not trivializing the problem of exclusion faced by the elderly, the very young, the disabled and several others during the authentication process.
  2. Authentication was found to be only having a 0.232% failure (almost negligible), however it was accurate 99.76% times.
  3. Dismantling the scheme would only disturb this 99.76%.

Aadhaar not a Surveillance tool

  1. Authentication transactions through Aadhaar did not ask for the purpose, nature or location of the transaction.
  2. Besides, information was collected in silos and their merging was prohibited.
  3. The collection of personal data and its authentication was done through registered devices and was not expanded to the Internet.
  4. The Authority did not get any information related to the IP address or the GPS location from where authentication was performed.

Preventing Misuse of Data

  1. The Court quashed or read down several provisions in the Aadhaar Act in order to de-fang any possibility of the state misusing data.
  2. For one, the court held that authentication records should not be retained for more than six months.
  3. It declared the archiving of records for five years as “bad in law.”
  4. It also prohibited the creation of a metabase for transactions.
  5. It read down Section 33 (1), which allowed the disclosure of Aadhaar information on the orders of a District Judge.
  6. This cannot be done now without giving the person concerned an opportunity to be heard.

Striking down certain Sections

Aadhaar Card Issues

Supreme Court nod to live-streaming of court proceedings

Note4students

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

From UPSC perspective, the following things are important:

Prelims level: Particulars of the Judgment

Mains level: Need for propagating exact hearings of the judiciary to enhance understanding of a particular Judgment involving Public Interest.


News

Context

  • Ushering in more transparency in the judiciary’s work, the Supreme Court gave its nod to live-streaming of court proceedings.
  • The court held agreement with the recommendations submitted by Attorney General K K Venugopal regarding live-streaming.
  • The judgment pointed out that the Supreme Court Rules, 2013, will have to suitably amended to provide for the regulatory framework to incorporate the changes.

Importance of the ruling

  1. Although courts in India are ordinarily open to all members of the public, sometimes they are denied the opportunity to witness the proceedings due to logistical issues and infrastructure restrictions.
  2. By providing ‘virtual’ access of live court proceedings to one and all, it will effectuate the right of access to justice or right to open justice and public trial
  3. It will also put to affect the right to know the developments of law and including the right of justice at the doorstep of the litigants.
  4. The court expected that this does not interfere with the administration of justice or the dignity and majesty of the court hearing the matter and/or impinge upon any rights of the litigants or witnesses.

Impact of Broadcasting

  1. It will reduce the public’s reliance on second-hand narratives to obtain information about important judgments of the court and the course of judicial hearings.
  2. Society will be able to view court proceedings first-hand and form reasoned and educated opinions about the functioning of courts.
  3. This will help reduce misinformation and misunderstanding about the judicial process.

Starting on Pilot basis

  1. As a pilot project, only cases of constitutional and national importance being argued for final hearing before the Constitution Bench are live-streamed initially, the court said.
  2. For this, permission of the court concerned will have to be sought in writing in advance.
  3. Consent of parties to the proceedings must be insisted upon, and if there is no unanimity between them, the court concerned can take the appropriate decision in the matter.
  4. The court concerned will also have the power to revoke permission at any stage of the proceedings.

Other Details

  1. There must be a reasonable time-delay (say 10 minutes) between the live court proceedings and the broadcast.
  2. This is to ensure that any information which ought not to be shown, as directed by the court, can be edited from being broadcast.
  3. The judgment touched on the placement of cameras in the courtroom and reproduction, re-broadcasting, transmission, publication, re-publication, copying, storage and/or modification of any part(s) of the original broadcast of court proceedings, in any form, physical, digital or otherwise, must be prohibited.
  4. It will also attract prosecution.
Judiciary Institutional Issues

Supreme Court constitutes committee to look into jail reforms

Note4students

Mains Paper 2: Governance | Government policies and interventions for development in various sectors and issues arising out of their design and implementation.

From UPSC perspective, the following things are important:

Prelims level: Amitava Roy Committee on Prison Reforms

Mains level: Need for prison reforms


News

Context

  1. The apex Court formed a Committee on Prison Reforms chaired by former SC judge, Amitava Roy, to examine the various problems plaguing prisons in the country.
  2. The judgment came on a letter from former CJI R.C. Lahoti highlighting the overcrowding in prisons, unnatural deaths of prisoners, gross inadequacy of staff and the lack of trained staff.

