Important Judgements


Right to be Forgotten – Explained, Pointwise

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Introduction

The Delhi High Court ordered the removal of easy access from one of its own judgments. The move respected the petitioner’s right to be forgotten (RTBF) and aimed to prevent post-acquittal stigmatization. RTBF is a right to remove private information about a person from Internet searches and other directories under some circumstances.

It is not explicitly available to the Indian masses. However, it has been implicitly recognised by courts as part of the right to privacy under Article 21 of the Indian Constitution. However, some experts have expressed concerns about it. Because RTBF deters the right to information and media freedom under Article 19(1)(a) of the constitution. Therefore, cautious balancing is desired, to enable its implementation in a restricted sense. 

Why in the News?
  • The Delhi High Court in Jorawar Singh Mundy v Union of India (2021) made an interim order protecting the rights of an American citizen.
    • The petitioner desired the removal of a judgment of acquittal in a case filed under the Narcotic Drugs and Psychotropic Substances Act (1985).
    • As per the petition, the continued existence of judgment on the websites/portals of Google and Indiankanoon had caused irreparable damage to his social life as well as his career prospects.
  • An interim order was issued by the High Court of Delhi. It directed Google and IndianKanoon to remove access to a judgment from their portals.
  • The court recognised that the petitioner has a right to be forgotten, which must be balanced with the right of the public to access the court’s records.
  • This is the first instance of a court ordering the removal of access to its complete final judgment from certain spaces.
About Right to be forgotten
  • It is a right to remove private information about a person from Internet searches and other directories under some circumstances.
  • It empowers individuals to ask organisations to delete their personal data.
  • Likewise, it allows the individuals to determine the development of their life in an autonomous way without being perpetually stigmatized for a specific action performed in the past.
The scenario of Right to be forgotten in India
  • The RTBF is not an explicit right granted to Indian citizens. Although courts in various judgments have emphasized the importance of this right.
    • In K.S Puttaswamy versus Union of India (2017), the court deduced that the right to privacy also encompasses an individual’s right to control his existence on the internet.
  • The recommendations by the B.N Srikrishna committee also emphasized this right. Thus, it was incorporated under the Draft Personal Data Protection Bill, 2019.
    • Section 20 of the bill states that every person has the right to restrict or prevent continuing disclosure of personal data by any data fiduciary. Provided such disclosure meets any one of the following conditions:
      • The disclosure served the purpose for which it was made or is no longer necessary
      • Further, the disclosure was made with the prior consent of the individual, and such consent has since been withdrawn.
      • Lastly, the disclosure was made contrary to the provisions of the new bill or any other law in force.
International Scenario of Right to be forgotten
  • The right took shape largely from the 1995 Directive of the European Union on the protection of individuals with regard to the processing of personal data.
  • It is currently being provided by the EU’s General Data Protection Regulation (GDPR), a law passed by the 28-member bloc in 2018.
  • According to the EU GDPR’s website, the right to be forgotten appears in Article 17 of the regulation.
    • It states that the data subject shall have the right to obtain the erasure of personal data concerning him or her, without undue delay, from the controller. Further, the controller shall have the obligation to erase personal data without undue delay.
  • In 2019, the European Court of Justice ruled that the ‘right to be forgotten’ under European law would not apply beyond the borders of EU member states. 
    • This was in favour of Google, which was contesting a French regulatory authority’s order to have web addresses removed from its global database.
  • Currently, the EU, UK, and Australia are strongly moving towards the consolidation of the Right to be forgotten.
Arguments in Favour of the right to be forgotten
  • First, it will uphold an individual’s privacy under Article 21 of the Indian Constitution. This would enable him/her to fully enjoy the right to life and personal liberty.
  • Second, it would prevent post-acquittal social stigmatization by society. The right may save an individual from additional punishments like social boycott, difficulty in getting jobs, doing marriage, etc.
    • The Delhi HC revoked access to its judgment in Jorawar Singh Mundy v Union of India (2021) based on this premise.
  • Third, it would help in maintaining a veil of secrecy on the victim’s identity, especially in highly sensitive cases involving rape or affecting the modesty of the woman. This was observed by the Karnataka High court in Sri Vasunathan v The Registrar General (2017).
  • Fourth, many articles are written based on half-truths and mere accusations. The media doesn’t update its prior articles based on future verdicts.
  • Fifth, much information is published without an individual’s consent which may cause severe harm to its reputation and mental peace. 
    • For instance, uploading fake or revenge posts with respect to a person. 
    • Jasleen Kaur (a former Delhi University student) had in 2015 accused Saravjeet Singh of verbally harassing her at a traffic signal in West Delhi. 
    • This induced media persons to label him an “eve teaser” and a “pervert” however he was later acquitted.
Arguments against the right to be forgotten
  • First, it gets in conflict with the right to information, which is part of freedom of speech under Article 19(1)(a) of the Indian constitution.
    • For instance, a rape victim has a right that her past is forgotten. While a criminal cannot claim that he has the right to insist that his conviction should not be referred to by the media.
  • Second, under the proposed data protection bill, removal depends on the discretion of the adjudicating officer. This may lead to partisan or arbitrary removal in favour of the government.
  • Third, it may impair the right of media personnel to do independent reporting. The adjudicatory officer may remove articles of media groups that generally criticize government policies.
    • Thus, the freedom to criticize the public personalities for their public policies based on their past statements and activities will be in jeopardy.  
  • Fourth, the removal of complete judgments may restrict public scrutiny of judicial performance to ascertain the fairness and objectivity of the administration of justice. Further judgments are an important source of learning for law students.
  • Fifth, the removal sometimes creates a Streisand effect. It is a social phenomenon that occurs when an attempt to hide, remove or censor information has the unintended consequence of further publicizing that information.
Suggestions
  • Privacy needs to be added as a ground for reasonable restriction under Article 19 (2) through a constitutional amendment for the effective implementation of RTBP.
  • The impending Data Protection Bill should be passed expeditiously. This would give individuals a legal right to erase their unnecessary and inappropriate personal data.
  • The courts should resort to narrow tailoring of the judgment rather than forbidding access to its complete judgment.
    • For instance, in the current Jorawar Singh Mundy v Union of India (2021), the court could have ordered that the name and personal details of the petitioner be censored while maintaining public access to the judgment itself.
Conclusion

The right to be forgotten is well established across the world, although Indian courts have not had much occasion to deal with the same. However, this situation may change in the future as more petitions are likely to be filed on account of the evolving international jurisprudence and impending enactment of the Indian Personal Data Protection Bill.

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Delhi High Court’s order upholds ‘Right to be Forgotten’

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Synopsis:

Recently, in response to a petition, the Delhi High Court ordered the removal of easy access from one of its own judgments. Delhi HC upheld the petitioner’s right to be forgotten to prevent post-acquittal disgrace faced by him. However, some experts have criticized the order, stating that minor modifications would have yielded better results than complete revocation.

Background:
  • The Delhi HC gave temporary relief to a petitioner. He sought the removal of the judgment from leading database platforms and search engines after his acquittal.
    • The court asked search engines to remove this order from search results. It ordered the database platform to block the judgment from being accessed by search engines.
  • It recognized that the petitioner may have a right to be forgotten, which must be balanced with the right of the public to access courts of record.
  • This is the first instance of a court ordering the removal of access to its complete final judgment from certain spaces.
About Right to be forgotten:
  • It is a right to remove private information about a person from public access.
  • It allows an individual to determine the development of their life in an autonomous way and prevents perpetual stigmatization for past conduct.
  • In 2017, the Supreme Court held it to be a part of the Right to privacy. The court deduced that a lot of personal information may serve no “legitimate interest”, was unnecessary or irrelevant and hence can be taken down.
Issues associated with Right to Forgotten:
  • First, there are no concrete provisions or guidelines to determine the ambit of ‘Right to be forgotten’. It is dependent on the discretion of individual courts and the status of individuals. For instance, a public figure may find greater difficulties in exercising this right.
  • Second, there is no clarity on information uploaded by 3rd parties like a journalist or news agency. There is a broad consensus that one should be empowered to remove the information upheld by him/her over the internet.
    • However, removing 3rd party information may muzzle fair criticism of government policies and the media’s right to report.
    • U.S Supreme court in New York Times Co. v. Sullivan (1964), ruled that public interest reporting may continue without fear as long as it did not intentionally or recklessly make outright false statements.
  • Third, the removal of complete judgments may not allow public scrutiny of judicial performance to ascertain the fairness and objectivity of the administration of justice.
  • Fourth, the removal sometimes creates a Streisand effect. It is a social phenomenon that occurs when an attempt to hide, remove or censor information has the unintended consequence of further publicizing that information.

Way Forward:

  • As per some experts, narrow tailoring of the judgment would have been more beneficial than forbidding access to its complete judgment.
  • The court could have ordered that the name and personal details of the petitioner be censored while maintaining public access to the judgment itself. 

Thus, the right to be forgotten must be studied along with the concepts of fair criticism and accountability.

Source: Click Here 

Read Also :-Misuse of Sedition law in India

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The SC ordered the closure of Italian Marines case in India

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Synopsis – What is the case of the Italian Marines, what was the conflict between India and Italy over the issue and the possible reason of delay in prosecuting the matter.

Introduction –
  • After Italy deposited Rs 10 crore in compensation, the SC ordered the closure of court proceedings in India against two Italian marines accused of killing two fishermen off the coast of Kerala in 2012 after mistaking them for pirates.
  • The diplomatic turbulence, legal tangle over jurisdiction between India and Italy caused the delay in resolving the Italian marine’s case.
What was the dispute over the Italian Marines case?
  • India
    • India alleged that the Italian marines on board “Enrica Lexie” had violated the freedom of navigation rights by shooting at the fishing boat.
    • As the two fishermen were killed without warning, India has jurisdiction over the matter.
    • The NIA the NIA invoked anti-piracy law, the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA).
  • Italy – The prosecution under the SUA Convention was challenged by Italy for comparing the occurrence to a terrorist attack.
    • According to Italy, as the Indian vessel approached, the Italian marines determined that it was a pirate attack. As the fishing vessel continued to head towards the tanker despite sustained visual and auditory warnings, and the firing of warning shots into the water.
    • Italy claims the marines had been hired to protect the tanker from pirates and they were only carrying out their duties.
    • Italy also claims that the marines enjoyed sovereign functional immunity in India and Italy alone had jurisdiction to deal with them.
  • Read Also :-Adultery Law in India
International tribunal’s ruling-
  • In 2020, the Permanent Court of Arbitration ruled that the two Italian marines were on a mission for the Italian government and so should be sent to Italy, where they would face criminal charges.
  • By the ratio of 3:2 votes, the Italian marines were entitled to diplomatic immunity as Italian state officers under the United Nations Convention on the Law of the Sea, and that India could not exercise jurisdiction against them.
  • The UN tribunal had also ruled that the Indian fishing boat and its victims were entitled to compensation as the Italian vessel, had violated the boat’s right of navigation under the Law of the Sea.
Way forward-
  • If India had accepted Italy’s offer of compensation and a trial in its own jurisdiction sooner, the delay in prosecuting the matter could have been avoided.
  • As a result, a lesson learned is that such cases should be handled with using both legal and diplomatic means to get a speedy resolution.

Source – The Hindu

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The Right to a fair trial and the Indian Evidence Act

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Synopsis: Acquittals in rape cases are often based on stereotypes about rape survivors and their past sexual history. But that has to change if India wants to ensure the Right to a fair trial.

Background

During the recent judgement by the Goa session’s court in Tarun Tejpal case the court referred to the survivor’s sexual history in graphic detail. Further, the judgement held the following things,

  • The court denied accepting the victim as a sterling witness. It was stated that the survivor did not fit into the court’s preconceived ideas of a rape survivor’s behaviour.
  • This disregards the women’s struggles that forced changes in law, in case of law, and in approaches to victims of rape.
Can the court go into the details of a survivor’s sexual history?

No. Doing so would be a form of discrimination by the court.

  • It violates Article 14’s guarantee of equality before the law and the equal protection of laws.
  • Article 15 of the constitution also forbids the state from discriminating against citizens based on stereotypes related to their sex and gender

There have been many cases wherein the Supreme Court of India has warned against stereotyping rape survivors. This is because it not only violates their fundamental rights but also leads to divergent results in sentencing.

Was the sexual history of a survivor admissible in court in the past?

Yes.

  • Under Section 155(4) of the Indian Evidence Act, a rape survivor’s past sexual history used to be acceptable. The rape accused could state that the rape survivor was of immoral character and claim that she consented to the sexual acts.
    • Past sexual history was used to suggest that the survivor was immoral and thus not a trustworthy witness.
    • This section was removed in 2003 after recommendations in the Law Commission of India’s 172nd report
Significant cases which led to amendments in the Indian Evidence Act: 
  • In Aparna Bhat & Ors. vs State of Madhya Pradesh case, the Supreme Court warned of the dangers of typecasting rape survivors.
    • Rape myths: It mentioned the prevalent rape myths which include fixed notions of chastity, resistance to rape, having visible physical injuries, behaving a certain way, reporting the offence immediately etc.
    • If the survivor had agreed to similar acts in the past should be irrelevant. The SC directed courts not to doubt a woman’s testament just because she was sexually active.
  • In the Mathura rape case (Tukaram vs Maharashtra, 1979), the Supreme Court released two policemen accused of raping a 14-year-old Adivasi girl in a police station. Stating that she was sexually active and considered her proof as “a tissue of lies”(Not considered her as a witness). 
    • This verdict led to the introduction of Section 114-A of the Evidence Act. It applied in serious rape cases where the accused was a police officer or member of the armed forces. 
  • In 1996, in the Punjab v Gurmit Singh case, the SC warned courts against making remarks about the rape survivor’s character. It stated that a woman who was sexually active could still refuse to consent. 
  • In 2013, the JS Verma Committee, created after the Delhi 2012 rape case, suggested that a past relationship between the accused and the victim should be inapt while deciding whether the victim consented. 
  • The Criminal Law (Amendment) Act, 2013 united many of such judgements and recommendations into legal law. 
    • Section 53A of the Evidence Act stops courts from depending on evidence of the character of the victim. Such as her prior sexual experience with any person to decide questions of consent in sexual assault cases. 
    • The 2013 Act also amended Section 146 so that a rape survivor cannot be asked questions about her immoral character or prior sexual experience to prove consent.
    • The 2013 amendment also introduced a fixed minimum sentence of seven years imprisonment for rape (This is increased in 2018 to 10 years) and 10 years for serious rape. 
How the 2013 amendment impacted the conviction rates in rape cases?

Studies show that conviction rates fell after the 2013 amendment. In a review of 1,635 rape judgements passed by Delhi trial courts between 2013 and 2018, the conviction rate fell from 16.11% under the old law to 5.72% under the new law. This is due to the following reasons. Such as,

  • Survivors were doubted because of varying statements at several stages of the trial,
  • Failure to reveal details of the incident to anybody,
  • Delay in registering the complaint.
Conclusion 

The rape stereotypes and dependence on past sexual history are damaging for rape survivors and the criminal justice system. The right to a fair trial under Article 21 states that cases should be decided on facts. Acquittals based on stereotypes impair the faith of the public in the criminal justice system.

Source: click here

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CBSE can’t refuse to change names after declaring results: Supreme Court

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What is the News?

The Supreme Court has directed the Central Board of Secondary Education (CBSE) to allow changes in name or date of birth in school certificates issued by it even after the publication of results.

What is the issue?
  • A petition was filed in the Supreme Court challenging the CBSE’s Examination Bye-Laws of 2007. The law prohibited students from changing or correcting their names on Board certificates.
What did the Supreme Court say?
    • The Supreme Court said that the Right to Change Name is part of the Right to Freedom of Speech and Expression subject to reasonable restrictions.
    • Hence, the court directed the CBSE to allow students to change their name on the Board certificates issued by them.
    • The CBSC argued that it is denying students to change their name on certificates as it would affect their administrative efficiency. But, the court said that these certificates are used by students to go for higher studies and gain employment. So the presumption of CBSE on administrative efficiency is wrong.
    • The Supreme court also held that the decision of CBSE is in violation of the Right to be forgotten. As the CBSE decision of refusing to change the name forces the student to live with the scars of the past.
What is the Right to be forgotten?

The right to be forgotten (RTBF) is the right to have private information about a person be removed from Internet searches and other directories under some circumstances. For example,

  • If there is a juvenile accused of being in conflict with the law or is a sexual abuse victim. But his identity is leaked due to lapses by the media or the investigative body.
  • The juvenile may consider changing the name to seek rehabilitation in the society in the exercise of his right to be forgotten.

Source: The Hindu

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Journalists need protection against “sedition charges”: Supreme Court

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What is the News?

Supreme Court of India has quashed the FIR lodged against a senior journalist for sedition charge and other offences. In that, the court held that the Journalists need protection against sedition charges.

What was the case?
  • A sedition case was filed against a senior journalist over his YouTube show where he had criticized the Prime Minister and the Union Government.
  • The journalist approached the Supreme Court seeking the quashing of the FIR. He told the Supreme Court that criticism of the government was not in itself seditious unless it instigated the violence.
What did the Court say?
  • The Supreme Court invalidated the sedition case registered against the journalist.
  • Criticism & disapproval doesn’t amount to sedition: The court said that strong words of disapproval about the ruling government is not sedition.
    • Moreover, mere criticism of governments is not sufficient to constitute sedition. Honest and reasonable criticism is a source of strength to a community rather than a weakness.
  • The Court also referred to the 1962 Kedar Nath Singh verdict and said that under it every journalist is entitled to protection from sedition charges.
Kedar Nath Singh Judgment,1962
  • In Kedar Nath Singh v. State of Bihar (1962), the Supreme Court upheld the constitutional validity of the sedition law.
  • The Court said that sedition is a reasonable restriction on free speech as provided in Article 19(2) of the Constitution.
  • However, the court made it clear that a citizen has the right to say or write whatever she/he likes about the government or its measures.
  • But this is only as long as s/he does not incite people to violence against the government and not do things with the intention of creating public disorder.

Source: The Hindu

Posted in Daily Factly articles, daily news, Daily News Updates, Factly: Polity and Nation, PUBLICTagged ,

Supreme Court Guidelines on “Section 304-B” of IPC

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What is the News?

The Supreme Court in its recent judgement has widened the scope of Section 304-B of the Indian Penal Code(IPC). This section punishes persons accused of dowry deaths.

Data on Dowry Deaths in India:
  • Dowry deaths accounted for 40% to 50% of homicides in the country for almost a decade from 1999 to 2018.
  • In 2019 alone, 7,115 cases of dowry death were registered under Section 304-B of the Indian Penal Code.
About Section 304-B:
  • Section 304-B was inserted into the Indian Penal Code(IPC) in November 1986.
  • According to this section, to make out a case of dowry death:
    • A woman should have died of burns or other bodily injuries or “otherwise than under normal circumstances” within seven years of her marriage.
    • A woman should have suffered cruelty or harassment from her husband or in-laws “soon before her death” in connection with the demand for dowry.
  • Punishment: The section punishes convicts with a minimum of seven years imprisonment extendable up to a life term.
Supreme Court Guidelines on Section 304-B:
  • Avoid Absurd Interpretation:
    • Over the years, the courts had interpreted the phrase ‘soon before’ in Section 304-B as ‘immediately before‘. This interpretation makes it necessary for a woman to have been harassed moments before she died.
    • On the other hand, the Supreme Court recently said that the prosecution needs to show only a “proximate and live link” between the harassment and her death to make out a case of dowry death.
  • Need broader Reading of the Provision:
    • The lower courts should not take a limited approach in categorising death as homicidal or suicidal or accidental. The phrase “otherwise than under normal circumstances” in Section 304-B calls for a liberal interpretation of the provision, not the stricter one.
    • Hence, Section 304-B not imply the narrow categorisation of death as homicidal or suicidal or accidental. Instead, it also includes non-categorised deaths ‘other than under normal circumstances.
  • Proper examination of Accused:
    • The Supreme Court also raised concern about the casual way in which trial courts examine accused persons in dowry death cases under Section 313 of the Code of Criminal Procedure.
    • The court said that the examination of the accused about the incriminatory material against him should be done fairly.
    • The court must put incriminating circumstances before the accused and seek his response. The accused should also be given sufficient opportunity to give his side of the story.

Source: The Hindu

Posted in Daily Factly articles, daily news, Daily News Updates, Factly: Polity and Nation, PUBLICTagged ,

SC Ruling on Personal Guarantor’s Liability for Corporate Debt

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What is the News?

The Supreme Court has upheld the government’s move to allow lenders to initiate insolvency proceedings against personal guarantors.

Who is a personal guarantor?
  • To showcase their intent to repay the bank loan on time, the promoters of some big business houses submit a personal guarantee to the lenders. It secures them loans easily and timely.
  • It is sort of like an assurance from the owner or the owners of the company that the money borrowed by their company for various purposes shall be repaid on time as per the agreed schedule.
  • Furthermore, it is different from the collateral. Indian corporate laws say that individuals such as promoters are different from businesses and the two are very separate entities. Thus, a promoter can give a guarantee for the company it is running
What is the issue?
  • In 2019, the Government issued a notification. It allowed creditors, usually financial institutions and banks, to make a move against personal guarantors under the Indian Bankruptcy and Insolvency Code(IBC).
  • The intention was to hold the guarantor promoters liable for the defaulting companies against loans.
  • However, the notification was challenged by the promoters, claiming that it was always a management board that ran the company. Therefore, the promoters alone should not be held liable for the default on debt repayment.
What has the Supreme Court said?
  • The Supreme Court has upheld the notification issued by the Government.
  • The court said that there is a close connection between personal guarantors and their corporate debtors. Hence, it was this connection that made the government recognise personal guarantors as a separate category under the IBC.

Significance of this judgment:

  • This judgment assumes significance as it will now allow lenders to go after personal guarantors even while bankruptcy proceedings against the ailing companies are pending. This will speed up the process for the recovery of dues.

Source: The Hindu

 

Posted in Daily Factly articles, daily news, Daily News Updates, Factly - Indian Economy, PUBLICTagged ,

Laws and Initiatives for Welfare of Orphaned Children

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Synopsis: This article provides information on two things. First, on the available legal means to report about orphaned children. Second, protections available under the state.

Introduction 

2nd wave of the pandemic has taken the lives of many young mothers and fathers. It has left many children orphaned and vulnerable. It is usual to see requests to adopt a child on social media.

Some NGOs are helping such children. However, legal procedures need to be followed in adopting such children. It ensures the safety and security of children,

What are the available options to help orphaned or abandoned children?

There are many legal options available for an individual to help the orphaned children who need care and protection.

