Note4Students
From UPSC perspective, the following things are important :
Prelims level: NA
Mains level: State vs . Governor Row
Central Idea
- In a significant ruling, the Supreme Court has asserted that a State Governor cannot obstruct crucial bills passed by a State Legislature.
- The court delivered this verdict in response to a writ petition filed by the Punjab government.
- The Punjab government approached the Supreme Court, challenging Governor Banwarilal Purohit’s decision to withhold some bills, alleging the legislative session’s illegitimacy.
SC Ruling on Governors Bill Withholding
- Court’s Warning: The court sternly warned the Governor that he was “playing with fire” and directed him to make a decision regarding these pending bills presented to him for assent.
- Power of Elected Representatives: Emphasizing the supremacy of elected representatives in a parliamentary democracy, the court highlighted that real power resides with them.
- Governor’s actual Role: The court underscored that the Governor’s role is that of a constitutional statesman guiding the government on constitutional matters.
Governor’s Grounds for Delay
- Governor’s Grounds: Governor Purohit contended that the Assembly session was “patently illegal” because the Speaker had adjourned the Budget Session sine die in March without proroguing it.
- Special Assembly Sitting: He refused to consider the proposed laws passed in a special June sitting, arguing that they were in breach of Punjab Vidhan Sabha Rules.
- Court’s Disagreement: The court disagreed with the Governor’s claims, stating that the Speaker acted within his rights in adjourning the House sine die.
- Constitutional Validity: The court upheld the Speaker’s authority and stressed that it was not constitutionally valid for the Governor to question how the Speaker conducted the House’s affairs.
Court’s Disagreement with the Governor
- House’s Autonomy: The court affirmed that each legislative house has the right to be the sole judge of the legality of its own proceedings.
- Legitimate Session: It found that the June 19-20 legislative session adhered to Rule 16 of the Punjab Vidhan Sabha Rules, rejecting any doubts cast on its legitimacy.
- Democratic Peril Warning: The court cautioned that any attempts to challenge the legislative session could pose a grave peril to democracy.
Governor’s Role Defined
- No Judgment on Prorogation: The court questioned the Governor’s right to sit in judgment on whether the session was prorogued and emphasized that the Speaker’s decisions on adjournments governed the House.
- Avoiding Perpetual Session: While acknowledging the Speaker’s authority, the court cautioned against exploiting the sine die adjournment to perpetually avoid prorogation.
Conclusion
- The Supreme Court’s verdict reiterates the importance of upholding legislative proceedings and the authority of elected representatives.
- It underscores that Governors should respect the autonomy of legislative houses and not obstruct the passage of bills based on perceived procedural violations.
- This landmark decision ensures the preservation of democratic principles and the effective functioning of State Legislatures.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: NA
Mains level: Guidelines for Speedy Disposal of Cases against Lawmakers
Central Idea
- The Supreme Court has issued guidelines to ensure the quick resolution of criminal cases involving Members of Parliament (MPs) and Members of Legislative Assemblies (MLAs) across India.
- These guidelines aim to address the long-pending issue of lawmakers facing criminal charges.
Background
- Advocate’s Plea: These directions were issued in response to a plea filed by advocate Ashwini Kumar Upadhyay in August 2016.
- Key Demands: Upadhyay’s plea sought the swift handling of cases involving legislators and a lifetime ban on convicted politicians, including those currently in office, instead of the existing six-year disqualification mentioned in Section 8(3) of the Representation of People Act, 1951.
Understanding the Representation of People Act (RPA), 1951
- Purpose: The RPA, 1951, introduced by Dr. BR Ambedkar, governs the conduct of elections to India’s parliament and state legislatures.
- Content: It covers various aspects, including qualifications and disqualifications for membership, corrupt practices, and offenses related to elections.
- Section 8: Section 8 of the RPA deals specifically with the disqualification of legislators on conviction for certain offenses, such as promoting enmity between groups, bribery, undue influence, and offenses related to hoarding, profiteering, or adulteration of food or drugs.
- Section 8(3): This subsection states that a person convicted of an offense and sentenced to imprisonment for at least two years will be disqualified from the date of conviction and continue to be disqualified for an additional six years after release. In essence, it imposes a six-year disqualification on individuals convicted of offenses with a minimum two-year prison sentence.
Supreme Court’s Ruling
- Guidelines for Speedy Disposal: The Supreme Court, led by CJI DY Chandrachud, laid down guidelines for the prompt resolution of pending criminal cases against lawmakers.
- Suo Motu Cases: High courts across India are directed to establish a “special bench” to oversee criminal cases involving legislators. High courts can also register such cases on their own initiative.
- Flexible Approach: The court allows the chief justices of high courts to hear these cases or designate specific benches for this purpose. These cases may be listed regularly if needed, and the special bench can seek assistance from the advocate general or prosecutor.
- High Court Role: To efficiently manage these cases, the Supreme Court leaves it to high courts to devise suitable measures.
- Priority Cases: The court emphasizes prioritizing cases against lawmakers that carry the possibility of death or life imprisonment. Cases with sentences of five years or more are also given priority.
- HC’s Authority: High courts are empowered to issue similar orders and directions for effective case disposal. They can involve the Principal District and Sessions Judge in allocating cases to appropriate courts.
Conclusion
- The Supreme Court’s guidelines are aimed at expediting the resolution of criminal cases against MPs and MLAs and ensuring justice is served promptly.
- While these guidelines address the issue of speedy disposal, the larger question of replacing the six-year disqualification with a lifetime ban remains open for future consideration.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Advocate-on-Record (AoR)
Mains level: Read the attached story
Central Idea
- In a recent development, the Supreme Court of India dismissed a public interest litigation filed by an Advocate-on-Record (AoR), emphasizing that an AoR cannot be a mere “signing authority.”
- This incident has sparked discussions on the role and significance of AoRs in the Indian legal system.
Who is an Advocate-on-Record (AoR)?
- Historical Roots: The AoR system is influenced by British legal practices, distinguishing between barristers who argue cases and solicitors who handle client matters. In India, senior advocates are designated by the Court, akin to barristers, and cannot solicit clients but are briefed by other lawyers, including AoRs.
- Exclusive Right to File Cases: Only an AoR is authorized to file cases before the Supreme Court of India. They serve as a vital link between litigants and the highest judicial authority in the country.
- Elite Legal Practitioners: AoRs are a select group of elite lawyers, primarily based in Delhi, whose legal practice predominantly revolves around the Supreme Court. They may also represent clients in other courts.
- Court of Last Opportunity: The concept behind the AoR system is to ensure that a litigant is represented by a highly qualified lawyer because the Supreme Court is often considered the last resort for legal remedies.
Becoming an AoR
- Eligibility Criteria: To qualify as an AoR, an advocate must meet specific criteria set by the Supreme Court Rules, 2013.
- Examination: Aspiring AoRs must clear an examination conducted by the Supreme Court, which includes subjects like Practice and Procedure, Drafting, Professional Ethics, and Leading Cases.
- Training Requirement: Before taking the exam, an advocate must undergo training with a court-approved AoR for at least one year. This training is preceded by a minimum of four years of legal practice.
Responsibilities and Rules Governing AoRs
- Geographical Presence: AoRs must maintain an office in Delhi within a 16-kilometer radius of the Supreme Court.
- Employment of Registered Clerk: Upon registration as an AoR, an undertaking is required to employ a registered clerk within one month.
- Regulatory Authority: While Section 30 of the Advocates Act grants lawyers the right to practice law nationwide, it explicitly acknowledges the Supreme Court’s authority to establish rules under Article 145 of the Constitution for regulating its own procedure.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Electoral Bond Scheme
Mains level: Transparency in Election Funding
Central Idea
- The Supreme Court expressed concerns about the selective confidentiality of the electoral bonds scheme, which allows the ruling party to discover the identities of donors to opposition parties.
