Note4Students
From UPSC perspective, the following things are important :
Prelims level: Indira Sawhney judgment
Mains level: Making reservation system more efficient
- A Constitution Bench of the Supreme Court held it unconstitutional to provide 100% reservation for tribal teachers in schools located in Scheduled Areas across the country.
- The Bench was answering a reference made to it in 2016 on whether 100% reservation is permissible under the Constitution.
Reservation in India is a system of affirmative action by the State that provides representation for historically and currently disadvantaged groups in Indian society in education, employment and politics. The 10% EWS quota this year has raised the inevitability for a possible mains question.
No 100% quota
- The apex court held that it is an obnoxious idea that tribals only should teach the tribals.
- Merit cannot be denied in toto by providing reservation observed the judgement.
- Citizens have equal rights, and the total exclusion of others by creating an opportunity for one class is not contemplated by the founding fathers of the Constitution of India.
Invoking Indira Sawhney judgment
- The court referred to the famous Indira Sawhney judgment (Mandal case- Indra Sawhney v. Union of India 1992), which caps reservation at 50%.
- The court held that 100% reservation is discriminatory and impermissible.
- The opportunity of public employment is not the prerogative of few.
- A 100% reservation to the Scheduled Tribes has deprived SCs and OBCs also of their due representation.
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Attend Now
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Open Courts, Art. 142
Mains level: Transparency in judicial functioning
The Supreme Court has invoked its extraordinary Constitutional powers under Article 142 to step away from the convention of open court hearings. It deemed all restrictions imposed on people from entering, attending or taking part in court hearings as lawful in the wake of the COVID-19 pandemic.
What are Open Courts?
- The Open court principle requires that court proceedings presumptively be open and accessible to the public and to the media.
- Open courts are normal court where proceedings of the court are conducted where every person is allowed to watch the proceedings of the court.
- There are instances where it is not practical to accommodate persons other than parties to the proceedings. Therefore, such proceedings are held in camera.
- This means that the proceedings are held in a closed room where the public will not have access to watch the proceedings.
- In criminal cases like rape, it is necessary to protect the identity and modesty of the victim.
Why did the Supreme Court deter Open Court’s norm?
- A Bench led by CJI said these restrictions were in tune with the social distancing norms and best public health practices advocated to contain the contagion.
- The court made it clear that public health takes precedence over conventions.
- Every individual and institution is expected to cooperate in the implementation of measures designed to reduce the transmission of the virus.
- Open court hearings would mean a congregation of large number of people. This would prove detrimental to the fight against the virus.
Conclusion
- Access to justice is fundamental to preserve the rule of law in the democracy envisaged by the Constitution of India.
- The challenges occasioned by the outbreak of COVID-19 have to be addressed while preserving the constitutional commitment to ensuring the delivery of and access to justice to those who seek it..
Way forward
- Indian courts have been proactive in embracing advancement in technology in judicial proceedings.
- Judiciary can bank on video-conferencing technologies in the wake of this unprecedented and extraordinary outbreak of a pandemic.
Back2Basics
Article 142 of the Indian Constitution
- Article 142 allows the Supreme Court to pass any order necessary to do “complete justice” in any case.
- It supplements the powers already conferred upon the Supreme Court under the Constitution to guarantee that justice is done and in doing so the Court is not restrained by lack of jurisdiction or authority of law.
- The phrase ‘complete justice’ engrafted in Article 142(1) is the word of wide interpretation to meet situations created by legal errors or result of operation of statute law or law.
- Thus Article 142 is conceived to give the apex court the powers to meet the situations which cannot be effectively tackled by existing provisions of law.
Also read:
Supreme Court Removes Manipur MLA Under The 10th Schedule
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Attend Now
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Right of an accused to be defended
Mains level: Professional ethics for Lawyers (Paper IV)
Recently the Karnataka High Court observed that it is unethical and illegal for lawyers to pass resolutions against representing accused in court. This is not the first time that bar associations have passed such resolutions, despite a Supreme Court ruling that these are “against all norms of the Constitution, the statute and professional ethics”.
What does the Constitution say about the right of an accused to be defended?
- Article 22(1) gives the fundamental right to every person not to be denied the right to be defended by a legal practitioner of his or her choice.
- Article 14 provides for equality before the law and equal protection of the laws within the territory of India.
