Note4Students
From UPSC perspective, the following things are important :
Prelims level: particulars of doctrine of essentiality
Mains level: judicial reforms
Context
- A two-judge Bench of the Supreme Court of India is presently hearing arguments on the correctness of a Karnataka High Court judgment that upheld the ban on the use of the hijab by students in Karnataka which raises question on doctrine of essentiality.
What is ‘doctrine of essentiality’?
- A seven-judge Bench of the Supreme Court invented the doctrine of “essentiality” in the Shirur Mutt case in 1954. The court held that the term “religion” will cover all rituals and practices “integral” to a religion.
Importance doctrine of essentiality
- In the legal framework, the doctrine of essentiality is a doctrine that has evolved to protect the religious practices that are essential or integral and does not violate any fundamental right. India being a secular country has discrete religious beliefs and to deny any is to violate the freedom of religion.
Why hijab is not an essential practice?
- Wearing of hijab (head scarf) by Muslim women does not form a part of essential religious practices in Islamic faith and it is not protected under the right to freedom of religion guaranteed under Article 25 of the Constitution of India, the High Court of Karnataka declared on March 15 2022.
Is hijab essential part of Islam?
- The Qur’an instructs Muslim women and men to dress modestly, and for some, the hijab is worn by Muslim girls and women to maintain modesty and privacy from unrelated males. According to the Encyclopedia of Islam and Muslim World, modesty concerns both men’s and women’s “gaze, gait, garments, and genitalia”.
How do you identify essential religion practice?
- The Court observed that in order to determine whether or not a particular practice is an essential part of religion, the test must be whether the absence of the practice itself
- Freedom to manage religious affairs Subject to public order, morality and health, every religious denomination or any section thereof shall have the right.
Examples of the essential religious practices test
- While these issues are largely understood to be community-based, there are instances in which the court has applied the test to individual freedoms as well.
- In a 2004 ruling, the Supreme Court held that the Ananda Marga sect had no fundamental right to perform the Tandava dance in public streets since it did not constitute an essential religious practice of the sect.
- For example, in 2016, the Supreme Court upheld the discharge of an airman from the Indian Air Force for keeping a beard.
- It distinguished the case of a Muslim airman from that of Sikhs who are allowed to keep a beard.
- In 2015, the Supreme Court restored the Jain religious practice of Santhara/Sallekhana (a ritualistic fast unto death) by staying an order of the Rajasthan HC.
What is the Supreme Court’s judgement on Doctrine of Essentiality?
- The doctrine of “essentiality” was invented by a seven-judge Bench of the Supreme Court in the ‘Shirur Mutt’ case in 1954.
- It is a contentious doctrine evolved by the court to protect only such religious practices which were essential and integral to the religion.
- The court held that the term “religion” will cover all rituals and practices “integral” to a religion, and took upon itself the responsibility of determining the essential and non-essential practices of a religion.
- Referring to the Ayodhya case, the Constitution Bench had ruled in 1994 that A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in open.
How has the doctrine been used in subsequent years?
- The ‘essentiality doctrine’ of the Supreme Court has been criticised by several constitutional experts.
- Scholars of constitutional law have argued that the essentiality/integrality doctrine has tended to lead the court into an area that is beyond its competence, and given judges the power to decide purely religious questions.
- As a result, over the years, courts have been inconsistent on this question — in some cases they have relied on religious texts to determine essentiality.
- In others it relied on the empirical behaviour of followers, and in yet others, based on whether the practice existed at the time the religion originated.
Issues over the doctrine
- In the beginning, the court engaged with the question of whether untouchability, manifested in restrictions on entry into temples, was an “essential part of the Hindu religion”.
- After examining selected Hindu texts, it came to the conclusion that untouchability was not an essential Hindu practice.
- The idea of providing constitutional protection only to those elements of religion which the court considers “essential” is problematic as it assumes that one element or practice of religion is independent of other elements or practices.
- So, while the essentiality test privileges certain practices over others, it is, in fact, all practices taken together that constitute a religion.
How does essentiality square up against religious freedom?
- Freedom of religion was meant to guarantee freedom to practice one’s beliefs based on the concept of “inward association” of man with God.