  • Option 1, Toll free Childline number 1098: Childline India Foundation, Women and Child Development department’s nodal agency, manages it.
  • Option2, informing the concerned District protection officer. Contact details can be found on the National Tracking System for Missing and Vulnerable Children portal. It is maintained by the Women and Child Development department.
  • Option3: The third alternative is to approach the nearest police station or its child welfare police officer. Such officers are specially trained to exclusively deal with children, either victims or juveniles.
  • Option 4: Calling the Emergency Response Support System (ERSS). It is a pan-India single number (112) based emergency response system for citizens in emergencies.
How the state provides support for children who are in need of care?
  • Once an outreach agency recovers an orphaned child, it needs to produce the child within 24 hours before the Child Welfare Committee (CWC) of the district.
  • The CWC, after an inquiry, decides whether to send the child to the child’s home. Or rather should it send it to a fit facility or a fit person.
  • If the child is below six years, he or she shall be placed in a specialized adoption agency.
  • It is the duty of the state to take care of all such children who are in need of care and protection, till they turn 18 years.
  • Once a child is declared legally free for adoption by the CWC, adoption can be done either by Indian prospective adoptive parents or non-resident Indians or foreigners.
What are the safeguards provided for orphaned children by the state?
  • Firstly, an orphan child kept by an unlawful authority is punishable. According to the Hindu Minority and Guardianship Act, 1956, the father, and in his absence the mother, is the natural guardian. Not even a close relative is allowed to look after the child without authorization.
  • Secondly, In Sampurna Behrua vs Union of India (2018), the Supreme Court of India directed States and Union Territories to ensure that all child care institutions are to be registered.
    • Hence, according to The Juvenile Justice Act, an NGO,  which is not registered, cannot house children in need of care and protection.
  • Thirdly, the Supreme Court in Bachpan Bachao Andolan vs Union of India directed all Directors General of Police, to register a first information report as a case of trafficking or abduction in every case of a missing child.
    • Further, it mandated at least one police officer not below the rank of assistant sub-inspector in each police station to undergo training. So that they can deal with children in conflict with the law and in need of care and protection.
  • Fourthly, each district should have its special juvenile police unit, headed by an officer, not below the rank of a DSP.
  • Fifthly, The Supreme Court in Re: Exploitation of children in Orphanages in the State of Tamil Nadu (2017), specifically asked the National Police Academy, Hyderabad, and police training academies in every State to prepare training courses on the JJA and provide regular training to police officers in terms of sensitization.
  • Sixthly, recently The NCPCR requested the state to intimate about any information received about any, abandoned or orphaned child to it by email or over the telephone.

Children are an important national asset. Their wellbeing is directly related to the growth of the nation. Also, DPSP (Article 39) of the Constitution prohibits children from being abused. Hence,  it is the duty of the state to provided necessities to the children in need of care.

Source: The Hindu

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Judicial Governance during Pandemic – Explained, Pointwise

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Introduction

The judiciary is referred to as the custodian of the constitution and protector of fundamental rights. It is the supreme authority responsible to punish the violators of fundamental rights and civil liberties. In this regard, it also has the power to review the decisions of the executive as mandated by Article 13. Further, under Article 142, it can pass any order for doing complete justice.

Both of these have been the source of power for Judicial Activism. It is a philosophy that motivates judges to go beyond the traditional precedents in favor of progressive and new social policies.

This activism has been widely used during the 2nd wave of the pandemic. It was mainly to direct the government towards a more citizen-centric path. However, some experts are calling it an act of judicial governance. In this article, we will describe the pros and cons of judicial governance. Further, some suggestions would be provided to direct the future course of action.

Understanding Judicial Activism and Judicial Governance:
  • Judicial Activism is a “judicial philosophy which motivates judges to depart from the traditional precedents in favor of progressive and new social policies”.
  • It empowers judges to use their powers to correct injustices. It happens especially when the other branches of government do not act to do so.
  • Judicial Governance is when the judiciary assumes the role and functions of the executive and manages governance. Unrestrained activism on the part of the judiciary often leads to judicial governance. 
Judicial Conduct during the pandemic times
  • The Supreme Court’s verdict in the Election Commission of India case is an example of judicial statesmanship. The SC  beautifully dissolved the conflict between EC and the HC, avoiding a positive pronouncement either way. 
  • It has recorded an appreciation of the performance of the EC and nullified the effect of oral observations. As per SC, the observations during the course of the hearing do not constitute a judgment or binding decision.
    • The Madras High court had accused EC of spreading the second wave of pandemic. It further opinionated that its officers should be booked for murder charges.
    • The EC then approached the Supreme Court against such allegations claiming it as an act to undermine its credibility.
  • However, as per some experts, many orders have been passed by courts that extend beyond the boundary of activism and can be called Judicial governance.
    • The Allahabad High Court ordered to fix a “minimum” ex gratia of Rs1 crore for every official who succumbed to the pandemic because of panchayat election duty. Although, the state government had fixed an amount of 30 lakhs.
    • The Kerala High Court ordered a ceiling on charges in private hospitals for Covid-19 treatment. 
    • The Delhi High Court has been almost micromanaging pandemic management, fixing oxygen quota and distribution. It even issued a contempt notice to the Centre on the oxygen issue, which the Supreme Court dismissed. 
    • The Uttarakhand High Court pulled up the state government for allowing the Kumbh Mela to go ahead against scientific advice, and then, for not following standard operating procedures.
Provisions/ Tools allowing the judiciary to do Activism
  • Article 13 of the Indian Constitution read with Article 32 and 226 allows the higher judiciary to review and declare void any law which is inconsistent with the fundamental rights.
  • Article 142 provides that the Supreme Court in the exercise of its jurisdiction may pass such a decree or order as is necessary for doing complete justice.
  • The introduction of PIL (Public interest litigation) has broadened the scope of the judiciary for doing activism.
  • Similarly, there are international statutes like the Universal Declaration of Human Rights that are used by courts for doing judicial activism.
Factors demanding judicial governance
  • Using judge’s wisdom when the law fails: Many sensitive issues need a different perspective and care which laws don’t allow. Judicial activism allows a judge to use his personal judgment in situations where the law fails. This was seen in the triple talaq case.
  • Filling the legal vacuum: It gives judges a personal voice to fight unjust issues which though important but evade the eye of the legislature. For example, SC formulated Vishakha Guidelines for countering harassment against women at the workplace.
  • Check on Legislative and executive: It provides a system of checks and balances to the other government branches. For example, SC laid conditions for the imposition of Governor Rule in states in S.R. Bommai Case. This was aimed to bring objectivity in the application of the rule.
  • Social Engineering: Judicial governance allows judges to adjudicate in favor of progressive and new social policies helping in social engineering. 
    • For instance, in Indian Council for Enviro-Legal Action Case 1999, the SC adopted the polluter pays principle for environment conservation. 
    • It meant that financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause the pollution.

However, activism must be done cautiously or else it may get converted into judicial governance.

Why Judicial Governance is not good?
  • Against Separation of Power (SOP): Judicial governance destroys the spirit of ‘separation of powers’ between Legislative, Executive, and Judiciary as enshrined in the constitution.
    • SOP is a model that divides the government into separate branches, each of which has separate and independent powers.
  • Expertise in a particular field: The courts don’t have expertise in the field of administration, unlike the administrative authorities. Hence, unnecessary intervention should be avoided.
    • For instance, in one of the orders, a high court insisted on controlled re-opening of the city. And this was without even telling what constitutes ‘controlled re-opening.
  • Impracticable Solutions: The courts lack the machinery to deal with highly sensitive and technical issues. Due to this, they end up giving impracticable solutions. 
    • For instance, the Allahabad High Court’s order to the UP government to consider a state lockdown was returned with the answer that yes, it was considered, but it was not needed.  
  • Disincentivization: Severely critical observations over administrative actions act as disincentive to honest and dutiful officials. They have been working day and night to fight the unpredictable pandemic whose characteristics are not yet fully known to science.
  • Undemocratic Nature: Judicial governance appears as an act of ‘tyranny of unelected’ in a democracy. The executive remains “accountable” to the people through a 5-year election process, but judges exercise self-regulation and are accountable only to themselves.
  • Wastage of court’s time: It is a wastage of the court’s time, which can otherwise be used for adjudicating other important matters relating to public importance pending before the court.
    • For instance in National Anthem Case 2016, the SC mandated all cinema halls to play the National Anthem before a film starts in movie halls. However, this decision was reversed later on, and it consumed a significant portion of judicial time.  
Suggestions
  • First, the adjudication must be done within the system of historically validated restraints and conscious minimization of the judge’s preferences.
  • Second, the decision of the administrators should not be interfered with unless it is clearly violative of some statute or is shockingly arbitrary. In times of Pandemic, the response and strategy of the nation should be driven by expert medical and scientific opinion; not by judicial interference. 
  • Third, the judiciary must resort to self-imposed discipline and self-restraint in order to prevent judicial governance.
  • Fourth, the courts have to be cautious that they do not knowingly or unknowingly become a source of obstruction in the performance of states’ obligations.  
Conclusion

Judiciary should prevent interference in the domain and work of the executive as mandated by the concept of separation of powers. Judicial activism would be counterproductive and would fail in achieving its laudable purpose if it assumes the role of judicial governance. It is one thing to direct the executive to perform. However, it is another thing to say “if you do not do it, we will do it ourselves”.

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SC struck down the Maharashtra State Reservation for SEBC Act 2018

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Synopsis:

The SC has struck down the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act, 2018. The judgment would prevent realization of unjust benefits by the reservation. It would also encourage states to work on core supply-side issues in education and public employment which would curtail unnecessary demand for reservation.

Background:
  • The five-judge bench of SC has struck down the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act, 2018.
  • The act provided reservations for the Maratha community in public education and employment.
About the SEBC Act 2018:
  • It provides 16 percent reservation to the Maratha community in jobs and admissions.
  • The law views the Maratha community as a socially and educationally backward class (SEBC).
Genesis of SEBC Act 2018:
  • It was an outcome of a prolonged political campaign by the dominant Maratha community and significant support by the political parties. The community possesses a strong foothold in state politics, the running of cooperatives and educational institutions, and ownership of land. 
  • The issue of reservation was rejected by at least three national commissions and three state commissions in the past.
  • However, in 2018, the Maharashtra State Backward Class Commission (headed by Justice M.G. Gaikwad) recommended reservation for the Marathas. The Commission believed that extraordinary circumstances existed for a Maratha quota.
Judgment of SC:
  • The court held that the 2018 act goes against Articles 14 and 15 (right to equality and protection against discrimination) of the Indian Constitution. It exceeds the ceiling of 50% reservation set by the 1992 Indra Sawhney judgment.
  • Further, the act fails to prove the existence of ‘extraordinary circumstances’ under which the 50% limit can be breached. The data collected and presented by the (Justice Gaikwad) Commission proves that the Marathas are not socially and educationally backward.
  • The court held that the 102nd Constitution Amendment has taken away the power of states to identify Socially and Educationally Backward Classes (SEBCs). It means that the power to identigy SEBC lies with the Centre. 
    • The States could only make suggestions to the President or the statutory commissions for inclusion, exclusion, or modification in the SEBC List.
Way Forward:
  • Firstly, the judgment should act as an eye-opener for other dominant communities that are demanding reservation. Eg – Patidars in Gujarat.
  • Secondly, the Maharashtra Government can undertake a fresh study to support the Maratha claim for backward status and affirmative action. However, a more prudent approach would be to solve supply-side issues in education and employment. This would curtail unnecessary demand for reservation.
  • Thirdly, a review of inclusion/exclusion power in the SEBC list can be held as some experts believe that participation of states ensures better recognition.
  • Source:The Indian Express
Posted in 9 PM Daily Articles, CURRENT AFFAIRS, daily news, Daily News Updates, PUBLICTagged ,

Maratha Reservation and the Reservation Policy in India – Explained, Pointwise

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Introduction

A five-judge Constitution Bench of the Supreme Court recently held the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act of 2018 as unconstitutional. This Maratha reservation law provides reservation benefits to the Maratha community in admissions and government jobs. However, the implementation of this reservation took the quota limit in the State in excess of 50%. The Supreme Court also held that this law does not qualify for the “exceptional circumstances” mentioned in the Indra Sawhney case.

Earlier the Supreme court mentioned that it may re-examine the 50% reservation cap set by the Mandal case ruling of 1992(Also known as Indra Sawhney case). But during the recent verdict, the court mentioned that there is no need to revisit the 50% reservation cap. The court mentioned that the arbitrary 50% ceiling set by the Mandal case is now constitutionally recognized.

What is the Maratha reservation policy?

Maharastra government appointed a nine-member Maharashtra State Backward Class Commission headed by Justice M.G. Gaikwad. The commission recommended reservation for the Marathas in 2018.

In 2018 itself, the Maharashtra government enacted a law, it provides 16 percent reservation to the Maratha community in jobs and admissions. The law termed the Maratha community as a socially and educationally backward class (SEBC). However, the Maratha reservation violated the 50% ceiling mentioned as in the Indra Sawhney case.

The law was challenged in Bombay High Court. The Bombay High Court upheld the constitutional validity of the Act. But the Bombay High Court reduced the Maratha reservation to 12% in education and 13% in employment (Instead of 16%).

However, an appeal was filed in the Supreme Court. In that case, the Supreme Court held that the reservations is unconstitutional.

About the Maratha reservation case judgment

The case addressed few key questions around the reservation policy in India. Such as,

  • Revisiting the Indra Sawhney ruling: Few of the State governments argued that the limit of 50% reservation set in the Indra Sawhney case was arbitrary. Earlier during the hearing of the Maratha reservation case, the Supreme Court also suggested that it might revisit the Mandal case judgment. But, in the judgment, the court held that the arbitrary ceiling of 50% is now constitutionally recognized. Therefore, the court held that there is no need to re-examine the 50% cap of the Mandal case.
  • Maratha law was not an exceptional circumstance: The court held that both the Maharashtra State Backward Commission report and the High court judgment have not mentioned the situation for exceeding the 50% cap. Further, the court also held that the Marathas are the dominant forward class and are in the mainstream of National life. So, this reservation does not qualify for exceptional circumstances.
  • Power of State to declare a community as backward:
    • The Supreme Court unanimously upheld the constitutional validity of the 102nd Amendment Act, 2018.
    • Further, the court held that the 102nd Constitution Amendment has taken away the power of states to identify Socially and Educationally Backward Classes (SEBCs).
    • It means that the Centre alone is empowered to identify SEBC and include them in the Central List
    • The States could only make suggestions to the President or the statutory commissions for inclusion, exclusion, or modification of castes and communities to be included in the SEBC List.
    • This raises the question of validity on other states’ laws like reservation laws in Haryana, Tamil Nadu, etc.
  • The court also held that the special reservation violates Article 14(Right to equality) and Article 21(due process of law)
Other Judicial interventions on reservation policy
  1. The state of Madras vs Smt.Champakam Dorairajan (1951) case: In this case, the court held that the caste-based reservations violate provisions of Article 15(1). Article 15(1) provides for non-discrimination of the State against citizens based only on religion, race, caste, sex, place of birth, or any of them.
    This resulted in the First Constitutional Amendment. The Parliament amended Article 15 to include provisions of reservation under Article 15(4).
  2. M R Balaji vs State of Mysore case 1963 and Devadasan v Union of India case 1964: In these cases, the court held that the efficiency of public administration is essential. Further the court asked the government to maintain the reservation to 50%
  3. Indra Sawhney vs Union of India Case 1992: In this, the court held that the reservation should not exceed 50 per cent in total, unless in exceptional circumstances. Further, the Court held to remove the creamy layer among OBCs from the reservation. Apart from that, the Court also held that there should not be reservations in promotions.
    But the government enacted the 77th Constitutional Amendment Act(CAA) to provide reservations for SCs and STs in Promotion(Article 16(4A)).
  4.  M. Nagaraj vs Union of India case 2006: In this, the court upheld the 77th CAA. But the court also mentioned certain conditions to be maintained in such reservation. Such as,
    • The reservation policy shall not affect the overall administrative efficiency
    • Reservation is applicable only when the SCs and STs are not adequately represented in public employment.
Reservation in India
  1. Under the powers conferred by Article 340, President appointed a B. P. Mandal headed backwards class commission in 1978. The Commission suggested a 27% reservation in government jobs for the Other Backward Classes(OBCs). As 52 percent of the country’s population consisted of OBCs.
  2. In 1990, the government accepted the recommendations of the Mandal Commission and implemented them. By this, the reservation in India raised to 49.5 per cent.
    • 22.5% reservation for SCs and STs (7.5% for STs, 15% for SCs)
    • 27% reservation for the OBCs
  3. In 1991, the government enacted provisions for the reservation of 10% of jobs for economically weaker sections (EWS) among higher caste people. But, in the Indra Sawhney case or Mandal Case, the supreme court struck down this provision. Further, the case also provides for the maximum reservation of 50% in total. However, the case also held that the reservations can go beyond 50% under exceptional circumstances.
  4. The government under the 103rd Constitution Amendment Act, 2019 again provided a 10% reservation for the EWS in India. The Act also amended Articles 15 and 16 correspondingly.

So at present, the total reservation stands at 59.5 percent. Few State governments also provide the reservation over and above 59.5 percent.

Implication of Maratha Reservation Judgement
  1. The implication of the 102nd Constitutional Amendment Act: As the judgment upheld the constitutional validity of the 102nd Amendment Act, the President alone has the power to notify backward classes from now on. Apart from that, the Central List will now be the “only list” for the SEBC. This means that the Centre alone is empowered to identify SEBC from now on.
  2. The question of constitutional Validity of the 103rd Amendment: This amendment provides for 10% reservation for the EWS in government jobs and educational institutions from the unreserved category. The Maratha reservation judgement mentioned 50% as the cap for reservation. But after the enactment of the 103rd Amendment Act, the total reservation now stands at 59.5 per cent. This is a clear violation of the Indra Sawhney judgement.
  3. The constitutional validity of State reservation laws

The judgement mentions that the States can only make suggestions to the President or the statutory commissions. But several states have enacted various local reservation laws. Their constitutional validity was in question after the Maratha reservation judgement. States having such laws include,

    • The Tamil Nadu Backward Classes, SCs and STs Act, 1993: By this Act, the Tamil Nadu government provided 69 percent of reservations in educational institutions and jobs in the state government. The State further get the ascent of President and placed this law in Schedule IX of the Constitution.
    • As the Law placed itself in the Ninth Schedule, it could not be challenged in court for the violation of fundamental rights. However, the Court in the I R Coelho v State of Tamil Nadu case held that the Laws in Ninth Schedule can be challenged for the violation of the basic structure of the Constitution. The Supreme court is yet to decide the case of Tamil Nadu reservation law.
    • Haryana and Chhattisgarh have also passed laws providing reservations in excess of the 50 percent reservation mark. These laws also challenged in the Supreme Court.
    • Apart from these legislations, there are many protests from various parts of India demanding special reservations above the 50 percent limit. Few examples are,
      • Patels in Gujarat,
      • Jats in Haryana,
      • Kapus in Andhra Pradesh
Solutions
  1. As mentioned by the judgment itself the National Backward Classes Commission must publish a fresh list of SEBCs, both for states and the central list. Till the publication, the existing lists operating in all states and union territories can continue.
  2. The government has to subclassify the Backward Classes like in Tamil Nadu, Andhra Pradesh, West Bengal etc. This will provide the benefit to intended beneficiaries. Since the government has already appointed Justice G Rohini Panel on Sub-categorisation of OBCs.  The Panel has to fast pace the sub-classification process.
  3. The government has to remove the well-off sections from the reservation policy. The government can achieve this by moving away from reservation based on a citizen’s conditions rather than community-based reservations

In conclusion, the government has to understand that the reservation policy is a temporary measure in the direction of social inclusion. The government can achieve Social inclusion by better education policies, enhancing the skill development of backward communities, not by providing more reservations. So, providing more and more reservation gradually is itself not a permanent solution.

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Supreme Court Upheld Validity of 102nd Constitution Amendment Act

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What is the News?

The Supreme Court of India has upheld the constitutional validity of the Constitution 102nd Amendment Act, 2018.

About 102nd Amendment Act, 2018:
  • The 102nd Constitutional Amendment Act, 2018 gave constitutional status to the National Backward Classes Commission.
  • The Amendment also gives the President powers to notify backward classes.
  • However, several states have raised questions on the interpretation of this Amendment and argued that it curtails their powers.
Supreme Court Judgement:
  • The Supreme Court unanimously upheld the constitutional validity of the 102nd Amendment Act, 2018. However, the judges differed on- whether it affected the power of States to identify socially and educationally backward classes(SEBC).
  • By 3:2 majority, the court held that the 102nd Constitution Amendment has abrogated the power of states to identify Socially and Educationally Backward Classes (SEBCs).
  • Further, the Court has said that the Central List will now be the “only list” for the SEBC. This means that the Centre alone is empowered to identify SEBC and include them in the Central List under Article 342A(1) for claiming reservation benefits.
  • The States could only make suggestions to the President or the statutory commissions for inclusion, exclusion, or modification of castes and communities to be included in the SEBC List.
  • Moreover, once published under Article 342A (1), the list can only be amended through a law enacted by Parliament.
Identification of SEBC:
  • In the task of identification of SEBCs, the National Commission for Backward Classes(NCBC) set up under Article 338B will guide the President.
  • If the commission prepares a report concerning matters of identification, such a report has to be shared with the State government. However, the final decision lies with the President (i.e. the Central Government under Article 342A(1).
  • Further, the states will continue to enjoy the power to make reservations in favor of particular communities or castes, within the ambit of Articles 15 and 16. They can decide on the quantum of reservations, the nature of benefits, and the kind of reservations – except with respect to the identification of SEBCs.

How does this judgement impact interventions by states to provide reservations for other communities?

  • The National Backward Classes Commission(NCBC) set up under Article 338B must publish a fresh list of SEBCs both for states and the central list.
  • Till the publication of such a list, the existing lists operating in all states and union territories continue to operate. This direction was issued under Article 142 of the Constitution of India.

Source: The Hindu

 

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West Bengal Housing Industry Regulation Act (WB HIRA) is Unconstitutional: SC

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Synopsis: The court struck down the West Bengal Housing Industry Regulation Act (WB HIRA), 2017 as unconstitutional. The court also clarified that the legislations by the Parliament and the state government are on the concurrent list.

Introduction:

The central government enacted the Real Estate (Regulation and Development) Act to regulate the Real Estate sector in India. West Bengal government also enacted a parallel Act known as the West Bengal Housing Industry Regulation Act (WB HIRA), 2017. Recently the Supreme Court held the West Bengal legislation Unconstitutional.

Background of both legislations:

Contracts and the transfer of property falls under the Concurrent List of the Seventh Schedule.