- Article 39A, part of the DPSP, states that equal opportunity to secure justice must not be denied to any citizen by reason of economic or other disabilities, and provides for free legal aid.
What has the Supreme Court said about such resolutions by bar associations?
- The Supreme Court referred to writer Thomas Paine, who had been tried for treason in England in 1792.
- Thomas Erskine, Attorney General for the Prince of Wales, was warned of dismissal if he defended Paine, but still took up the brief, saying: “… If the advocate refuses to defend from what he may think of the charge or of the defence, he assumes the character of the Judge…”
- The Supreme Court cited other historical examples of accused being defended — revolutionaries against British rule; alleged assailants of Mahatma Gandhi and Indira Gandhi; Nazi war criminals at the Nuremberg trials.
A matter of professional ethics
- The Supreme Court ruled that such resolutions are wholly illegal, against all traditions of the bar and against professional ethics.
- Every person however wicked, criminal, perverted or repulsive he may be regarded by society has a right to be defended in a court of law and correspondingly and it is the duty of the lawyer to defend him.
- It said such resolutions were against all norms of the Constitution, the statute and professional ethics, called these a disgrace to the legal community, and declared them null and void.
How are the professional ethics of lawyers defined?
- The Bar Council of India has Rules on Professional Standards, part of the Standards of Professional Conduct and Etiquette to be followed by lawyers under the Advocates Act.
- An advocate is bound to accept any brief in the courts or tribunals, at a fee consistent with his standing at the Bar and the nature of the case.
- The Rules provide for a lawyer refusing to accept a particular brief in “special circumstances”.
- Last year, The Uttarakhand HC clarified that these special circumstances refer to an individual advocate who may choose not to appear in a particular case, but who cannot be prohibited from defending an accused by any threat of removal of his membership of the bar association.
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Attend Now
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Not Much
Mains level: Debate over suitablity of women in combat roles of Indian Army
- The Supreme Court brought women officers in 10 streams of the Army on a par with their male counterparts in all respects, setting aside longstanding objections of the government.
- The case was first filed in the Delhi High Court by women officers in 2003 and had received a favourable order in 2010. But the order was never implemented and was challenged by the government.
Women in Army: Background of the case
- The induction of women officers in the Army started in 1992.
- They were commissioned for a period of five years in certain chosen streams such as Army Education Corps, Corps of Signals, Intelligence Corps, and Corps of Engineers.
- Recruits under the Women Special Entry Scheme (WSES) had a shorter pre-commission training period than their male counterparts who were commissioned under the Short Service Commission (SSC) scheme.
- In 2006, the WSES scheme was replaced with the SSC scheme, which was extended to women officers. They were commissioned for a period of 10 years, extendable up to 14 years.
- Serving WSES officers were given the option to move to the new SSC scheme or to continue under the erstwhile WSES.
- They were to be, however, restricted to roles in streams specified earlier — which excluded combat arms such as infantry and armoured corps.
2 key arguments shot down
- The Supreme Court rejected arguments against a greater role for women officers, saying this violated equality under the law.
- They were being kept out of command posts on the reasoning that the largely rural rank and a file will have problems with women as commanding officers. The biological argument was also rejected as disturbing.
- While male SSC officers could opt for permanent commission at the end of 10 years of service, this option was not available to women officers.
- They were, thus, kept out of any command appointment, and could not qualify for government pension, which starts only after 20 years of service as an officer.
- The first batch of women officers under the new scheme entered the Army in 2008.
Arguments by the govt.
- The government put forth other arguments before the Supreme Court to justify the proposal on the grounds of permanent commission, grants of pensionary benefits, limitations of judicial review on policy issues, occupational hazards, reasons for discrimination against women and rationalization on physiological limitations for employment in staff appointments.
- The apex court has rejected these arguments, saying they are “based on sex stereotypes premised on assumptions about socially ascribed roles of gender which discriminate against women”.
- It has also said that it only shows the need “to emphasise the need for change in mindsets to bring about true equality in the Army”.
Implications of the judgement
- The SC has done away with all discrimination on the basis of years of service for grant of PC in 10 streams of combat support arms and services, bringing them on a par with male officers.
- It has also removed the restriction of women officers only being allowed to serve in staff appointments, which is the most significant and far-reaching aspect of the judgment.
- It means that women officers will be eligible to tenant all the command appointments, at par with male officers, which would open avenues for further promotions to higher ranks for them.