- The apex court in ‘Ratilal Panachand Gandhi vs The State of Bombay and Ors’ (March 18, 1954) acknowledged that “every person has a fundamental right to entertain such religious beliefs as may be approved by his judgment or conscience”.
- The framers of the Constitution wanted to give this autonomy to each individual. Scholars have argued that the essentiality test impinges on this autonomy.
- The apex court has itself emphasised autonomy and choice in its Privacy (2017), 377 (2018), and Adultery (2018) judgments.
Its effect on society
- Narrowing of safeguards to religious customs: It has allowed the Court to narrow the extent of safeguards available to religious customs by directly impinging on the autonomy of groups to decide for themselves what they deem valuable, violating, in the process, their right to ethical independence.
- Negated legislation that might otherwise enhance the cause of social justice: It has also negated legislation that might otherwise enhance the cause of social justice by holding that such laws cannot under any circumstances encroach on matters integral to the practice of a religion. For example, in 1962, the Court struck down a Bombay law that prohibited excommunications made by the Dai of the Dawoodi Bohra community when it held that the power to excommunicate is an essential facet of faith and that any measure aimed at social welfare cannot reform a religion out of its existence.
- A principle of anti-exclusion: Its application would require the Court to presume that a practice asserted by a religious group is, in fact, essential to the proponents of its faith. But regardless of such grounding, the Constitution will not offer protection to the practice if it excludes people on grounds of caste, gender, or other discriminatory criteria.
Conclusion
- For now, any Court hearing a matter touching upon a matter of faith has the unenviable task of acting not merely as an expert on law but also as an expert on religion.
Mains question
Q. Every person has a fundamental right to entertain such religious beliefs as may be approved by his judgment or conscience. Critically examine in context of doctrine of essentiality.
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Context
- In an interview earlier this month, Telecom Minister Ashwini Vaishnaw spoke about a comprehensive policy roadmap for India’s digital economy and digital governance.
What is digital governance ?
- Electronic governance or e-governance can be defined as the usage of Information and Communication Technology (ICT) by the government to provide and facilitate government services, exchange of information, communication transactions and integration of various standalone systems and services.
What is “global digital governance”?
- Global digital governance encompasses the norms, institutions, and standards that shape the regulation around the development and use of these technologies. Digital governance has long-term commercial and political implications.
Why is it important?
- The main objective of e-governance is to provide a friendly, affordable, and efficient interface between a government and its people. It is about ensuring greater transparency, accountability and objectivity, resulting in cost-effective and high-quality public service.
What are the three domains of e-governance?
- E-administration: improving government processes
- E-services: connecting individual citizens with their government
- E-society: building interactions with and within civil society.
Is there a historical parallel to governing key economic sectors globally?
- Digital economy is not unprecedented: Sectors critical to the global economy are subject to international cooperation frameworks and pacts. Therefore, the idea of setting up a single multilateral organization with a mandate to govern the digital economy is not unprecedented.
- The International Commission for Air Navigation (ICAN): Global aviation has been regulated since 1903 when the International Commission for Air Navigation (ICAN) first met, subsequently replaced by the International Civil Aviation Organization (ICAO) in 1947.
- Bank for International Settlements (BIS): Similarly, the modern international banking system is governed by the Bank for International Settlements (BIS), an institution initially set up in the interwar period in 1930 to oversee Germany’s reparations to the Allies under the Treaty of Versailles. The BIS acquired a more global mandate beginning in the 1950s and is now partially responsible for global financial stability.
Who are the key players in the global contest for digital governance?
- China seeks to champion the concept of cyber sovereignty: An authoritarian vision drives the first model. Most notably, China is emerging as the standard-bearer for this model with its desire to “reinvent the internet.” China seeks to champion the concept of “cyber sovereignty,” allowing countries to control access to the internet, censor content, and institute data localization requirements, as a pretext to protecting individual national interests.