  • In 1993 the West Bengal government enacted the West Bengal Housing Industry Regulation Act on the above two subjects.
  • But, to bring transparency and safety in the market for consumers of residential and commercial projects, the Central government enacted RERA in 2016. With the enactment of RERA, the 1993 Act was repealed.
  • In the same year, West Bengal notified the draft Real Estate (Regulation and Development) Rules, 2016.
  • Instead of finalizing the rules the state government went ahead and enacted West Bengal Housing Industry Regulation Act (WBHIRA) in 2017.
  • Forum for Peoples Collective Efforts filed a case against the State of West Bengal regarding the WB HIRA

Recent Supreme Court Judgement on West Bengal Housing Industry Regulation Act:

The Supreme Court held in Forum for Peoples Collective Efforts v. State of West Bengal case held that the WB HIRA was unconstitutional. Further, the court also mentioned the following things.

  • Both the statutes refer to the same subjects (contracts and the transfer of property) in the concurrent list.
  • Article 254 (2) allows for a conflicting State law on a concurrent list subject to prevail over a central law if it receives the assent of the President. But the WB HIRA neither reserved for the consideration of the President nor the Presidential assent was obtained.
  • The court also held that if any areas have been left out in the central legislation, the state legislatures can provide cognate(related) legislation. Such State legislation can incidentally deal with the provisions of Central legislation. But, The HIRA encroaches upon the authority of the Parliament.
  • But in the case of clause-by-clause comparison between the two laws, the court observed that 95 to 98%, the WB HIRA is a complete copy-paste of the RERA. This is an attempt to establish a parallel regime by the State government.
  • Furthermore, the court also observed that in a few critical aspects, WB HIRA is in direct conflict with RERA.
  • The court also observed that there was a “doctrine of repugnancy” between WB-HIRA and RERA. (Repugnancy –  inconsistency or contradiction between two or more parts of a legal instrument.) Such as,
    1. WB HIRA has failed to incorporate valuable institutional safeguards
    2. The WB HIRA does not have provisions intended to protect the interest of homebuyers
    3. The court observed these repugnancies of the state legislature as against the public interest.
  • The court also elaborated on the tests of repugnancy. The three tests of Repugnancy as stated by the court are
    1. Where the provision of State legislation is directly in conflict with a law enacted by Parliament. In such cases, compliance with one is impossible along with obedience to the other.
    2. The second test of repugnancy is based on the intent of Parliament to occupy the whole field(contracts and the transfer of property) covered by the legislation.
    3.  The subject of the legislation enacted by the State is identical to Parliament, then does the State law enacted prior or later to the central law.
  • Since the State law is completely repugnant to the Central law, it was constitutionally impermissible
Conclusion:

The court based on the above explanations struck down the West Bengal Housing Industry Regulation Act (WB HIRA), 2017, as unconstitutional. Further, the court also held that striking down the present law will not result in the revival of the 1993 WB HIRA. This is because the 1993 Act was repealed after the enactment of RERA.

The Court also clarified that the striking down of WBHIRA will not affect the sanctions permissions granted prior to the delivery of the judgement.

Source: The Times of India

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Supreme Court observations on “seeking medical help for COVID-19”.

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What is the News?

The Supreme Court has said that there should not be any coercive action against any citizen. This is especially for citizens who are putting out emergency calls on social media for seeking medical help for COVID-19.

Background:
  • Uttar Pradesh government had recently ordered strict civil and criminal action against citizens. This is for making false appeals on social media for seeking help for COVID-19
  • But against the UP government order, the Supreme Court recently issued the following observations.
Key observations on seeking medical help for COVID-19:
  • The Supreme Court has warned the State governments and the police against taking any action on the spread of information from the citizens affected by Covid-19.
  • Further, the court also warned the government and police for taking actions on the request of help through social media from citizens affected by COVID-19.
  • The court has said that any move to punish citizens actions on social media to seek help for oxygen cylinders, COVID-19 drugs, beds and hospitals would attract contempt of court action.
  • Further, the court has also referred that the free flow of information during the 1970 famine enabled the government to tackle problems effectively. But the restriction of information during the 1918 pandemic created troubles for the government.
  • Lastly, the court has also told the States that this was a time of great crisis. Hence, empathy and action should be the rule of the day.

Source: The Hindu

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SC Warn States Against Restricting Information

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Synopsis: The Supreme Court has warned the police and the government against harassing the people who need help.

Background  

The Supreme Court has issued a timely warning to the States. It is against any attempt to restrict the spreading of information about the health crisis or call for help. 

  • The court issued this warning in response to the direction issued by the UP Government. Directions stated anyone spreading misinformation or rumour would be held under the National Security Act (NSA). Also, their property will be seized. 
  • Amethi police registered an FIR against a man who asked for an oxygen cylinder on Twitter for a family member. Accusations were of circulating a rumour and seeking to cause fear and alarm.
  • It is appropriate for the government to direct the police to crack down on the racketeering of medicines in the black market. 
    • However, it is a different matter if the administration starts seeing all pleas for help as actions aimed at ruining the government’s image.
What is the significance of the Supreme Court’s warning?

The court said that the calls for help through social media from citizens affected by COVID-19 are not supposed to be banned.

  • Firstly, the Court’s warning that any attempt to suppress the people’s voices would attract action for contempt of court is timely and necessary. Because leaders are treating the grievances by citizens as a personal insult to their administrative capabilities.
  • Secondly, the head of the bench, Justice D.Y. Chandrachud said that any restriction on information is conflicting with basic principles. He highlighted the importance and need for the free flow of information during a serious crisis by remembering the role it played in controlling a famine in 1970.
  • Thirdly, the Court was taking inspiration from the theory, enunciated by economist Amartya Sen. The theory spoke of the fundamental features of democracy that could help prevent famines. Such as:
    • A free press and the need to face the people at elections and response to political criticism.
  • Fourthly, this will help prevent misguided action by the police and the administration to treat appeals concerning the shortage of hospital beds, medical oxygen, and vital drugs
Conclusion 
  • The High Courts of India questioned the government as well. Any move to suppress such criticism or managing opinions will be of no use if the infections and body count keep rising.
  • Government must acknowledge its accountability. And focus on strengthening the health infrastructure, instead of wasting energy and precious time on managing people’s opinions.

Source: The Hindu

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States control over temples is against Secularism

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Synopsis: There is an urgent need to provide adequate community representation in the management of their places of worship

Background
  • There has been a persistent demand from the communities to deregulate state control over temples.
  • Communities are asking for their right to representation in the affairs of the management of temples.
  • Now the question is if the government releases its control over the management of temples, to whom the temples would be entrusted.
  • This article will explain,
    • How the government’s control over temples is against the principles of secularism?
    • How community control over temples can be regulated.?
Why the government control over temples needs to be replaced?

States control over temple have become a more controversial issue due to,

  • Gross mismanagement of financial resources
  • Increasing Corruption
  • Disregard to temple maintenance leading to loss and destruction of temple antiquities.
  • Against the principle of Secularism.
How the government control over temples is against the principles of secularism?

The Supreme court in Raja Birakishore vs The State of Orissa ruled that appointment of temple priests by the state a secular function.

Yet, the State’s involvement in the appointments of heads of Mutts and the authority to conduct poojas is against the principle of Secularism. Because

  • One, Article 25 empowers the state to enact laws for the regulation of religious institutions. But it is to prohibit discretionary religious practices and to make law for social welfare and reform.
      • Article 25(2)(a) empowers the state to regulate “economic, financial, political or other secular activities which may be associated with religious practice”.
      • Article 25(2)(b) empowers the state to enact a law to prohibit the exclusion of ‘classes and sections’ of Hindu society to enter into Hindu temples of a public character and also make law for social welfare and reform.
      • However, these safeguards are being misused by the state to assume ownership of properties belonging to religious institutions.
  • Two, the establishment of Hindu Religious and Charitable Endowments Department is not a cause for social justice.
      • In the Shirur Mutt case, the supreme court struck down a major portion of the Hindu Religious and Charitable Endowments 1951 Act. The court ruled that the provisions are a “disastrous invasion” of religious liberty.
  • Three, the comparison with the Waqf Act to legitimize the control over Hindu religious endowments is misleading. Because,
      • One, Waqf Act clearly reveals that it applies only to charities and specifically excludes places of worship such as mosques.
      • Two, it also supports the argument that government should not regulate places of worship.
What needs to be done?
  • It has been said that handing over the temples to the community will strengthen class hierarchies.
  • However, communities are looking for control. They are asking for representation in the management of the place of worship. It is possible by the creation of boards with representatives of religious heads, priests, and responsible members from the dharmik sampradaya.
  • The colonial law, the Religious Endowments Act (Act XX of 1863) has similar provisions for handing over religious institutions to society.
  • It created committees in every district to exercise control over temples.
  • This act should be made applicable to all religious institutions to guarantee adequate community representation in the management of their places of worship.

Source: The Hindu

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A Case of Declining Judicial Federalism in India

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Synopsis: SC transferred all oxygen supply-related cases in various High Courts. It did so, in the name of prioritising uniformity across nations in the distribution of essential services. This step of SC is against Judicial Federalism in India.

Background
  • In Parmanand Katara v. Union of India (1989), the Supreme Court said that ‘the right to emergency medical treatment is part of the citizen’s fundamental rights.
  • The lack of oxygen supply during the Covid-19 crisis prompted many hospitals to file pleas in their respective High court lately. They wanted to defend their right to emergency medical treatment.
  • Accordingly, the High Courts of Delhi, Gujarat, Madras, and Bombay issued a series of directions to the executive. For instance,
      • Bombay High Court, directed immediate restoration of oxygen supply that had been reduced from the Bhilai steel plant in Chhattisgarh.
      • The Delhi High Court directed the Central government to ensure adequate measures for the supply of oxygen.
  • Later, the Supreme court (SC) took suo motu cognisance of the issue and hinted the possibility of shifting the cases related to oxygen supply to supreme court from high courts.
  • The SC said that the distribution of essential services needs uniformity across the nation. Further, it asked the Central government to prepare a national plan for the same.
  • However, several senior lawyers have criticized the intervention by the Supreme Court while High Courts were already hearing the issues.
  • This move by the SC is against judicial federalism in India.
Why the decision of SC is seen as an attack against Judicial federalism in India?
  1. First, Article 139A of the Constitution empowers the SC to transfer cases from the High Courts to itself if cases involve the same questions of law.
    • However, the SC’s contemporary conduct of being indifferent towards executive actions in significant cases has cast doubt over Judiciary. For instance,
    • The SC did not use article 139A to hear cases related to the Internet ban in Kashmir or activists and journalists who were arrested and detained.
  2. Second, many lawyers viewed this as an act of “arrogance of power” and contempt for and disregard of the High Courts in the country.
  3. Third, declining of trust over SC to provide deliberative justice. SC sits in two or more benches to deliberate and dissent upon significant issues. However, In recent years, there is a lack of dissent in issues that have serious political implications.
  4. Fourth, public health and hospitals come under the State List. And the respective High Courts have been dealing with specific challenges at the regional level. It did not warrant any interference from the SC.
  5. Fifth, In L. Chandra Kumar v. Union of India (1997), the SC itself has said that the High Courts have significant advantage in winning the confidence of the people. Further, the power of the High Court under Article 226 to issue writs is wider than the Supreme Court’s under Article 32.
Way forward
  • Need to learn from the good practices of the American Judicial System. The U.S. Supreme Court reviews only a few cases from state courts. It ensures autonomy in the application of federal law for the State courts.
  • Further, the need for a uniform judicial order across India is needed only in cases of conflict of laws or judgments on legal interpretation. Otherwise, autonomy, not uniformity, and decentralisation not centrism should be the rule.

 

Source: The Hindu

 

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An Anlaysis of SC Ruling on Rohingyas

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Synopsis: Supreme court recently ruled against providing protection to Rohingya refugees. It signifies a flawed understanding of the international convention to protect Refugees.

Background
  • Recently an application was filed before the supreme court to release the Rohingya refugees. They were detained in a sub-jail in Jammu and were likely to be deported to Myanmar.
  • The Supreme court disposed of the application.
  • It signifies a lack of understanding of international law and constitutional protections for refugees.
About Rohingyas
  • The Rohingyas are termed as the world’s most persecuted ethnic minority by the U.N
  • In August 2017, the Myanmar military launched a clearance campaign in the Rakhine state (home to the ethnic Rohingya).
  • As many as 7,50,000 Rohingyas fled to the neighboring states to escape a military crackdown and brutality.
India and Rohingyas
  1. Nearly 40,000 Rohingyas who were feared of Genocide entered India and got settled in Refugee camps.
  2. Recently, the home ministry had issued circulars to states sharing borders with Myanmar to identify, detain and deport Rohingyas back to Myanmar.
  3. Following this, few states withdrew their support to provide food, shelter, or even essential medical care to the refugees.
  4. In Jammu and Kashmir after a biometric verification drive, over 170 Rohingya refugees were detained despite having UNHCR refugee cards.
  5. The Indian government labeled them as illegal economic migrants and perceived them as a national security threat. They are also excluded from the Citizenship Amendment Act.
  6. In the past, India has differentiated illegal migrants and Refugees in its treatment of Afghan, Sri Lankan, or Tibetan refugees.
  7. However, lack of consideration over Rohingyas as refugees is a disservice done to thousands of lives who are already affected by Ethnic cleansing.
What arguments are given by the supreme court?
  1. First, SC held that refugees cannot invoke Article 32 right. However, the constitutional safeguards of Articles 14 and 21 are equally available to every person, including refugees.
  2. Second, the distanced itself from commenting on the genocide happening in Myanmar. The court distanced itself despite the International Court of Justice (ICJ) observation that the Rohingya had suffered genocide.
  3. Third, the court ignored India’s binding commitment to non-refoulment and obligations in prohibiting genocide. India has ratified the Convention on Prevention and Punishment of the Crime of Genocide in 1959.
      • Principle of Non-Refoulement: It prevents expulsion of a refugee where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group, or political opinion.
  4. Fourth, allowing Rohingyas to get deported is a breach of Article 21 and against the Gujarat High Court ruling In Ktaer Abbas Habib Al Qutaifi v Union of India. Even, Delhi High Court in Dongh Lian Kham v Union of India (2016) held the same view.
      • According to the Delhi and Gujarat High court, the Principle of Non-Refoulement protects the life and liberty of a human being irrespective of his nationality.
  5. Fifth, the court stated that petitioners’ claim to a right against deportation should be seen along with the right to reside. Under Article 19 right to reside is only available to citizens. But Rohingyas had never asked for the right to reside. Rather they have prayed for the right to life to reside in a camp and the right to liberty to protect them from arbitrary arrests, harassment, and intimidation.

Source: Indian Express

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SC Directions to CBI in ISRO Espionage Case, 1994

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Synopsis – The Supreme Court has ordered the CBI investigation in the Nambi Narayanan ISRO Espionage case. CBI will review the involvement of the Kerala police.

What is the ISRO espionage case?
  • In 1994, a Maldivian woman was arrested. She was suspected of selling secrets from ISRO scientists to Pakistan.
  • Mr. Narayanan was arrested along with two other scientists by the Kerala Police on charges of sharing official secrets on space technology and launch missions.
  • Later, the CBI took over the probe from the Kerala police. In 1996, CBI recommended closure of the case due to lack of evidence.
  • The CBI also highlighted serious flaws in the police investigation, which relied on dubious tactics and was based solely on suspicion.
What is the court order [2018]?
  • Firstly, in 2018, the Supreme Court dismissed the case as a criminal frame-up based on “some sort of fancy or notion.”
  • Secondly, according to the Court, the former ISRO scientist was “unnecessarily arrested and harassed”.
  • Thus, the court ordered the State of Kerala to pay him Rs.50 lakh as compensation for the damage to his honor and dignity.
  • Lastly, the court also formed a committee headed by Justice D.K. Jain to find ways and means to take appropriate steps against the erring officials
Recent court order-
  • The SC ordered CBI to investigate the alleged espionage case against a former ISRO scientist in 1994 and to submit a report within three months.
  • Furthermore, the CBI will investigate the report of Justice D.K. Jain Committee on senior Kerala police officials accused of framing ISRO scientist.
Concerning facts about the case-
  • The ‘ISRO spying case’ has raised significant concerns about police investigations in the country.
  • Also, Kerala’s government has been ignoring calls for disciplinary action against the erring police officers.
  • Moreover, the State government opposed the CBI’s closure report and made an attempt to revive the investigation by its own police.

Suggestion

  • SC order is a welcome and necessary step toward ensuring transparency for the alleged frame-up.
  • Also, it would be in the best interests of the case if the CBI could continue with its inquiry into the officers involved without hindrance

OneSourceThe Hindu

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State obliged to facilitate access to education: Supreme Court

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What is the News?

The Supreme Court has said that the State has an affirmative obligation to facilitate access to education, at all levels.

What was the case?
  • 2 students from Ladakh filed a petition in the Supreme Court. The Union Territory administration for MBBS studies nominated them.
  • They were allocated seats in the prestigious Lady Hardinge and Maulana Azad medical colleges. However, they were not admitted.
  • Hence, the students moved to the court saying their fundamental right to education was at risk of the government authorities.
What has the Supreme Court said?
  • Firstly, the court ordered that the students be admitted within a week. It was government policy to allot one seat each at Lady Hardinge and Maulana Azad medical colleges from the Central pool.
  • Secondly, the court held that the Right to pursue higher(professional) education is not a fundamental right in Part III of the Constitution. But the State has an affirmative obligation to facilitate access to education at all levels.
  • Further, the court cited the recommendations of the Committee on Economic, Social, and Cultural Rights (ICESCR Committee). The committee was formed to monitor the implementation of the UN Covenant on Economic, Social, and Cultural Rights(ratified by India in 1979). The committee stated that:
    • “As an empowerment right, education is the primary vehicle by which economically and socially marginalized adults and children can lift themselves out of poverty and obtain the means to participate fully in their communities”.

Source: The Hindu

Rajya Sabha Clears “National Bank for Financing Infrastructure and Development Bill, 2021”

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High Courts should not intervene during police investigation:SC

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What is the News? 

The Supreme Court has cautioned the High Courts from passing blanket orders for protecting the accused from arrest during the pendency of an investigation.

What was the case?
  • In 2020, the Bombay High Court in an interim order directed that no coercive measures shall be adopted against the accused. The order was with reference to an FIR lodged in 2019 on allegations of cheating, forgery, and others.
What did the Supreme Court say?
  • The Supreme Court quashed the judgment of the Bombay High Court.
  • The Court also held that High Courts must not pass blanket orders protecting the accused from arrest during the pending investigation.
    • In case, if it ordered no coercive steps (are) to be adopted, then the High Court must clarify what it means. Because coercive steps have a chance of misunderstood and/or misapplied.
  • Further, the court also reiterated that FIR is not an encyclopedia. As the FIR cannot disclose all facts and details relating to the offense.
  • Hence, when an investigation by the police is in progress, the court should not go into the merits of allegations in the FIR. The court must allow police to complete the investigation.

Source: Indian Express

Posted in Daily Factly articles, Factly: Polity and Nation, PUBLICTagged

People are Free to Choose Religion: Supreme Court

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What is the News?

The Supreme Court refused to entertain a PIL seeking directions to the Centre to ban black magic, superstition, and deceitful religious conversion.

What was the case?
  • A petition was filed in the Supreme Court seeking to control black magic, superstition & mass religious conversion of SC/STs. The petition also mentions the religious conversions through intimidation, threats & gifts.
  • The plea argued that such forceful religious conversions by use of black magic are common throughout the country.
  • These incidents are against Articles 14 (right to equality), 21(right to life), and 25 (right to religious freedom). Also, they are against the principles of secularism(part of the basic structure of the Constitution).
  • The plea also said that the Centre and States are obligated under Article 46 to protect the SC/ST community from social injustice and other forms of exploitation.
  • The petitioner also referred to the 1977 Stanislaus vs State of Madhya Pradesh and Others case.
    • In this case, the Supreme Court Constitution bench explained the “word ‘propagate’ used in Article (25). The court held that it means transmitting or spreading information from person to person or from place to place.
    • Further, the court also held that the Article does not grant the right to convert another person to one’s own religion.
What has the Supreme Court said?
  • The Supreme Court refused to entertain the petition. It observed that there is no reason why a person above 18 can’t choose his religion.
  • The Court observed that the fundamental right under Article 25 provides people to freely profess, practice, and propagate religion. It is subject to public order, morality, and health.
  • Further, the court said that the Religious faith is a part of the fundamental right to privacy. Hence, every person is the final judge of their own choice of religion. Courts cannot sit in the judgment of a person’s choice of religion or a life partner.

Note: In Justice K.S. Puttaswamy vs. Union of India(2017), the Supreme Court ruled that Fundamental Right to Privacy is intrinsic to life and liberty. Thus, it comes under Article 21 of the Indian constitution.

Source: The Hindu

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SC Judgment on Rejection of Candidate Acquitted of Serious Crime

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What is the News?

The Supreme Court held that a public employer can reject a candidate if the candidate is unsuitable. Thus, a person acquitted of a serious crime merely on the benefit of the doubt can be rejected.

What was the case?
  • A man cleared the recruitment exam of a constable in the Rajasthan Police Service.
  • However, he was not appointed to the post. He was acquitted of murder after the witnesses turned hostile in Rajasthan in 2009.
Supreme Court Observations:
  • The Supreme Court observes that acquittal in a criminal case does not automatically qualify a candidate for appointment to the post.
  • The person should be honorably acquitted of a heinous crime and not on the benefit of the doubt. Only then is a person considered eligible for public employment.
  • An honorable acquittal is when the accused is acquitted after full consideration of the evidence. Also, if the prosecution miserably fails to prove the charges leveled against the accused.
  • However, if this parameter is not met, the acquittal is based on the benefit of the doubt.
  • The present case can hardly fall under the category of an honorable acquittal. The witnesses had turned hostile. Hence, the appointment was rejected.

Source: The Hindu

 

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SC Cautions Court against Granting Bail in Heinous offences

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What is the News?

The Supreme Court cautioned courts against granting bail in heinous offences. The SC said that the seriousness of the charge is a basic consideration before releasing an accused on bail.

What was the case?
  • The Kerala High Court granted bail to a man accused of the murder of a 30-year-old dentist in front of her father.
  • The accused had gone absconding for several days before his arrest.
What did the Supreme Court say?
  • The Supreme Court set aside the Kerala High Court order of granting bail to the accused.
  • The apex court observed that the nature of the offense is one of the basic considerations for the grant of bail. The more heinous the crime is, the greater the chance of rejection of the bail.
  • Further, the court said that the power to grant bail under Section 439 of the Cr.P.C is discretionary. The court also stated that such discretion has to be exercised judiciously by courts.
  • In this case, the crime of the accused is heinous. Moreover, he could be arrested only after receipt of secret information by the investigation agency. Thus, granting bail was not justified.