- It also means that in junior ranks and career courses, women officers would be attending the same training courses and tenanting critical appointments, which are necessary for higher promotions.
Way Forward
- The implications of the judgment will have to be borne by the human resources management department of the Army, which will need to change policy in order to comply.
- But the bigger shift will have to take place in the culture, norms, and values of the rank and file of the Army, which will be the responsibility of the senior military and political leadership.
- After the Supreme Court’s progressive decision, they have no choice but to bite the proverbial bullet.
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Attend Now
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Not Much
Mains level: Paper 2- Making the electoral process free, fair and clean.
- The Supreme Court has strictly ordered political parties to publish the entire criminal history of their candidates for Assembly and Lok Sabha elections along with the reasons that goaded them to field suspected criminals over decent people.
SC’s deadline
- It ordered political parties to submit compliance reports with the Election Commission of India within 72 hours or risk contempt of court action.
- The information should be published in a local as well as a national newspaper as well as the parties’ social media handles.
- It should mandatorily be published either within 48 hours of the selection of candidates or less than two weeks before the first date for filing of nominations, whichever is earlier.
- The judgment is applicable to parties both at Central and State levels.
Information should be detailed
- The published information on the criminal antecedents of a candidate should be detailed and include the nature of their offences, charges framed against him, the court concerned, case number, etc.
- A political party should explain to the public through their published material how the “qualifications or achievements or merit” of a candidate, charged with a crime, impressed it enough to cast aside the smear of his criminal background.
- A party would have to give reasons to the voter that it was not the candidate’s “mere winnability at the polls” which guided its decision to give him a ticket to contest elections.
Why such a move?
- It appeared from the last four general elections that there has been an alarming increase in the incidence of criminals in politics.
- In 2004, 24% of the MPs had criminal cases pending against them; in 2009, that went up to 30%; in 2014 to 34%; and in 2019 as many as 43% of MPs had criminal cases pending against them, SC observed.
- The judgment was based on a contempt petition about the general disregard shown by political parties to a 2018 Constitution Bench judgment (Public Interest Foundation v. Union of India).
- In this judgment (2018), this court was cognizant of the increasing criminalisation of politics in India and the lack of information about such criminalisation among the citizenry”, SC observed.
Immediate Reason
- The immediate provocation is the finding that 46% of MPs have criminal records.
- The number might be inflated as many politicians tend to be charged with relatively minor offences —“unlawful assembly” and “defamation”.
- The real worry is that the current cohort of Lok Sabha MPs has the highest (29%) proportion of those with serious declared criminal cases compared to its recent predecessors.
Why are such tainted candidates inducted by political parties?
- Such candidates with serious records seem to do well despite their public image, largely due to their ability to finance their own elections and bring substantive resources to their respective parties.
- Some voters tend to view such candidates through a narrow prism: of being able to represent their interests by hook or by crook.
- Others do not seek to punish these candidates in instances where they are in contest with other candidates with similar records.
Significance of the move
- Either way, these unhealthy tendencies in the democratic system reflect a poor image of the nature of India’s state institutions and the quality of its elected representatives.
- The move signified the court’s alarm at the unimpeded rise of criminals, often facing heinous charges like rape and murder, encroaching into the country’s political and electoral scenes.
Way Forward
- While formally, the institutions of the state are present and subject to the electoral will of the people, substantively, they are still relatively weak and lackadaisical in governance and delivery of public goods.
- This has allowed cynical voters to elect candidates despite their dubious credentials and for their ability to work on a patronage system.
- While judicial pronouncements on making it difficult for criminal candidates to contest are necessary, only enhanced awareness and increased democratic participation could create the right conditions for the decriminalization of politics.
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Attend Now
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Not Much
Mains level: Protection of SCs and STs against caste based atrocities
The Supreme Court has upheld the SCs/STs (Prevention of Atrocities) Amendment Act of 2018, which nullified it’s own controversial March 20, 2018 judgement. Earlier judgment had diluted the original 1989 legislation, saying they were using its provisions to file false criminal complaints against innocent persons.
Why such ruling?
- The 2018 Act had nullified a March 20 judgment of the Supreme Court, which allowed anticipatory bail to those booked for committing atrocities against Scheduled Castes and Scheduled Tribes members.
- The original 1989 Act bars anticipatory bail.