- The court questioned the government’s presumption of confidentiality and explored the potential disadvantages faced by opposition parties in the electoral process.
About Electoral Bond Scheme
| Definition |
Banking instruments for political party donations with donor anonymity. |
| Purchase Method |
Available to Indian citizens and Indian-incorporated companies from select State Bank of India branches. Can be bought digitally or via cheque. |
| Donation Process |
Purchasers can donate these bonds to eligible political parties of their choice. |
| Denominations |
Available in multiples of ₹1,000, ₹10,000, ₹10 lakh, and ₹1 crore. |
| KYC Requirements |
Purchasers must fulfill existing KYC norms and pay from a bank account. |
| Lifespan of Bonds |
Bonds have a 15-day life to prevent them from becoming a parallel currency. |
| Identity Disclosure |
Donors contributing less than ₹20,000 need not provide identity details like PAN. |
| Redemption |
Electoral Bonds can be encashed only by eligible political parties through an Authorized Bank. |
| Eligibility of Parties |
Only parties meeting specific criteria, including securing at least 1% of votes in the last General Election, can receive Electoral Bonds. |
| Restrictions Lifted |
Foreign and Indian companies can now donate without disclosing contributions as per the Companies Act. |
| Objective |
To enhance transparency in political funding and ensure funds collected by political parties are accounted or clean money. |
Selective Confidentiality Challenges
- Justice Khanna’s Address: The Judge pointed out that the ruling party had easier access to information about contributions to opposition parties, creating an imbalance in transparency.
- State Bank of India’s Role: CJI Chandrachud questioned whether the SBI, through which electoral bonds were purchased, had a statutory obligation to maintain confidentiality.
Government’s Defense
- Confidentiality Key: The solicitor-General argued that confidentiality regarding donor identities and contributions was crucial to the electoral bonds scheme. He contended that eliminating the scheme would revert the country to a period when political donations were made in unaccounted cash, leading to black money circulation.
- Economic Impact: He emphasized that the scheme aimed to channel clean money into the electoral system, reducing the influence of black money. He referred to a report highlighting the increase in income from unknown sources to political parties and the discovery of shell companies during the previous donation regime.
Concerns Raised by CJI
- Information Blackhole: The CJI noted that while the scheme aimed to bring white money into the electoral process, it introduced opacity, creating an “information blackhole.” He emphasized the need for proportionality in achieving the scheme’s objectives.
- Expectations of Donors: Chandrachud questioned how substantial donations were consistently made to the ruling party, implying certain expectations from donors.
- Donations Not Charity: Solicitor-General Mehta clarified that donors were primarily motivated by their own interests, often related to business or market-driven factors. He argued that larger donations to a party did not necessarily indicate an issue with the scheme.
- Right to Privacy: Mehta argued that revealing the political affiliations of donors would infringe on their right to privacy.
Transparency and Quid Pro Quo Concerns
- Justice Khanna’s Query: Justice Khanna raised concerns about how confidentiality in the electoral bonds scheme could prevent quid pro quo arrangements between political parties and donors.
- Proxy Donations: The judge questioned the possibility of parties funneling unaccounted money back into the system through proxy political donations.
Conclusion
- The Supreme Court’s scrutiny of the electoral bonds scheme centers on issues of transparency, confidentiality, and potential imbalances in the electoral process.
- The court’s questions and concerns highlight the importance of ensuring fairness and proportionality in political funding mechanisms.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Gestational Surrogacy
Mains level: Read the attached story
Central Idea
- In a landmark decision, the Supreme Court of India has safeguarded a woman’s right to parenthood, particularly in cases of medical conditions, by suspending the enforcement of a law that jeopardized her aspiration to become a mother through surrogacy.
- This significant ruling provides protection and empowerment for women facing unique medical challenges on their journey to parenthood.
Case Details
- Medical Condition: The woman suffers from the rare Mayer Rokitansky Kuster Hauser (MRKH) syndrome. Medical records confirm her condition, which includes “absent ovaries and absent uterus,” rendering her unable to produce her own eggs.
- Hope through Gestational Surrogacy: She and her husband embarked on the path of gestational surrogacy using a donor’s eggs (a process where one person, who did not provide the egg used in conception, carries a fetus through pregnancy and gives birth to a baby for another person or couple.).
Threatening Amendment
- No donor gamete use: A government notification dated March 14 of the current year introduced an amendment to the law, prohibiting the use of donor gametes in surrogacy. It mandated that “intending couples” must employ their own gametes for the surrogacy process.
- A Violation of Parenthood Rights: This amendment was challenged in the Supreme Court, alleging a violation of a woman’s fundamental right to parenthood. The court found that the amendment contradicted the core provisions of the Surrogacy Act, both in form and substance.
Gametes Regulation and ART Act, 2021
- Gametes are reproductive cells. In animals, the male gametes are sperms and female gamete is the ovum or egg cells.
- On March 14, 2023, the Health Ministry published Rules that said:
- A couple undergoing surrogacy must have both gametes from the intending couple and donor gametes are not allowed;
- Single women (widow/divorcee) undergoing surrogacy must use self-eggs and donor sperms to avail surrogacy procedure.
- Section 2(h) of the Assisted Reproductive Technology Regulation Act, 2021 defines a “gamete donor” as a person who provides sperm or oocyte with the objective of enabling an infertile couple or woman to have a child.
|
Court’s Ruling: Allows Donor’s Gametes
- Prima Facie Contradiction: The SC Bench issued a decisive order, stating that the amendment obstructed the intending couple from achieving parenthood through surrogacy and was prima facie contrary to the Surrogacy Act’s intentions.
- Petitioner’s Argument: Senior advocate Sanjay Jain, representing the petitioner, argued that the amendment invalidated the possibility of gestational surrogacy, which the Surrogacy Act, 2021, recognized as a valid option for couples facing medical conditions.
- Rule 14(a) Clarification: Jain referred to Rule 14(a) of the Surrogacy Rules, emphasizing that it explicitly listed medical or congenital conditions, such as the absence of a uterus, as valid reasons for gestational surrogacy. The rule affirmed that the choice was solely the woman’s.
- Retrospective Implementation: The petitioner contended that the amendment could not be applied retrospectively to her case.
Court’s Ruling and Interpretation
- Woman-Centric Perspective: The court concurred with Mr. Jain’s argument that gestational surrogacy was “woman-centric.” It recognized that the decision to opt for surrogacy was driven by the woman’s inability to become a mother due to her medical or congenital condition.
- Validation of Rule 14(a): The court asserted that the amendment could not contradict Rule 14(a), which explicitly acknowledged medical conditions, including the absence of a uterus, as valid reasons necessitating gestational surrogacy.
- Genetic Relation Interpretation: Addressing the government’s contention that the surrogate child must be “genetically related” to the couple, the court clarified that this related to the husband when Rule 14(a) applied.
Conclusion
- The Supreme Court’s decision in favour of ‘Mrs. ABC’ not only upholds her right to parenthood but also reinforces the significance of gestational surrogacy as a woman-centric solution for individuals facing challenging medical conditions on their path to becoming parents.
- This ruling sets a precedent for protecting the parenthood rights of women across India.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Copyright Act of 1957
Mains level: Not Much
Central Idea
- The recent ruling by the Delhi High Court has brought attention to copyright infringement concerning religious texts, particularly the Bhaktivedanta Book Trust’s works on Indian religious philosophy and spiritualism.
- This landmark case addresses copyright protection for sacred texts and the implications for digital platforms.
- Let’s explore the details of the case and its broader implications.
Are Religious Texts Copyright-Protected?
- Public Domain: Most religious scriptures, such as the Old Testament and New Testament, are in the public domain. Copyright law does not apply to works in the public domain.
