💥UPSC 2027,2028 Mentorship (April Batch) + Access XFactor Notes & Microthemes PDF
Talk to mentor

Civilsdaily

Login

Type: SC Judgements

  • J&K – The issues around the state

    Debate around Article 370 in Supreme Court

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

    Note4Students

    From UPSC perspective, the following things are important:

    Prelims level: Article 370

    Mains level: Read the attached story

    article 370

    Central Idea

    • There are ongoing Supreme Court deliberations regarding the abrogation of Article 370.
    • This article delves into the historical context, legal intricacies, and broader socio-political implications of this pivotal constitutional provision.

    Historical Context of Accession

    • Geo-Political Situation: Jammu and Kashmir’s unique special status originated from the tumultuous geo-political circumstances following India’s Independence and Partition.
    • Standstill Agreements: Maharaja Hari Singh’s decision to enter into “Standstill Agreements” with both India and Pakistan highlighted the State’s strategic positioning and economic interests.
    • Instrument of Accession: Faced with internal turmoil and external aggression, Maharaja Hari Singh’s Instrument of Accession sought India’s military assistance while retaining significant autonomy in internal matters.

    Evolution of Article 370

    • Instrument of Accession’s Reflection: Article 370 was crafted in line with the Instrument of Accession’s principles, preserving the unique terms of Jammu and Kashmir’s association with India.
    • Autonomy Preserved: This provision aimed to strike a balance between safeguarding the State’s autonomy and integrating it into the larger Indian Union.
    • Limited Legislative Authority: Article 370 outlined a limited scope for Parliament to legislate on certain subjects, primarily defense, foreign affairs, and communications, with consultation and concurrence requirements.
    • Special Relationship: This provision established Jammu and Kashmir’s distinct relationship with India, emphasizing that its integration would be contingent on mutual consent.

    Abrogation of Article 370

    • Long-Standing Opposition: The abrogation of Article 370 was a persistent demand of the mainstream political party and its precursor.
    • Multistage Process: The process of abrogation involved presidential orders, amendments, and parliamentary resolutions, culminating in its nullification.

    Petitioners’ Arguments against Revocation

    • Lack of Consultation: Senior litigant accused the Union government of ignoring the will of the people of Jammu and Kashmir during the Article 370 abrogation process.
    • Series of Executive Acts: He highlighted that the abrogation was executed through a series of executive acts, starting from the dissolution of the Jammu and Kashmir Legislative Assembly and state government.
    • Changing Provisions: He pointed out that the proviso to Article 370 (3) was altered to sidestep the need for the recommendation of the now-defunct Jammu and Kashmir Constituent Assembly before rendering Article 370 inoperative.

    Nature of Relationship

    • Federal vs. Quasi-Federal: Litigant underscored that the relationship between the Union government and Jammu and Kashmir was purely federal, distinct from other states’ quasi-federal relationships.
    • Consent of the State: He argued that such significant decisions should have required the consent of the state and its people, considering the unique federal structure.

    CJI’s Inquiries

    • Permanent Character of Article 370: The CJI raised a significant question about the permanence of Article 370 in the Constitution. He inquired whether a constitutional amendment was required to transform its temporary nature into permanence.
    • Jammu and Kashmir Constituent Assembly: He asked whether the absence of abrogation by the Jammu and Kashmir Constituent Assembly before its dissolution in 1957 should be considered as deeming Article 370 permanent.

    Supreme Court’s Interpretation

    Ans. No Comparison with Brexit-Type Referendum

    • Brexit Referendum: The CJI referenced the Brexit referendum as a political decision taken in the U.K. which does not align with India’s constitutional framework.
    • Uniqueness of Constitutional Democracy: India’s democracy is grounded in the Constitution, and thus decisions like Article 370’s abrogation involve adherence to established legal procedures.

    Conclusion

    • The ongoing courtroom exchange underlines the essence of constitutional democracy in India, wherein the expression of public opinion occurs through established democratic mechanisms.
    • The Chief Justice’s observations and the petitioners’ arguments shed light on the intricate balance between executive actions, parliamentary representation, and the preservation of constitutional principles.

    Get an IAS/IPS ranker as your 1: 1 personal mentor

  • Electoral Reforms In India

    Supreme Court verdict on ECI appointments

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

    Note4Students

    From UPSC perspective, the following things are important:

    Prelims level: Election Commissioner, ECI

    Mains level: Read the attached story

    Central idea: The Supreme Court has directed the central government to form a permanent selection committee consisting of consist of the Prime Minister, Leader of the Opposition, and the Chief Justice of India or his nominee to recommend the appointment of Election Commissioners.

    Supreme Court Ruling

    • The Supreme Court ruled that the appointment of the CEC should be made through a transparent and participatory process.
    • It directed the government to set up a permanent selection committee to recommend names for the appointment of the CEC.
    • The committee will consist of the Prime Minister, Leader of Opposition, and Chief Justice of India or his nominee.
    • The court emphasized that the appointment process should ensure the independence of the Election Commission and be free from executive interference.

    Why such move?

    • The ruling will bring more transparency and accountability to the appointment process of the CEC.
    • It will prevent any undue influence by the ruling government in the appointment of the CEC.
    • The ruling also reinforces the importance of an independent Election Commission in ensuring the fairness of the democratic process in India.

    Why did the SC debate the issue?

    • In 2015, a PIL was filed challenging the constitutional validity of the practice of the Centre appointing members of the Election Commission.
    • In October 2018, a two-judge bench of the SC referred the case to a larger bench since it would require a close examination of Article 324 of the Constitution.

    What is the challenge?

    Article 324(2) states that the President appoints the Chief Election Commissioner and other Election Commissioners, subject to any law made by Parliament.

    • Absence of law: The crux of the challenge is that since there is no law made by Parliament on this issue.
    • Urge for judicial intervention: The Court must step in to fill the constitutional vacuum, urges the PIL.
    • Question of executive non-interference: This examination also leads to the larger question of separation of powers and if the judiciary is overstepping its role in filling this gap in the law.