- The Supreme Court verdict saw a huge backlash across the country. Several died in ensuing protests and property worth crores of rupees was destroyed.
- The government reacted by filing a review petition in the Supreme Court and subsequently amended the 1989 Act back into its original form.
- The government had enacted the Amendments, saying the SCs and STs continued to face the same social stigma, poverty and humiliation which they had been subjected to for centuries.
Why was the SC/ST Act enacted?
- Since crimes against SCs and STs are fundamentally hate crimes, the Rajiv Gandhi enacted the Act in 1989.
- It gave furtherance to the provisions for abolition of untouchability (Article 17) and equality (Articles 14, 15).
Why it was amended?
- The Bench reasoned that human failing and not caste is the reason behind the lodging of false criminal complaints.
- The Supreme Court condemned its own earlier judgment, saying it was against “basic human dignity” to treat all SC/ST community members as “a liar or crook.”
- Caste of a person cannot be a cause for lodging a false report, the verdict observed.
- Members of the SCs and STs, due to backwardness, cannot even muster the courage to lodge an FIR, much less, a false one, the judgment noted.
The Subhash Kashinath Mahajan case
- Mahajan was Director of Technical Education in Maharashtra.
- Two non-SC officers had made an adverse entry on the character and integrity of a Dalit employee, whom Mahajan in 2011 denied sanction for prosecution against those officers.
- The denial was challenged on the ground that the state government and not the director was the competent authority.
- The apex Court held that safeguards against blackmail are necessary as by way of rampant misuse, complaints are largely being filed against public servants with oblique motive for the satisfaction of vested interests.
In what manner had the 2018 judgment diluted provisions for arrest?
ANTICIPATORY BAIL
- In section 18 of the Act, Parliament had laid down that the provision of anticipatory bail under Section 438 of the CrPC of 1973 will not be available to an accused under the Act.
- The provision of anticipatory bail was introduced for the first time on the recommendation of 41st Law Commission in 1973.
- It is a statutory right, not part of the right to life and personal liberty under Article 21 of the Constitution, and thus there is no fundamental right to anticipatory bail.
- In the 2018 judgment, the Court laid down safeguards, including provisions for anticipatory bail and a “preliminary enquiry” before registering a case under the Act.
- While review the Bench said Section 18 was enacted to instil a sense of deterrence and relied on Kartar Singh (1994) in which the court had held that denial of anticipatory bail does not violate Article 21.
FIR
- The court had observed that “liberty of one cannot be sacrificed to protect another”, and the “Atrocities Act cannot be converted into charter for exploitation or oppression by unscrupulous persons or by police for extraneous reasons”.
- He ordered that neither is an FIR to be immediately registered nor are arrests to be made without a preliminary inquiry by an SSP.
- An arrest can only be made if there is “credible” information and police officer has “reason to believe” that an offence was committed.
- In the review judgment, Justice Mishra said public servants already have a remedy in false cases under CrPC Section 482 and can get such FIRs quashed by High Courts.
- He rejected the need of an SSP’s approval for arrest.
PERMISSION
- In 2018, the court had said that even if a preliminary inquiry is held and a case registered, arrest is not necessary, and that no public servant is to be arrested without the written permission of the appointing authority.
- The court extended the benefit to other citizens and said they cannot be arrested without the written permission of the SSP of the district.
- In review the court said that the decision on arrest is to be taken by the investigating authority, not the appointing authority.
Were other provisions diluted?
- The court had observed that interpretation of Atrocities Act should promote constitutional values of fraternity and integration of the society.
- This may require ‘check on false implication of innocent citizens on caste lines’.
- Observing that the law should not result in caste hatred, the court overlooked the fact that the Act had to be enacted due to caste hatred.
- The review judgment said that such riders for registering a report are wrong and it would give an advantage to upper castes whose complaints can be registered without any such inquiry.
How frequently do SCs/STs face atrocities?
- A crime is committed against an SC every 15 minutes. Six SC women are raped every day on an average.
- Between 2007 and 2017, there was a 66 per cent growth in crimes against SCs.
- Data from the National Crime Record Bureau, which the 2018 judgment was based on, showed cases of rape of SC women had doubled in 10 years.
Assist this newscard with:
[Burning Issue] SC/ST Prevention of Atrocities Act
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Attend Now
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Not Much
Mains level: Prision reforms
The Supreme Court has taken up a report on Prison Reforms for hearing on before a Bench led by CJI Sharad A. Bobde.