- European Union’s General Data Protection Regulation (GDPR): Which provides a more democratic concept for digital governance. This model primarily seeks to protect the privacy and rights of internet users and online content consumers. Adopted with the overwhelming support of the European Parliament in 2014, the GDPR came into effect in May 2018, giving firms that rely on digital technologies the opportunity to modify their data usage and privacy policies. The adoption of the GDPR has been a turning point for global internet governance as consumers gained unprecedented control over their data in a manner that preserved freedom and openness online.
Why global digital governance is important?
- Minimum rights and protections for platform workers: Under the G20, the International Labour Organisation has already placed a proposal in the employment working group for digital labour platforms to develop an international governance system determining minimum rights and protections for platform workers.
- Implementation of central bank digital currency projects: Similarly, on digital money, a reincarnated Bretton Woods is being advocated to address the distrust in private currencies and to coordinate the implementation of central bank digital currency projects.
- Digital taxation: Finally, in the deeply contested area of digital taxation, the OECD facilitated Base Erosion and Profit Shifting (BEPS) negotiations and helped arrive at a global solution.
- Digital sovereignty: The internet is splintering and digital sovereignty is now commonplace; yet, there is no better time for countries to come together and build a framework for global digital governance.
What are the big 5 tech companies called?
- The Big Five tech giants—Apple, Amazon, Google (Alphabet), Meta, and Microsoft.
Conclusion
- The rapid digitalisation of the world along with a new focus on trust in the global supply chains for digital products and services presents tremendous opportunities for India and its youth. It is now up to all of us to engage in a collective “sabka prayas” to realise New India’s economic potential.
Mains question
Q. The rapid digitalisation of the world along with a new focus on trust in the global supply chains for digital products and services presents tremendous opportunities for India. Comment.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: NA
Mains level: Death penalty debate
The Supreme Court has referred to a Constitution Bench the question of how to provide accused in death penalty cases a “meaningful, real and effective” hearing of their mitigating circumstances before a trial judge.
Death Penalty: A backgrounder
- Capital punishment, sometimes called death penalty, is execution of an offender sentenced to death after conviction by a court of law for a criminal offense.
- It should be distinguished from extrajudicial executions carried out without due process of law.
- The term death penalty is sometimes used interchangeably with capital punishment, though imposition of the penalty is not always followed by execution, because of the possibility of commutation to life imprisonment.
When is it awarded?
- The term “Capital Punishment” stands for most severe form of punishment.
- It is the punishment which is to be awarded for the most heinous, grievous and detestable crimes against humanity.
- While the definition and extent of such crimes vary, the implication of capital punishment has always been the death sentence.
Special factors on the death penalty jurisprudence in India
(a) Increase in Sexual Offences
- The report on death penalty published by NLU Delhi shows that the rate of awarding capital punishment to the offences of rape with murder is much higher than other offences.
- There is no doubt that rape is one of the most heinous crimes.
(b) Sedition and waging War against India
- India has seen many cases of treason, terrorism and seditious activities.
- It is in fact the most vulnerable state for such crimes.
Judicial observations related to Death Penalty
The Supreme Court has always said that the death sentence should be given rarely.
Judgments against:
(a) Mithu vs State of Punjab (1983):
- The Supreme Court ruled that the mandatory death penalty is unconstitutional.
- It struck down Section 303 in the IPC, which entailed a mandatory death sentence for a person who commits murder while serving a life term in another case.
- The Supreme Court ruled Section 303 violated Articles 14 (right to equality) and 21 (right to life) since an unreasonable distinction was sought to be made between two classes of murders.
(b) State of Punjab vs Dalbir Singh (2012):
- Similarly, the Supreme Court ruled that mandatory death penalty as punishment for crimes under Section 27 (3) of the Arms Act, 1959, was unconstitutional.
(c) Channulal Verma vs State of Chhattisgarh (2018):
- In Channulal, the Supreme Court, through Justice Kurian Joseph noted that the time was appropriate to review the constitutionality of the death penalty and take into consideration reformative aspects of punishment
Judgments in favour:
- In Jagmohan Singh vs State of UP’ (1973), then in ‘Rajendra Prasad vs State of UP’ (1979), and finally in ‘Bachan Singh vs State of Punjab’ (1980) the Supreme Court affirmed the constitutional validity of the death penalty.