    About Election Commission of India

    • The ECI is a constitutional authority whose responsibilities and powers are prescribed in the Constitution of India under Article 324.
    • In the performance of its functions, the Election Commission is insulated from executive interference.
    • It is the Commission that decides the election schedules for the conduct of elections, whether general elections or by-elections.
    • ECI decides on the location of polling stations, assignment of voters to the polling stations, location of counting centres, arrangements to be made in and around polling stations and counting centres and all allied matters.

    Litigations against EC

    • The decisions of the Commission can be challenged in the High Court and the Supreme Court of India by appropriate petitions.
    • By long-standing convention and several judicial pronouncements, once the actual process of elections has started, the judiciary does not intervene in the actual conduct of the polls.

    Why is EC under lens these days?

    • Executive interference: ECs are expected to maintain distance from the executive — a constitutional safeguard to insulate the commission from external pressure and allow it to continue as an independent authority.
    • Violating official channels: The EC’s communication with the Government on election matters is through the bureaucracy — either with its administrative ministry — the Law Ministry or the Home Ministry.
    • Breach of protocol: The Law Ministry spells the fine print on law for the country and is expected not to breach the constitutional safeguard provided to the commission to ensure its autonomy.

    Recent incidence of criticisms

    Ans. Partiality in Elections

    • Over the last couple of years, several actions and omissions of the commission have come in for criticism.
    • Nearly 66 former bureaucrats in a letter addressed to the President, expressed their concern over the working of the Election Commission.
    • They felt was suffering from a credibility crisis, citing various violations of the model code of conduct during the 2019 Lok Sabha Elections.

    Importance of ECI for India

    • Conduction of Election: The ECI has been successfully conducting national as well as state elections since 1952.
    • Electoral participation: In recent years, however, the Commission has started to play a more active role to ensure greater participation of people.
    • Discipline of political parties: It had gone to the extent of disciplining the political parties with a threat of derecognizing if the parties failed in maintaining inner-party democracy.
    • Upholds federalism: It upholds the values enshrined in the Constitution viz, equality,
      equity, impartiality, independence; and rule of law in superintendence, direction, and control over electoral governance.
    • Free and fair elections: It conducts elections with the highest standard of credibility, freeness, fairness, transparency, integrity, accountability, autonomy and professionalism.

    Issues with ECI

    • Flaws in the composition: The Constitution doesn’t prescribe qualifications for members of the EC. They are not debarred from future appointments after retiring or resigning.
    • No security of tenure: Election commissioners aren’t constitutionally protected with the security of tenure.
    • Partisan role: The EC has come under the scanner like never before, with increasing incidents of breach of the Model Code of Conduct in the 2019 general elections.
    • Political favor: The opposition alleged that the ECI was favoring the ruling party by giving a clean chit to the model code of conduct violations made by the PM.
    • Non-competence: Increased violence and electoral malpractices under influence of money have resulted in political criminalization, which ECI is unable to arrest.

     

    Attempt UPSC 2024 Smash Scholarship Test | FLAT* 100% OFF on UPSC Foundation & Mentorship programs

    Get your Rs 10,000 worth of UPSC Strategic Package for FREE | PDFs, Zoom sessions, Tests, & Mentorship

    Get an IAS/IPS ranker as your 1: 1 personal mentor

  • Euthanasia Mercy Killing

    What is a Living Will?

    SC Judgements | Polity | Mains Paper 2: Indian Constitution – historical underpinnings, evolution, features, amendments, significant provisions and basic structure

    Note4Students

    From UPSC perspective, the following things are important:

    Prelims level: Living Will

    Mains level: Passive Euthanasia in India

    A five-judge Bench of the Supreme Court headed by Justice K M Joseph agreed to significantly ease the procedure for passive euthanasia in the country by altering the existing guidelines for ‘living wills’.

    What is Living Will?

    • A living will is a legal document detailing the type and level of medical care one wants to receive if they are unable to make decisions or communicate their wishes when care is needed.
    • A living will addresses many life-threatening treatments and procedures, such as resuscitation, ventilation, and dialysis.
    • A person can appoint a healthcare proxy to make decisions regarding care when they are unable to do so.
    • A living trust is a legal document that addresses how the assets of the incapacitated person should be managed.
    • People can enlist the services of an estate planner or an attorney to help draft or review a living will.

    Living Will in India

    • It was first laid down in its 2018 judgment in Common Cause vs. Union of India & Anr, which allowed passive euthanasia.
    • It was in response to the Aruna Shanbaug Case where protagonists were arguing in favor of mercy killing to Aruna.
    • The guidelines pertained to questions such as who would execute the living will, and the process by which approval could be granted by the medical board.
    • It declared that an adult human being having mental capacity to take an informed decision has right to refuse medical treatment including withdrawal from life-saving devices.

    What is Euthanasia?

    • Euthanasia refers to the practice of an individual deliberately ending their life, oftentimes to get relief from an incurable condition, or intolerable pain and suffering.
    • Euthanasia, which can be administered only by a physician, can be either ‘active’ or ‘passive’.
    • Active euthanasia involves an active intervention to end a person’s life with substances or external force, such as administering a lethal injection.
    • Passive euthanasia refers to withdrawing life support or treatment that is essential to keep a terminally ill person alive.

    What is the legal history of this matter?

    • Passive euthanasia was legalized in India by the Supreme Court in 2018, contingent upon the person having a ‘living will’.
    • It must be a written document that specifies what actions should be taken if the person is unable to make their own medical decisions in the future.
    • In case a person does not have a living will, members of their family can make a plea before the High Court to seek permission for passive euthanasia.

    What did the SC rule in 2018?

    • The Supreme Court allowed passive euthanasia while recognising the living wills of terminally-ill patients who could go into a permanent vegetative state.
    • It was required to be signed by an executor (the individual seeking euthanasia) in the presence of two attesting witnesses and to be further countersigned by a Judicial Magistrate of First Class (JMFC).
    • The court issued guidelines regulating this procedure until Parliament passed legislation on this.
    • However, this has not happened, and the absence of a law on this subject has rendered the 2018 judgment the last conclusive set of directions on euthanasia.