About the Committee
- The court had in September 2018 appointed the Justice Roy Committee to examine the various problems plaguing prisons, from overcrowding to lack of legal advice to convicts to issues of remission and parole.
- Besides Justice Roy, a former Supreme Court judge, the members included an IG, Bureau of Police Research and Development, and the DG (Prisons), Tihar Jail.
Various recommendations
- Every new prisoner should be allowed a free phone call a day to his family members to see him through his first week in jail.
- This is among the several recommendations — besides modern cooking facilities, canteens to buy essential items and trial through video-conferencing.
- The report described the preparation of food in kitchens as “primitive and arduous”.
- The kitchens are congested and unhygienic and the diet has remained unchanged for years now.
Staffing the prisons
- The court said overcrowding is a common bane in the under-staffed prisons. The Prison Department has a perennial average of 30%-40% vacancies.
- Both the prisoner and his guard equally suffer human rights violation.
Speedy trial
- The undertrial prisoner, who is yet to get his day in court, suffers the most, languishing behind bars for years without a hearing.
- Speedy trial remains one of the best ways to remedy the unwarranted phenomenon of over-crowding.
- The report concluded that most prisons are “teeming with undertrial prisoners”, whose numbers are highly disproportionate to those of convicts.
- It said there should be at least one lawyer for every 30 prisoners.
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Attend Now
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Gram Nyayalayas
Mains level: Gram Nyayalayas and its jurisdiction
The Supreme Court has directed the states, which are yet come out with notifications for establishing Gram Nyayalayas, to do so within four weeks.
What are Gram Nyayalayas?
- Gram Nyayalayas were established for speedy and easy access to the justice system in the rural areas across the country.
- The Gram Nyayalayas Act came into force on October 2, 2009.
- In terms of Section 3(1) of the Act, it is for the State Governments to establish Gram Nyayalayas in consultation with the respective High Courts.
- The Act authorizes the Gram Nyayalaya to hold mobile court outside its headquarters.
- However, the Act has not been enforced properly, with only 208 functional Gram Nyayalayas in the country ( Sept. 2019) against a target of 5000 such courts.
- The major reasons behind the non-enforcement include financial constraints, reluctance of lawyers, police and other government officials.
Features of the Gram Nyayalayas
- Gram Nyayalaya are established generally at headquarter of every Panchayat at intermediate level or a group of contiguous panchayat in a district where there is no panchayat at intermediate level.
- The Gram Nyayalayas are presided over by a Nyayadhikari, who will have the same power, enjoy same salary and benefits of a Judicial Magistrate of First Class.
- Such Nyayadhikari are to be appointed by the State Government in consultation with the respective High Court.
Jurisdiction
- A Gram Nyayalaya have jurisdiction over an area specified by a notification by the State Government in consultation with the respective High Court.
- The Court can function as a mobile court at any place within the jurisdiction of such Gram Nyayalaya, after giving wide publicity to that regards.
- The Gram Nyayalayas have both civil and criminal jurisdiction over the offences and nature of suits specified in the First, Second and Third schedule of the Act.
- The pecuniary jurisdiction of the Nyayalayas are fixed by the respective High Courts.
- Appeals in criminal matter can be made to the Sessions Court in the respective jurisdiction and in civil matters to the District Court within a period of one month from the date of judgment.
Trials
- Gram Nyayalayas can follow special procedures in civil matters, in a manner it deem just and reasonable in the interest of justice.
- Civil suits are proceeded on a day-to-day basis, with limited adjournments and are to be disposed of within a period of six months from the date of institution of the suit.
- In execution of a decree, the Court can allow special procedures following rules of natural justice.
- Gram Nyayalayas allow for conciliation of the dispute and settlement of the same in the first instance.
- Gram Nyayalayas has been given power to accept certain evidences which would otherwise not be acceptable under Indian Evidence Act.
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Attend Now
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Asiatic and African Cheetah
Mains level: Translocation of Species and its impacts
The Supreme Court lifted its seven-year stay on a proposal to introduce African cheetahs from Namibia into the Indian habitat on an experimental basis. The plan was to revive the Indian cheetah population.
Asiatic cheetahs in India
- In 1947, Maharaja Ramanuj Pratap Singh of Deoghar of Koriya, Chhattisgarh — who was infamous for shooting over 1,150 tigers — reportedly killed the last known Asiatic cheetah in India.