- Exceptions: Modern translations of religious texts, like the New International Version (NIV) of the Bible, may enjoy copyright protection as they represent new creative works by translators.
- Protections: Additionally, transformative works, like television adaptations of epics like the Ramayana and Mahabharata, are protected.
Understanding Copyright Law in India
- Scope of Protection: The Indian Copyright Act of 1957 safeguards “original work,” creative expressions independently created and fixed in a tangible medium.
- Exclusive Rights: It grants exclusive rights to creators/authors, including the right to use, reproduce, distribute, perform, and display their work.
- Transformative Works: The Act also protects transformative works, which creatively modify, reinterpret, or build upon existing material to create something distinct.
Duration of Copyright Protection
| Literary, Dramatic, Musical, Artistic Works |
Lifetime of the author plus 60 years from the year following the author’s death or last surviving author’s death. |
| Cinematographic Films |
60 years from the year of publication or creation. |
| Sound Recordings |
60 years from the year of first publication. |
| Anonymous or Pseudonymous Works |
60 years from the year of publication, or lifetime of the author plus 60 years if the author’s identity is disclosed during this period. |
Bhaktivedanta Book Trust’s Case
- Founder’s Works: The trust claimed copyright ownership of its founder’s works, which had simplified religious books and scriptures, making them accessible to the common man.
- Infringement Allegation: The trust alleged that various websites, mobile apps, and Instagram handles were reproducing a significant number of its copyrighted works almost verbatim on their online platforms without authorization, constituting infringement.
Delhi High Court’s Ruling
- Copyright Protection: The court ruled that adaptations of sacred scriptures, including explanations, meanings, interpretations, and audio-visual works, are entitled to copyright protection because they represent original works by authors themselves.
- Reproduction Clarification: While the reproduction of the actual text of sacred texts, such as the Srimad Bhagavad Gita, is permissible, the court emphasized that copyright protection applies to the original parts of literary works that preach, teach, or explain the scripture.
- Trust’s Rights: Given that Srila Prabhupada had entrusted the copyrights to be administered by the Bhaktivedanta Book Trust, the court emphasized that the works cannot be reproduced without the trust’s authorization, license, or permission.
- Preventing Piracy: The court acknowledged that unauthorized reproduction, including shlokas (verses), translations, and interpretations, by defendant entities would result in immense revenue loss for the trust.
Conclusion
- The Delhi High Court’s ruling on copyright protection for religious texts has far-reaching implications for safeguarding the originality and rights associated with sacred scriptures.
- While religious texts themselves may not be copyright-protected, creative adaptations, explanations, and interpretations enjoy legal protection.
- This decision serves as a precedent for preserving the intellectual property rights of organizations involved in disseminating spiritual knowledge while discouraging unauthorized reproduction and piracy.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: NA
Mains level: Preventing LGBTQI Discrimination
Central Idea
- In a significant ruling, CJI D Y Chandrachud made a series of directions to address discrimination against the LGBTQ+ community and underscored the need for legislative action to recognize same-sex marriages.
- This decision reflects a pivotal moment in India’s LGBTQ+ rights movement, emphasizing the intersection of legal and societal norms.
Preventing LGBTQI Discrimination: Key Directions by CJI
- Creation of Safe Houses: The ruling called for the establishment of “Garima Grehs” or safe houses in all districts to provide shelter to LGBTQ+ individuals facing violence or discrimination. These safe houses aim to offer refuge and support to those in need.
- Anti-Discrimination Measures: The Centre, States, and Union Territories were urged to ensure that LGBTQ+ community members are not subjected to discrimination based on gender identity or sexual orientation. This includes equal access to goods and services available to the public.
- Public Awareness: The ruling emphasized the need to sensitize the public about queer identity, affirming that it is natural and not a mental disorder. It encourages educational efforts to promote understanding and acceptance.
- Hotline Numbers: The authorities were directed to establish hotline numbers that LGBTQ+ individuals can contact when facing harassment or violence. This initiative aims to provide immediate assistance and support.
- End of Harmful “Treatments”: The ruling called for an immediate cessation of any “treatments” offered by doctors or others that attempt to change gender identity or sexual orientation. It prioritizes the well-being and autonomy of LGBTQ+ individuals.
- Protection from Family Pressure: Police were advised not to force LGBTQ+ persons to return to their natal families if they choose not to do so. Furthermore, the ruling emphasized the importance of verifying the claims of LGBTQ+ individuals when they file complaints against their families, ensuring their freedom is not curtailed.
- Fair Preliminary Investigation: Before registering an FIR against a queer couple or one of the parties involved, a preliminary investigation should be conducted. This step ensures that the complaint discloses a cognizable offence, preventing unnecessary legal action against LGBTQ+ individuals.
Historical Context
- The ruling underscored that India has a rich history of LGBTQ+ lives, encompassing various identities and communities.
- It emphasized that queerness is not limited to urban settings or privileged classes but exists across different regions, castes, and economic backgrounds.
Future Steps
- The ruling has set a precedent for addressing discrimination and ensuring the protection of LGBTQ+ rights.
- Justice S K Kaul expressed the need for a comprehensive anti-discrimination law prohibiting discrimination based on sexual orientation.
- State governments have also been prompted to create guidelines and committees to address LGBTQ+ issues, demonstrating the broader impact of this ruling beyond the courtroom.
Conclusion
- The Supreme Court’s ruling on LGBTQ+ rights signifies a significant milestone in the ongoing struggle for equal rights and acceptance.
- While legislative recognition of same-sex marriages remains pending, the directions provided by the CJI emphasize the importance of dismantling discriminatory practices and promoting inclusivity in Indian society.
- The ruling paves the way for a more equitable future for LGBTQ+ individuals in the country.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: NA
Mains level: Read the attached story
Central Idea
- In a recent landmark decision, the Supreme Court, led by Chief Justice of India D Y Chandrachud, deliberated on granting legal status to same-sex marriages.
- This case has sparked significant interest as it explores the intersection of individual rights and societal norms.
Judicial Perspectives on Various Issues:
[A] Fundamental Right to Marry
| Issue |
Minority View (CJI) |
Majority View |
| Petitioner Argument |
- Marriage is not fundamentally important;
- It gained significance through state regulation as Civil Union.
|
- Marriage’s importance is personal preference and social status.
- It is necessarily NOT a fundamental right.
|
[B] Interpretation of Special Marriage Act
| Issue |
Minority View (CJI) |
Majority View |
| Framing the Issue |
- Cautioned against expansive interpretations;
- Suggested encroachment on the legislature’s domain.
|
- Concurred with the minority view.
- Emphasized the SMA’s purpose for facilitating civil marriages between heterosexual couples.
|
[C] Queer Couples’ Right to Adopt a Child
| Issue |
Minority View (CJI) |
Majority View |
| Discriminatory Regulations |
- Struck down certain CARA regulations, asserting that they do not serve the child’s best interests.
- Highlighted the discriminatory impact on the queer community based on their sexuality.
|
- Acknowledged the discriminatory aspect.
- But believed legislative action, rather than judicial imposition, should bring about this change.
|
[D] Civil Unions for Queer Couples
| Argument |
Minority View (CJI Chandrachud) |
Majority View |
| Recognition of Civil Unions |
- Connected the right to form intimate associations with freedom of speech and expression.
- Proposed that the state should acknowledge various entitlements for such relationships.
|
- Disagreed with prescribing a “choice” of civil unions.
- Suggested that the state should facilitate this choice for those who opt for it.
|
Conclusion
- The Supreme Court’s decision on same-sex marriage reflects a complex interplay of legal, social, and legislative factors.
- While the minority view leans towards immediate recognition of civil unions and highlights the importance of individual rights, the majority opinion emphasizes the legislative role in bringing about changes in societal norms.