    What was the situation before 2018?

    • P Rathinam vs Union Of India, 1994: In a case challenging the constitutional validity of Section 309 of the IPC — which mandates up to one year in prison for attempt to suicide the Supreme Court deemed the section to be a “cruel and irrational provision”.
    • Gian Kaur vs The State Of Punjab, 1996: Two years later, a five-judge Bench of the court overturned the decision in P Rathinam, saying that the right to life under Article 21 did not include the right to die, and only legislation could permit euthanasia.
    • Aruna Ramchandra Shanbaug vs Union Of India & Ors, 2011: SC allowed passive euthanasia for Aruna Shanbaug, a nurse who had been sexually assaulted in Mumbai in 1973, and had been in a vegetative state since then. The court made a distinction between ‘active’ and ‘passive’, and allowed the latter in “certain situations”.

    Key observations by Law Commission

    • Earlier, in 2006, the Law Commission of India in its 196th Report’ had said that a doctor who obeys the instructions of a competent patient to withhold or withdraw medical treatment does not commit a breach of professional duty and the omission to treat will not be an offence.
    • It had also recognised the patient’s decision to not receive medical treatment, and said it did not constitute an attempt to commit suicide under Section 309 IPC.
    • Again, in 2008, the Law Commission’s ‘241st Report On Passive Euthanasia: A Relook’ proposed legislation on ‘passive euthanasia’, and also prepared a draft Bill.

    What was the old cumbersome process?

    • The treating physician was required to constitute a board comprising three expert medical practitioners from specific but varied fields of medicine, with at least 20 years of experience.
    • They would decide whether to carry out the living will or not.
    • If the medical board granted permission, the will had to be forwarded to the District Collector for his approval.
    • The Collector was to then form another medical board of three expert doctors, including the Chief District Medical Officer.
    • Only if this second board agreed with the hospital board’s findings would the decision be forwarded to the JMFC, who would then visit the patient and examine whether to accord approval.
    • This cumbersome process will now become easier.

    Recent changes after the SC’s order this week

    • Medical board: Instead of the hospital and Collector forming the two medical boards, both boards will now be formed by the hospital.
    • 5 year experienced doctor: The requirement of 20 years of experience for the doctors has been relaxed to five years.
    • Magistrate approval not required: The requirement for the Magistrate’s approval has been replaced by an intimation to the Magistrate.
    • No witness required: The 2018 guidelines required two witnesses and a signature by the Magistrate; now a notary or gazetted officer can sign the living will in the presence of two witnesses instead of the Magistrate’s countersign.
    • HC for appeal: In case the medical boards set up by the hospital refuses permission, it will now be open to the kin to approach the High Court which will form a fresh medical team.

    Different countries, different laws

    • NETHERLANDS, LUXEMBOURG, BELGIUM allow both euthanasia and assisted suicide for anyone who faces “unbearable suffering” that has no chance of improvement.
    • SWITZERLAND bans euthanasia but allows assisted dying in the presence of a doctor or physician.
    • CANADA had announced that euthanasia and assisted dying would be allowed for mentally ill patients by March 2023; however, the decision has been widely criticised, and the move may be delayed.
    • UNITED STATES has different laws in different states. Euthanasia is allowed in some states like Washington, Oregon, and Montana.
    • UNITED KINGDOM considers it illegal and equivalent to manslaughter.

    Justification for Euthanasia/Assisted Suicide

    • It provides a way to relieve extreme pain.
    • Euthanasia can save life of many other people by donation of vital organs.

    Conclusion

    • India officially recognizes that- “every single citizen is entitled to and reserves the right to die with dignity.”
    • Hon’ble Supreme Courts’ recent updated guidelines are a major move in this direction.

     

    Crack Prelims 2023! Talk to our Rankers

    (Click) FREE 1-to-1 on-call Mentorship by IAS-IPS officers | Discuss doubts, strategy, sources, and more

    Get an IAS/IPS ranker as your 1: 1 personal mentor

  • Judicial Appointments Conundrum Post-NJAC Verdict

    Under Constitution, law declared by the Supreme Court is binding on all

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

    Note4Students

    From UPSC perspective, the following things are important:

    Prelims level: Article 141

    Mains level: Doctrine of Precedence

    law

    Vice President Jagdeep Dhankhar questioned the landmark 1973 Kesavananda Bharati case verdict that gave the basic structure doctrine, saying it set a bad precedent and if any authority questions Parliament’s power to amend the Constitution, it would be difficult to say ‘we are a democratic nation’.

    What did the SC say?

    • Vice-President’s public criticism of the National Judicial Appointments Commission (NJAC) judgment may be seen as comments by a high constitutional authority against “the law of the land” (Art. 141).
    • That is, as long as the NJAC judgment, which upholds the collegium system of judicial appointments, exists, the court is bound to comply with the verdict.
    • The Parliament is free to bring a new law on judicial appointments, possibly through a constitutional amendment, but that too would be subject to judicial review.

    What is Article 141?

    • Article 141 provides that the law declared by the Supreme Court shall be binding on all courts within the territory of India.
    • The law declared has to be construed as a principle of law that emanates from a judgment, or an interpretation of law or judgment by the Supreme Court, upon which, the case is decided.
    • This article forms the basis of Doctrine of Precedent in India.

    What has the VP accused the judiciary of?

    • Dilution of Parliamentary Sovereignty: The Vice-President had remarked that judicial review, as was done in the case of the NJAC law, diluted parliamentary sovereignty. He had used terms like “one-upmanship”.
    • Curb on Legislature: The Vice-President had said he did not “subscribe” to the landmark Kesavananda Bharati judgment of 1973 which limited the Parliament’s power under Article 368 to amend the Constitution.
    • Disregard to the mandate of people: Dhankhar said no institution can wield power or authority to neutralise the mandate of people.