Committee on Prison Reforms

  1. Issuing a slew of directions, the Bench has directed the committee to examine-
  • extent of overcrowding in prisons and correctional homes and recommend remedial measures,
  • examination of the functioning of Under Trial Review Committees,
  • availability of legal aid and advice,
  • grant of remission, parole and furlough.
  1. The panel would also probe the reasons for violence in prisons and correctional homes and recommend measures to prevent unnatural deaths and assess the availability of medical facilities there.
  2. It would assess the availability and inadequacy of staff in prisons and correctional homes, suggest training and educational modules for the staff and assess the feasibility of establishing open prisons.
  3. The committee has been asked to recommend steps for the psycho-social well-being of minor children of women prisoners, including their education and health.
  4. The Committee is further aimed to examine and recommend measures for the health, education, development of skills, rehabilitation and social reintegration of children in observation homes and the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015.
Human Rights Issues

Triple talaq is criminal offence

Note4students

Mains Paper 2: Governance | Welfare schemes for vulnerable sections of the population by the Centre and States and the performance of these scheme

From UPSC perspective, the following things are important:

Prelims level: Ordinance Making Power of President, Bail Provisions of the ordinance

Mains level: Triple talaq and issues related to it.


News

Ordinance cleared against instant Triple talaq

  1. The Union Cabinet has cleared an ordinance as well as Presidents assent has been received that makes talaq-e-biddat, or instant triple talaq, a criminal offence that will attract a maximum jail term of three years.
  2. The new law incorporates safeguards, including a provision for bail to an accused before the start of the trial.
  3. The offence of instant triple talaq has also been “compoundable” or a provision that allows the wife to withdraw a complaint or approach the magistrate for a dispute settlement.

Cases are on rise

  1. 201 cases had been reported from across the country after the Supreme Court banned triple talaq in August 2017.
  2. Since January 2017, 430 cases had been reported until September this year.
  3. The practice of triple talaq continues in spite of the Supreme Court having annulled it and the Lok Sabha having passed a Bill that is pending in the Rajya Sabha.

Improvised Bail Provisions

  1. While instant triple talaq will continue to be a “non-bailable” offence the police cannot grant bail at the police station the accused can approach a magistrate for bail even before trial.
  2. The magistrate could exercise discretion to grant bail “after hearing the wife”.
  3. The magistrate would also have power to decide the quantum of compensation and subsistence allowance for the victim and her minor children.
  4. Another safeguard that had been added is that the police can lodge an FIR (first information report) only if the complaint is filed by the wife (victim), her blood relations or her relatives by virtue of her marriage.
  5. Non-relatives or neighbours cannot lodge a complaint under the proposed law.

Back2Basics

Ordinance making powers of the President (Article 123)

  1. Ordinance can be proclaimed by the President only during recess when the Parliament is not in session
  2. It can also be issued when only one house is in session.
  3. The decision of the President to issue an ordinance can be questioned in a court on the ground that the President prorogued one house or both the houses of the Parliament deliberately with a view to issue an ordinance on a controversial subject.
  4. Ordinance issued by the President must be laid before both the houses of Parliament when it reassembles.
  5. From the date of reassembly the ordinance is valid for a period of six weeks.
  6. The President can withdraw an ordinance at any time.
  7. Ordinance cannot be issued to amend the constitution.
Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.

Supreme Court bats for minor rape survivors

Note4students

Mains Paper 2: Governance | Mechanisms, laws, institutions & Bodies constituted for the protection & betterment of these vulnerable sections

From UPSC perspective, the following things are important:

Prelims level: Compensation Plans as per SC directive

Mains level: Compensation for victims of sex crimes especially the Minors.


News

Extends Compensation Plan

  1. The Supreme Court ordered that minor survivors of rape or sexual assault will get compensation on par with women victims.
  2. The apex court extended the National Legal Services Authority’s (NALSA) compensation scheme for women rape and sexual assault survivors to minor children.
  3. A three-judge Bench directed that the Protection of Children from Sexual Offences (POCSO) Act should disburse compensation to minor victims of sex abuse as per the NALSA’s ‘Compensation Scheme for Women Victims/Survivors of Sexual Assault/Other Crimes-2018’.
  4. The NALSA scheme would be made applicable to minor victims from October 2 until the Centre frames compensation guidelines under the POCSO.

Details of the Compensation Plan

  1. The NALSA scheme provides a uniform payment of ₹ 5 lakh to a maximum ₹ 10 lakh for “loss of life” and to gang rape survivors in any part of the country.
  2. Similarly, in case of rape and unnatural sexual assault, the victim would get a minimum of ₹4 lakh and maximum of ₹ 7 lakh as compensation.
  3. Among other categories, if a victim suffers the loss of foetus, that is, by miscarriage as a result of assault or loss fertility, the NALSA scheme offers a compensation of ₹ 2 lakh to 3 lakh.
  4. The scheme provides a victim of acid attacks, in case of disfigurement of face, would get a minimum compensation of ₹ 7 lakh, while the upper limit would be ₹ 8 lakh.
  5. In acid attack cases, if the injury was more than 50%, a minimum compensation of ₹ 5 lakh would be given, while the maximum would be ₹ 8 lakh.
  6. The compensation for sex abuse survivors should be a source of financial solace for victims of sex crimes and acid attacks during court trial.
Child Rights – POSCO, Child Labour Laws, NAPC, etc.