SC judge stated

“while granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment”. 

  • Other criteria for bail include “reasonable apprehensions” of influencing witnesses or tampering of evidence.

 

Source: The Hindu

Posted in Daily Factly articles, Factly: Polity and Nation, PUBLICTagged

Why the Places of Worship Act, 1991 has been challenged?

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Synopsis: The enactment of the Places of worship act, 1991 is an act of colourable legislation. Further, it is against the liberty of belief, faith, and worship to all.

Background
What is Colourable Legislation?

The government can enact a law within the power of the legislature. When the government enacts a law, It can hide a provision (illegal provision) within the provisions under the government’s legislative competence. This legislation is called Colourable Legislation.

The SC in the State of Bihar vs Kameshwar Singh case, used a doctrine of Colourable legislation. Under this, the court held that whatever is prohibited directly is prohibited indirectly also. 

Why the Places of Worship Act, 1991 is said to be unconstitutional?
  1. First, The Places of Worship Act, 1991 is against the fundamental rights enshrined in the Constitution. Because it restricts the jurisdiction of the Supreme Court. Also, it nullifies the Fundamental Right(s) guaranteed by the Constitution of India as per Article 32.
    • According to Ambedkar, Article 32 is the very soul of the Constitution. It states that “enforcement of fundamental rights” cannot be suspended except as stated in the Constitution.
    • Under Article 32 of the Constitution of India, the Supreme Court has the power to issue writs for enforcement of all the Fundamental Rights.
    • Also, the SC on several occasions ruled that no Act of Parliament can exclude or curtail the powers of the Constitutional Courts with regard to the enforcement of fundamental rights”.
    • Hence, the act is appropriately called an Act of colourable legislation. As it limits the powers of constitutional courts though there is no scope for such powers.
  2. Second, the Places of Worship Act, 1991 is against the liberty of belief, faith, and worship to all citizens.
  3. Freedom of religion is guaranteed to all citizens under Articles 25 and 26 of the Constitution.
  4. It also includes Rights to pray and perform the religious practice. Therefore, prohibiting citizens from approaching appropriate courts with respect to handover the land of any temple of certain essential significance is arbitrary.
What is the way forward?
  • The exclusion of the Mathura and Varanasi disputes as being additional exceptions from the Act of 1991 is unacceptable.
  • The Act provides an exception to the “Ram-Janmbhoomi matter”. The need and importance of resolution of such a controversy.
  • The Supreme Court can increase the number of exceptions in Section 5 of the Places of Worship Act, 1991, to three.
    • Including, the Gyanvapi Kashi Vishwanath Temple in Varanasi and the Krishna Janmabhoomi Temple in Mathura along with Ram-Janmbhoomi
    • It can be done through the use of the Supreme Court power under Article 142 of the Constitution.
  • Under Article 142, the Supreme court can pass any order to carry out for doing complete justice being in the public interest, while upholding the Constitution of India.

Source: The Hindu

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SC Issues Directions for “Accident Information Report”

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What is the News?

The Supreme Court issues directions to police, Motor Accidents Claims Tribunals(MACTs), and insurance companies regarding accident information reports. The aim of the directions is to make the compensation process to victims more smooth and claimant-friendly.

What was the case?
  • The Insurance company Bajaj Allianz filed a writ petition in the Supreme Court. The petition raised the issue of the difficulty of accident victims, waiting for years for compensation.
  • Bajaj Allianz said that the police take months to even file an accident report for submission before the Motor Accidents Claims Tribunals(MACTs). This is the norm in many parts of the country,
What did the Supreme Court say?

The Supreme Court issued directions to prevent delays in the disbursement of compensations to victims. The police, motor accident claims tribunals and insurers across the country have to uniformly practice these directions:

  • Firstly, Accident Information Report: The jurisdictional police station shall report the accident under Section 159 of the Motor Vehicle Act. Further, the police need to send the report of the accident to the tribunal and insurer within the first 48 hours.
  • Secondly, Detailed Accident Report: Police shall collect the documents relevant to the accident. This includes documents for computation of compensation and verification of the information and documents. This report shall be emailed to the tribunal and the insurer within three months.
  • Thirdly, the tribunal shall issue summons along with the Report or the application for compensation to the insurer by email.
  • Fourthly, the insurer shall email their offer for settlement/response to the Report to the tribunal.
  • Fifthly, after passing the award, the tribunal shall email an authenticated copy of the award to the insurer.
  • Sixthly, the insurer shall satisfy the award by depositing the awarded amount into a bank account maintained by the tribunal by RTGS or NEFT.

Further, the Supreme Court has also ordered the Centre to launch a national online platform. The platform could be operated and accessed across the country for submission of accident reports, claims and responses to claims. This would end the distress felt by victims during accidents that happened in places other than their native State.

Source: The Hindu

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Supreme Court Allows Sale of “Electoral Bonds”

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What is the News?

The Supreme Court has refused to stay the sale of electoral bonds prior to the Assembly elections in West Bengal and Tamil Nadu.

What was the case?
  • An NGO, Association for Democratic Reforms(ADR), filed a petition. The petition demanded a stay on the sale of the Electoral bonds scheduled between April 1 and 10.
  • The petitioner alleged that there were serious apprehensions in the electoral bonds. Further, the ADR mentioned that the sale of bonds before the elections would increase illegal and illicit funding of political parties through shell companies.
What did the Supreme Court say?
  • On Anonymity of Buyers: The scheme ensures that unidentified persons cannot a) purchase the bonds; b) give them to the political parties. Under Clause 7 of the scheme, buyers have to apply in the prescribed form either physically or online, disclosing their particulars.
  • On Corporate Houses Can Finance Political Parties: The Companies Act requires registered companies to file financial statements with the Registrar of Companies. Hence, the purchase and encashment of the bonds through banking channels will reflect in their financial statements. Further, it is also available in the public domain.
  • Bonds are not tradable: The court rejected the contention that bonds can be Repurchased with Black Money. It said that under clause 14 of the Scheme, the bonds are not tradable. Moreover, the first buyer will not stand to gain anything out of such a sale except losing white money.
  • Apprehension of Foreign Influence on Elections: The court observed that the apprehension of Foreign Influence on Elections is misconceived as under Clause 3 of the Scheme. Under this, the Bonds may be purchased only by a person who is a citizen of India or incorporated or established in India.
What were the arguments against the Electoral Bonds?
  • The anonymity of Buyers: Neither the donor nor the political party is obligated to reveal whom the donation comes from.
    • Before the introduction of electoral bonds, political parties had to disclose details of all their donors who donated more than Rs 20,000.
  • Corporate Houses Can Finance Political Parties: Electoral bonds could be a channel for corporate bribes paid to political parties as a “quid pro quo” (favour or advantage granted in return for something).
  • Bonds Bought with White Money can be Repurchased with Black Money: The first purchase of the Electoral Bonds may be through banking channels for a consideration paid in white money. But someone may repurchase the bonds from the first buyer by using Black Money.
  • Foreign Influence on Elections: There is an apprehension that foreign corporate houses may buy the bonds and attempt to influence the electoral process in the country.

Source: The Hindu

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Need for an Integrated Digital System in Indian Justice System

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Synopsis: Implementation of an integrated digital system for the criminal justice system will help in speedy justice.

Background

43 years old Vishnu Tiwari was recently found innocent by the Allahabad High Court. Vishnu was sentenced to life imprisonment for rape under the Indian Penal Code and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. He spent 20 years in prison before this decision.

  • His appeal before the Allahabad High Court was pending for 16 years. The reasons behind that were missing documents or documents in the wrong format for listing the case. Moreover, Vishnu’s lawyer had no interest in pursuing the case. So, the appeal stayed defective.
  • Shweta Singh Rana, a legal aid lawyer, was given the case in 2019, at the request of the jail authorities to the High Court. The High Court pointed out in its verdict that the State government did not consider converting his life sentence after 14 years.
  • A sincere lawyer and aware family members are essential to secure justice. However, these facilities have become luxuries that only prisoners with good economic conditions have access to.
How a poorly designed system is to be blamed in this case?

An effective justice system should be strong enough to ensure justice for everyone, irrespective of the economic condition of an individual.

  1. Firstly, there is an absence of an integrated digital platform for the criminal justice system. Moreover, present systems are designed poorly.
  2. Secondly, Digitisation has transformed the delivery of public services like passports. Whereas, the criminal justice system is still functioning with old procedures and paper-based processes.
    • The eCourts project has made significant progress in digitising the works of courts. Still, large gaps are present in the system.
  3. Thirdly, criminal cases involve coordination and communication between various institutions such as the police, prosecutors, legal services authorities, and forensic labs. These interactions are not smooth.
How will an integrated digital system help?

It allows the interaction between various institutions through a digital platform. This system normalizes the format and content of data across all the systems. Thereby, it helps in smooth communication and avoiding duplication of data.

  • Firstly, this system will notify the registry about the defects in a particular appeal, un-rectified for an extended period. The system would also inform the accused that his lawyer was not pursuing his case carefully.
  • Secondly, the legal service authority would be informed of the case and the lawyer could be replaced. The system should monitor the quality of representation of the lawyer.
  • Thirdly, after 14 years of imprisonment, the system would have notified the State government that the prisoner was eligible for re-sentencing of his sentence.
Conclusion

Priority must be given to speeding up the implementation of such a system. It will help in providing transparent, real-time access to criminal justice information to all stakeholders, including accused persons.

Source: click here

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NCT of Delhi (Amendment) Bill, 2021 is against the Principle of Federalism

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Synopsis: The Lok Sabha has passed the Government of NCT of Delhi (Amendment) Bill, 2021. The Bill is against the constitutional morality and hence, it needs to be declared unconstitutional.

Background
  • Article 239AA of the Constitution of India granted Special Status to Delhi in 1991 through the 69th constitutional amendment (CAA).
  • The 69th CAA provided Delhi with a Legislative Assembly and a Council of Ministers (CoM). The CoM was made responsible to the legislative Assembly and empowered to deal with matters of concern to the common man.
  • The recently introduced Government of NCT of Delhi (Amendment) Bill, 2021 is against Article 239AA.

What are the changes made in the National Capital Territory of Delhi (Amendment) Bill, 2021?

  • The Bill says, the expression “Government” referred to in any law to be made by the Legislative Assembly in Delhi shall mean the “Lieutenant Governor”.

READ MORE ABOUT THE GNCT OF DELHI BILL, 2021

What are the related rulings on this issue by the court?
  • First, the Govt. of NCT of Delhi v. Union of India (2018) case: The court stated that the Council of Ministers should keep the LG (Lieutenant Governor) informed of its decisions. The rationale of this decision was to resolve the difference of opinion between the LG and the Delhi government by referring it to the President.
      • Further, the court said the LG should be guided by the concept of constitutional morality. And the exercise of power to refer to the President should be an exception.
  • Second, in Samsher Singh v. State of Punjab (1974) the court warned against giving excessive powers to an individual like the Lieutenant Governor. The reasons stated by the court are,
      • One, elections will not have any meaningful value.
      • Two, the voice of the Citizens will go unrecognized. Because elected representatives chosen by the citizens are not given appropriate power to perform their functions
      • Three, it is against the concepts of pragmatic federalism and collaborative federalism.

Read more – NCT of Delhi Bill Critically Explained 

What are the issues in the recent amendments?
  • Firstly, the Lieutenant Governor has been made synonymous with the Government. The government that is a collective voice of millions of citizens is replaced by one individual.
  • Secondly, the bill provides the LG with enormous powers to refer all matters to the President.
  • Thirdly, it provides for a mandate to take the opinion of the lieutenant governor before taking executive actions.
  • Lastly, the above two provisions are against the Supreme Court ruling in Govt. of NCT of Delhi v. Union of India (2018) case and doctrine of Pith and substance.
    • The doctrine of Pith and Substance states that within their respective spheres the state and the union legislatures are made supreme. They should not encroach upon the sphere demarcated for the other.

The bill Is violative of the principles of participative democracy, cooperative federalism, collective responsibility to the House and, constitutional morality, and needs to be aborted

Source: The Hindu

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Significance of Supreme Court Guidelines on Gender Stereotypes

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Synopsis: The Supreme Court advocated some important steps to avoid gender stereotypes while setting aside the Madhya Pradesh High Court order. Now it is time for us to work towards its implementation.

Introduction:

The Supreme Court set aside the controversial rakhi-for-bail order of Madhya Pradesh High Court. Further, the top court issued a set of guidelines for dealing with sexual assault cases. The courts in the country have to follow these guidelines in entertaining such cases. The SC also mentioned a few important things about gender stereotypes in India.

The Supreme Court mentioned a quote of a famous Norwegian playwriter Henrik Ibsen to explain gender stereotypes in India. (His playwright uses feisty women characters who break-free from traditions of familial confines). The Court mentioned that a Woman ‘cannot be herself’ in an ‘exclusively masculine society, with laws framed by men’. 

Avoidable gender stereotypes:

The SC listed a host of avoidable gender stereotypes. Such as,

  1. Women are physically weak.
  2. Men are the head of the household and must make all the decisions related to family
  3. Women should be submissive and obedient.
Level of gender stereotypes in India:

The SC observed certain important observations about gender stereotypes in India. Such as,

  1. Gender violence in India is often covered by the culture of silence.
  2. The court also observed that there is an unequal power equation between men and women. This includes cultural and social norms, financial dependence, and poverty
  3.  The actual data of cases may not reflect the actual incidence of violence against women.
Other judicial interventions on gender equality:

The SC expressed gender equity through its judgments. Few important cases in this regard are,

  1. Secretary Ministry of Defence vs. Babita Puniya case: In this case, the court held that men and women working in the Army are equal. The court held that they work as “equal citizens” for a common mission.
  2. Anuj Garg vs Hotel Association of India case: In this case, the court mentioned that the “notion of romantic paternalism” is used to put women “in a cage”.
    Note: Romantic Paternaliam: It is a belief based on the “romantic” notion that women are the weaker sex than nen.

In conclusion, women are battling societal prejudices. To achieve that everyone must take responsibility, especially institutions and those in important positions.

Source: The Hindu

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Madras High Court on Use of Public Funds for Campaigns

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What is the News?

The Madras High Court has asked the ECI (Election Commission of India) to ensure that public funds are not for campaign purposes.

What was the case before the Madras High Court?

  • A political party filed the PIL in the Madras High Court. It seeks a direction to ECI to prohibit ministers, the Leader of the Opposition, and all others holding public office from campaigning on behalf of their party’s candidates.
  • The petitioner alleged that these people end up misusing their public office during elections. It becomes a disadvantage for the other candidates in the fray.

Key Observations made by the Court:

  • ECI has sufficient authority to put in place checks and balances. It can allow Ministers to enjoy their official status and simultaneously can prevent them from spending government funds for campaigning or election purposes.
  • However, security concerns for higher officials like Chief Ministers and those holding Cabinet positions at the Centre shall also be considered.
  • But the EC can still put some guidelines in place in addition to the existing guidelines. It is indicated in the model code to ensure government funds are not used for campaigning purposes, which is a usual exercise at present.

What is the Model Code of Conduct(MCC)?

  • The Model Code of Conduct(MCC) is a set of guidelines. The Election Commission issues them (EC) to regulate political parties and candidates prior to elections.
  • The MCC becomes operational from the date of the announcement of the election schedule until the date of the result.

MCC guidelines on Party in Power: The MCC incorporated certain restrictions in 1979, regulating the conduct of the party in power.

  • Ministers must not combine official visits with election work or use official machinery for the same. However, the ECI has exempted the Prime Minister from this MCC provision related to the combining of an official visit with an electioneering visit.
  • The party must avoid advertising at the cost of the public exchequer. Also, official mass media shall not be used for publicity of achievements in the elections.
  • Ministers and other authorities must not announce any financial grants, or promise any construction of roads, provision of drinking water among others.
  • Other parties must be allowed to use public spaces and rest houses and these must not be monopolised by the party in power.

Source: The Hindu

Posted in Daily Factly articles, Factly: Polity and Nation, PUBLICTagged ,

Sachin Waze Case | The Issue of Right to Legal Counsel in Custody

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Synopsis – The NIA recently arrested Sachin Waze in the Antilia case. Waze has filed an application seeking permission to meet his lawyer. In this article, we will see the provisions regarding the right to legal counsel for those in police custody.

Introduction-
  • In Feb., an SUV was found parked near industrialist Mukesh Ambani’s multi-story residence Antilia, with gelatin sticks in it. The NIA arrested the Mumbai policeman. Sachin Waze, for his alleged role in this case.
  • The NIA recently claimed in Mumbai Court that Sachin Waze has not been cooperating in the interrogation. He has sought his lawyer’s presence during questioning, while the NIA has argued that this insistence could hamper the investigation.
Is access to a lawyer, the right of an accused?

Around the world, arrestees are entitled to various rights. It protects the accused from the use of forced methods like torture to make self-incriminating statements.

In the US, under Miranda warning, a police officer needs to inform the following rights to the accused, before an arrest

    1. The right to remain silent.
    2. Anything you say can and will be used against you in a court of law.
    3. The right to speak to an attorney.
    4. To have an attorney present during any questioning.
Different Constitutional and legal rights of an arrested person in India
  1. Cannot testify against himself-
    • Article 20 (3): No person accused of any offence shall be compelled to be a witness against himself.
  2. Right to know the grounds of arrest
    • Article- 22(1): No police officer can arrest any individual without informing the accused of the reason/ ground of his detainment/ arrest.
  3. Right to consult a Lawyer-
    • Section- 41D of CrPC allows the accused to be able to consult with their lawyers during their interrogation. But lawyers are not allowed to be with the accused throughout the interrogation.

Are lawyers allowed to remain present during the interrogation of an accused in custody?

Although the Supreme Court also noted the difficulty and ruled that a lawyer should not be present during interrogation. However, in certain cases, the court permits lawyers to be present during the interrogation:

  • In the judgment of Senior Intelligence Officer vs Jugal Kishore Sharma (2011) case, the following facilities were allowed to accused-
      • The accused’s lawyer was allowed to watch the proceedings from a visible distance which is outside hearing range.
      • The lawyer was not available to the respondent to consult during the questioning.

In the Sachin Waze case, the special court in Mumbai referred to the same judgment. Waze’s lawyer was permitted to stay in the NIA office during interrogation by the special court, but not allowed to speak with his lawyer in private.

Source- The Indian Express

Posted in 9 PM Daily Articles, PUBLICTagged ,

GNCT of Delhi Amendment Bill 2021 and Supreme Court’s Verdict

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Synopsis: GNCT of Delhi Amendment Bill 2021 appears to go against the idea of representative government.

Introduction 

The Centre’s Bill is trying to amend the law that relates to the governance of the National Capital Territory of Delhi. The bill claims that its aim is to implement the Supreme Court judgments on Delhi’s governance structure. However, the proposed changes are the very opposite of what the Court has said.

What was the Supreme Court’s 2018 verdict on the matter?
  • The Constitution Bench verdict in 2018 stated that the LG (Lieutenant Governor) has not been trusted with any independent decision-making power
  • The LG either has to act on the aid and advice of council ministers. Or, he has to implement the decision of the President on the matters referred to him.
  • The ‘aid and advice’ clause applies to the matters on which the Delhi Assembly has powers under the State and Concurrent Lists. This comes with an exception of public order, police, and land.
  • Wherever there are differences between the L-G and the elected government, the L-G should refer the question to the President.
  • Further, different judgments have clarified that the power to refer “any matter” to the President does not mean “every matter”.
  • This bill completely undermines the Court’s efforts. The judgment strengthened the elected government in relation to Lieutenant Governor. 

Read moreNCT Amendment Bill

What are the issues with the NCT amendment bill? 

The Court wanted to clarify that the power to refer any matter to the President did not mean that every matter should be referred. 

  1. Firstly, the Bill states all references to the government in the bills and orders would mean the LG. It is irrational to declare LG as the government, in the UT with an elected House.
    • As per the guiding principle, an elected government should not be undermined by the unelected administrator.
  2. Secondly, the provision to Article 239AA empowers L-G to refer the matter to the President, in case of difference of opinion. However, this does not mean that the administrator should come up with a different opinion on every government decision.
    • However, the bill provides the L-G with an opportunity to refer every matter to the President.
  3. Third, instead of Parliament identifying the matters on which the L-G’s opinion should be required, the Bill proposes that the L-G himself would specify such matters.

This bill amounts to a rollback of representative government. The Union Territory concept is one of the many ways in which India regulates relations between the Centre and its units. It should not be used to undermine the basis of electoral democracy.  

Source: click here

Posted in 9 PM Daily Articles, acts, bills and regulations, PUBLICTagged ,

Validity of “State’s resolution against Central laws”

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What is the News?

The Supreme Court has found no harm in State Legislative Assemblies passing resolutions against Central laws. It was seen in the cases of the Citizenship Amendment Act or the new farm laws.

What was the case?
  • Several State Assemblies passed resolutions against the Citizenship Amendment Act and the farm laws. A petition was filed in the Supreme Court challenging the legislative competencies of states passing resolutions against Central laws. And, this is especially when such laws fall under the Union List of the Seventh Schedule.
  • The petitioner argued that the States cannot make laws on the subjects in the Union List. So the State Assemblies should not give an opinion on the merits or limitations of the central law.

Supreme Court observations on State’s resolutions against Central laws

  • The Supreme Court has said that states passing resolutions against the Central laws were not disobeying any law. And so, this was only a matter of expressing States opinions.
  • Moreover, the states also have the right to express their opinions. The resolutions do not mean that they are asking people to disobey the law.
About Seventh Schedule:
  • The seventh Schedule under Article 246 of the constitution deals with the division of powers between the union and the states. It contains three lists-
    • Union List: It contains the subjects on which Parliament may make laws
    • State List: It contains the subjects on which state legislatures may make laws.
    • Concurrent List: It contains subjects in which both Parliament and state legislatures have jurisdiction. However, the Constitution provides federal supremacy to Parliament on concurrent list items in case of a conflict. (Unless the State law gets the assent of the President, the Central law will prevail if there is a conflict between the Central law and the State law.)

Source: The Hindu

 

Posted in Daily Factly articles, Factly: Bills and Acts, Factly: Polity and Nation, PUBLICTagged ,

SC Guidelines for Bail in Sexual Assault Cases to Lower Courts

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What is the News?

The Supreme Court has set aside the “rakhi-for-bail” order of the Madhya Pradesh High Court. Further, the SC also issued guidelines to be followed by Courts while dealing with sexual assault cases.

What was the Rakhi for Bail order of the MP High Court?
  • In 2020, the Madhya Pradesh High Court Judge put forward a condition for bail of the accused.  The accused had outraged the modesty of a woman. The condition to be eligible for bail was to present himself before the victim so she may tie a “rakhi” on his wrist.