    Notes for Aspirants

    A classic observation in this regard was made by Chief Justice Patanjali Shastri in State of Madras versus V.G. Row (1952).  Justice Shastri’s words were reproduced by Chief Justice J.S. Khehar in his lead opinion for the Constitution Bench in the NJAC case in October 2015.

    (1) Actual nature of Judicial Review

    • Justice Shastri said judicial review was undertaken by the courts “not out of any desire to tilt at legislative authority in a crusader’s spirit, but in discharge of a duty plainly laid down upon them by the Constitution”.
    • The Kesavananda Bharati verdict (1973) had made it clear that judicial review is not a means to usurp parliamentary sovereignty.
    • It is a “system of checks and balances” to ensure constitutional functionaries do not exceed their limits.

    (2) Limitations to Article 368

    • Article 368 postulates only a ‘procedure’ for amendment of the Constitution.
    • The same could not be treated as a ‘power’ vested in the Parliament to amend the Constitution so as to alter the ‘core’ of the Constitution, which has also been described as the ‘basic structure’ of the Constitution.

    Back2Basics: Doctrine of Precedent

    • Any judicial system’s structure places a high priority on the notion of precedent.
    • It suggests that a judgement made by a court at the top of the judicial food chain binds courts below it.
    • According to Article 141 of the Indian Constitution, all lower courts must abide by the Supreme Court’s interpretation of the law.
    • Similar to this, a State’s High Court’s decision is binding on all Lower Courts within that state, and a division bench of a State High Court’s ruling is binding on the Justices sitting singly in that High court.

     

    Crack Prelims 2023! Talk to our Rankers

    (Click) FREE 1-to-1 on-call Mentorship by IAS-IPS officers | Discuss doubts, strategy, sources, and more

    Get an IAS/IPS ranker as your 1: 1 personal mentor

  • Freedom of Speech – Defamation, Sedition, etc.

    Ministers’ Right to Free Speech and Issues

    SC Judgements | Polity | Mains Paper 2: Indian Constitution – historical underpinnings, evolution, features, amendments, significant provisions and basic structure

    Note4Students

    From UPSC perspective, the following things are important:

    Prelims level: Freedom of speech and reasonable restrictions

    Mains level: Political free speech

    minister

    The Supreme Court has held that there is no reason to impose “additional restrictions” on the right to free speech of Ministers and the government is not vicariously liable for disparaging remarks made by them, even if the comments are traceable to state affairs or meant to protect the government.

    Why are we discussing this?

    • Many politicians make unwarranted statements and tender an apology in return.
    • The PM or the CM does not have disciplinary control over the members of the Council of Ministers.
    • In a country like ours, where there is a multi-party system and where coalition Governments are often formed, it is not possible at all times for the whip to control the politician’s behavior.
    • A derogatory speech that closely resembles hate speech cannot fall within the ambit of the free speech right.

    Do ministers and lawmakers have absolute freedom of speech?

    • Scope: Ministers and lawmakers enjoy the freedom of speech and expression under Article 19(1) of the Constitution as other citizens and additional restrictions cannot be imposed to curb their right to free speech.
    • Restrictions: A five-judge Constitution bench held that curbs on free speech cannot extend beyond what is prescribed under Article 19(2) of the Constitution imposes reasonable restrictions and applies equally on all citizens.

    What is the case?

    • The proceedings in the case began when the top court took cognisance of a controversial statement made by former UP minister in July 2016.
    • He had allegedly termed a gang rape case as part of a “political conspiracy”. While he was let off with an unconditional apology, the Court agreed to examine the larger issue.
    • In October 2017, a three-judge bench referred the matter to the constitution bench to decide on various aspects of the matter.

    Key issues examined

    • Free speech and sensitive issues: The top priority was to examine whether ministers, public functionaries and lawmakers can claim freedom of speech while expressing views on sensitive matters.
    • Free speech and state matters: Another key aspect of the matter was whether a statement by a minister in relation to any affairs of the State or for the protection of government can be attributed vicariously to the government itself.

    What does Article 19 say?

    • Freedom: Article 19(1) (a) guarantees the freedom of speech and expression to all citizens. It is the first condition of liberty and plays an important role in forming public opinion.
    • Restrictions: As per Article 19(2), restrictions can be imposed upon the freedom of speech and expression in the interests of:
    1. Sovereignty and integrity of India,
    2. Security of the state,
    3. Friendly relations with foreign states,
    4. Public order, decency or morality, or
    5. In relation to contempt of court,
    6. Defamation, or
    7. Incitement to an offense

    What does the judgment say about free speech restrictions?

    • Citizens had the right to petition the Court for violations of Article 19 (freedom of expression) and Article 21 (right to life).
    • A statement made by the Minister, inconsistent with the rights of the citizens, may not by itself be actionable.
    • It is not possible to extend this concept of collective responsibility to any and every statement orally made by a Minister outside the House of the People/Legislative Assembly.

    Way forward

    • Legal framework: A proper legal framework was necessary before taking action as a constitutional tort.
    • Political will: Parliament could enact legislation or code to restrain citizens in general and public functionaries in particular from making disparaging or vitriolic remarks against fellow citizens.
    • Code of conduct: Likewise, political parties should come up with a code of conduct to regulate and control the actions and speech of their functionaries and members.

     

    Click and get your FREE Copy of CURRENT AFFAIRS Micro Notes

    (Click) FREE 1-to-1 on-call Mentorship by IAS-IPS officers | Discuss doubts, strategy, sources, and more

    Get an IAS/IPS ranker as your 1: 1 personal mentor

  • Mother and Child Health – Immunization Program, BPBB, PMJSY, PMMSY, etc.

    All women have Right to Legal and Safe Abortion: Supreme Court

    SC Judgements | Polity | Mains Paper 2: Indian Constitution – historical underpinnings, evolution, features, amendments, significant provisions and basic structure

    Note4Students

    From UPSC perspective, the following things are important:

    Prelims level: MRTP Act

    Mains level: Abortion rights debate

    The Supreme Court has held that all women, irrespective of their marital status, are entitled to safe and legal abortion till 24 weeks of pregnancy under the Medical Termination of Pregnancy (MTP) Act.