- In that year, a few miles from Ramgarh village in the state, the Maharaja killed three of the animals — brothers — during a night drive.
- After that, the Maharaja’s kin continued to report the presence of a few stragglers in the forests of Surguja district, including a pregnant female, up until the late 1960s.
- Some more unconfirmed sightings were reported in 1951 and 1952, from the Orissa-Andhra Pradesh border and Chittoor district.
- The latter sighting is generally accepted to be the final credible sighting of a cheetah in India. In 1952, the cheetah was officially declared extinct from India.
African cheetah and Asiatic cheetah
- Before Namibia, India had approached Iran for Asiatic cheetahs, but had been refused.
- The Asiatic cheetah is classified as a “critically endangered” species by the IUCN Red List, and is believed to survive only in Iran.
- From 400 in the 1990s, their numbers are estimated to have plummetted to 50-70 today, because of poaching, hunting of their main prey (gazelles) and encroachment on their habitat.
- ‘Critically endangered’ means that the species faces an extremely high risk of extinction in the wild.
Why does NTCA want to reintroduce cheetahs?
- A section of conservationists has long advocated the reintroduction of the species in the country.
- Reintroductions of large carnivores have increasingly been recognised as a strategy to conserve threatened species and restore ecosystem functions.
- The cheetah is the only large carnivore that has been extirpated, mainly by over-hunting in India in historical times.
- India now has the economic ability to consider restoring its lost natural heritage for ethical as well as ecological reasons.
Why was the project halted?
- The court was also worried whether the African cheetahs would find the sanctuary a favourable clime as far as abundance of prey is concerned.
- Those who challenged the plan argued that the habitat of cheetahs needed to support a genetically viable population.
What did court say?
- The Supreme Court made it clear that a proper survey should be done to identify the best possible habitat for the cheetahs.
- Every effort should be taken to ensure that they adapt to the Indian conditions.
- The committee would help, advice and monitor the NTCA on these issues. The action of the introduction of the animal would be left to the NTCA’s discretion.
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Attend Now
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Relevant sections of the CrPC and the Telegraph Act
Mains level: Right to internet access and various issues
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Attend Now
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Sec. 144 of CRPC
Mains level: Internet shutdown as an infringement of FR
Directing the government to mandatorily publish all orders permitting Internet shutdowns, the Supreme Court has for the first time set the stage for challenging suspension orders before courts.
What triggered the SC?
- India tops the list of Internet shutdowns globally. According to Software Freedom Law Center’s tracker, there have been 381 shutdowns since 2012, 106 of which were in 2019.
- The ongoing shutdown in Kashmir is the longest ever in any democratic country.
The prime mover for Supreme Court
- The Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017 issued under the Telegraph Act deals with restricting Internet access.
- It does not provide for publication or notification of the order suspending Internet, the apex court mandated that such orders must be made available to the public.
- The court declared that it is a “settled principle of law, and of natural justice” that requires publication of such orders, “particularly one that affects lives, liberty and property of people”.
- This allows individuals to now challenge the orders before courts in J&K and rest of India.
Internet suspension orders are subjected to Judicial Review
- In the wake of protests against the new citizenship law, Internet services were suspended temporarily in parts of Uttar Pradesh, Delhi and Karnataka.
- There should not be excessive burden on free speech even if complete prohibition is imposed, and the government has to justify imposition of such prohibition and explain why lesser alternatives were inadequate, the bench stated.
- It ruled that Restrictions are to be imposed in an emergency. Hence they must be proportionate to the concern. Their objective must be legitimate rather than cavalier.
- Authorities must necessarily consider an alternative and least restrictive mechanism before opting to restrict rights. Every decision to impose restriction should be backed by sufficient material and amenable to judicial review.
Pacing up with technology
- The bench also noted that the law needs to keep pace with technological development:
- We need to note that the law should imbibe the technological development and accordingly mould its rules so as to cater to the needs of society.
- Non-recognition of technology within the sphere of law is only a disservice to the inevitable.
Justifying the Kashmir shutdown
- Lastly, the court mandated that all orders regarding the Kashmir case be made public, and to provide essential services such as e-banking and hospitals immediately.
- What the centre was arguing in this case was that this is a matter of national security given that it pertains to Kashmir with a history of militancy.
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Attend Now