- The verdict underscores the evolving landscape of LGBTQ+ rights in India and the ongoing dialogue surrounding equal rights and inclusivity.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Special Marriage Act
Mains level: Read the attached story
Central Idea
- The Supreme Court of India has declined to approve same-sex marriages in a blow to LGBTQ rights.
- CJI said that it was outside the court’s remit to decide the issue and that parliament should write the laws governing marriage.
Same-Sex Marriage Demand
- Petitioners are urging for the reinterpretation of the Special Marriage Act (SMA), 1954, by replacing “man and woman” with “spouses” to accommodate LGBTQIA+ couples.
- Such right to marry not only symbolizes equality but also grants access to numerous legal benefits, including insurance, adoption, and inheritance.
Petitioners’ Demands
| Arguments |
Summary |
| Constitutional Basis |
Asserted that the right to marry for non-heterosexual couples is implicit in various constitutional articles, including Articles 14, 15, 16, 19, and 21. |
| Previous Landmark Judgments |
Referenced key Supreme Court judgments such as ‘Navtej Singh Johar vs. Union of India’ (2018) and ‘KS Puttaswamy vs. Union of India’ (2017) to support their case. |
| Benefits and Rights |
Emphasized the importance of equal access to marriage-related benefits and rights, such as pensions and provident funds. |
| Minimum Marriageable Age |
Suggested different minimum marriageable ages for lesbian, gay, and transgender couples based on gender identity. |
| Recognition of Fundamental Rights |
Cited the Transgender Persons Protection Act, 2019, as a precedent recognizing the right to marry for all queer identities. |
Respondent’s Arguments
| Arguments |
Summary |
| Maintainability and Jurisdiction |
Questioned the court’s jurisdiction to hear the case and raised concerns about the maintainability of the petitions. |
| Impact on Existing Laws |
Argued that introducing marriage equality would impact 160 existing laws, making it the prerogative of Parliament to enact such changes. |
| SMA Character and Intent |
Emphasized that the Special Marriage Act (SMA) was intentionally designed for heterosexual marriages, and changing its character and intent would require legislative action. |
| Legitimate State Interest |
Contended that the State has a legitimate interest in regulating marriages, addressing aspects such as age of consent, bigamy, and prohibited degrees of marriage. |
| Welfare of Children |
Advocated for prioritizing the welfare of children born to heterosexual parents, leading to differential treatment of heterosexual and homosexual couples. |
| Public Perception |
Expressed concerns about societal acceptance and potential collateral damage to various legal provisions if same-sex marriage were declared a fundamental right. |
States Responses
- Rajasthan, Assam, and Andhra Pradesh opposed the plea for legal recognition of same-sex marriages.
- Sikkim, Maharashtra, Uttar Pradesh, and Manipur sought more time to respond.
- Also, many fundamentalist religious organizations are opposed to such marriages.
Conclusion
- It must be noted that only Taiwan and Nepal allow same-sex unions in Asia, where largely conservative values still dominate politics and society.
- The Supreme Court’s verdict on marriage equality in India is poised to shape the country’s LGBTQIA+ rights landscape profoundly.
Also read:
[Sansad TV] Perspective: Legalizing Same-Sex Marriage
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Minority Institutions
Mains level: Not Much
Central Idea
- Reservation exemption: The Madras High HC ruled that the concept of communal reservation for SC/ST/OBC citizens does not apply to minority institutions.
- No government constraint: The judges held that the government cannot compel minority institutions to implement such reservation policies.
Key Highlights by Madras HC
- Continued Status: The court emphasized that once minority status is granted to an institution, it will persist until the National Commission for Minority Educational Institutions (NCMEI) cancels it for valid reasons, such as a shift in its educational objectives.
- Merit-Based Admissions: The court upheld the government’s right to stipulate that minority institutions can admit students from the respective religious and linguistic minorities up to 50% of the sanctioned intake based on merit.
- Exclusion Clause: The judges clarified that students admitted on merit should not be counted within the first 50% of admissions allocated for minorities.
Case Background
- Petitioner’s Argument: The petitioner challenged a Govt Order (GO) issued in November 2021. The GO denied the extension of religious minority status to the college due to its admission of 52% minority students in the academic years 2018-19 and 2019-20.
- Advocate General’s Stand: Advocate General argued that such admissions violated a 1998 GO that restricted minority admissions to 50%.
- College’s Position: It contended that minority educational institutions should receive permanent status without the need for periodic extensions. It also asserted that the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Private Educational Institutions) Act, 2006, should not apply to minority institutions.
Legal Analyis
- Constitutional Provisions: The judges found support in Article 15(5) of the Constitution, introduced through the 93rd amendment in 2005, which specifically excludes minority institutions from the State Government’s authority to provide special provisions for reservations.
- Definition of Private Educational Institution: They pointed out that Section 2(d) of the 2006 Act also excludes minority institutions established under Article 30(1) of the Constitution from its definition of ‘private educational institution.’ Thus, the State cannot impose reservation provisions on minority educational institutions.
- Permanent Status: The court stated that the National Commission for Minority Educational Institutes Act, 2004, does not envision granting minority status for a temporary or restricted period. Instead, it continues until the Commission cancels it.
Conclusion
- Ultimately, the court quashed the 2021 GO and directed the government to allow the petitioner institution to maintain its status as a minority institution, provided it complies with other requirements.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Freedom of Religion
Mains level: Temple Priest Appointments issue in TN
Central Idea
- The Supreme Court has issued an order for maintaining the current state of affairs regarding the appointment of archakas (priests) in Agamic temples in Tamil Nadu.
- The reforms introduced by the ruling government, aiming to change the hereditary system of appointing archakas, have faced opposition from the association of archakas.
Why discuss this?
- Such appointments violated religious rights protected under the Constitution, emphasizing the need for rigorous training under experienced Gurus to comprehend the significant religious practices of the Agamas.
Government and Judicial Actions
The debate over temple priest appointments in Tamil Nadu has evolved over the years, with several key actions shaping its course:
- 1971 Amendment: In 1971, the DMK government, led by Chief Minister M Karunanidhi, amended the Tamil Nadu Hindu Religious & Charitable Endowment (HR & CE) Act. This amendment abolished hereditary priest appointments and allowed individuals from all castes to become priests.
- 2006 Declaration: In 2006, the government declared all qualified individuals eligible to be priests. However, this move was challenged in the Supreme Court, which, in 2015, emphasized the importance of adhering to Agama Sastras while safeguarding constitutional rights.
- Gender Equality: In a landmark ruling in 2009, the Madras High Court favored a woman priest from Usilampatti, Madurai, who faced opposition from male priests regarding her inherited right to conduct puja at a temple. The court underscored the need to eliminate gender bias from temples to fulfill constitutional mandates.
- Inclusivity: The Supreme Court’s rulings in the Guruvayoor Devaswom Case (2004) and the N Adithayan case (2002) upheld the appointment of non-believers and non-Brahmins as temple priests, emphasizing inclusivity and non-discrimination.
Complex Divine Contradictions
Despite the legal framework and the abolition of hereditary priest appointments, the Agama tradition continues to influence temple administrations in Tamil Nadu. This persistence has given rise to debates and challenges:
- Regional Variations: Similar debates have emerged in Kerala, where questions have been raised about why only Hindu temples are under government control, while churches and mosques are not. Tamil Nadu has also witnessed campaigns for temple “reclamation.”
- Historical Shift: During the colonial era, British officials’ involvement in Hindu rituals raised concerns among Christian establishments in India. This led to the transfer of temple control to local communities. In 1951, the HR & CE Act limited government involvement to administration and finance.
- Friction between Tradition and Modernity: The ongoing tensions between traditional practices and modern principles are exemplified by debates over hereditary priest rights and resistance to the entry of women into the Sabarimala temple. These issues defy simple solutions.
What about Religious Freedom?