    A case for safe abortion

    • A Bench led by Justice D.Y. Chandrachud was hearing the appeal of a woman who wanted to abort her 24-week pregnancy after her relationship failed and her partner left her.
    • The lower court had taken an “unduly restrictive view” that her plea for a safe abortion was not covered under the Medical Termination of Pregnancy Act.
    • This was since the pregnancy arose from a consensual relationship outside wedlock.

    What was the last amendment?

    • The court noted that an amendment to the Act in 2021 had substituted the term ‘husband’ with ‘partner’, a clear signal that the law covered unmarried women within its ambit.

    Reiterating the live-in recognition

    • Chastising the lower court, the Bench said live-in relationships had already been recognised by the Supreme Court.
    • There were a significant number of people in social mainstream who see no wrong in engaging in pre-marital sex.
    • The law could not be used to quench “notions of social morality” and unduly interfere in their personal autonomy and bodily integrity.

    About Medical Termination of Pregnancy (MTP) Act

    • Abortion in India has been a legal right under various circumstances for the last 50 years since the introduction of the Medical Termination of Pregnancy (MTP) Act in 1971.
    • The Act was amended in 2003 to enable women’s access to safe and legal abortion services.
    • Abortion is covered 100% by the government’s public national health insurance funds, Ayushman Bharat and Employees’ State Insurance with the package rate for surgical abortion.

    The idea of terminating your pregnancy cannot originate by choice and is purely circumstantial. There are four situations under which a legal abortion is performed:

    1. If continuation of the pregnancy poses any risks to the life of the mother or mental health
    2. If the foetus has any severe abnormalities
    3. If pregnancy occurred as a result of failure of contraception (but this is only applicable to married women)
    4. If pregnancy is a result of sexual assault or rape

    The pregnancy can be terminated upto 24 weeks of gestational age after the opinion of two registered medical practitioners under these conditions —

    • If the woman is ​​either a survivor of sexual assault or rape or incest
    • If she is a minor
    • If her marital status has changed during the ongoing pregnancy (i.e. either widowhood or divorce)
    • If she has major physical disabilities or is mentally ill
    • On the grounds of foetal malformation incompatible with life or if the child is born, it would be seriously handicapped
    • If the woman is in humanitarian settings or disaster, or emergency situations as declared by the government

    These are the key changes that the Medical Termination of Pregnancy (Amendment) Act, 2021, has brought in:

    1. The gestation limit for abortions has been raised from the earlier ceiling of 20 weeks to 24 weeks, but only for special categories of pregnant women such as rape or incest survivors. But this termination would need the approval of two registered doctors.
    2. All pregnancies up to 20 weeks require one doctor’s approval. The earlier law, the MTP Act 1971, required one doctor’s approval for pregnancies upto 12 weeks and two doctors’ for pregnancies between 12 and 20 weeks.
    3. Women can now terminate unwanted pregnancies caused by contraceptive failure, regardless of their marital status. Earlier the law specified that only a “married woman and her husband” could do this.
    4. There is also no upper gestation limit for abortion in case of foetal disability if so decided by a medical board of specialist doctors, which state governments and union territories’ administrations would set up.

    Criticism of Abortion

    • Foetuses feel the pain: If the foetus is beyond 20 weeks of gestation, gynaecs assume that there will be pain caused to the foetus.
    • Abortions cause psychological damage: Young adult women who undergo abortion may be at increased risk for subsequent depression.
    • Abortions reduce the number of adoptable babies: Instead of having the option to abort, women should give their unwanted babies to people who cannot conceive. Single parenthood is also gaining popularity in the US.
    • Cases of selective abortion: Such cases based on physical and genetic abnormalities (eugenic termination) is overt discrimination.
    • Abortion as a form of contraception: It is immoral to kill an unborn child for convenience. Many women are using abortion as a contraceptive method.
    • Morality put to question: If women become pregnant, they should accept the responsibility that comes with producing a child. People need to take responsibility for their actions and accept the consequences.
    • Abortion promotes throwaway culture: The legalization of abortion sends a message that human life has little value and promotes the throwaway culture.

    Arguments in favour for Abortion Rights

    • Upholding individual conscience and decision-making:  The US Supreme Court has declared abortion to be a fundamental right guaranteed by the US Constitution.
    • Reproductive choice empowers women: The choice over when and whether to have children is central to a woman’s independence and ability to determine her future.
    • Foetal viability occurs post-birth:  Personhood begins after a foetus becomes “viable” (able to survive outside the womb) or after birth, not at conception. Abortion is the termination of a pregnancy, not a baby.
    • No proof of foetal pain: Most neuroscientists believe that the cortex is necessary for pain perception. The cortex does not become functional until at least the 26th week of a foetus’ development.
    • Preventing illegal abortions: Access to legal, professionally-performed abortions reduces maternal injury and death caused by unsafe, illegal abortions.
    • Mother’s health: Modern abortion procedures are safe and do not cause lasting health issues such as cancer and infertility.
    • Child’s health: Abortion gives pregnant women the option to choose not to bring fetuses with profound abnormalities to full term.
    • Prevents women’s exclusion: Women who are denied abortions are more likely to become unemployed, to be on public welfare, to be below the poverty line, and to become victims of domestic violence.
    • Reproductive choice protects women from financial disadvantage: Many women who choose abortion don’t have the financial resources to support a child.
    • Justified means of population control: Many defends abortion as a way to curb overpopulation. Malnutrition, starvation, poverty, lack of medical and educational services, pollution, underdevelopment, and conflict over resources are all consequences of overpopulation.

    Conclusion

    • Hence it is now established that the right to abortion is a legal right of all women.