No need for uniform civil code now, says law panel

Note4students

Mains Paper 2: Governance | Welfare schemes for vulnerable sections of the population by the Centre and States and the performance of these scheme

From UPSC perspective, the following things are important:

Prelims level: UCC

Mains level: Arguments in favor/against of Uniform Civil Code


News

Context

The Law Commission of India said a Uniform Civil Code (UCC) is neither necessary nor desirable at this stage.

A Unified Nation doesn’t need Uniformity

  1. The commission said secularism cannot contradict the plurality prevalent in the country.
  2. The commission argued that cultural diversity cannot be compromised to the extent that our urge for uniformity itself becomes a reason for threat to the territorial integrity of the nation.
  3. A unified nation does not necessarily need to have “uniformity.”
  4. Efforts have to be made to reconcile our diversity with universal and indisputable arguments on human rights, the commission said.
  5. Difference does not always imply discrimination in a robust democracy, the government’s topmost law advisory body said.
  6. The term ‘secularism’ has meaning only if it assures the expression of any form of difference.
  7. This diversity, both religious and regional, should not get subsumed under the louder voice of the majority, the commission said.
  8. At the same time, it said, discriminatory practices within a religion should not hide behind the cloak of that faith to gain legitimacy.

Codify all personal laws

  1. It said the way forward may not be UCC, but the codification of all personal laws.
  2. This will bring to light the prejudices and stereotypes in every one of them would come to light and can be tested on the anvil of fundamental rights of the Constitution.
  3. By this, one can arrive at certain universal principles that prioritize equity rather than imposition of a Uniform Code, which would discourage many from using the law altogether.
  4. It said that matters of marriage and divorce can also be settled extra-judicially.
  5. It suggested certain measures in marriage and divorce which should be uniformly accepted in the personal laws of all religions.

Key Suggestions

  1. The panel asked for amendments in personal laws includes fixing the marriageable age for boys and girls at 18 years.
  2. This helps them marry as equals, making adultery a ground for divorce for men and women and to simplify divorce procedure.
  3. The commission said the filing of Section 498A IPC (dowry harassment) cases is actually done by women wanting a quick exit from a difficult marriage.

Polygamy- a criminal offence

  1. It suggested that nikahnamas make it clear that polygamy is a criminal offence and this should apply to “all communities.
  2. This is not recommended owing to merely a moral position on bigamy, or to glorify monogamy, but emanates from the fact that only a man is permitted multiple wives, which is unfair.
Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.

Law Commission calls for re-think on sedition clause

Note4students

Mains Paper 2: Governance | Important aspects of governance, transparency & accountability

From UPSC perspective, the following things are important:

Prelims level: Section 124A

Mains level: Broadening the Scope of Free Speech.


News

Considering Contempt of Government

  1. Dissent and criticism of the government are essential ingredients of a robust public debate in a vibrant democracy, said the Law Commission of India.
  2. The Commission published a consultation paper recommending that it is time to re-think or even repeal the provision of sedition (Section 124A) from the Indian Penal Code.
  3. The Commission has also posed the query that if contempt of court invites penal action, should “contempt of government” also attract punishment.
  4. The Commission asked whether it would be “worthwhile” to rename Section 124A and find a suitable substitute for the term sedition.

Right to Free Speech

  1. The Commission seeks to consider that right to free speech and expression is an essential ingredient of democracy.
  2. The Commission said an expression of frustration over the state of affairs cannot be treated as sedition.
  3. It recommended that India should not retain the British era clause to oppress Indians, whereas Britishers have themselves abolished the law in their country.
  4. It said every restriction on free speech and expression must be carefully scrutinized to avoid unwarranted restrictions.

Dissent is the safety valve of democracy, says SC

  1. The consultation paper was published a day after the Supreme Court lashed out at the forces while hearing a petition challenging the pan-India crackdown and arrests of five activists.
  2. For merely expressing a thought that is not in consonance with the policy of the government of the day, a person should not be charged under the Section.

Constructive Criticism is essential

  1. If the country is not open to positive criticism, there lies little difference between the pre- and post-Independence eras.
  2. Right to criticize one’s own history and the right to offend are rights protected under free speech.

Way Forward

  1. In a democracy, singing from the same songbook is not a benchmark of patriotism.
  2. People should be at liberty to show their affection towards their country in their own way.
  3. While it is essential to protect national integrity, it should not be misused as a tool to curb free speech, the Commission said in its consultation paper.
Judiciary Institutional Issues