- Complexity of Hinduism: A prominent temple priest in Chennai argued that rules applied to other faiths may not directly apply to Hinduism. Hinduism is characterized by its diversity of traditions, contradictions, and numerous deities. Temples are perceived as centers of “soul energy” with unique purposes and practices.
- Role of Empathy: The priest emphasized the importance of empathy when dealing with matters of faith. Logic and reasoning cannot always apply to beliefs deeply rooted in tradition and spirituality. He highlighted the significance of experiential concepts, dedication, and the unique nature of temple administration.
- Agama Sastra Expertise: The priest pointed out that learning Agama Sastra in a year does not equip an individual to manage a temple. Temple administration is a combination of experiential concepts, ideas, and dedication, distinct from running a company. Agama Sastra is not a simple manual but a profound tradition.
Conclusion
- The debate surrounding temple priest appointments in Tamil Nadu remains complex, reflecting the ongoing struggle to balance tradition with modern principles.
- It highlights the challenges in applying uniform rules to diverse faiths and underscores the profound significance of temples in Hinduism.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Online Gaming, GST
Mains level: Read the attached story
Central Idea
- The Supreme Court has issued an interim stay on the Karnataka High Court’s ruling that online games, such as rummy, should not be taxed as ‘betting’ and ‘gambling’ under the Central Goods and Services (GST) Act, 2017.
- This decision follows the Union Cabinet’s approval to increase the GST rate for online games from 18% to 28%.
- The interim stay aligns online skill games played for stakes with online gambling for taxation purposes.
Why discuss this?
- The GST department had issued a show-cause notice to a company for dues worth Rs 21,000 crore, which was quashed by the Karnataka High Court.
- The Karnataka HC had ruled that online rummy is a game of skill and should not be taxed as gambling.
Taxing Online Games
- Karnataka High Court Ruling: The Karnataka HC had determined that online rummy is substantially a game of skill, not chance, and should not be considered gambling. This ruling was based on the Goods and Services Act, which taxes games of skill at 19% and games of chance at 28%.
- GST Department’s Notice: The GST department had issued a notice to GamesKraft under Section 74(5) of the CGST Act, demanding a substantial sum to be deposited along with interest and penalty by September 16, 2022. This notice was challenged in the Karnataka HC and led to an interim stay.
- Show-Cause Notice: Following the interim stay, the GST department issued a show-cause notice under Section 74(1) of the CGST Act to GamesKraft and its founders, CEOs, and CFOs. This notice sought an explanation regarding the tax evasion and penalties.
- Distinction between Skill and Chance: The Karnataka HC emphasized the distinction between games of skill and games of chance, citing relevant legal precedents. It noted that the question of whether a game of skill could still be classified as gambling remained to be seen.
Key takeaways
- The Supreme Court’s interim stay temporarily taxes online skill games played for stakes on par with online gambling.
- The Karnataka High Court’s ruling that online rummy is a game of skill and not gambling has been challenged by the GST department.
- Legal distinctions between games of skill and games of chance remain a subject of debate and legal scrutiny in India’s taxation system.
Prospects of online gaming
- State List Subject: The state legislators are, vide Entry No. 34 of List II (State List) of the Seventh Schedule, given exclusive power to make laws relating to betting and gambling.
- Distinction in laws: Most Indian states regulate gaming on the basis of a distinction in law between ‘games of skill’ and ‘games of chance’.
- Classification of the dominant element: As such, a ‘dominant element’ test is utilized to determine whether chance or skill is the dominating element in determining the result of the game.
- Linked economic activity: Staking money or property on the outcome of a ‘game of chance’ is prohibited and subjects the guilty parties to criminal sanctions.
- ‘Game of Skill’ debate: Placing any stakes on the outcome of a ‘game of skill’ is not illegal per se and may be permissible. It is important to note that the Supreme Court recognized that no game is purely a ‘game of skill’ and almost all games have an element of chance.
Conclusion
- This case reflects the need for a nuanced approach in crafting tax policies that adapt to the evolving landscape of online entertainment and gaming.
- Further legal proceedings will likely shed more light on the classification of such games and their tax implications.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Article 370
Mains level: Read the attached story
Central Idea
- There are ongoing Supreme Court deliberations regarding the abrogation of Article 370.
- This article delves into the historical context, legal intricacies, and broader socio-political implications of this pivotal constitutional provision.
Historical Context of Accession
- Geo-Political Situation: Jammu and Kashmir’s unique special status originated from the tumultuous geo-political circumstances following India’s Independence and Partition.
- Standstill Agreements: Maharaja Hari Singh’s decision to enter into “Standstill Agreements” with both India and Pakistan highlighted the State’s strategic positioning and economic interests.
- Instrument of Accession: Faced with internal turmoil and external aggression, Maharaja Hari Singh’s Instrument of Accession sought India’s military assistance while retaining significant autonomy in internal matters.
Evolution of Article 370
- Instrument of Accession’s Reflection: Article 370 was crafted in line with the Instrument of Accession’s principles, preserving the unique terms of Jammu and Kashmir’s association with India.
- Autonomy Preserved: This provision aimed to strike a balance between safeguarding the State’s autonomy and integrating it into the larger Indian Union.
- Limited Legislative Authority: Article 370 outlined a limited scope for Parliament to legislate on certain subjects, primarily defense, foreign affairs, and communications, with consultation and concurrence requirements.
- Special Relationship: This provision established Jammu and Kashmir’s distinct relationship with India, emphasizing that its integration would be contingent on mutual consent.
Abrogation of Article 370
- Long-Standing Opposition: The abrogation of Article 370 was a persistent demand of the mainstream political party and its precursor.
- Multistage Process: The process of abrogation involved presidential orders, amendments, and parliamentary resolutions, culminating in its nullification.
Petitioners’ Arguments against Revocation
- Lack of Consultation: Senior litigant accused the Union government of ignoring the will of the people of Jammu and Kashmir during the Article 370 abrogation process.
- Series of Executive Acts: He highlighted that the abrogation was executed through a series of executive acts, starting from the dissolution of the Jammu and Kashmir Legislative Assembly and state government.
- Changing Provisions: He pointed out that the proviso to Article 370 (3) was altered to sidestep the need for the recommendation of the now-defunct Jammu and Kashmir Constituent Assembly before rendering Article 370 inoperative.
Nature of Relationship
- Federal vs. Quasi-Federal: Litigant underscored that the relationship between the Union government and Jammu and Kashmir was purely federal, distinct from other states’ quasi-federal relationships.
- Consent of the State: He argued that such significant decisions should have required the consent of the state and its people, considering the unique federal structure.
CJI’s Inquiries
- Permanent Character of Article 370: The CJI raised a significant question about the permanence of Article 370 in the Constitution. He inquired whether a constitutional amendment was required to transform its temporary nature into permanence.
- Jammu and Kashmir Constituent Assembly: He asked whether the absence of abrogation by the Jammu and Kashmir Constituent Assembly before its dissolution in 1957 should be considered as deeming Article 370 permanent.
Supreme Court’s Interpretation
Ans. No Comparison with Brexit-Type Referendum
- Brexit Referendum: The CJI referenced the Brexit referendum as a political decision taken in the U.K. which does not align with India’s constitutional framework.
- Uniqueness of Constitutional Democracy: India’s democracy is grounded in the Constitution, and thus decisions like Article 370’s abrogation involve adherence to established legal procedures.
Conclusion
- The ongoing courtroom exchange underlines the essence of constitutional democracy in India, wherein the expression of public opinion occurs through established democratic mechanisms.
- The Chief Justice’s observations and the petitioners’ arguments shed light on the intricate balance between executive actions, parliamentary representation, and the preservation of constitutional principles.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Election Commissioner, ECI
Mains level: Read the attached story
Central idea: The Supreme Court has directed the central government to form a permanent selection committee consisting of consist of the Prime Minister, Leader of the Opposition, and the Chief Justice of India or his nominee to recommend the appointment of Election Commissioners.