     

    UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)

    Get an IAS/IPS ranker as your 1: 1 personal mentor

  • Judicial Reforms

    Live Streaming of SC proceedings: the rationale and the concerns

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

    Note4Students

    From UPSC perspective, the following things are important:

    Prelims level: NA

    Mains level: Live streaming of courts proceedings

    From September 27 onward, all proceedings of Supreme Court Constitution Benches will be live-streamed, a full court meeting of the top court has decided.

    Background of the move

    • History was made on August 26 (2022) when the proceedings from the Chief Justice’s Court in the Supreme Court (SC) were live streamed.
    • In the ‘Swapnil Tripathi’ judgment, in September 2018, the SC had cleared the deck for live streaming of cases of national and constitutional importance.

    Immediate triggers for live streaming

    • They had agreed to hear a public interest litigation seeking live streaming of judicial proceedings on matters of constitutional and national importance.
    • Prime considerations cited are:
    1. De-congestion of courts and
    2. Improving physical access to courts for litigants who have to otherwise travel long distances

    Recommended by A-G

    • The Supreme Court approved a set of guidelines suggested by the A-G, which included allowing transcripts and archiving the proceedings.
    • However, the A-G suggested that the court must retain the power to withhold broadcasting, and to also NOT permit it in cases involving:
    1. Matrimonial matters,
    2. Matters involving interests of juveniles or the protection and safety of the private life of the young offenders,
    3. Matters of National security,
    4. To ensure that victims, witnesses or defendants can depose truthfully and without any fear.
    5. To protect confidential or sensitive information, including all matters relating to sexual assault and rape,
    6. Matters where publicity would be antithetical to the administration of justice, and
    7. Cases which may provoke sentiments and arouse passion and provoke enmity among communities.

    Live streaming in HCs

    • Following the SC’s decision, Gujarat High Court began live streaming its proceedings in July 2021.
    • Currently, the Jharkhand, Karnataka, Madhya Pradesh, Orissa, and Patna High Courts live stream their proceedings.
    • Allahabad High Court is learnt to be considering doing the same.

    Global examples of live streaming

    • United States of America: While the US Supreme Court has rejected pleas for broadcast of its proceedings, it has since 1955 allowed audio recording and transcripts of oral arguments.
    • United Kingdom: In 2005, the law was amended to remove contempt of court charges for recording proceedings of the Supreme Court.

    Why need live streaming of court?

    • Improved accountability: Live-streaming of court proceedings would serve as an instrument for greater accountability and formed part of the Code of Criminal Procedure, 1973.
    • Living up the expectation of Constitution: Live Streaming of Court proceedings is manifested in public interest. Public interest has always been preserved through the Constitution article 19 and 21
    • Empowering the masses: It will enable the legal system to deliver on its promise of empowering the masses.
    • More transparency: It will encourage the principle of open court and reduce dependence on second-hand views. It will effectuate the public’s right to know.
    • This would inspire confidence in the functioning of the judiciary as an institution and help maintain the respect that it deserved as a co-equal organ of the state.
    • Academic help: Live streaming may also be a help for academic purposes.

    Concerns around live streaming

    • Contempt of court: Video clips of proceedings from Indian courts are already on YouTube and other social media platforms with sensational titles and little context, such as “HIGH COURT super angry on army officer”.
    • Disinformation and sensationalism: There are fears that irresponsible or motivated use of content could spread disinformation among the public.
    • Unnecessary activism: With the advent of social media, every citizen became a potential journalist. Study shows that justices behave like politicians when given free television time, they act to maximize their individual exposure.

    Issues to judicial functioning

    • Decency of questions: During hearings judges may not ask questions or make comments that could be perceived as unpopular.
    • Triggers for oral observations: There is an increasing trend of oral observations of the court, which are not binding on parties replacing reasoned judgment and orders that are consequential.
    • Dignity of court may be compromised: Similarly, lawyers, aware of their new audience, may choose to grandstand and play to the gallery, especially in a case they expect to lose.

    Way forward

    • Selective broadcast: The solution may lie in carefully determining how the live streaming proceeds.
    • Careful selection of cases: Not uploading archived stream on the SC website until it is legally/technologically possible to ensure that such videos cannot be spliced.
    • Understanding public perception and sentiments: Other similar measures that reflect an understanding of how the public consumes (dis)information will ensure that live streaming enriches constitutionalism across the country.

    Conclusion

    • A hasty and wholesale introduction on the other hand is likely to land the SC right in the middle of the majoritarian and toxic information swamp that prevails in the country.

     

    UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)

    Get an IAS/IPS ranker as your 1: 1 personal mentor

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

    Challenging the Special Marriage Act, 1954

    SC Judgements | Indian Society | Mains Paper 1: Communalism, Secularism, Regionalism

    Note4Students

    From UPSC perspective, the following things are important:

    Prelims level: Special Marriage Act, 1954

    Mains level: Issues with inter-faith marriage

    The Supreme Court has dismissed a writ petition challenging the Constitutional validity of certain provisions of the Special Marriage Act, 1954 under which couples seek refuge for inter-faith and inter-caste marriages.

    What is Special Marriage Act, 1954?

    • The Special Marriage Act, 1954 (SMA) was enacted to facilitate the marriage of couples professing different faiths, and preferring a civil wedding.
    • However, some practical problems arise in registering such marriages.
    • The law’s features on prior public notice being given and objections for the safety and privacy of those intending to marry across religions.
    • To overcome this, many settle for marriage under the personal law of one of them, with the other opting for religious conversion.

    What does the petition seek?

    • The Supreme Court dismissed a writ petition challenging the Constitutional validity of certain provisions of the SMA under which couples seek refuge for inter-faith and inter-caste marriages.
    • The writ petition has called these provisions violative of Article 21, which guarantees the right to privacy.
    • Under this act, the couples require to give a notice of 30 days before the date of marriage inviting objections from the public.
    • The provisions contravene Article 14 on prohibition of discrimination on grounds of religion, race, caste and sex as well as Article 15 on right to equality as these requirements are absent in personal laws.

    What did the court say?