Guidelines to be followed by Courts while dealing with Sexual Assault Cases: The apex court issued seven directions to the lower courts. These directions need to be followed while dealing with bail petitions under cases of crimes against women. These guidelines are:

  1. Condition for Bail should not require or permit contact between the accused and the victim.
  2. Protection should be provided to the victim in case of any potential threat of harassment.
  3. The complainant should be provided Information of bail to the accused immediately. Copy of the bail order made should be delivered to him/her within two days.
  4. Bail conditions and orders should avoid reflecting stereotypical or patriarchal notions about women and their place in society.
  5. The courts while adjudicating cases involving gender-related crimes, should not suggest or encourage compromises between the victim and the accused to get married or mandate mediation.
  6. Sensitivity should be displayed at all times by judges. They should ensure that there is no traumatization of the victim during the proceedings.
  7. Judges especially should not use any words, spoken or written, that would undermine or shake the confidence of the survivor in the fairness or impartiality of the court.

Note: Besides these directions, the apex court also stated that the lower courts should desist from expressing any stereotype opinion such as women are physically weak, should be submissive and obedient, good women are sexually chaste, among others.

Source: The Hindu

 

Posted in Daily Factly articles, Factly: Polity and Nation, PUBLICTagged ,

SC sought Centre’s response in “ration cards cancellation” case

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What is the news?

The Supreme Court has asked the Centre to respond to a plea. The plea is related to the cancellation of over three-crore ration cards for not linking them to Aadhaar.

What is the case?

  • A petition has been filed in the Supreme Court by the mother of an 11-year-old. The child died in 2017 allegedly after the ration card of her family was cancelled for not being linked to Aadhaar.
  • The Supreme Court sought responses from the Centre on such allegations. During that time, the Centre had denied the allegations and said that the cancelled cards were bogus.

What did the Supreme Court say?

  • The Supreme Court said that it was a very serious matter if the Centre had cancelled around three-crore ration cards of tribal and poor people solely because they could not get biometrically linked with Aadhaar.
  • Hence, the Supreme Court has said that it will hear the matter and has asked the Centre to respond in four weeks.
  • Also, the SC has sought a report on the implementation of the grievances redressal mechanism. It is contained in Sections 14, 15 and 16 of the National Food Security Act, 2013

What are Ration Cards?

  • Ration card is an official document issued by state governments in India to households. The Household should be eligible to purchase subsidized food grain under the National Food Security Act (NFSA). They also serve as a common form of identification for many Indians.

Types of Ration Cards:

  • Under the NFSA, all state governments have to identify eligible households under the Public Distribution System and provide them with ration cards. There are two types of ration cards under NFSA:
    • Priority Household(PHH) ration card: It has gotten issued to households that meet the eligibility criteria set by their state government. Each priority household is entitled to 5 kilograms of food grain per member per month.
    • Antyodaya Anna Yojana(AAY) ration card: It is issued to the poorest of poor households. Each AAY household is entitled to 35 kilograms of food grain per month.

Source: The Hindu

 

Posted in Daily Factly articles, Factly: Polity and Nation, Miscellaneous, PUBLICTagged ,

The Government of NCT of Delhi (Amendment) Bill 2021- Explained, Pointwise

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Introduction

The Government of National Capital Territory of Delhi (Amendment) Bill, 2021 or the NCT of Delhi (Amendment) Bill 2021 got introduced in Lok Sabha. It amends certain provisions related to the distribution of powers and responsibilities among the L-G (Lieutenant Governor) and the Delhi legislative assembly. The issue of power tussle between the L-G and the elected government of Delhi has come into the limelight again. It is because of the introduction of this bill.

Key Provisions related to Delhi
  1. Delhi’s current status as a Union Territory with a Legislative Assembly is an outcome of the 69th Amendment Act. The act introduced Articles 239AA and 239BB in the Constitution.
    • They have created the Union Territory of Delhi with a legislative assembly.
    • Further, the administrator appointed under article 239 gets designated as the Lieutenant Governor. There shall be a council of ministers to aid and advise LG.
    • Lastly, provisions of public order, police and land are not under the jurisdiction of the Delhi government. The Centre will maintain these provisions.
  2. Article 239AA(4) mandates that in case of a difference of opinion between the L-G and the Council of Ministers, the L-G has to refer the issue to the President.
    • Until the decision is pending before the President, the L-G can use his discretion to take immediate action if urgency requires him/her to take an action.
  3. The GNCTD Act 1991 got passed to supplement the constitutional provisions relating to the Assembly and the Council of Ministers in the national capital. The act outlines few important provisions such as: 
    • the powers of the Assembly
    • the discretionary powers enjoyed by the L-G 
    • duties of the Chief Minister with respect to the need to furnish information to the L-G.
Salient features of the NCT of Delhi (Amendment) Bill 2021

The NCT of Delhi (Amendment) Bill mainly aims to amend four clauses of the Government of National Capital Territory of Delhi Act, 1991 (GNCTD Act 1991). They are, 

  1. Section 21 – This section deals with the restrictions on laws passed by the Legislative Assembly concerning certain matters.
    • The Bill provides that the term “government” referred to in any law made by the Legislative Assembly will imply Lieutenant Governor (L-G).
  2. Section 24 – This section deals with assent to Bills passed by the Legislative Assembly. The L-G will reserve the bills for the consideration of the President in a few matters. It includes bills that diminish the powers of the High Court of Delhi, the President directed the L-G to reserve a bill, etc.
    • The NCT of Delhi (Amendment) Bill requires the L-G to reserve bills for the President that incidentally cover any of the matters outside the purview of the powers of the Legislative Assembly.
  3. Section 33- It mentions that the Legislative Assembly will make rules to regulate the procedure and conduct of business in the Assembly.
    • The 2021 NCT bill states that such rules must be consistent with the Rules of Procedure and Conduct of Business in the Lok Sabha.
  4. Section 44 – It deals with the conduct of business. Accordingly, all executive decisions taken by the elected government should be under the L-G’s name. 
    • The 2021 bill empowers the L-G to specify his suggestions on certain matters. His opinions has to be taken before making any executive action on decisions of the Minister/ Council of Ministers.  
Background of LG and Delhi Government Relationship
  1. Frequent tussles have been witnessed between the Delhi government and the L-G of Delhi since 2015. 
  2. The primary reason behind it was the lack of clarity over Article 239AA. The proviso of Article 239AA(4) seems to give primacy to the L-G. Using this, the LG was able to undermine the will of the elected government.
  3. A case also filed on the court about the L-G’s power of discretion. In the

    Government of NCT of Delhi v. Union of India case 2018, the Supreme Court defined the limits of L-G’s discretionary powers. The important points of that judgement were,

    • L-G is bound by the aid and advice of the council of ministers except in subjects of land, public order and police.
    • Executive decisions do not need the concurrence of the Lieutenant General. Further, the court also held that the L-G has no powers to overrule the decisions of the elected government.
    • The difference of opinion has to be referred to the president under Article 239AA(4) provision.
      • The Lieutenant Governor cannot act mechanically and refer every decision to the president.
      • Only genuine cases of public interest can be referred to the President.
      • Before referring a bill to the President, the L-G has to consider the principles of collaborative federalism, the concept of constitutional governance, objectivity, etc.
    • Executive power rests with the council of ministers of NCT, Delhi. The union government has no overruling powers with respect to the executive powers.
Impact of Supreme Court Verdict on NCT of Delhi 
  • It established a situation of calm between the Delhi Government and the L-G.
  • The Delhi government stopped sending files on executive matters to the L-G before the implementation of decisions. This resulted in swifter decisions like: 
    1. Free bus rides to women, 
    2. Doorstep delivery of rations to the city’s residents, 
    3. Free electricity to households that are using less than 200 units of power 
    4. Mechanization of sewage cleaning operations
    5. Moreover, during the COVID-19 pandemic, the government restricted Delhi’s medical resources to its residents alone
Need for new NCT of Delhi (Amendment) Bill

The Centre introduced the bill in Lok Sabha by mentioning the needs of the bill which includes: 

  1. The Bill seeks to give effect to the 2018 judgement and implementing the verdict.
  2. The new Bill is also intended to promote cooperative federalism between the centre and the state.
  3. The Bill would address the ambiguities in the interpretation of legislative provisions.
Implications of NCT of Delhi (Amendment) Bill
  1. Equating the L-G with the government simply undermines the legitimacy of the elected government thereby disrespecting representative democracy.
  2. Further, The bill goes against the spirit of the 2018 verdict. The provisions such as getting the compulsory opinion from the L-G are against the verdict.
  3. The NCT of Delhi (Amendment) Bill restricts the Delhi government from inquiring into executive matters. The Delhi assembly at present is examining multiple issues ranging from riots to the environment. This disregards the ideal of democracy conceived for the NCT of Delhi by Article 239AA of the Constitution.
  4. The NCT of Delhi (Amendment) Bill if passed would be a huge setback for Delhi’s quest for full statehood. As the L-G gets precedence to the Delhi government.
  5. The bill empowers L-G to specify certain matters on which his opinion must be taken. This can curtail the autonomy that any elected government legitimately requires for governance.
  6. Providing excess powers to L-G can also distort the federal equilibrium. The centre can use this bill as a precedent to curtail the powers of other states in the future.
Suggestions
  1. The new bill should be reconsidered in the light of Justice D Y Chandrachud’s note in the 2018 verdict: “In a democratic form of government, the real power must subsist in the elected arms of the state”.
  2. A cautious discussion and deliberation should take place between the Centre and Delhi government on the ambiguous provision of the bill. This will help in the eradication of unconstitutional and undemocratic provisions.
  3. Apart from that, the government at the centre and state must cooperate to make sure that L-G can discharge its constitutional function. At the same time, they need to avoid L-G doesn’t become a hindrance to development.

Conclusion:

The government must reconsider the NCT of Delhi (Amendment) Bill as per the advice of the Supreme Court. The revamped provisions should enable L-G to act as a facilitator for upholding the law of the land and constitutional provisions.

Posted in 7 PM, acts, bills and regulations, PUBLICTagged , ,

Petition in SC for Protection of “Great Indian Bustard”

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What is the News?

The Supreme Court gave several suggestions to protect the Great Indian Bustard in Gujarat and Rajasthan.

What was the case?
  • A petition has been filed in the SC regarding the deaths of the Great Indian bustard (GIB). The deaths happened due to a collision with high voltage power lines.
  • The petitioner asked the court to order the government to make power transmission lines underground to avoid collision with the GIB.
What has the Supreme Court said?
  • Firstly, the Supreme Court asked the government about the possibility of placing underground and overhead power cables.
  • Secondly, the government replied that only low voltage lines could go underground. But not the high voltage ones.
  • Hence, the court has suggested a middle path. It said the low voltage lines could get made underground. And for the high voltage transmission lines that could not get made underground, the court could direct the installation of firefly bird diverters.

Note: Firefly bird diverters are flaps installed on power lines. They work as reflectors for bird species like the GIB. Birds can spot them from a distance of about 50 meters. It will help them to change their path of flight to avoid collision with power lines.

About the Great Indian Bustard:
  • The Great Indian Bustard is one of the heaviest flying birds in the world. It inhabits dry grasslands and scrublands on the Indian subcontinent.
  • Habitat: It is endemic to the Indian subcontinent. In India, the population is confined mostly to Rajasthan and Gujarat. A small population occurs in Maharashtra, Karnataka and Andhra Pradesh.
  • Conservation Status:
    • IUCN Red List: Critically Endangered species
    • CITES: Appendix I
    • Wildlife (Protection) Act,1972: Schedule I
  • Threats:
    • Collision/electrocution with power transmission lines,
    • Hunting (still prevalent in Pakistan),
    • Irrigation and farming technology
    • Mining
    • Wind turbines and Solar farms (photovoltaic power stations)
    • Plantation of exotic shrub/tree species in deserts and grasslands in the name of afforestation.

Click Here to Read more about Great Indian Bustard

 Source: The Hindu

Posted in Daily Factly articles, Factly: Environment, PUBLICTagged ,

Plea Challenges “Places of Worship Act,1991” in SC

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What is the news?

The Supreme Court asked the Centre to respond to a plea challenging the Places of Worship Act, 1991.

About Places of Worship (Special Provisions) Act 1991:

  • The Act was passed in 1991. It seeks to maintain the “religious character” of places of worship as it was in 1947. The Ram Janmabhoomi-Babri Masjid dispute was exempted from the Act.

Key Provisions of the Act:

  1. Sections 3: It says that no person shall convert any place of worship of any religious denomination into one of a different denomination or section.
  2. Section 4(2): All cases for converting the character of a place of worship that were pending on August 15, 1947, will stand abated with the enforcement of this act. No fresh proceedings can be filed after that.
    • However, legal proceedings can be initiated if the change of status of religious character of worship place, took place after the cut-off date of August 15, 1947.
  3. Section 6: It prescribes three-year imprisonment and a fine for breach of the provisions of the act.

Exemptions:

  • Section 5: It says that the Act shall not be applied to Ram Janma Bhumi Babri Masjid dispute. Other than that, the Act also exempts:
    • Any place of worship, that is an ancient and historical monument or an archaeological site. It must be covered by the Ancient Monuments and Archaeological Sites and Remains Act, 1958;
    • a suit that has been finally settled or disposed of;
    • any dispute that has been settled by the parties or conversion of any place that took place by acquiescence before the Act commenced.

Supreme Court on the Act:

  • In the 2019 Ayodhya verdict, the Constitution Bench led by former Chief Justice of India has referred to the law and said it manifests the secular values of the Constitution and strictly prohibits retrogression.

What are the key objections to the act by the petitioner? The petitioner has challenged the Places of Worship (Special Provisions) Act,1991 on the following grounds:

  • The act violates secularism. It prohibits Hindus, Jains, Buddhists, and Sikhs from reclaiming their places of worship which were invaded and encroached upon by fundamentalist barbaric invaders.
  • The Centre has no power to legislate on “pilgrimages” or “burial grounds” which is under the state list.
    • However, the government had said it could make use of its residuary power under Entry 97 of the Union List to enact this law. Entry 97 confers residuary powers to the Centre to legislate on subjects that are not enumerated in any of the three lists.
  • The cut-off date of the act is the date of Independence. It means that the status quo determined by a colonial power is considered final.

Source: Indian Express

 

Posted in Daily Factly articles, Factly: Polity and Nation, PUBLICTagged ,

Lack of Gender sensitivity in the Court Judgments

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Synopsis:   Lack of gender sensitivity by the judiciary is one of the fundamental reasons for the worsening security of Women in India. The judiciary in many cases enforced societal attitudes towards women.

The worsening state of security of women in India:
  • India rated as the most dangerous country for women, as per the Thomson Reuters Foundation survey 2018.
  • According to a National Crime Records Bureau report (2019), as many as 32,032 rapes were reported in 2019 (88 incidents of rape a day).
  • Every hour, 39 instances of crime against women including four instances of rape are committed in India.
Judgments lacking gender sensitivity:
  1. First, instances where marital rape was not acknowledged as a crime.
    • One, SC recently granted bail to a government servant who is accused of repeated rape and torture of a 16-year-old child.
      • During this hearing, CJI questioned that “When two people are living as husband and wife, however brutal the husband is, can the act of intercourse between them be called rape?”
    • Two, a few years ago, the supreme court orally asked a convict who had molested a girl 10 years ago to fall at her feet and that if she forgave him, the Court would limit his sentence of imprisonment to the period already undergone.
    • Three, the Nagpur Bench of the Bombay High Court also issued a similar order. It ordered that the sentence of the ‘rape convict can be cut if he agrees to pay ₹1 lakh to the victim.
    • Four, In the Bhanwari Devi case (1995), the Rajasthan court acquitted the accused. The reasons given were not gender sensitivity at all such as
      • Higher caste man cannot rape a lower caste woman for reasons of purity
      • Men who are 60-70 years old cannot commit rape
      • One relative cannot commit rape in front of another relative
  2. Second, instances when the court has upheld the superiority of society’s attitude toward women against the rights of Women.
    • One, in 2020 the Guwahati High Court said that refusal of applying sindoor (vermilion) and wearing conch shell bangles (shaka) as sufficient basis to grant a divorce to the husband.
    • Two, the Madras High Court had earlier stated that divorcees too should maintain sexual purity to claim alimony.
    • Three, In Narendra vs K. Meena (2016), the SC said that under Hindu traditions, a wife after marriage is supposed to fully integrate herself with her husband’s family.
      • Refusal of women to live with in-laws amounts to cruelty. Therefore, the husband would be entitled to divorce her under the Hindu Marriage Act.
  3. Third, instances when women protection laws are diluted without considering the sensitivity of the issue. For example,
      • In Rajesh Sharma vs The State of Uttar Pradesh (2017), the complainant accused that her husband had harassed her for Dowry. And, the trauma faced by the victim has resulted in the termination of her pregnancy
      • It has to be noted that an offense under Section 498A is non-bailable and non-compoundable. Also, a police officer is legally allowed to make an arrest without a warrant from the court.
      • However, the court issued a number of directions in favor of the accused, Such as
        • there should be no automatic arrests on charges of cruelty.
        • Also, no arrest should be done till the newly constituted Family Welfare Committee submit its report.
  4. Fourth, instances when the court has intervened against the right of a woman to marry according to her will. For example, the infamous Hadiya (2017) case.
      • The woman’s father accused her that she was forcefully converted to Islam. Though, Hadia had denied it repeatedly.
      • The court ordered an investigation by the National Investigation Agency for looking into the matter of marriage of two adults.
Posted in 9 PM Daily Articles, PUBLICTagged ,

Revisiting the Ruling of Indra Sawhney Case

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Synopsis:

The Supreme Court is examining the constitutional validity of the Maratha reservation policy. During the hearing, it mentioned that it will re-examine the landmark verdict in the Indra Sawhney vs Union of India case 1992.

What is the Indra Sawhney Case?
  1. The Mandal Commission-
  • In 1979 the Second Backward Classes Commission was set up by the President.
  • The commission report concluded 52% of the population in India are “Socially and Economically Backward Classes (SEBCs)”. Further, the commission recommended a 27% reservation for SEBCs. This reservation is provided in addition to the previously existing 22.5% reservation for SC/STs.
  • The government accepted the recommendation and provided the 27% reservation.
  • In 1991, the government enacted provisions for the reservation of 10% of jobs for economically weaker sections (EWS) among higher caste people.
  1. Indra Sawhney vs UOI case or The Mandal case:
  • The Mandal Commission report and the government’s decision to reserve 10 percent for the EWS was challenged in the Supreme Court.
  • A nine-judge Bench gave their verdict in 1992.
  • The important intervention of the case includes,
    • First, the criterion for a group to qualify for reservation is social and educational backwardness only. So, the 10 percent reservation to the EWS becomes unconstitutional.
    • Second, a 50% limit to vertical quotas will apply to ensure efficiency in administration unless in exceptional circumstances. The court in its earlier judgments like M R Balaji v/s State of Mysore (1963) and Devadasan v/s UOI (1964) also mentioned the 50 percent reservation limit.
Why is the Supreme Court revisiting the Mandal case (Indra Sawhney Case)?
  • In 2018, the Maharastra government enacted a law to provide 16 percent reservation to the Maratha community in jobs and admissions. This violated the 50 percent ceiling mentioned by the Mandal case.
  • But, the Bombay High Court upheld the validity of the quota. But the Court reduced the Maratha reservation to 12-13% (Instead of 16%). This percent is also recommended by the State Backward Classes Commission. (Both are above 50 per cent)
  • An appeal was filed in the Supreme Court. The Supreme Court during the case said that it will look into the capping of 50 per cent reservation in the Mandal case.

How does the Maratha reservation relate to the Indra Sawhney case?

The Maratha reservation law is related to the Indra Sawhney case in Many ways such as,

  1. The President power to notify backward classes
    • This power is provided by the 102nd Constitutional Amendment provided powers to the President to notify the backward classes. The Court has to find out whether States have powers to notify the backward classes or not.
  2. Validity of 103rd Amendment, 2019
    • This amendment provides for 10% reservation for the EWS in government jobs and educational institutions from the unreserved category.
    • Thus, the Marathas belong to EWS can attain benefits under the 103rd CAA. But the specific quotas to Marathas will turn into a bad example for communities asking for such reservations. For example, Patels in Gujarat, Jats in Haryana and Kapus in Andhra Pradesh.
  3. The Breach of 50% ceiling set by Indra Sawhney Verdict
    • The Maharashtra law if enacted could make a reservation of up to 68%. Further, it can join states like Tamil Nadu, Haryana which already exceed the 50 per cent ceiling.
    • For Example– the Tamil Nadu government reserves 69% of the seats in colleges and jobs in the State government. Further, Tamil Nadu also placed its reservation law in Ninth Schedule
What is Ninth Schedule
  • It excludes the law from the jurisdiction of judicial review under Article 31 A of the Constitution.
  • Laws placed in the Ninth Schedule cannot be challenged on the ground for violating any fundamental right.
  • However, in I R Coelho v/s Tamil Nadu (2007) case the supreme court held that laws in the ninth schedule can be challenged on the ground of violation of the basic structure of the constitution.

Landmark verdict on Sexual harassment and its value for Women

Posted in 9 PM Daily Articles, PUBLICTagged ,

The Mandal case and Reservation in India – Explained, Pointwise

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Introduction

Supreme Court (SC) may examine the 50% reservation cap set by the Mandal case ruling of 1992(Also known as Indra Sawhney case). The decision was taken during the examination of the constitutional validity of the Maratha reservation policy of the Maharashtra government.

During the hearing, the SC asked states whether they are in favour of extending caste-based reservation beyond the 50 percent limit set by the Indra Sawhney case. Since the inception of the Indra Sawhney case, the conditions of society changed a lot. This necessitated the review of the 50% quota cap on the reservation by the Indra Sawhney case.

What is the Maratha reservation policy?

In 2018, the Maharashtra government enacted a law,  it provides 16 per cent reservation to the Maratha community in jobs and admissions. The law termed the Maratha community as a socially and educationally backward class. However, the Maratha reservation violated the 50% ceiling mentioned in the Indra Sawhney case.

The law was challenged in Bombay High Court. After recommendations of the State Backward Classes Commission, the Bombay High Court upheld the constitutional validity of the Act. But the Bombay High Court reduced the Maratha reservation to 12-13% (Instead of 16%) as mentioned in the State Backward Classes Commission.

However, an appeal was filed in the Supreme Court. The Supreme Court during the case said that it will look into the capping of 50 percent reservation quota to be revisited or not.