- It said that if capital punishment is provided in the law and the procedure is a fair, just and reasonable one, the death sentence can be awarded to a convict.
- This will, however, only be in the “rarest of rare” cases, and the courts should render “special reasons” while sending a person to the gallows.
Avenues available to a Death-Row Convict
- Confirmation by HC: After a trial court awards the death penalty, the sentence must be confirmed by a High Court. The sentence cannot be executed till the time the High Court confirms it, either after deciding the appeal filed by the convict, or until the period allowed for preferring an appeal has expired.
- Review Petition: If the High Court confirms the death penalty and it is also upheld by the Supreme Court, a convict can file a review petition.
- Curative Petition: If the review petition is rejected, the convict can file a curative petition for reconsideration of the judgment.
- Mercy Petition: Under Article 72 of the Indian Constitution, the President shall have the power to grant pardons, reprieves, respites, or remissions of punishments or to suspend, remit or commute the sentence of any convicted person.
Debate over Death Penalty
Arguments in favor:
- Forfeiture of life: Supporters of the death penalty believe that those who commit murder, because they have taken the life of another, have forfeited their own right to life.
- Moral indignation of the victim: It is a just form of retribution, expressing and reinforcing the moral indignation not only of the victim’s relatives but of law-abiding citizens in general.
- Highest form of Justice: For heinous crimes such as the Nirbhaya Gangrape Case, no other punishment could have deterred the will of the convicts.
- Deterrent against crime: Capital punishment is often justified with the argument that by executing convicted murderers, we will deter would-be murderers from killing people.
- Proportional punishment: The guilty people deserve to be punished in proportion to the severity of their crime.
- Prevailing lawlessness: The crimes we are now witnessing cannot be addressed by simple punishments. We are seeing horrific attacks on women, young girls, minority communities and Dalits etc.
- Prevention of crime is non-existent: Despite of stringent regulations, it is certainly visible that some crimes can never be prevented in our society.
Arguments against:
- Eye for an eye: Reformative justice is more productive, that innocent people are often killed in the search for retribution, and that “an eye for an eye makes the whole world blind.
- Deterrence is a myth: Death penalty is not a deterrent to capital crimes state that there is no evidence to support the claim that the penalty is a deterrent.
- Political tool of suppression: The authorities in some countries, for example Iran and Sudan, use the death penalty to punish political opponents.
- Reverence for life’ principle: Death penalty is an immoral punishment since humans should not kill other humans, no matter the reasons, because killing is killing.
- Stigma against killing: With the introduction of lethal injection as execution method, medical professionals participate in executions. Many professionals have now refused to administer such deaths.
- Skewed justice systems: In many cases recorded by Amnesty International, people were executed after being convicted in grossly unfair trials, on the basis of torture-tainted evidence and with inadequate legal representation.
- Discriminatory nature: The weight of the death penalty is disproportionally carried by those with less advantaged socio-economic backgrounds or belonging to a racial, ethnic or religious minority.
- Penalizing the innocents: The risk of executing the innocent precludes the use of the death penalty. Our colonial history has witnessed many such executions.
Other issues with such executions
(a) Socio-Economic Factors
- The recent statistics shows that the death row prisoners in India are more from the backward classes of the society.
- The death row prisoners belong to backward classes and religious minorities and the majority of convicts’ families are living in adjunct poverty.
- These people who are backward both in economic and social respects, are not in a position to here expensive lawyers and get proper representation in the Court.
(b) Delayed Execution
- The law provides for a long process before the execution of the convicts actually takes place.
- The unexplained delay in execution can be a ground for commutation of death penalty, and an inmate, his or her kin, or even a public-spirited citizen could file a writ petition seeking such commutation.
- Their trials are often cruelly forced to endure long periods of uncertainty about their fate.
Way forward: Law Commission recommendations on death penalty
The Law Commission of India in its 262nd Report (August 2015) recommended that:
- Death penalty be abolished for all crimes other than terrorism related offences and waging war.
- Measures such as police reforms, witness protection scheme and victim compensation scheme should be taken up expeditiously by the government.