    • The SC Bench rejected the writ petition on the grounds that the petitioner was no longer an aggrieved party as she had already solemnised her marriage under SMA.
    • The petitioner’s lawyers said that they were now deliberating on an alternative approach to initiate this litigation such as through a public interest litigation involving other victims.
    • Another writ petition is admitted by the Supreme Court in 2020 and the government’s reply to is awaited.

    What are the provisions that have been challenged?

    • Section 5 of the SMA requires couples getting married under it to give a notice to the Marriage Officer 30 days before the date of marriage.
    • Section 6 requires such a notice to be then entered into the Marriage Notice Book maintained by the Marriage Officer, which can be inspected by any person desirous of inspecting the same.
    • These notices have to be also affixed at a “conspicuous place” in the office of the Marriage Officer so that anyone can raise an objection to the marriage.
    • Section 7 provides the process for making an objection such as if either party has a living spouse, is incapable of giving consent due to “unsoundness of mind” or is suffering from mental disorder resulting in the person being unfit for marriage or procreation.
    • Section 8 specifies the inquiry procedure to be followed after an objection has been submitted.

    Why are these provisions contentious?

    • The provisions throw the personal information of the individuals open to public scrutiny. This may result into vigilantism.
    • This seriously damages one’s right to have control over her or his personal information and its accessibility.
    • By making the personal details of the couple accessible to everyone, the very right of the couple to be the decision makers of their marriage is being hampered by the state.

    How do these provisions make couples vulnerable?

    • These public notices have been used by anti-social elements to harass couples getting married.
    • For many who often marry without their parent’s consent this can be life-threatening.
    • Many states publicly share the details of couples marrying under SMA on their websites.
    • Many also complain about the behaviour of the staff at the SDM’s office who often delete or delay applications and dissuade couples from marrying under SMA.
    • With as many as 11 States passing anti-conversion (or so-called love-jihad) laws, parents and the State are now armed to punish and harass such couples.

     

    UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)

    Get an IAS/IPS ranker as your 1: 1 personal mentor

  • Electoral Reforms In India

    Three-judge bench to review SC Verdict on Poll Promises

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

    Note4Students

    From UPSC perspective, the following things are important:

    Prelims level: NA

    Mains level: Lofty poll promises and election freebies

    The Supreme Court has decided to reconsider a 2013 judgment on Poll Promises, which held that promises in the election manifesto do not constitute a “corrupt practice” under the law.

    What is the news?

    • A Bench led by the CJI, Ramana, ordered a three-judge Bench to be set up to review the court’s earlier position.

    Subramaniam Balaji Judgment: Invalidating certain Poll Promises

    • It was held that pre-poll promises made by political parties to entice voters do not fall within the ambit of Section 123 (corrupt practices) under the Representation of the People (RP) Act.
    • The judgment, delivered by a two-judge Bench, had observed that although the law is obvious that the promises in the election manifesto cannot be construed as ‘corrupt practice’ under Section 123 of RP Act.
    • The reality cannot be ruled out that distribution of freebies of any kind, undoubtedly, influences all people.

    Why revisit this judgment?

    • Rationale of the freebie: Now the CJI has said the three-judge Bench should consider whether an enforceable order can be passed to stop political parties in power from promising and distributing “irrational freebies”.
    • Freebie vs. Welfare schemes: He opined that such freebies are completely divorced from actual welfare schemes, using public money in order to merely “capture vote banks”.
    • Prevent bankruptcy: Freebies may create a situation wherein the State government cannot provide basic amenities due to lack of funds and the State is pushed towards imminent bankruptcy.
    • Expert review: The new Bench would also deliberate if an expert body can be formed to independently study and make recommendations against the distribution of largesse at the cost of the national economy and public welfare.

    What amounts to Freebie?

    • The term Freebies is not new; rather it is a prevalent culture in Indian politics (in the name of socialism).
    • The political parties are always trying to outdo each other in luring the Indian voters with assorted freebies.
    • From free water to free smartphones the Indian politicians promise everything to attract prospective voters in favour.
    • This trend has gained more momentum in the recent times with the political parties being innovative in their offerings as the ‘traditional free water and electricity’ is no longer sufficient as election goodies.

    Examples of freebies

    1. Promise of Rs 15 lakh in our bank accounts
    2. Free TV, Laptops
    3. Free electricity
    4. Loan waivers
    5. Offering free public transport ride to all women in Delhi

    Why are such policies popular among the public?

    • Failure of economic policies: The answer lies in the utter failure of our economic policies to create decent livelihood for a vast majority of Indians.
    • Quest for decent livelihood: The already low income had to be reoriented towards spending a disproportionately higher amount on education and health, from which, the state increasingly withdrew.
    • Prevailing unemployment:  Employment surveys have shown that employment growth initially slowed down from the 1990s, and then has turned negative over the past few years.
    • Increased cost of living: Real income growth of the marginal sections has actually slowed down since 1991 reforms.
    • Increased consumerism: The poor today also spend on things which appear to be luxuries; cellphones and data-packs are two such examples which are shown as signs of India’s increased affluence.
    • Necessity: For migrant workers, the mobile phone helps them keep in touch with their families back home, or do a quick video-call to see how their infant is learning to sit up or crawl.

    Can Freebies be compared with Welfare Politics?

    • These freebies are not bad. It is a part of social welfare.
    • Using freebies to lure voters is not good.
    • Voter’s greediness may lead to a problem in choosing a good leader.
    • When we don’t have a good leader then democracy will be a mockery.

    Impact of such policies

    • Never ending trail: The continuity of freebies is another major disadvantage as parties keep on coming up with lucrative offers to lure more number of votes to minimize the risk of losing in the elections.
    • Burden on exchequer: People forget that such benefits are been given at the cost of exchequer and from the tax paid.
    • Ultimate loss of poors: The politicians and middlemen wipe away the benefits and the poor have to suffer as they are deprived from their share of benefits which was to be achieved out of the money.
    • Inflationary practice: Such distribution freebie commodity largely disrupts demand-supply dynamics.
    • Lethargy in population: Freebies actually have the tendency to turn the nation’s population into: Lethargy and devoid of entrepreneurship.
    • Money becomes only remedy: Everyone at the slightest sign of distress starts demanding some kind of freebies from the Govt.
    • Popular politics: This is psychology driving sections of the population expecting and the government promptly responds with immediate monetary relief or compensation.