Constitutional provisions regarding reservation
  1. The Preamble of the Indian Constitution provides for “social, economic and political justice”. This aims to create a society without discrimination. Reservation to the weaker section of the society is an aspect of Social Justice.
  2. Part XVI of the Indian Constitution deals with the reservation of Scheduled Castes (SCs) and Scheduled Tribes (STs) in Central and State legislatures.
  3. Article 15(4) and 16(4) of the Indian Constitution enables the Government to reserve seats in government services. This is provided for the advancement of any Socially or Educationally Backward Classes of citizens (SEBCs) or the members of the SC and STs.
  4. Article 330 and 332 has provisions for specific representation through the reservation for SCs and STs. These reservations provided both in Parliament and in the State Legislative Assemblies respectively.
  5. Article 243D and Article 233T provides for the reservation of seats in every Panchayat and Municipalities respectively for SCs and STs.
Reservation in India
  1. Under the powers conferred by Article 340, President appointed a B. P. Mandal headed backward class commission in 1978. The Commission suggested a 27% reservation in government jobs for the Other Backward Classes(OBCs). As 52 percent of the country’s population consisted of OBCs.
  2. The recommendations of the Mandal Commission were accepted in 1990 and implemented. By this, the reservation in India raised to 49.5 per cent.
    • 22.5% reservation for SCs and STs (7.5% for STs, 15% for SCs)
    • 27% of seats are reserved for the OBCs
  3. In 1991, the government enacted provisions for the reservation of 10% of jobs for economically weaker sections (EWS) among higher caste people. But, in the Indra Sawhney case or Mandal Case, the supreme court struck down this provision. Further the case also provides for the maximum reservation of 50%
  4. The government under the 103rd Constitution Amendment Act, 2019 again provided a 10% reservation for the EWS in India. The Act amended Article 15 and 16.

So at present, the total reservation stands at 59.5 per cent. Few State governments also provide the reservation over and above 59.5 per cent. This is a clear violation of the 50% reservation capped in the Indra Sawhney case of 1992.

Few Examples for reservation above of 50 percent ceiling

The State and Central governments enacted laws that violate the reservation ceiling. They are,

  1. 103rd Constitution Amendment Act, 2019: By enabling 10% reservation for the EWS the law violated the 50 percent ceiling.
  2. The Tamil Nadu Backward Classes, SCs and STs Act, 1993: By this Act, the Tamil Nadu government provided 69 per cent of reservation in educational institutions and jobs in the state government. The State further get the ascent of President and placed this law in Schedule IX of the Constitution.
    Laws placed in the Ninth Schedule cannot be challenged in court for the violation of fundamental rights. The Court in the I R Coelho v State of Tamil Nadu case held that the Laws in Ninth Schedule can be challenged for the violation of the basic structure of the Constitution. The Supreme court is yet to decide the case of Tamil Nadu reservation law.
  3. Haryana and Chhattisgarh have also passed laws that exceeding the 50 per cent reservation mark. These laws also challenged in the Supreme Court.
  4. Apart from these legislations, there are many protests from various parts of India demanding special reservation above the 50 per cent limit. Few examples are,
    • Patels in Gujarat,
    • Jats in Haryana,
    • Kapus in Andhra Pradesh.
Judicial interventions on reservation policy
  1. State of Madras v. Smt.Champakam Dorairajan (1951) case: In this case, the court held that the caste-based reservations violate provisions of Article 15(1). Article 15(1) provides for non-discrimination of State against citizens on the grounds only of religion, race, caste, sex, place of birth or any of them.
    This resulted in the First Constitutional Amendment. The Parliament amended Article 15 to include provisions of reservation under Article 15(4).
  2. M R Balaji v State of Mysore case 1963 and Devadasan v Union of India case 1964: In these cases, the court held that the efficiency of public administration is essential. Further the court asked the government to maintain the reservation to 50%
  3. Indra Sawhney vs Union of India Case 1992: In this, the court held that the reservation should not exceed 50 per cent in total, unless in exceptional circumstances. Further, the Court held to remove the creamy layer among OBCs from the reservation. Apart from that, the Court also held that there should not be reservation in promotions.
    But the government enacted the 77th Constitutional Amendment Act(CAA) to provide reservation for SCs and STs in Promotion(Article 16(4A)).
  4.  M. Nagaraj vs Union of India case 2006: In this, the court upheld the 77th CAA. But the court also mentioned certain conditions to be maintained in such reservation. Such as,
    • The reservation policy shall not affect the overall administrative efficiency
    • Reservation is applicable only when the SCs and STs are not adequately represented in public employment.
Arguments in support of 50 percent quota revision
  1. Inadequate representation of people: The OBCs alone represent 52 per cent of the total population. The SCs and STs and OBCs combined represent more than two-thirds of the population. But they received only 49.5 per cent of the reservation.
  2. Reservation leads to Inclusion: The reservation policy led to inclusive development. It is because of the Reservation policy many unrepresented sections of society are now getting due recognition in jobs and educational institutions. By moving beyond the 50% limit there will be more inclusivity in jobs and educational institutions.
  3. Facilitate Social justice: The expansion of the 50 per cent reservation limit will promise equality and social justice enshrined under various provisions of the Indian constitution. Such as preamble, Article 14 etc.
Arguments Against the revisit of 50 percent quota
  1. Reservation can lead to political vulnerability: India is a diverse society having a number of Castes. Expanding the reservation policy might act as a political instrument in hands of political parties. They can use the caste-based reservation for electoral gains. The state government at present also providing job reservation in the Private sector also.
  2. Not completely successful: Caste-based reservation policy in India is not completely successful in bringing up the weakest members of the SEBCs. The reservation policy benefitted well-off sections of people in reserved categories. If the reservation is widened then it will be beneficial to the well-off’s, not the intended beneficiaries.
  3. Against meritocracy: By increasing the reservation limit above 50 per cent, the overall efficiency of government jobs and educational quality might be compromised. Further, it can lead to deterioration in these sectors in the long run.
Suggestions
  1. The government have to subclassify the Backward Classes like in Tamil Nadu, Andhra Pradesh, West Bengal etc. This will provide the benefit to intended beneficiaries. Since the government has already appointed Justice G Rohini Panel on Sub-categorisation of OBCs.  The Panel has to fast pace the sub-classification process.
  2. The government have to remove the well-off sections from the reservation policy. This can be achieved by analysing the reservation policy based on a citizen’s conditions rather than community-based reservations.
  3. Apart from that, the government also understands that the reservation policy is a temporary measure in the direction of social inclusion. Social inclusion can be achieved by better education policies, enhancing the skill development of backward communities, not by providing more reservations.

In conclusion, Reservation is a temporary policy measure introduced by the constitutional makers that cannot be misunderstood. Providing more and more reservation gradually is itself not a permanent solution. Further, Social Justice has to achieve without compromising efficiency in the long run. So, it is time for the government to move beyond reservation based on caste alone.

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Supreme Court judgment on Sedition Law

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What is the News?

The Supreme Court in the Rajat Sharma v. The Union of India Case ruled in favour of Farooq Abdullah. The court in its ruling said that disagreeing with the views and policies of the government will not attract the offence of sedition.

What was the case?

  • A petition was filed in the Supreme Court against Farooq Abdullah, Former Chief Minister of J&K. It alleged that Farooq Abdullah made a seditious statement by saying that to restore Article 370, he would take help from China.
  • Hence, the petition asked the court to terminate the Lok Sabha membership of Farooq Abdullah and book him for sedition under Section 124A of IPC.

What were the observations made by the Court?

  • The court said that the expression of a view that is different from a decision taken by the Central Government itself cannot be said to be seditious.
  • The court dismissed the petition. It further said that it was a clear case of publicity interest litigation by petitioners to get their names in the Press.
  • The court also imposed a fine of ₹50,000 on the petitioner to be deposited with the Supreme Court Advocates Welfare Fund in four weeks.

Significance of this judgment:

  • This judgment assumes significance in the recent period when the sedition law is invoked by police against activists very frequently. People expressing their opinion or making statements on social networking sites against the government are also facing charges under sedition law.

Source: The Hindu

Posted in Daily Factly articles, Factly: Polity and Nation, PUBLICTagged ,

Issue of adultery in Civil Services and Army

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Synopsis: SC decriminalized the act of adultery in the Joseph Shine vs Union of India case. However, it is still not clear whether adultery is the right ground for departmental enquiries against Civil Servants or Army officials.

Background

  • Members of All India Services (AIS) are governed by a moral code of conduct. It requires them to “maintain absolute integrity and devotion to duty” and do “nothing which is unbecoming of a member of the service”.
  • Similarly, the Army Act also contains penal provisions for displaying “unbecoming conduct” or “disgraceful conduct”.
  • However, the terms “unbecoming conduct” or “unbecoming of a member of a service” are not anywhere defined. It leaves the scope for employers or disciplinary authorities to define them as per their own understanding.
  • It is the reason that there is doubt whether illicit or adulterous relations are covered under these definitions or not.
  • This issue has become more prominent after SC decriminalised adultery in the Joseph Shine vs Union of India case. The Centre has filed an application for clarification with the SC that whether this judgment applies to armed forces or not.
  • The matter has been referred to the constitutional bench. However, Justice Nariman made an observation while issuing the notice. He observed that even if the law is scrapped, the act of adultery will still be an ‘unbecoming conduct’.

Earlier High Court judgment on adultery and misconduct

  1. The above observation of Justice Nariman is in contrast to earlier High Court judgments.
  2. Calcutta High Court in Rabindra Nath Ghosh in a case of adultery held that the head constable who was living with another woman is not guilty of misconduct in the performance of his duties.
  3. Allahabad HC in In State of U.P. vs BN Singh (1989) held that the act of adultery by a government servant cannot be covered by default within the definition of ‘personal immorality’. For that, there should be a relation between the act of adultery and the reduction of his utility as a public servant.
  4. Rajasthan High Court in Mahesh Chand Sharma vs State of Rajasthan (2019) held that “no employer can be allowed to do moral policing on its employees which go beyond the domain of his public life”.

Various HC has declared that adultery is not a sufficient ground to initiate departmental proceeding if it is not interfering with official functions.  Whereas Justice Nariman has provided a different interpretation. Thus it becomes utmost important to define the terms like “misconduct” and “immoral act”.

Posted in 9 PM Daily Articles, PUBLICTagged ,

Use of Criminal conspiracy Law in India – Explained, Pointwise

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Recently the Delhi High Court granted bail to a climate activist in the Greta Thunberg toolkit case. The court dismissed the criminal conspiracy charges filed by Delhi police due to a lack of evidence. The law on criminal conspiracy was enacted to control the nationalist movement in India before independence. However, even after more than 7 decades of independence, this law is in use frequently.

What is the recent case on the law of criminal conspiracy?

Greta Thunberg toolkit was related to the violence committed during the farmer’s protest on January 26. The Delhi Police arrested a Climate Activist in India related to the tool kit case. The police claimed that the climate activist was the editor of “toolkit Google doc” and a “key conspirator” in the toolkit formulation and distribution.

Delhi Police accused the activist under section 120B (Criminal Conspiracy) of the Indian Penal Code (IPC) and Sections 124A of IPC(sedition). The police claimed the Activist and others were the local collaborators in the conspiracy for inciting disaffection and accelerating the violence.

But the Delhi high court rejected the Delhi Police accusations and granted her bail. The court mentioned that the police lacked evidence to prove her conspiracy charges. The Court further held that interaction with people of doubtful credentials is not an offenceApart from that the court also held that the authorities can not consider inferences (prior assumptions) as evidence.

What is criminal conspiracy law in India?

In India, criminal conspiracy falls under Section 120 of the Indian Penal Code (IPC).

  1. Section 120A of IPC defines criminal conspiracy.
  2. Section 120B of IPC prescribes punishments for criminal conspiracy.

Definition:

It is defined as an “agreement” between two or more persons to commit a criminal offence.

For an offence to be classified as a criminal offence, certain conditions have to be satisfied. They are,

  • There must be two or more persons indulged in a criminal offence
  • Even if the actual offence has not been committed, an agreement alone is necessary and sufficient to punish the person
  • The agreement has to be either related to committing an illegal act or a legal act committed through illegal means.
  • If such an agreement is reached then such agreement will be considered a criminal conspiracy.
  • But, merely discussing or having knowledge or having any ill intentions of committing a crime would not constitute criminal conspiracy.
  • It is not necessary for all the conspirators to know each other for committing an offence.
  • If the conspiracy charge got proved in court, then all the accused will be held liable for conspiracy. Apart from that, the accused persons shall also be punished separately for the individual offences committed by them.

For example, if a group of friends (A, B, C, D) are speaking about robbing a bank to get rich, then it is not a criminal conspiracy as they are merely discussing it. But if they agree to rob a bank, and discuss their responsibilities in robbing a bank. Such as Person A and B will rob the money, Person C will threaten the people in Bank and Person D will watch the gate then this will be a criminal conspiracy under the law.

Punishment:

Section 120B of IPC prescribes punishments for criminal conspiracy. Section 120B divides criminal conspiracies into two categories.

  1. Criminal conspiracy to commit serious offences: For serious offences the conspirator will get a punishment similar to abetting (encourage or assist (someone) to do the serious offence) the offence.
    Serious offences here include any offences (if committed by the conspirator) that will attract death penalty, life imprisonment or rigorous imprisonment (two years or more).
  2. Criminal conspiracy to commit other offences: In this case, the punishment under criminal conspiracy shall not exceed six months of imprisonment or fine or both.

How criminal conspiracy law evolved in India?

Initially, during Colonial rule, criminal conspiracy was considered as a civil offence. But the Indian Criminal Law Amendment Act, 1913  changed the conspiracy as a criminal offence. This was used by the British to handle the Revolutionary leaders of India. The famous few cases were,

  • Kakori Conspiracy Case (1925): The case was framed against Hindustan Republican Association for train robbery. The revolutionaries were arrested and tried in court.
  • Lahore Conspiracy Case (1931): This case was framed for the murder of  JP Saunders, a British police officer. The case was filed against Bhagat Singh, Sukhdev, Rajguru and Chandrashekhar Azad. Except Azad all were caught and punished with death sentence. Azad got killed in an encounter later on.

What are the observations made by the court on the criminal conspiracy law?

  1. Bimbdhar Pradhan vs. state of Orissa case 1956: The court held that based on sufficient evidence the court can even convict one person alone for criminal conspiracy.
  2. State of H.P vs Krishan lal case: The Court held that the criminal conspiracy consists of a meeting of minds for agreeing to do on offence. The court defined Meeting of Minds as the persons involved in the conspiracy were well aware of the objective and intention behind the conspiracy
  3. Param Hans Yadav Vs State Of Bihar case 1987: The court observed the difficulties in producing evidence for the charges of conspiracy. Establishing the link between the different chain of events was the only way to prove the conspiracy.
  4. State of Tamil Nadu vs Nalini case: If a person has knowledge about the conspiracy, then it would not make him a conspirator. The court also held that providing shelter to the main accused is not considered as evidence of the conspiracy. A meeting of minds will be required to prove the conspiracy.
    For example, If 3 member planned a robbery in a bank and planning to escape by a car belonging to a person X. If X doesn’t know anything about the robbery, then the X cannot be considered to be a conspirator.

Why do we need to reform the Criminal Conspiracy law?

  1. Law commission report: The law commission in one of its report mentions the needs to reform the criminal conspiracy laws. They were,
    • Section 120A of IPC provides wide-sweeping powers to the government.
    • There is no need for criminal conspiracy legislation especially to punish for conspiracies related to petty offences.
  2. The general rule of crime is not fulfilled by criminal conspiracy law. As a general rule, to constitute a crime, both mens rea (guilty mind or intention)) and actus rea (the guilty act) must be involved. But Section 120 A of IPC punishes merely the guilty mind as a criminal offence.
  3. Section 120-A does not define what are illegal ways to achieve lawful actions. So this provision is getting misused by the government to silence the critics.

Suggestions:

  1. Law enforcement authorities need education on these laws to prevent the problem of misuse. The enforcement authorities might be trained regarding the application and non-application cases of criminal conspiracy cases.
  2. The government has to define illegal ways to do legal actions. This will ensure clarity in the definition and check the misuse to a great extent.
  3. Further, the government should implement the suggestion of the Law Commission by removing petty crimes from Section 120A of IPC.
  4.  The government can consider rolling back the conspiracy to a civil offence. As it was the practice prior to the Criminal Law Amendment Act, 1913. 

The recent case of climate activist is one of the many instances where the law on criminal conspiracy is getting misused. It is the high time for the government to encourage constructive criticisms and amend Section 120A. This will ensure the midline of encouraging healthy debates and punishing the wrong ones in one go.

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Landmark verdict on Sexual harassment and its value for Women

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Synopsis – The key takeaways from the landmark verdict on Sexual harassment by Delhi High Court and its value for women.

Background –

Recently Delhi court has acquitted a former journalist in a defamation case filed by a former Union minister.

In this case, a journalist initially made allegations of sexual harassment against the former Union Minister. In turn, a criminal defamation case was filed in Delhi High Court against the journalist by Union Minister. However, Delhi High Court acquitted the journalist of the Criminal Defamation charges in its very recent verdict.

What is the law for Defamation?

  • Defamation – The act of communicating false statements, spoken or published intentionally with the aim of damage someone’s reputation.
  • Punishment Under section 500 of the IPC – Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with a fine, or with both.

Why the Journalist was acquitted in a defamation case?

The law acknowledges that a person’s reputation cannot be used as a defence against their own bad behaviour. Thus, Section 499 of the IPC prescribes several exceptions to claims of defamation. Further, the court held two important observations.

  1. The actions of a journalist are not defamation. Instead, it is the attribution of truth. Such attribution will not fall under defamation.
  2. The journalist made such actions in order to make good for the public (Public good). The Act of public good also not fall under defamation.

Court’s observation-

  • Women cannot be punished for raising their voices against sexual harassment.
  • A woman has a right to put her grievance on any platform of her choice, even after years and decades.  Because, Vishaka Guidelines and the Sexual Harassment of Women at Workplace Act, 2013 were not available at the time of sexual harassment
  • Only because women are not able to provide evidence, Women’s testimonies on sexual harassment cannot be dismissed as false or defamatory.
  • The right of reputation cannot be protected at the cost of a woman’s dignity guaranteed under Article 21.

Way forward

  • This historic decision has set an example for women to speak up against sexual harassment regardless of time.
  • The verdict was also seen as a huge moral victory for the #MeToo movement.
  • Further, The verdict will help to prevent the unethical use of defamation law.

Sexual Harassment of women at the workplace – Explained pointwise

Posted in 9 PM Daily Articles, PUBLICTagged ,

Judicial Review and Public Protests in India

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Synopsis: The timely judicial review of the constitutional validity of laws would have reduced the number of protests in India.

Background:

  • In the Shaheen Bagh protest case, in 2020, SC held that there is no absolute right to protest and public spaces cannot be occupied and that too indefinitely. It affects the right of the general public to move freely without hindrance.
  • Recently, the supreme court has refused to review its earlier verdict on the Shaheen Bagh protest.

Why the SC decisions on protests are seen as arbitrary?

  • First, Many protests took place because laws passed by the parliament (economic reservation, CAA, Farm laws) were not subject to timely Judicial review.
      • Almost all the major protests that happened recently in India, involved legal and constitutional issues. The court could not deliver the required immediate and effective adjudication over the constitutional validity of bills.
      • If the courts have delivered a timely judgment on the validity of the laws the protests could have been probably reduced.
  • Second, the court is attempting to mediate the issue rather than providing a solution to that.
      • For example, Shaheen Bagh protest case verdict. The court balanced its verdict by upholding the right to peaceful protest while stating public spaces cannot be occupied indefinitely.

Why SC’s refusal to review its earlier judgment is not right?

The court’s judgment was against the indefinite occupation of public space in Shaheen Bagh protest case. It provides a licence to the police to commit atrocities against the legitimate protest in the name of the occupation.

During the agitations against farm laws also, the protesters had to face repressive actions of the state. 

  • Protesters prosecuted by the state on serious charges of sedition and terrorism.
  • Not only the protesters but also their supporters, including comedians and journalists were prosecuted. For example, Disha Ravi climate activist recently charged for ‘conspiracy against the government’.
  • Protesters were denied the freedoms of expression and peaceful association under Article 19 of the Constitution.

SCs globally are seen as guardians of the right to dissent. But it has not provided the protesters with the required support against the state action.

What is the way forward?

  • A fair and effective justice mechanism on constitutional matters can reduce the protest on the streets.
      • For example, according to Sociologist Luke Martell the radical green movement in Britain was at a lower scale when compared with other parts of Western Europe.
      • This is because the “public enquiry system” in the United Kingdom is good. It “process ecological demands, and integrate them into the political system.
      • This minimised the radicalization of the movement arising out of exclusion and marginalisation.
  • The spirit of judgment in Himat Lal K. Shah vs Commissioner of Police (1972) should be upheld.
      • The Court struck down the rules framed by the Ahmedabad Police Commissioner because it conferred arbitrary power on the police officers in the matter of public meetings.
      • Justice Kuttyil Kurien Mathew, in Himat Lal K. Shah, explained that “freedom of assembly is an essential element of a democratic system” and that “the public streets are the ‘natural’ places for expression of opinion and dissemination of ideas”.
Posted in 9 PM Daily Articles, PUBLICTagged

The need of explicit details of the offences against the children in POCSO Act

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Source- The Hindu

Syllabus – GS 2 –  Indian Constitution—historical underpinnings, evolution, features, amendments, significant provisions and basic structure.

Synopsis: The Protection of Children from Sexual Offences (POCSO) Act was enacted especially to protect children from sexual assault.

Background

  • In the case of Satish Ragde v. State of Maharashtra, Bombay High Court acquitted the accused under the POCSO Act.
  • The Court stated its ground that the accused groped the victim over her clothes and there was no skin to skin contact i.e. physical contact with the victim.
  • The Supreme Court ordered a stay on the acquittal of the accused.

Why the legislature enacted the POCSO Act?

  • First, to protect children below 18 years of age from any kind of sexual abuses.
  • Second, before the enactment of this Act, there was no other Act which provides specifically for the sexual offences against children.
  • Third, India has signed the UN Convention on the Rights of the Child in 1992. The Convention requires sexual exploitation and sexual abuse to be addressed as heinous crimes.
  • Fourth, to provide for strict punishments to create a deterrence effect against the sexual offences against the children.

Thus, the need for an explicit Act was felt for the offences against children.

Why the POCSO act is comprehensive than IPC?

  • First, in IPC the definition of assault is generic i.e. ‘assault or criminal force to a woman with intent to outrage her modesty’. However, in POCSO the acts of sexual assault are explicitly mentioned.
  • Second, Age- IPC provides punishment for the offence against a victim, irrespective of age. However, POCSO is specifically for the protection of the children.
  • Third, POCSO provides for higher punishment as compare to IPC as the victims are children.