- It felt that time has come for India to move towards abolition of the death penalty. However the concern is often raised that abolition of death penalty for terrorism-related offences and waging war, will affect national security.
Further, the Commission sincerely hopes that the movement towards absolute abolition will be swift and irreversible
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: NA
Mains level: Quota benefits for religious convertees
The Centre is likely to soon decide on setting up a national commission to study the social, economic and educational status of Dalits who converted to religions other than Hinduism, Buddhism and Sikhism.
What is the news?
- Several petitions are pending before the Supreme Court seeking Scheduled Caste (SC) reservation benefits for Dalits who converted to Christianity or Islam.
Dalit Convertees and Quota Benefits
- The original rationale behind giving reservation to Scheduled Castes was that these sections had suffered from the social evil of untouchability, which was practised among Hindus.
- Under Article 341 of the Constitution, the President may specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall…be deemed to be Scheduled Castes.
- The first order under this provision was issued in 1950, and covered only Hindus.
- Following demands from the Sikh community, an order was issued in 1956, including Sikhs of Dalit origin among the beneficiaries of the SC quota.
- In 1990, the government acceded to a similar demand from Buddhists of Dalit origin, and the order was revised to state: “No person who professes a religion different from the Hindu, the Sikh or the Buddhist religion shall be deemed to be a member of Scheduled Caste.”
Does this religion-based bar apply to converted STs and OBCs as well?
- It does not.
- The Department of Personnel and Training (DoPT) website states, “The rights of a person belonging to a Scheduled Tribe are independent of his/her religious faith.”
- Following the implementation of the Mandal Commission report, several Christian and Muslim communities have found place in the Central and state lists of OBCs.
What efforts have been made to include Muslims and Christians of Dalit origin among SCs?
- After 1990, a number of Private Member’s Bills were brought in Parliament for this purpose.
- In 1996, a government Bill called The Constitution (Scheduled Castes) Orders (Amendment) Bill was drafted, but in view of a divergence of opinions, the Bill was not introduced in Parliament.
- Then government headed by PM Manmohan Singh set up two important panels:
- Ranganath Misra Commission: The National Commission for Religious and Linguistic Minorities, popularly known as the Ranganath Misra Commission, in October 2004 and
- Sachar Committee: A seven-member high-level committee headed by former Chief Justice of Delhi High Court Rajinder Sachar to study the social, economic, and educational condition of Muslims in March 2005.
What did they recommend?
- The Sachar Committee Report observed that the social and economic situation of Dalit Muslims and Dalit Christians did not improve after conversion.
- The Ranganath Misra Commission, which submitted its report in May 2007, recommended that SC status should be completely de-linked from religion and Scheduled Castes should be made fully religion-neutral like Scheduled Tribes.
Reception to these recommendations
- The report was tabled in Parliament in 2009, but its recommendation was not accepted in view of inadequate field data and corroboration with the actual situation on the ground.
- Few studies, commissioned by the National Commission for Minorities, was also not considered reliable due to insufficient data.
What lies ahead?
- Based on the recommendations of the Ranganath Misra Commission, there are some petitions pending before the Supreme Court, seeking reservation benefits for Christians and Muslims of Dalit orgin.
- In the last hearing, a three-judge Bench gave the Solicitor General of India three weeks’ time to present the stand of the Union government on the issue.
- The next hearing is awaited.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Plant treaty
Mains level: Not Much
The ninth session of the governing body of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) has recently begun in New Delhi.
Theme of this years event
- The theme of the meeting is ‘Celebrating the Guardians of Crop Diversity: Towards an Inclusive Post-2020 Global Biodiversity Framework’.
What is the Plant Treaty?
- The International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) was adopted by the Food and Agriculture Organization of the United Nations November 3, 2001.
- It was signed in 2001 in Madrid, and entered into force on 29 June 2004.
- It is the first legally-binding international instrument to formally acknowledge the enormous contribution of indigenous people and small-holder farmers as traditional custodians of the world’s food crops.
- It also calls on nations to protect and promote their rights to save and use the seeds they have taken care of for millennia.
- The parties to this treaty have come together after nearly three years to discuss governance of agricultural biodiversity and global food security.