    What cannot be accounted to a freebie?

    • MGNREGA scheme (rural employment guarantee scheme)
    • Right to Education (RTE)
    • Food Security through fair price shops ( under National Food Security Act)
    • Prime Minister Kisan Samman Yojana (PM-KISAN)

    Arguments in favour

    • Social investment: Aid to the poor is seen as a wasteful expenditure. But low interest rates for corporates to get cheap loans or the ‘sop’ of cutting corporate taxes are never criticized.
    • Socialistic policy: This attitude comes from decades of operating within the dominant discourse of market capitalism.
    • Election manifesto: Proponents of such policies would argue that poll promises are essential for voters to know what the party would do if it comes to power and have the chance to weigh options.
    • Welfare: Economists opine that as long as any State has the capacity and ability to finance freebies then its fine; if not then freebies are the burden on economy.
    • Other wasteful expenditure: When the Centre gives incentives like free land to big companies and announce multi-year tax holidays, questions are not asked as to where the money will come from.

    Conclusion

    • There is nothing wrong in having a policy-led elaborate social security programme that seeks to help the poor get out of poverty.
    • But such a programme needs well thought out preparation and cannot be conjured up just before an election.

     

    Also read:

    [Sansad TV] Mudda Aapla: Culture of Freebies

     

     

    UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)

    Get an IAS/IPS ranker as your 1: 1 personal mentor

  • Women Safety Issues – Marital Rape, Domestic Violence, Swadhar, Nirbhaya Fund, etc.

    SC moots verdict for ‘Bodily Autonomy’

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

    Note4Students

    From UPSC perspective, the following things are important:

    Prelims level: MRTP Act

    Mains level: Global abortion debate

    The Supreme Court has said it may loosen the restrictive grip of a 51-year-old abortion law that bars unmarried women from terminating pregnancies up to 24 weeks old.

    What is the news?

    • The Medical Termination of Pregnancy Act of 1971 and its Rules of 2003 prohibit unmarried women who are between 20 weeks and 24 weeks pregnant to abort with the help of registered medical practitioners.

    What did the Court say now?

    • In a very significant move, the court said that the prohibition was manifestly arbitrary and violative of women’s right to bodily autonomy and dignity.
    • The danger to life is as much in the case of an unmarried woman as in the case of a married woman said Justice Chandrachud.
    • The danger of suffering a mental breakdown is much more prominent for unmarried women, said the court.

    Earlier observations

    • A woman’s right to reproductive choice is an inseparable part of her personal liberty under Article 21 of the Constitution.
    • She has a sacrosanct right to bodily integrity, the court quoted from precedents.
    • The court said forcing a woman to continue with her pregnancy would not only be a violation of her bodily integrity but also aggravate her mental trauma.

    Indispensable clause of safety

    • The court ordered a medical board to be formed by the AIIMS to check whether it was safe to conduct an abortion on the woman and submit a report in a week.

    What is the case?

    • A Bench led by Justice D.Y. Chandrachud was hearing the appeal of a woman who wanted to abort her 24-week pregnancy after her relationship failed and her partner left her.
    • The lower court had taken an “unduly restrictive view” that her plea for a safe abortion was not covered under the Medical Termination of Pregnancy Act.
    • This was since the pregnancy arose from a consensual relationship outside wedlock.

    What was the last amendment?

    • The court noted that an amendment to the Act in 2021 had substituted the term ‘husband’ with ‘partner’, a clear signal that the law covered unmarried women within its ambit.

    Reiterating the live-in recognition

    • Chastising the lower court, the Bench said live-in relationships had already been recognized by the Supreme Court.
    • There were a significant number of people in the social mainstream who see no wrong in engaging in pre-marital sex.
    • The law could not be used to quench “notions of social morality” and unduly interfere in their personal autonomy and bodily integrity.

    Back2Basics: Medical Termination of Pregnancy (MTP) Act

    • Abortion in India has been a legal right under various circumstances for the last 50 years since the introduction of the Medical Termination of Pregnancy (MTP) Act in 1971.
    • The Act was amended in 2003 to enable women’s access to safe and legal abortion services.
    • Abortion is covered 100% by the government’s public national health insurance funds, Ayushman Bharat and Employees’ State Insurance with the package rate for surgical abortion.

    The idea of terminating your pregnancy cannot originate by choice and is purely circumstantial. There are four situations under which a legal abortion is performed:

    1. If continuation of the pregnancy poses any risks to the life of the mother or mental health
    2. If the foetus has any severe abnormalities
    3. If pregnancy occurred as a result of failure of contraception (but this is only applicable to married women)
    4. If pregnancy is a result of sexual assault or rape

    These are the key changes that the Medical Termination of Pregnancy (Amendment) Act, 2021, has brought in:

    1. The gestation limit for abortions has been raised from the earlier ceiling of 20 weeks to 24 weeks, but only for special categories of pregnant women such as rape or incest survivors. But this termination would need the approval of two registered doctors.
    2. All pregnancies up to 20 weeks require one doctor’s approval. The earlier law, the MTP Act 1971, required one doctor’s approval for pregnancies upto 12 weeks and two doctors’ for pregnancies between 12 and 20 weeks.
    3. Women can now terminate unwanted pregnancies caused by contraceptive failure, regardless of their marital status. Earlier the law specified that only a “married woman and her husband” could do this.
    4. There is also no upper gestation limit for abortion in case of foetal disability if so decided by a medical board of specialist doctors, which state governments and union territories’ administrations would set up.

     

    UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)

    Get an IAS/IPS ranker as your 1: 1 personal mentor