The findings of the Courts in the cases of sexual assault-

  1. The Supreme Court held in Vishaka v. State of Rajasthan (1997) that the offences relating to the modesty of woman cannot be treated as trivial.
  2. The High Court of Chhasttisgarh in Pappu v. State of Chhattisgarh (2015) held the conviction of accused of sexual harassment under Section 354A which requires ‘physical contact’ and advances as a necessary element. It didn’t go into the debate of skin-to-skin contact.

Way Forward

  • The U.K. Sexual Offences Act 2003 mentions clearly that touching with sexual intent includes touching any part of the body, with anything else or though anything.
  • POCSO act must also be modified to remove such ambiguities.
  • However, for the time being, any interpretation which weakens the protection of the children need to be declared ultra vires.  As it can set a dangerous precedent in society.
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NITI Aayog study to track “Economic Impact of Green Verdicts”

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What is the News?

NITI Aayog has commissioned a study to examine the unintended economic consequences of judicial decisions that have hindered and stalled projects on environmental grounds.

About the study

  • Responsible body: The study is to be undertaken by Jaipur-headquartered CUTS (Consumer Unity and Trust Society) Centre for Competition, Investment, and Economic Regulation. It also has an international presence.

What is the purpose of this study?

  • The judgments of the different courts negatively impact major infrastructure projects. These decisions don’t adequately consider their economic fallout — in terms of loss of jobs and revenue.
  • Hence, this study aims to sensitize the judiciary on the economic impact of their decisions. The findings will also be used as a training input for judges of commercial courts, NGT, HCs, SCs.

What will the study examine?

  • The study will examine five major projects that are impacted by judicial decisions of the Supreme Court or the National Green Tribunal.
  • For that, It will interview people who have been affected by the closure of the projects, environmental campaigners, experts, and assessing the business impact of the closure.
  • The five projects to be analyzed include:
    1. Stay on the construction of an airport in Mopa, Goa;
    2. Ending of iron ore mining in Goa.
    3. Shutting down of the Sterlite copper plant in Thoothukudi, Tamil Nadu.
    4. Suspension of sand mining operations in Uttar Pradesh
    5. Stopping of construction activities in the National Capital Region.

Source: The Hindu

Posted in Daily Factly articles, Factly - Indian Economy, PUBLICTagged ,

Delhi HC stays Future-Reliance deal

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What is the News?

Delhi High Court has provided interim relief to e-commerce major Amazon. It directed Future Retail Limited(FRL) to maintain the status quo with regard to the transfer of its retail assets to Reliance Retail.

What are the issues in the Future-Reliance deal?

  1. What is the Future-Reliance deal? In 2020, Biyani’s Future Group has entered into an agreement with Reliance Retail. Under this deal, Future was to sell its retail, wholesale, logistics and warehousing to Reliance.
  2. Why has Amazon objected to the deal? In 2019, Amazon had acquired a stake in Future Coupons in an agreement. As per Amazon, under this agreement, it has the first right of refusal in any stake sale in future retail.
  3. Why did Amazon approach Singapore International Arbitration Centre(SIAC)? Amazon and Future Group have under their agreement agreed to refer their disputes to SIAC. Hence, Amazon approached SIAC to appoint an emergency arbitrator to get urgent interim relief.
  4. SIAC ruling: SIAC emergency arbitrator had ruled in Amazon’s favour. It put the Future-Reliance deal on hold.

What is the issue now?

  1. Enforcement of Ruling: Currently under Indian law, there is no mechanism for the enforcement of the orders of the Emergency Arbitrator. However, a party can move the Indian High Court under Arbitration & Conciliation Act,1996 to get similar reliefs as granted by the Emergency Arbitrator.
  2. What has the Delhi High Court said? It ruled that the order of the SIAC was enforceable in India the same manner as an order of this court. This provision is covered under Section 17(2) of Arbitration and Conciliation Act.

Source: The Hindu

Posted in Daily Factly articles, Factly - Indian Economy, PUBLICTagged ,

Aspect of Mercy petition in India and Judicial intervention

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Former Punjab CM Beant Singh’s assassin Balwant Singh Rajoana’s mercy petition was accepted by the Home ministry in 2019. But the decision could not be implemented as the Council of Ministers didn’t send the file to the President. Recently the Supreme Court criticised the government for their delay and scheduled a hearing for that.

This created a larger debate on the relevance of mercy petition itself and the pardoning power of Executive in India.

What is a mercy petition?

A mercy petition is filed by a convict to change his/her punishment (especially capital) into a lesser form of punishment. It is also called clemency petition/plea or executive clemency.

Mercy Petition can be exercised after all the legal remedies were exhausted. (Legal remedies include all the remedies available under prevailing law and Constitution).

A petition can be filed with the President (under Article 72 of the Indian Constitution) or the governor (under Article 161 of the Constitution).

This provision of pardoning power or mercy towards convicts was first originated in the United Kingdom. Later the concept made its presence in the United States of America, India, Canada, etc.

What is the procedure to file a mercy petition?

A convict under a death sentence is eligible to make the mercy petition. But it should be filed within seven days, after the dismissal of her/his appeal by the Supreme Court and intimation of the same to the convict by the Superintendent of the Police (SP).

First, A written petition is filed before the President/Governor either by the convict or his/her relative on his/her behalf. The petition can be filed on the following grounds:

    • The convicted person is the sole bread earner of their family.
    • The physical/mental fitness of the convict or his/her age.
    • Law for the crime committed was quite harsh.
    • The court committed an error or mistake unknowingly.

The grounds might play an important role in the decision-making process.

Second, the Petition will be forwarded to the Ministry of Home Affairs for comments and recommendations.

Third, the Home Ministry analyses the merits of the Mercy petition. During this phase, the Ministry also discusses the matter with the concerned State government.

    • After this, the Home Minister makes the recommendation on Mercy petition to the President.

Fourth, As per the advice of the Council of Ministers (CoM), the President can either accept or reject the mercy plea. There is no time limit prescribed for the President to exercise this power.

The Governor is also empowered with pardoning powers, but the Governor cannot pardon the Death sentence. However, he can commute, remit, reprieve the death sentence for the offences against the law, which is under executive power of the State.

What is the reason to have mercy petition?

First, The option for mercy can result in good conduct by the Convict in the prison. This helps in solving the issue of prison discipline.

Second, Mercy petition adds a human touch to the country’s judicial process. The mercy petition process judges the convict based on humanity and not on legality (concluding judgement based on evidence and witnesses).

Third, Mercy Petition can save an innocent person from being punished due to doubtful conviction or miscarriage of justice. Thus, this process is very significant as it provides an opportunity to correct the errors made during the judicial process.

Fourth, pardoning is provided with the belief that it will serve for better public welfare and for the greater public good.

Challenges with the mercy petitions in India:

First, there is no time limit given in the Constitution for a decision on Mercy Plea. There are many instances when the mercy petitions are kept pending for a long period. This is seen as a violation of Human Rights by legal experts. The convicts face mental, emotional and physiological trauma during the delayed period.

Second, the experts also say, “Mercy petition is dealt largely without mercy by the successive governments”. They point out reasons such as

    • President not bound to accept the Mercy Petitions. It is the discretion of President
    • The critics also point out the information released by the RTI Act, “There are 77 mercy pleas decided by successive Presidents between 1991 and 2010. Of these 69 were rejected and only 8 were accepted”.

Third, the President is not bound to state the reasons for the rejection of Mercy Petition. It results in a lack of transparency in the process.

Judicial interventions on Mercy petition:

First, In Ranga Billa Case: the court mentions that “nature and ambit of the pardoning power is entirely a discretionary remedy. Providing grant or rejection of petition need not state the reason for the actions.

Second, In the Kehar Singh vs Union of India (1989) case: The court mentions “pardon by the President is an act of grace. Therefore, pardoning cannot be claimed as a matter of right. The power exercisable by the President is exclusively administrative in nature, and it is not justifiable.

Third, In the Dhananjoy Chatterjee (alias Dhana) vs the State of West Bengal (1994) case: The Supreme Court said that “The pardoning power under Articles 72 and 161 can be exercised by the Central and State Governments. The powers shall not be exercised by the President or Governor on their own”.

Fourth, In Mohd. Afzal Guru vs. State of Delhi (2014) case: The court said that “there has to be 14 days gap between the rejection of mercy petition and actual execution of the death penalty”.

Way forward:

Pardoning power of the executive is very significant as it corrects the errors in the judicial process. Timely disposal of mercy petition is a boon. To ensure that the government have to fix the time frame and create certain binding conditions to exercise the Mercy petition. This will facilitate smooth functioning of Indian democracy.

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Importance of Allahabad HC judgment on Special Marriage Act

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Synopsis: The Allahabad high court’s recent decision to strike down the provisions of the Special Marriage Act, 1954 that make it mandatory for couples to publish a 30-day public notice of their intent to marry is a significant and much-needed correction.

About the Special Marriage Act

    • The Special Marriage Act was originally enacted in 1872 to provide a framework for inter-caste and inter-religious marriages.
    • The Act allows the solemnization of marriages (performing the public ceremony/rites of marriage) without any religious customs or rituals. The law solemnizes marriages by the way of registration.
    • As per Section 5 of the Special Marriage Act, marriages irrespective of the religion of the couple require parties to give a 30-day public notice of their intention to marry before solemnizing their marriage
    • The provision of mandatory 30 days’ notice period ended up giving vigilante groups, families hostile to inter-faith and inter-caste unions with disproportionate powers to police young couples.
    • The Act is applicable to all Indian citizens and Indian nationals who live in abroad.
    • Allahabad High Court observed the Special Marriage Act as ‘one of the earliest endeavours towards Uniform Civil Code.

About the case 

Recently, in response to a writ petition filed, Allahabad High Court gave a judgment that would have far-reaching impacts.

    • In its conclusion, the HC stated, though the couple wanted to marry under the Special Marriage Act, the mandatory provision for 30-day notice, under section 5 of the act, compelled them to take the easier route of religious conversion.
    • Thus, Section 5 acting as a barrier to inter-faith couples, willing to marry under the secular SMA rather than taking religious conversion routes.
    • On this basis, the Court allowed couples not to publish the mandatory 30-day notice of their intention to marry.
    • Also, the court allowed the individuals, who desire to have more information about their counterparts, to opt for publication of notice under Section 6 of the Act. Such publication of notice under free will not be a violation of fundamental rights due to free choice.
    • The court also noted that when marriages under personal law do not require a notice or invitation for objections, such a requirement for inter-faith couples’ is obsolete in secular law and cannot be forced on a couple.
    • As a result, many preferred to convert and marry under personal laws, rather than under the Special Marriage Act, 1954 to prevent themselves from harassment.

Why the Allahabad high court’s decision is regarded as a significant step?

The high court’s ruling against the mandatory need for couples to publish a 30-day public notice has been praised for the following reasons,

    • First, the decision comes at the right time where the anti-conversion ordinances in Uttar Pradesh and Madhya Pradesh have endorsed the state intrusions on inter-personal relationships.  The decision will protect the primacy of individual autonomy.
    • Second, the HC ruling is in line with The Law Commission of India report in 2012 that recommended keeping a check on the unnecessary interference by caste assemblies in sagotra, inter-caste or inter-religious marriages.
    • Third, The HC judgment reaffirms the constitutional protection to minorities as even today a minuscule of the minority of marriages are, inter-faith unions.
    • Fourth, it is in line with a series of landmark Supreme Court judgments that are against societal and state interference in personal affairs and firmly establishes personal liberty and privacy to be fundamental. For example,
      • Puttaswamy v Union of India, that recognise the right to privacy as a fundamental right
      • The Hadiya case, right to choose one’s partner.
      • In Navtej Singh Johar case: The ruling that decriminalised homosexuality.
    • It will be a body blow to Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 which have provisions such as
      • Declaring conversion of religion by marriage to be unlawful
      • Mandating a 60-day notice to the District Magistrate
      • Requiring the Magistrate to conduct a police inquiry to know the real intention behind the conversion.
    • As the Special Marriage Act is a central legislation, couples across the country seeking to marry under the law will benefit from the liberal ruling of the provisions.
    • It paves way for abolishing and cleansing obsolete Victorian-era protectionist provisions in other laws as well.

The Allahabad High Court judgement is a reminder and a warning that the constitution remains the bulwark against an overreaching state policy such as the anti-conversion ordinance in UP and MP.

 

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SC judgment on farm laws: violation of separation of powers

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Synopsis:  The Supreme court (SC) has stayed the implementation of farm laws. The decision is a case of violation of the separation of powers.  

Background  

  • Recently, the SC has stayed the implementation of three farm laws until further orders. 
  • The SC has also given direction to set up a four-member committee to break the deadlock between farmers and the Centre. 
  • Many experts opine that by this judgment the supreme court has encroached into political and administrative management without any legal basis and seen as a violation of the separation of powers. 

Are the reforms necessary? If yes, why it has been opposed? 

According to many agricultural experts, agriculture needs serious reform for achieving the following objectives. 

  • To improve farmers’ incomes and well-being. 
  • To increase crop diversification. 
  • To make agriculture more environmentally sustainable. 
  • To make subsidies less counterproductive.  
  • To keep food inflation down, and ensure that nutrition reaches all. 

The government was right to think reforms were necessary. However, the government failed to gain trust among Farmer communities by prioritising the wrong reforms.  For example, “choice of traders,” which did not tackle the underlying issues, but created more uncertainty. 

What are the negative implications of the recent Supreme Court decision? 

The Supreme court (SC) decision has been criticised on the following grounds; 

  • First, SC’s involvement in the Farm bill issue will give a misleading impression that a distributive conflict can be resolved by technical or judicial means.  
  • Second, by setting up a four-member committee to hear farmers’ grievances the SC has invaded into political territory. The role of the judiciary is to determine unconstitutionality or illegality of law rather than mediating a political dispute 
  • Third, the court has lost its neutrality by seeking to break the momentum of a social movement 
      • Rather than facilitating the orderly and law-bound expression of protest the court has acted to defuse the genuine democratic protest by shifting the onus on the farmers to stop their protests. 
  • Fourth, the court’s action will disrupt the normal political give and take in a democracy between the government and people. 
  • Fifth, the court has redefined the function of mediation the court by violating the first rule of mediation. i.e., The mediators must be acceptable to all parties and appointed in consultation with them. Whereas the SC has Suo Moto appointed a four-member committee without any consultation with farmer groups. 
  • Finally, the court has also positioned itself as an arbiter of national security. It admitted the Attorney General’s contention that farmers’ protests may be the vehicle for the Khalistan movement. 

What is the way forward? 

  • In principle, any mediation to break the stalemate is welcome. But the mediation has to be a political process between the government and the people and it is the responsibility of the Parliament to fix the issue. 
  • What the farmers need is clarity of law and the right to make their demands heard through the political process and civil society not the paternalism of the court 

The court, in the process of saving the government from being on the political back foot the court, has forfeited the very thing it needs most, the repository of trust among its citizens.

 

 

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Supreme Court stays implementation of 3 farm laws

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News: The Supreme Court has stayed the implementation of Three Farm Laws until further Orders.

Facts:

Summary of the Supreme Court Order:

  • Stay on Farm Laws: Implementation of three farm laws namely The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, The Essential Commodities (Amendment) Act and The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act have stayed.
      • The stay on their implementation means the Centre cannot, for the time being, proceed with any executive actions to enforce the laws.
  • No Retrospective Action: No farmer must be dispossessed or deprived of his title as a result of any action taken under the laws.
  • Committee Formed: The court formed a four-member committee of experts to listen to the grievances of the farmers on the farm laws and the views of the government and make recommendations. The Committee shall be provided with a place at Delhi and Government to bear its expenses and give it secretarial assistance
  • Functions of Committee: The representatives of all the farmers’ bodies whether they are holding a protest or not and whether they support or oppose the laws shall p Supreme Court stays  farm laws articipate in the deliberations of the Committee and put forth their viewpoints. The Committee should file the report within 2 months before the Supreme Court.

Article Source

Further Reading on Farm Laws: https://blog.forumias.com/issue-of-farm-bills/

 

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Central Vista judgment: Issue of public participation in public projects

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Synopsis: The issue of public consultation in the project development process should not be underestimated.

Introduction

In the recent judgment of the Supreme Court, Rajeev Suri v. Delhi Development Authority, Court granted its approval to the proposed redevelopment of the Central Vista in the national capital. 

What are the changes proposed?

  • In 2009, the Central Vista was considered as a Grade-I heritage precinct after extensive public consultation, which meant that any development inside the area had to be “regulated and controlled” without damaging its impressive style.
  • However, the Redevelopment plan includes taking down a number of post-Independence buildings, including the National Museum.

Read more:

Issues in the judgment on central Vista project

Following were 2 issues in the Central Vista Judgment, as per Suhrith Parthasarathy, the advocate of Madras High Court;

  • Court refused to acknowledge the existence of a right to public participation, a right, which ought to be seen as fundamental in a democracy.
  • Delhi Development Act, 1957 mandated opportunity to the public to place their objections on the record. Although objections were invited from the public, a mere three-days’ notice was given for the hearing on those complaints
    • However, majority judgment ruled that the law does not make personal hearings mandatory.
    • Issues: 2 issues are involved in this case:
      1. In the past SC itself held that arbitrary state action violates fundamental rights under article 14 i.e. sufficient time should be accorded to the public if any big change is being introduced to imp. Acts like DDA.
      2. For Public to scrutinise the project, authentic technical information on the project was available in the public domain.

Issues in general in the public projects

Public participation and architectural services procurement are 2 of several areas that are in urgent need of improvement; 

The issue of public Participation 

  • Horizontal accountability ensures check on government, by creating connected state organizations such as heritage committees and environmental regulators. 
  • Vertical accountability requires citizen oversight. Citizens are asking for an improved participatory process.  
      • Government argues that horizontal accountability is in place. Provisions for consultation although are not absent, but the process of consultation is vague. 
      • Judgment in central Vista is also not clear on the matter of public participation. 
      • Development of Land Acquisition act provides a few lessons that have spelt out consent required from a minimum number of landowners. 

Process of architectural services procurement 

  • The process of choosing a designer for a public project needs improvement as there is a lack of evaluation criteria and standards for design. Also, weightage is given to lower fees instead of better designs. 
  • The architecture firms face entry barriers as their expertise is judged on the basis of their company’s turnover. The unreasonable revenue conditions make it difficult for many firms to qualify and also reduce the pool of choice. 

Way Forward

  • First, according to the dissenting judge, the most basic principles of procedural fairness require the state to make adequate and intelligible disclosures. It becomes more important as the project will have permanent and irreversible consequences.
  • Second, for improving consultation, regulations and process have to clearly state what prior disclosures are required, when meetings have to be held and reasons for accepting and declining suggestions should be listed properly. 
  • Third, the government adopted the Quality and cost based selection (QCBS) for choosing designers. This method specifies requirements for consultants, places higher weightage on their technical capability and lower weightage on financial proposals. 
  • Fourth, in order to reduce the entry barrier, one can consider the suggestions made by the Architects’ Council of Europe. It suggests dropping turnover requirements and emphasized qualitative selection criteria. 
    • Weightage given to design value has to be clear and fixed as more than 65% of the registered architects in India are below 35 years and many firms are medium-sized, such changes are all the more required. 
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‘Using God’s name to sell articles illegal’

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News: The Bombay High Court has held that the sale of items, claiming that they possess miraculous or supernatural powers via television advertisement is illegal.

Facts:

What was the matter?

  • A petition was filed seeking a direction and injunction to prevent advertisements on television channels that promote the sale of articles like Hanuman Chalisa Yantra.
  • The petitioner had come across advertisements in 2015 on TV claiming special, miraculous and supernatural properties/qualities in Hanuman Chalisa Yantra prepared by one Baba Mangalnath who had achieved ‘siddhi’ (supernatural powers) and was blessed by Lord Hanuman.

What is the Judgement?

  • The court held that using the name of any God and claiming that it has supernatural qualities is “illegal” and falls under the Maharashtra Prevention and Eradication of Human Sacrifice and other Inhuman, Evil and Aghori Practices and Black Magic Act.
  • The court observed that the objectives quoted in the Black Magic Act can be achieved mainly through education.
    • Section 3 of the Black Magic Act prohibits not only commission of acts of black magic, evil practices but also propagation and promotion of such practices and magic. Section 3(2) of the Act provides that abetment of such propaganda is also an offence.
  • Quoting the fundamental duty to develop the scientific temper, humanism and the spirit of inquiry, the Court said that the reformists like Mahatma Phule and Babasaheb Ambedkar who worked to remove evil practices and spread awareness against superstition, were born on this soil.

Article Source

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Supreme Court Judgment on Central Vista Redevelopment Project

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Supreme Court pronounced 2-1 judgment and cleared the Central Vista Redevelopment Project.

Petition challenging the Centre’s change-of-land-use notification of March 2020 for 86 acres of land was filed in SC.

Following statements were put forward by the majority judgment and dissenting judge:

Central vista judgment

More about judgment

SC Court in its judgment held that it found no issues in the following orders and found them as per laws and procedures.

  • “No Objection” by the Central Vista Committee (CVC);
  • “Approval” by the Delhi Urban Art Commission (DUAC) as per the DUAC Act, 1973;
  • “Prior approval” by the Heritage Conservation Committee (HCC) under Building Byelaws for Delhi, 2016.”
  • Exercise of power by central government under DDA (Delhi Development Authority) Act, 1957.
  • Environmental Clearance (EC) recommendation for the project by the Expert Appraisal Committee (EAC).

SC in its judgment also made a statement regarding the limits on its powers. As per the bench, development policies of the Government of the day must be debated in the Parliament. The role of the Court is limited to examining their constitutionality and not to govern.

Further, it asks for the creation of smog towns and deployment of smog guns to mitigate the pollution from construction materials and directs that waste management at the site be subjected to constant monitoring. 

What were the issues raised in the petition challenging Central Vista Project?

Supreme Court was hearing the petition on the following main grounds, put forward by the petitioner:

  1. Change of land use: DDA in its notification made changes in the land use to facilitate the use of public open spaces such as a district park and children’s play area for the use of government office.
  2. Violations of municipal law: consultation with Delhi Urban Commission (DUAC) had to be completed at the plan conception stage itself.
    1. In the absence of a comprehensive consultation, the approvals were granted without proper application of mind.
  3. Violations of environmental law: Parliament building was granted environmental clearance from the Ministry of Environment, Forests & Climate Change without any Environment Impact Assessment (EIA).
  4. Change in heritage Status: Heritage Conservation Committee allowed the demolition of post-independence constructions by redefining the ‘Heritage status’.
  5. Central Vista Committee(CVC): As per the petitioner, CVC was set up to rush the approvals and it consists of the members, who were proponents of the central vista project. Thus, there is an apparent conflict of interest. 