Supreme Court Ruling
- The Supreme Court ruled that the appointment of the CEC should be made through a transparent and participatory process.
- It directed the government to set up a permanent selection committee to recommend names for the appointment of the CEC.
- The committee will consist of the Prime Minister, Leader of Opposition, and Chief Justice of India or his nominee.
- The court emphasized that the appointment process should ensure the independence of the Election Commission and be free from executive interference.
Why such move?
- The ruling will bring more transparency and accountability to the appointment process of the CEC.
- It will prevent any undue influence by the ruling government in the appointment of the CEC.
- The ruling also reinforces the importance of an independent Election Commission in ensuring the fairness of the democratic process in India.
Why did the SC debate the issue?
- In 2015, a PIL was filed challenging the constitutional validity of the practice of the Centre appointing members of the Election Commission.
- In October 2018, a two-judge bench of the SC referred the case to a larger bench since it would require a close examination of Article 324 of the Constitution.
What is the challenge?
Article 324(2) states that the President appoints the Chief Election Commissioner and other Election Commissioners, subject to any law made by Parliament.
- Absence of law: The crux of the challenge is that since there is no law made by Parliament on this issue.
- Urge for judicial intervention: The Court must step in to fill the constitutional vacuum, urges the PIL.
- Question of executive non-interference: This examination also leads to the larger question of separation of powers and if the judiciary is overstepping its role in filling this gap in the law.
About Election Commission of India
- The ECI is a constitutional authority whose responsibilities and powers are prescribed in the Constitution of India under Article 324.
- In the performance of its functions, the Election Commission is insulated from executive interference.
- It is the Commission that decides the election schedules for the conduct of elections, whether general elections or by-elections.
- ECI decides on the location of polling stations, assignment of voters to the polling stations, location of counting centres, arrangements to be made in and around polling stations and counting centres and all allied matters.
Litigations against EC
- The decisions of the Commission can be challenged in the High Court and the Supreme Court of India by appropriate petitions.
- By long-standing convention and several judicial pronouncements, once the actual process of elections has started, the judiciary does not intervene in the actual conduct of the polls.
Why is EC under lens these days?
- Executive interference: ECs are expected to maintain distance from the executive — a constitutional safeguard to insulate the commission from external pressure and allow it to continue as an independent authority.
- Violating official channels: The EC’s communication with the Government on election matters is through the bureaucracy — either with its administrative ministry — the Law Ministry or the Home Ministry.
- Breach of protocol: The Law Ministry spells the fine print on law for the country and is expected not to breach the constitutional safeguard provided to the commission to ensure its autonomy.
Recent incidence of criticisms
Ans. Partiality in Elections
- Over the last couple of years, several actions and omissions of the commission have come in for criticism.
- Nearly 66 former bureaucrats in a letter addressed to the President, expressed their concern over the working of the Election Commission.
- They felt was suffering from a credibility crisis, citing various violations of the model code of conduct during the 2019 Lok Sabha Elections.
Importance of ECI for India
- Conduction of Election: The ECI has been successfully conducting national as well as state elections since 1952.
- Electoral participation: In recent years, however, the Commission has started to play a more active role to ensure greater participation of people.
- Discipline of political parties: It had gone to the extent of disciplining the political parties with a threat of derecognizing if the parties failed in maintaining inner-party democracy.
- Upholds federalism: It upholds the values enshrined in the Constitution viz, equality,
equity, impartiality, independence; and rule of law in superintendence, direction, and control over electoral governance.
- Free and fair elections: It conducts elections with the highest standard of credibility, freeness, fairness, transparency, integrity, accountability, autonomy and professionalism.
Issues with ECI
- Flaws in the composition: The Constitution doesn’t prescribe qualifications for members of the EC. They are not debarred from future appointments after retiring or resigning.
- No security of tenure: Election commissioners aren’t constitutionally protected with the security of tenure.
- Partisan role: The EC has come under the scanner like never before, with increasing incidents of breach of the Model Code of Conduct in the 2019 general elections.
- Political favor: The opposition alleged that the ECI was favoring the ruling party by giving a clean chit to the model code of conduct violations made by the PM.
- Non-competence: Increased violence and electoral malpractices under influence of money have resulted in political criminalization, which ECI is unable to arrest.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Living Will
Mains level: Passive Euthanasia in India
A five-judge Bench of the Supreme Court headed by Justice K M Joseph agreed to significantly ease the procedure for passive euthanasia in the country by altering the existing guidelines for ‘living wills’.
What is Living Will?
- A living will is a legal document detailing the type and level of medical care one wants to receive if they are unable to make decisions or communicate their wishes when care is needed.
- A living will addresses many life-threatening treatments and procedures, such as resuscitation, ventilation, and dialysis.
- A person can appoint a healthcare proxy to make decisions regarding care when they are unable to do so.
- A living trust is a legal document that addresses how the assets of the incapacitated person should be managed.
- People can enlist the services of an estate planner or an attorney to help draft or review a living will.
Living Will in India
- It was first laid down in its 2018 judgment in Common Cause vs. Union of India & Anr, which allowed passive euthanasia.
- It was in response to the Aruna Shanbaug Case where protagonists were arguing in favor of mercy killing to Aruna.
- The guidelines pertained to questions such as who would execute the living will, and the process by which approval could be granted by the medical board.
- It declared that an adult human being having mental capacity to take an informed decision has right to refuse medical treatment including withdrawal from life-saving devices.
What is Euthanasia?
- Euthanasia refers to the practice of an individual deliberately ending their life, oftentimes to get relief from an incurable condition, or intolerable pain and suffering.
- Euthanasia, which can be administered only by a physician, can be either ‘active’ or ‘passive’.
- Active euthanasia involves an active intervention to end a person’s life with substances or external force, such as administering a lethal injection.
- Passive euthanasia refers to withdrawing life support or treatment that is essential to keep a terminally ill person alive.
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What is the legal history of this matter?
- Passive euthanasia was legalized in India by the Supreme Court in 2018, contingent upon the person having a ‘living will’.
- It must be a written document that specifies what actions should be taken if the person is unable to make their own medical decisions in the future.
- In case a person does not have a living will, members of their family can make a plea before the High Court to seek permission for passive euthanasia.
What did the SC rule in 2018?
- The Supreme Court allowed passive euthanasia while recognising the living wills of terminally-ill patients who could go into a permanent vegetative state.
- It was required to be signed by an executor (the individual seeking euthanasia) in the presence of two attesting witnesses and to be further countersigned by a Judicial Magistrate of First Class (JMFC).
- The court issued guidelines regulating this procedure until Parliament passed legislation on this.
- However, this has not happened, and the absence of a law on this subject has rendered the 2018 judgment the last conclusive set of directions on euthanasia.
What was the situation before 2018?
- P Rathinam vs Union Of India, 1994: In a case challenging the constitutional validity of Section 309 of the IPC — which mandates up to one year in prison for attempt to suicide the Supreme Court deemed the section to be a “cruel and irrational provision”.
- Gian Kaur vs The State Of Punjab, 1996: Two years later, a five-judge Bench of the court overturned the decision in P Rathinam, saying that the right to life under Article 21 did not include the right to die, and only legislation could permit euthanasia.
- Aruna Ramchandra Shanbaug vs Union Of India & Ors, 2011: SC allowed passive euthanasia for Aruna Shanbaug, a nurse who had been sexually assaulted in Mumbai in 1973, and had been in a vegetative state since then. The court made a distinction between ‘active’ and ‘passive’, and allowed the latter in “certain situations”.
Key observations by Law Commission
- Earlier, in 2006, the Law Commission of India in its 196th Report’ had said that a doctor who obeys the instructions of a competent patient to withhold or withdraw medical treatment does not commit a breach of professional duty and the omission to treat will not be an offence.