Objectives of the treaty
The treaty aims at:
- Guaranteeing food security through the conservation
- Exchange and sustainable use of the world’s plant genetic resources for food and agriculture (PGRFA)
- Fair and equitable benefit sharing arising from its use, as well as
- Recognition of farmers’ rights.
Key feature: Annex 1 Crops
- The treaty has implemented a Multilateral System (MLS) of access and benefit sharing, among those countries that ratify the treaty, for a list of 64 of some of the most important food and forage crops essential for food security and interdependence.
- The genera and species are listed in Annex 1 to the treaty. The treaty facilitates the continued open exchange of food crops and their genetic materials.
- The list of plant genetic material included in the Multilateral System of the Treaty is made of major food crops and forages.
- The Forages are also divided in legume forages and grass forages.
- They were selected taking into account the criteria of food security and country interdependence
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: PM PRANAM Scheme
Mains level: India's fertilizer subsidy
In order to reduce the use of chemical fertilisers by incentivising states, the Union government plans to introduce a new scheme – PM PRANAM, which stands for PM Promotion of Alternate Nutrients for Agriculture Management Yojana.
What is the PM PRANAM scheme?
- The proposed scheme intends to reduce the subsidy burden on chemical fertilisers.
- This burden if uneased, is expected to increase to Rs 2.25 lakh crore in 2022-2023, which is 39% higher than the previous year’s figure of Rs 1.62 lakh crore.
- The scheme will not have a separate budget and will be financed by the “savings of existing fertiliser subsidy” under schemes run by the Department of fertilisers.
Subsidies under the PRANAM
- Further, 50% subsidy savings will be passed on as a grant to the state that saves the money and that 70% of the grant provided under the scheme can be used for asset creation related to technological adoption of alternate fertilisers.
- It would create alternate fertiliser production units at village, block and district levels.
- The remaining 30% grant money can be used for incentivising farmers, panchayats, farmer producer organisations and self-help groups that are involved in the reduction of fertiliser use and awareness generation.
- The government will compare a state’s increase or reduction in urea in a year, to its average consumption of urea during the last three years.
How much fertiliser does India require?
- The kharif season (June-October) is critical for India’s food security, accounting for nearly half the year’s production of foodgrains, one-third of pulses and approximately two-thirds of oilseeds.
- A sizable amount of fertiliser is required for this season.
- The Department of Agriculture and Farmers Welfare assesses the requirement of fertilisers each year before the start of the cropping season, and informs the Ministry of Chemical and fertilisers to ensure the supply.
- The amount of fertiliser required varies each month according to demand, which is based on the time of crop sowing, which also varies from region to region.
- For example, the demand for urea peaks during June-August period, but is relatively low in March and April, and the government uses these two months to prepare for an adequate amount of fertiliser for the kharif season.
Why is the scheme being introduced?
- Due to increased demand for fertiliser in the country over the past 5 years, the overall expenditure by the government on subsidy has also increased.
- The final figure of fertiliser subsidy touched Rs 1.62 lakh crore in 2021-22.
- The total requirement of four fertilisers — Urea, DAP (Di-ammonium Phosphate), MOP (Muriate of potash), NPKS (Nitrogen, Phosphorus and Potassium) — increased by 21% between 2017-2018 and 2021-2022, from 528.86 lakh metric tonnes (LMT) to 640.27 LMT.
- PM PRANAM, which seeks to reduce the use of chemical fertiliser, will likely reduce the burden on the exchequer.
- The proposed scheme is also in line with the government’s focus on promoting the balanced use of fertilisers or alternative fertilisers in the last few years.
Try this PYQ:
Q.What are the advantages of fertigation in agriculture? (CSP 2020)
1.Controlling the alkalinity of irrigation water is possible.
2.Efficient application of Rock Phosphate and all other phosphatic fertilizers is possible.
3.Increased availability of nutrients to plants is possible.
4.Reduction in the leaching of chemical nutrients is possible.
Select the correct answer using the code given below:
(a) 1, 2 and 3 only
(b) 1,2 and 4 only
(c) 1,3 and 4 only
(d) 2, 3 and 4 only
Post your answers here.
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