For more Info. on Issues: Issues with Central Vista Project

What is Central Vista and Central Vista Redevelopment Project?

History of Central Vista development

  • Britain’s King George V on December 12, 1911, at his coronation announced the transfer of the seat of the Government of India from Calcutta to the ancient Capital of Delhi.
  • This 20 years-long project of Central Vista development was led by architects Edwin Lutyens and Herbert Baker. It was completed in 1927 and inaugurated by Viceroy Lord Irwin.
  • Central Vista is 3.2 kilometre area in Delhi housing Parliament House, Rashtrapati Bhavan, North and South Blocks, Rajpath, India Gate, National Archives and the then princes’ houses around India Gate.
  • In the 1962 Master plan of Delhi, site was declared a heritage precinct as an “important site to meet the aspirations of a rich culture”.

About the Central Vista Redevelopment Project

  • Project was announced by Ministry of Housing and Urban Affairs in 2019 as a redevelopment project to give a new identity to the ‘power corridor’ of India.
  • Redevelopment project includes
    • Construction of a new parliament next to existing one,
    • Prime minister and vice-president’s residences along with 10 building blocks that will accommodate all government ministries and departments.
    • Revamping of the 3-km-long Rajpath — from Rashtrapati Bhavan to India Gate.
  • Project will change the structure of the 86-acre area in Lutyens’ Delhi that shows off India’s iconic buildings such as South and North blocks of Central Secretariat, Parliament House, and Rashtrapati Bhavan.
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    Parliament Complex
  • Complete project is estimated to cost around Rs. 20,000 crores. Of this amount, around Rs. 1000 crores is allocated for construction of Parliament Building.
  • It will be a triangular-shaped Parliament building and spans across over 64,500 square metres.
  • It will be able to accommodate 336 more Lok sabha members and 139 more Rajya Sabha members than the current capacity i.e. 888 Lok Sabha members and 384 Rajya Sabha members.
  • Building is projected to complete by 2022, for which Tata Projects won at Rs. 861.90 crores.

Why the Central Vista redevelopment Project has been planned?

  • Firstly, the Current Parliament was built in 1927 to house the legislative council and was not intended to house a bicameral legislature that the country has today. The current building will be under more stress when the number of seats to Lok Sabha and Rajya Sabha are raised.
  • Secondly, the present Parliament House signifies an imperial origin, whereas India is a successful citizen-led democracy. Thus, the present parliamentary building is not in accordance with the aspirations of independent Indian citizens and the new building will stand out as an institution created by 130 crore citizens.
  • Thirdly, there are international examples of building new parliamentary structures after gaining independence.
    • The Capitol Building in the USA was constructed within 25 years of the country’s independence.
    • In Brazil, the National Congress Building was constructed, almost 70 years after Independence, in 1960. 
  • Fourthly, Present Parliamentary complex was built by the British on their own patterns and designs. New building’s design and interiors will capture Indian values and the rich diversity of our regional arts, crafts, textiles, architecture, and culture.
  • Fifthly, World history proves that Public infrastructure projects playing a key role in reviving economies in distress. For ex; the Tokyo Tower in Japan, built after World War II, provided employment to thousands of workers, instilled a greater sense of nationalism, and contributed to the resurgence of the Japanese economy.
  • Sixthly, the existing building does not conform to fire safety norms and is not earth quake proof. Water and sewer lines are also haphazard and this is damaging its heritage nature. 2001 Parliament attack is a fit example questioning the safety.

Although SC has given a green light to Central Vista Project, it also underlined the need for the significance of transparency i.e. if the relevant information is not placed in the public domain, public will be ill-equipped to understand the need and rationale behind such projects.

Government should become more transparent and try to bring in a consultation process at the initial stage of the project developments to maintain a level of confidence among people of the country.

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Judgment on the eligibility of Horizontal reservation candidates

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Synopsis: Supreme Court in its recent judgement Saurav Yadav versus State of Uttar Pradesh, has cleared the Issue of eligibility of candidates belong to Horizontal reservation to compete for the open category seats.

The issues arise due to the difference in the implementation of horizontal reservation among different states in the open category states.

There are 2 types of reservations; 1) Vertical reservation, 2) Horizontal reservation

Vertical reservation: It is a class of reservation which provide reservation in terms of caste i.e. SC, ST, OBC and General Category.

Horizontal reservation: It is a class of reservations under Article 15(3) and 16(1), which cuts across all the caste based categories including reservation for women, differently-abled persons, freedom fighters, army veterans and other categories.

What are the Horizontal Reservation issues?

Basic issue is the assumption of critics of reservation that reservations per se are opposed to merit and compromise efficiency in public service. Therefore open category seats must be available only to the candidates belong to non-reserved categories.

  • Upholding the assumption above, few state governments excluded reserved category women from consideration in the general category.
  • This policy in effect declare the open category as a reserved category for upper castes.
  • Further, matter was worsened by the contrary judgments of High Courts:
    • Rajasthan, Bombay, Uttarakhand and Gujarat high courts approved the eligibility of horizontal reservation against ‘open or general category’.
    • Allahabad and Madhya Pradesh High Courts held that candidates from reserved categories can be adjusted only against their own categories and not against the ‘open or general category’.
  • Reservation is an instrument for identifying merit in individuals from historically marginalised communities. By excluding OBC women against general category seats, government is excluding a meritorious candidates.

Indra sawhney case

  • In Indra Sawhney case 1992, Supreme Court held that in case a reservation has been made under Article 16 (4) for the backward class and the candidate belonging to such back ward caste can compete for non-reserved post.
  • As such candidates are appointed on the basis of their own merit, their number will not be adjusted against the quota to their backward category i.e. the entire reservation quota will be intact and available in addition to those selected under open competition category.

Saurav Yadav versus State of Uttar Pradesh

  • In this case, there were 3,295 constable posts in UP in the General Category (GC) of which 188 went to women.
  • 21 applicants in the OBC female category scored more than the last female candidate selected in General Category. But in filling up of 188 GC women seats, OBC women (who scored higher) were not considered.
  • Judgment: In this case three judge bench led by Justice Uday U Lalit, ruled against the government order that candidates belonging to reserved categories like SCs, STs, and OBCs can be appointed under open or general category, if they qualified on their own merit.

Justice Ravindra Bhat’s judgment

  • Justice Bhat also made a concurring judgment, in a similar case.
  • Justice Bhat in his judgment held that there is no rule, or direction which prohibits the adjustment of socially reserved categories of women in the general category or “open category”. Therefore, the open category is not a ‘quota’, but rather available to all women and men alike.

Anil Kumar Gupta v/s State of Uttar Pradesh

  • In its judgment, the Court had made it clear that horizontal reservation ought to be generally understood in compartmentalised terms, as a nod to recognition of inequalities within each vertical category.

Vertical and horizontal reservations are methods of ensuring representation in public services. It should not be used as a tool to close the doors to open general category, even for the meritorious candidates, for which she would have been eligible without reservation.

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Right to Protest in India

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Context: Supreme Court in its recent order stated that farmers have a constitutional right to continue with their protest.

More about judgment

  • Petition: Order was delivered on the petitions seeking removal of farmers protesting at the borders of Delhi.
  • Order and suggestions
    • Supreme Court in its order upheld the farmer’s right to continue their protest in a peaceful manner as a constitutional right subject to public order.
    • No restriction will be placed in the exercise of such rights as long as it is non-violent and does not result in damage to the life and properties of other citizens.
    • SC suggested farmers engage in talks with the government for positive conclusion and formation of an “impartial and independent committee” of experts in agriculture to hear both farmers and the Union government on the laws.

A few examples of important peaceful protests in India  

  • Power of peaceful protest was taught to the country by the father of the Indian nation, Mahatma Gandhi, against the mighty British Empire.
  • People not only signed writ petitions but staged dharnas, held large public meetings, peaceful protests and demonstrations and even, for instance in Gandhi’s satyagraha, launched civil disobedience movements.
  • After Independence, many peaceful protests took place, but one of the biggest were protests during an emergency in the 1970s when democracy in India was threatened due to authoritarianism of government.
  • Movements such as Chipko movement (1973) in the upper Alaknanda valley took place for forest conservation.
  • During the movement of Anna Hazare against corruption, thousands participated in the peaceful protests.

What are the Constitutional provisions ensuring the right to protest?

The right to protest, to publicly challenge and force the government to answer, is a fundamental political right of the people that flows directly from a democratic reading of various provisions of Article 19.

Right to Protest is protected under Article 19(1) (a), Article 19(1) (b) and Article 19(1) (c) of the Indian Constitution.

  1. Article 19(1) (a) guarantees the freedom of speech and expression;
  2. Article 19(1) (b) assures citizens the right to assemble peaceably and without arms.
  3. Article 19(1) (c) assures right to form associations or trade unions

Reasonable restrictions: However, like other fundamental rights, right to protest is also not absolute and also subject to reasonable restrictions mentioned under Article 19(2) and 19(3) on the following grounds;

  1. In the interests of the sovereignty & integrity of India,
  2. The security of the State,
  3. Friendly relations with foreign States,
  4. Violation of Public order,
  5. Decency or morality or in relation to Contempt of court, defamation or incitement of an offence

The grounds of restrictions based on Violation of public order can be reasonable only when there is evidence that protesters will incite lawless or disorderly acts and that such acts are likely to occur.

Section 144 and right to protest in India

  • Time and again, to suppress the voice of citizens or for legitimate reasons like controlling the violent protest, the government has kept on using various tools available against protests and section 144 of Cr.PC has been the biggest such tool.
  • Section 144 authorises executive magistrates to pass “prohibitory orders” that restrict people from assembling at particular places to prevent breaches of public order or the triggering of violence.
  • Although the law has been enacted to implement the reasonable restrictions, however, Section 144 is framed in such broad and vague terms that it can be imposed by the executive anywhere to prevent the expression of dissent through public demonstrations and protests.
  • Judgments
    • In the 2012 Ramlila Maidan case, the court held that the “perception of threat to public peace and tranquillity should be real” for Section 144 to be used. The trigger cannot be “imaginary or a mere likely possibility”.
    • In Mazdoor Kisan Shakti Sangathan v Union of India, the Supreme Court held although recognised the right to protest and asked the government and police to frame guidelines but also held that the order to impose section 144 was not unconstitutional.

Supreme Court Judgements on Right to Protest:

  • Ramlila Maidan Incident vs Home Secretary, Union of India (2012): The Supreme Court had stated that citizens have a fundamental right to assembly and peaceful protest which cannot be taken away by an arbitrary executive or legislative action.
  • Mazdoor Kisan Shakti Sangathan (MKSS) vs Union of India(2018): In this case, SC upheld the fundamental right to assembly and peaceful protest but ordered it to be regulated in such a way that they do not cause inconvenience to residents from Jantar Mantar road or the offices located there.
  • Shaheen Bagh Judgement:
    • The court upheld the right to peaceful protest against a law but made it clear that public ways and public spaces cannot be occupied and that too indefinitely.
    • The right to protest in a public place should be balanced with the right of the general public to move freely without hindrance.
    • Fundamental rights do not live in isolation. The right of the protester has to be balanced with the right of the commuter and has to co-exist in mutual respect.

What is the significance of the right to protest?

  • Firstly, Right to protest is an essential element of democracy to bring about reforms and lead to the development of the country.
  • Second, Protesting against injustice is not only a constitutional right of the citizens but also their moral duty.
  • Third, Active exercise of Right to protest ensures people’s role as watchdogs that constantly monitors government’s acts and ensure fairness in them.
  • Fourth, it is the biggest weapon of people when the government in a democratic country becomes unresponsive and refuse to listen to them.

Peaceful protest is a fundamental right and the lifeline of democracy, without which there would be very less accountability left with the ruling government and every citizen has to wait for the election to vent out their anger against it. But reasonable restrictions are also very important so that peaceful protests do not turn into violent and lead to loss of lives and property.

However, it should not be made an excuse to suppress every form of protest as it is the prime duty of every government to protect the ideals of the constitution.

 

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Religious Freedom and Personal Choices

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Context: The Allahabad High Court verdict in ‘Salamat Ansari’ is a reminder of the Constitution’s most cherished values.

What did the court say?
  • Religious conversions, even when made solely for the purposes of marriage, constituted a valid exercise of a person’s liberties.
  • The High Court ruled that the freedom to live with a person of one’s choice is intrinsic to the fundamental right to life and personal liberty.
  • It held that the judgment in Noor Jahan was incorrectly delivered. Marriage is a matter of choice, and every adult woman has a fundamental right to choose her own partner.
What is the issue?
  • Legislation: Various State governments undertaking projects to outlaw what they describe pejoratively as “Love Jihad”.
  • Petitioners vs. State:
    • The petitioners had approached the High Court seeking orders to quash a First Information Report (FIR). This FIR alleged that crime was committed under Section 366 of the Indian Penal Code, which criminalises the abduction of a woman with an intent to compel her to marry against her will.
    • The State argued that the partnership had no sanctity in the law, because a conversion with a singular aim of getting married was illegitimate.
What are the other related judgements?
  • Noor Jahan v. State of U.P. (2014): the High Court had held that a conversion by an individual to Islam was valid only when it was predicated on a “change of heart” and on an “honest conviction” in the tenets of the newly adopted religion.
    • Burden of proof: the High Court had ruled that the burden to prove the validity of a conversion was on the party professing the act.
  • Stainislaus v. State of Madhya Pradesh: the Court upheld, on grounds of public order, two of the earliest anti-conversion statutes in India: the Madhya Pradesh Dharma Swatantrya Adhiniyam, 1968, and the Orissa Freedom of Religion Act, 1967. These laws required that a District Magistrate be informed each time a conversion was made and prohibited any conversion that was obtained through fraud or illegal inducement.
What does the judgement signify?
  • Right to religious freedom: it is neither the province of the state nor any other individual to interfere with a person’s choice of partner or faith.
  • Right to privacy: It held that an individual’s ability to control vital aspects of her life inheres in her right to privacy. Puttaswamy judgement, has recognised that every individual possesses a guaranteed freedom of thought.
  • Right to live with dignity: It includes the preservation of decisional autonomy, on matters such as “personal intimacies, the sanctity of family life, marriage, procreation, the home, and sexual orientation”.
  • Freedom of conscience: Article 25 of the Constitution expressly protects the choices that individuals make. It guarantees to every person the freedom of conscience. The idea of protecting one’s freedom of conscience goes beyond mere considerations of religious faith.

This is high time that we need to respect people’s choices. When we fail to acknowledge and respect the most intimate and personal choices that people make,we undermine the most basic principles of dignity.

 

Link to our 7PM editorial of similar article (ISSUE OF INTERFAITH MARRIAGES AND LAWS IN INDIA)

Posted in 9 PM Daily Articles, CURRENT AFFAIRS, daily news, Daily News UpdatesTagged , , ,

ISSUE OF INTERFAITH MARRIAGES AND LAWS IN INDIA

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The article is based on The Big Picture: Special Marriage Act and Indian Express Explained, Roll it back appeared in the month of November. 

Context: The Uttar Pradesh government has cleared an ordinance that enables the state to police and punish inter-faith marriages with “the sole intention of changing a girl’s religion”.

Important provisions of Prohibition of Unlawful Conversion of Religious Ordinance, 2020:

  • Law prohibits conversion from one religion to another by “misrepresentation, force, fraud, undue influence, coercion, allurement or marriage”.
  • Marriage will be declared “shunya” (null and void) if the “sole intention” was to “change a girl’s religion”
  •  The persons forced the girl to change religious conversion may face jail term of up to 10 years if the girl is minor, a woman from the Scheduled Caste or Scheduled Tribe, if the person involved religious conversion on a mass scale. For the rest of the cases, the jail term ranges from 1 to 5 years.
  • The law also provides for the way to conversion. The person willing to convert to other religion would have to give it in writing to the District Magistrate at least two months in advance.
  • The burden to prove would be on the person who caused the conversion or the person who facilitated it. If any violation is found under this provision, then she/he will face a jail term from 6 months to 3 year
  • ·If any person reconverts to his immediate previous religion, then it shall not be deemed to be a violation of the ordinance.

Why Uttar Pradesh drafted such an ordinance?

  • In the past few months, cases of alleged “love jihad” have been reported from different parts of the state, especially eastern and central UP especially Lakhimpurkheri.
  • a group of parents from a particular locality in Kanpur had complained that their daughters are being allegedly trapped by Muslim men
  • In some cases, girls refused to accept that they were tempted into marriage.

Criticisms against the law

Many critics of the law have put forward a few issues regarding the law:

  • Allowing the police to examine subjective “intentions” of men and women entering a marriage veers into thought control — and sets the law up for rampant abuse.
  • Law against fundamental rights: By clearing the ordinance, the state government has trespassed the fundamental right to marry guaranteed under Article 21 of the Constitution. 
What is the term ‘Love Jihad’ or ‘Romeo Jihad’?:

  • The term itself is based on a conspiracy Theory. It simply means that the Islamic men target non-Islamic women for religious conversion by feigning their love.
  • This theory is completely unproven. The theory got national attention with the alleged conversions first in Kerala and later in Karnataka in 2009.
  •  In 2010, the speech of then CM of Kerala creates widespread allegation (Source)

 Anti-conversion law at central level:

Central government proposed various bills but none of them passed and became a law. They are:

  • Indian Conversion (Regulation and Registration) Bill 1954
  • Backward Communities (Religious Protection) Bill 1960
  • Freedom of Religion Bill in 1979

In 2015, the Law Ministry said passing of any law on religious conversion is purely a “State subject” and Central government has no role in it.

Is Uttar Pradesh being the only state to initiate law for forceful conversion?

  • No, after the central government failed to pass 1960 bill, Odisha government moved on and passed the first anti-conversion law in 1968
  • After that so far 10 states have had passed anti-conversion laws in India.
  • The Himachal Pradesh Freedom of Religion Act, 2019, and the Uttarakhand Freedom of Religion Act, 2018, both prohibit conversion by misrepresentation, force, fraud, undue influence, inducement, allurement and ‘by marriage’.

But Uttar Pradesh has become one of the first State to pass forcible conversion only during Interfaith marriages as special legislation. States such as Haryana, Madhya Pradesh, and Karnataka have also sought to bring such legislation.

Interfaith Marriages:

  • It simply means the matrimonial relation between individuals who follow different religious faiths.
  • Marriage between the same faiths has been governed by the Hindu Marriage Act 1955, Muslim personal Law. But to rectify and include interfaith marriages Centre passed the Special Marriage Act 1954.
  • Special Marriage Act considers Interfaith Marriages as secular.
Few important provisions of the Special Marriage Act of 1954:

  • The law allows the solemnization of marriages without any religious customs or rituals. The law solemnizes marriages by the way of registration.
  • The consenting couple (Men above 21 years and women above 18 years) who were going to get married have to provide 30-day Notice at the Marriage Registrar’s office.
  • After 30 days they can get married. If there are any objections raised then the Marriage Registrar will investigate the objection
  •  The Act is applicable to all Indian citizens and Indian nationals who live in abroad.
  • Allahabad High Court observed the Special Marriage Act as ‘one of the earliest endeavors towards Uniform Civil Code. (Source)

 Judicial pronouncement regarding interfaith marriages and forcible conversions:

  • The Rev Stanislaus vs Madhya Pradesh case: Supreme Court said Article 25 does provide freedom of religion in matters related to practice, profess and propagate, but the word propagate does not give the right to convert and upheld the laws prohibiting Conversion through force, fraud, or allurement.
  • Based on the above case it is clear that forcible conversion or conversion through fraud and allurement is against the Right to Freedom of Religion.
  • Sarla Mudgal case: The court had held that the religious conversion into Islam by a person from non-Islamic faith is not valid if the conversion is done for the purpose of polygamy.
  • Lily Thomas case: In this case Court observed that marrying another woman after converting to Islam is punishable under the bigamy laws.
  • Hadiya Case: Supreme Court said that the right to marry a person of one’s choice is integral to Article 21 (right to life and liberty) of the Constitution
  • Allahabad High Court, in the case, Noor Jahan Begum @ Anjali Mishra and another vs. State of U.P. and Others observed that one shouldn’t change one’s faith just for the sake of matrimony. As two persons professing different religions can marry under the Special Marriage Act.
  • But in the most recent judgment, Allahabad High Court itself overturned its previous judgment, calling the decision “bad in law”. The division bench of the Allahabad high court said on November 11, that judgment does not take into account the right to life and personal liberty of mature adults.

Way forward:

Based on the judicial pronouncements it is clear that the Right to marry a person belongs to another faith is a Fundamental Right but that does not have to be associated only with personal laws or religious conversions. It is the Right of the individual’s personal liberty to involve in Interfaith Marriage either by the Special Marriage Act of 1954 or by Personal laws (after getting himself converted).

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Regulating free speech

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Context: The Supreme Court’s has questioned the Union government on the measures it can and is willing to take against communally slanted television coverage.

More on news:

  • It appears to be an attempt to bring about a commitment to a course of action that will curb inflammatory journalism on broadcast media.
  • The Court has distinguished between free speech and ‘hate speech’.

Give some latest instances of partial news coverage. Also, mention the point-of-view of the Centre and the Court.

  • Coverage of Tablighi jamaat event: The Court is hearing petitions against the communal colour given by some channels to the incidence of large clusters of COVID-19 infections among those who attended a Tablighi Jamaat event in New Delhi.
  • The portrayal of the participants as intentional super-spreaders was vicious and motivated.
  • Case of Sudarshan news: The case of Sudarshan News, which began a series on the channel that propagated hate against Muslims, is an open example.
  • The government has merely administered a ‘caution’ to the channel and asked it to moderate the content of future episodes.
  • Centre’s point of view: The Centre’s affidavit has stated that media coverage “predominantly struck a balanced and neutral perspective”.
    • It further stated that it was open to the viewers to choose from a number of varying perspectives given by different media channels.
  • Court’s point of view: The Court is keen to know what action has been taken under the Cable Television Networks (Regulation) Act against offending broadcasters.
  • The Court appears unconvinced that the present mechanism of self-regulation, i.e. The National Broadcasting Standards Authority is effective.

What are the safeguards provided under the Cable Television Networks (Regulation) Act?

  • Government’s powers: The government is empowered under the Act to prohibit transmission of programmes that violate the programme or advertising codes (Section 19) and even an entire channel, in public interest (Section 20).
  • In the past, channels have been asked by the I&B Ministry to take some programmes off the air.
  • Penal law: Depending on the damage done to individuals or institutions, or even society at large, there is enough scope for action under the penal law.

Way forward

  • The distinction between free speech and hate speech should be at the heart of any order creating a new mechanism; to deal with broadcast media excesses.

A Mystery Behind “Positron Excess Phenomenon” Solved by Researchers

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