- It had also recognised the patient’s decision to not receive medical treatment, and said it did not constitute an attempt to commit suicide under Section 309 IPC.
- Again, in 2008, the Law Commission’s ‘241st Report On Passive Euthanasia: A Relook’ proposed legislation on ‘passive euthanasia’, and also prepared a draft Bill.
What was the old cumbersome process?
- The treating physician was required to constitute a board comprising three expert medical practitioners from specific but varied fields of medicine, with at least 20 years of experience.
- They would decide whether to carry out the living will or not.
- If the medical board granted permission, the will had to be forwarded to the District Collector for his approval.
- The Collector was to then form another medical board of three expert doctors, including the Chief District Medical Officer.
- Only if this second board agreed with the hospital board’s findings would the decision be forwarded to the JMFC, who would then visit the patient and examine whether to accord approval.
- This cumbersome process will now become easier.
Recent changes after the SC’s order this week
- Medical board: Instead of the hospital and Collector forming the two medical boards, both boards will now be formed by the hospital.
- 5 year experienced doctor: The requirement of 20 years of experience for the doctors has been relaxed to five years.
- Magistrate approval not required: The requirement for the Magistrate’s approval has been replaced by an intimation to the Magistrate.
- No witness required: The 2018 guidelines required two witnesses and a signature by the Magistrate; now a notary or gazetted officer can sign the living will in the presence of two witnesses instead of the Magistrate’s countersign.
- HC for appeal: In case the medical boards set up by the hospital refuses permission, it will now be open to the kin to approach the High Court which will form a fresh medical team.
Different countries, different laws
- NETHERLANDS, LUXEMBOURG, BELGIUM allow both euthanasia and assisted suicide for anyone who faces “unbearable suffering” that has no chance of improvement.
- SWITZERLAND bans euthanasia but allows assisted dying in the presence of a doctor or physician.
- CANADA had announced that euthanasia and assisted dying would be allowed for mentally ill patients by March 2023; however, the decision has been widely criticised, and the move may be delayed.
- UNITED STATES has different laws in different states. Euthanasia is allowed in some states like Washington, Oregon, and Montana.
- UNITED KINGDOM considers it illegal and equivalent to manslaughter.
Justification for Euthanasia/Assisted Suicide
- It provides a way to relieve extreme pain.
- Euthanasia can save life of many other people by donation of vital organs.
Conclusion
- India officially recognizes that- “every single citizen is entitled to and reserves the right to die with dignity.”
- Hon’ble Supreme Courts’ recent updated guidelines are a major move in this direction.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Article 141
Mains level: Doctrine of Precedence
Vice President Jagdeep Dhankhar questioned the landmark 1973 Kesavananda Bharati case verdict that gave the basic structure doctrine, saying it set a bad precedent and if any authority questions Parliament’s power to amend the Constitution, it would be difficult to say ‘we are a democratic nation’.
What did the SC say?
- Vice-President’s public criticism of the National Judicial Appointments Commission (NJAC) judgment may be seen as comments by a high constitutional authority against “the law of the land” (Art. 141).
- That is, as long as the NJAC judgment, which upholds the collegium system of judicial appointments, exists, the court is bound to comply with the verdict.
- The Parliament is free to bring a new law on judicial appointments, possibly through a constitutional amendment, but that too would be subject to judicial review.
What is Article 141?
- Article 141 provides that the law declared by the Supreme Court shall be binding on all courts within the territory of India.
- The law declared has to be construed as a principle of law that emanates from a judgment, or an interpretation of law or judgment by the Supreme Court, upon which, the case is decided.
- This article forms the basis of Doctrine of Precedent in India.
What has the VP accused the judiciary of?
- Dilution of Parliamentary Sovereignty: The Vice-President had remarked that judicial review, as was done in the case of the NJAC law, diluted parliamentary sovereignty. He had used terms like “one-upmanship”.
- Curb on Legislature: The Vice-President had said he did not “subscribe” to the landmark Kesavananda Bharati judgment of 1973 which limited the Parliament’s power under Article 368 to amend the Constitution.
- Disregard to the mandate of people: Dhankhar said no institution can wield power or authority to neutralise the mandate of people.
Notes for Aspirants
A classic observation in this regard was made by Chief Justice Patanjali Shastri in State of Madras versus V.G. Row (1952). Justice Shastri’s words were reproduced by Chief Justice J.S. Khehar in his lead opinion for the Constitution Bench in the NJAC case in October 2015.
(1) Actual nature of Judicial Review
- Justice Shastri said judicial review was undertaken by the courts “not out of any desire to tilt at legislative authority in a crusader’s spirit, but in discharge of a duty plainly laid down upon them by the Constitution”.
- The Kesavananda Bharati verdict (1973) had made it clear that judicial review is not a means to usurp parliamentary sovereignty.
- It is a “system of checks and balances” to ensure constitutional functionaries do not exceed their limits.
(2) Limitations to Article 368
- Article 368 postulates only a ‘procedure’ for amendment of the Constitution.
- The same could not be treated as a ‘power’ vested in the Parliament to amend the Constitution so as to alter the ‘core’ of the Constitution, which has also been described as the ‘basic structure’ of the Constitution.
Back2Basics: Doctrine of Precedent
- Any judicial system’s structure places a high priority on the notion of precedent.
- It suggests that a judgement made by a court at the top of the judicial food chain binds courts below it.
- According to Article 141 of the Indian Constitution, all lower courts must abide by the Supreme Court’s interpretation of the law.
- Similar to this, a State’s High Court’s decision is binding on all Lower Courts within that state, and a division bench of a State High Court’s ruling is binding on the Justices sitting singly in that High court.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Freedom of speech and reasonable restrictions
Mains level: Political free speech
The Supreme Court has held that there is no reason to impose “additional restrictions” on the right to free speech of Ministers and the government is not vicariously liable for disparaging remarks made by them, even if the comments are traceable to state affairs or meant to protect the government.
Why are we discussing this?
- Many politicians make unwarranted statements and tender an apology in return.
- The PM or the CM does not have disciplinary control over the members of the Council of Ministers.
- In a country like ours, where there is a multi-party system and where coalition Governments are often formed, it is not possible at all times for the whip to control the politician’s behavior.
- A derogatory speech that closely resembles hate speech cannot fall within the ambit of the free speech right.
Do ministers and lawmakers have absolute freedom of speech?
- Scope: Ministers and lawmakers enjoy the freedom of speech and expression under Article 19(1) of the Constitution as other citizens and additional restrictions cannot be imposed to curb their right to free speech.
- Restrictions: A five-judge Constitution bench held that curbs on free speech cannot extend beyond what is prescribed under Article 19(2) of the Constitution imposes reasonable restrictions and applies equally on all citizens.
What is the case?
- The proceedings in the case began when the top court took cognisance of a controversial statement made by former UP minister in July 2016.
- He had allegedly termed a gang rape case as part of a “political conspiracy”. While he was let off with an unconditional apology, the Court agreed to examine the larger issue.
- In October 2017, a three-judge bench referred the matter to the constitution bench to decide on various aspects of the matter.
Key issues examined
- Free speech and sensitive issues: The top priority was to examine whether ministers, public functionaries and lawmakers can claim freedom of speech while expressing views on sensitive matters.
- Free speech and state matters: Another key aspect of the matter was whether a statement by a minister in relation to any affairs of the State or for the protection of government can be attributed vicariously to the government itself.
What does Article 19 say?
- Freedom: Article 19(1) (a) guarantees the freedom of speech and expression to all citizens. It is the first condition of liberty and plays an important role in forming public opinion.
- Restrictions: As per Article 19(2), restrictions can be imposed upon the freedom of speech and expression in the interests of:
- Sovereignty and integrity of India,
- Security of the state,
- Friendly relations with foreign states,
- Public order, decency or morality, or
- In relation to contempt of court,
- Defamation, or
- Incitement to an offense
What does the judgment say about free speech restrictions?
- Citizens had the right to petition the Court for violations of Article 19 (freedom of expression) and Article 21 (right to life).
- A statement made by the Minister, inconsistent with the rights of the citizens, may not by itself be actionable.
- It is not possible to extend this concept of collective responsibility to any and every statement orally made by a Minister outside the House of the People/Legislative Assembly.
Way forward
- Legal framework: A proper legal framework was necessary before taking action as a constitutional tort.
- Political will: Parliament could enact legislation or code to restrain citizens in general and public functionaries in particular from making disparaging or vitriolic remarks against fellow citizens.
- Code of conduct: Likewise, political parties should come up with a code of conduct to regulate and control the actions and speech of their functionaries and members.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: MRTP Act
Mains level: Abortion rights debate
The Supreme Court has held that all women, irrespective of their marital status, are entitled to safe and legal abortion till 24 weeks of pregnancy under the Medical Termination of Pregnancy (MTP) Act.
A case for safe abortion
- A Bench led by Justice D.Y. Chandrachud was hearing the appeal of a woman who wanted to abort her 24-week pregnancy after her relationship failed and her partner left her.
- The lower court had taken an “unduly restrictive view” that her plea for a safe abortion was not covered under the Medical Termination of Pregnancy Act.
- This was since the pregnancy arose from a consensual relationship outside wedlock.
What was the last amendment?
- The court noted that an amendment to the Act in 2021 had substituted the term ‘husband’ with ‘partner’, a clear signal that the law covered unmarried women within its ambit.
Reiterating the live-in recognition
- Chastising the lower court, the Bench said live-in relationships had already been recognised by the Supreme Court.
- There were a significant number of people in social mainstream who see no wrong in engaging in pre-marital sex.
- The law could not be used to quench “notions of social morality” and unduly interfere in their personal autonomy and bodily integrity.
About Medical Termination of Pregnancy (MTP) Act
- Abortion in India has been a legal right under various circumstances for the last 50 years since the introduction of the Medical Termination of Pregnancy (MTP) Act in 1971.
- The Act was amended in 2003 to enable women’s access to safe and legal abortion services.
- Abortion is covered 100% by the government’s public national health insurance funds, Ayushman Bharat and Employees’ State Insurance with the package rate for surgical abortion.
The idea of terminating your pregnancy cannot originate by choice and is purely circumstantial. There are four situations under which a legal abortion is performed:
- If continuation of the pregnancy poses any risks to the life of the mother or mental health
- If the foetus has any severe abnormalities
- If pregnancy occurred as a result of failure of contraception (but this is only applicable to married women)
- If pregnancy is a result of sexual assault or rape
The pregnancy can be terminated upto 24 weeks of gestational age after the opinion of two registered medical practitioners under these conditions —
- If the woman is either a survivor of sexual assault or rape or incest
- If she is a minor
- If her marital status has changed during the ongoing pregnancy (i.e. either widowhood or divorce)
- If she has major physical disabilities or is mentally ill
- On the grounds of foetal malformation incompatible with life or if the child is born, it would be seriously handicapped
- If the woman is in humanitarian settings or disaster, or emergency situations as declared by the government
These are the key changes that the Medical Termination of Pregnancy (Amendment) Act, 2021, has brought in:
- The gestation limit for abortions has been raised from the earlier ceiling of 20 weeks to 24 weeks, but only for special categories of pregnant women such as rape or incest survivors. But this termination would need the approval of two registered doctors.
- All pregnancies up to 20 weeks require one doctor’s approval. The earlier law, the MTP Act 1971, required one doctor’s approval for pregnancies upto 12 weeks and two doctors’ for pregnancies between 12 and 20 weeks.
- Women can now terminate unwanted pregnancies caused by contraceptive failure, regardless of their marital status. Earlier the law specified that only a “married woman and her husband” could do this.
- There is also no upper gestation limit for abortion in case of foetal disability if so decided by a medical board of specialist doctors, which state governments and union territories’ administrations would set up.
Criticism of Abortion
- Foetuses feel the pain: If the foetus is beyond 20 weeks of gestation, gynaecs assume that there will be pain caused to the foetus.
- Abortions cause psychological damage: Young adult women who undergo abortion may be at increased risk for subsequent depression.
- Abortions reduce the number of adoptable babies: Instead of having the option to abort, women should give their unwanted babies to people who cannot conceive. Single parenthood is also gaining popularity in the US.
- Cases of selective abortion: Such cases based on physical and genetic abnormalities (eugenic termination) is overt discrimination.
- Abortion as a form of contraception: It is immoral to kill an unborn child for convenience. Many women are using abortion as a contraceptive method.
- Morality put to question: If women become pregnant, they should accept the responsibility that comes with producing a child. People need to take responsibility for their actions and accept the consequences.
- Abortion promotes throwaway culture: The legalization of abortion sends a message that human life has little value and promotes the throwaway culture.
Arguments in favour for Abortion Rights
- Upholding individual conscience and decision-making: The US Supreme Court has declared abortion to be a fundamental right guaranteed by the US Constitution.
- Reproductive choice empowers women: The choice over when and whether to have children is central to a woman’s independence and ability to determine her future.
- Foetal viability occurs post-birth: Personhood begins after a foetus becomes “viable” (able to survive outside the womb) or after birth, not at conception. Abortion is the termination of a pregnancy, not a baby.
- No proof of foetal pain: Most neuroscientists believe that the cortex is necessary for pain perception. The cortex does not become functional until at least the 26th week of a foetus’ development.
- Preventing illegal abortions: Access to legal, professionally-performed abortions reduces maternal injury and death caused by unsafe, illegal abortions.
- Mother’s health: Modern abortion procedures are safe and do not cause lasting health issues such as cancer and infertility.
- Child’s health: Abortion gives pregnant women the option to choose not to bring fetuses with profound abnormalities to full term.
- Prevents women’s exclusion: Women who are denied abortions are more likely to become unemployed, to be on public welfare, to be below the poverty line, and to become victims of domestic violence.
- Reproductive choice protects women from financial disadvantage: Many women who choose abortion don’t have the financial resources to support a child.
- Justified means of population control: Many defends abortion as a way to curb overpopulation. Malnutrition, starvation, poverty, lack of medical and educational services, pollution, underdevelopment, and conflict over resources are all consequences of overpopulation.
Conclusion
- Hence it is now established that the right to abortion is a legal right of all women.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: NA
Mains level: Live streaming of courts proceedings
From September 27 onward, all proceedings of Supreme Court Constitution Benches will be live-streamed, a full court meeting of the top court has decided.
Background of the move
- History was made on August 26 (2022) when the proceedings from the Chief Justice’s Court in the Supreme Court (SC) were live streamed.
- In the ‘Swapnil Tripathi’ judgment, in September 2018, the SC had cleared the deck for live streaming of cases of national and constitutional importance.
Immediate triggers for live streaming
- They had agreed to hear a public interest litigation seeking live streaming of judicial proceedings on matters of constitutional and national importance.
- Prime considerations cited are:
- De-congestion of courts and
- Improving physical access to courts for litigants who have to otherwise travel long distances
Recommended by A-G
- The Supreme Court approved a set of guidelines suggested by the A-G, which included allowing transcripts and archiving the proceedings.
- However, the A-G suggested that the court must retain the power to withhold broadcasting, and to also NOT permit it in cases involving:
- Matrimonial matters,
- Matters involving interests of juveniles or the protection and safety of the private life of the young offenders,
- Matters of National security,
- To ensure that victims, witnesses or defendants can depose truthfully and without any fear.
- To protect confidential or sensitive information, including all matters relating to sexual assault and rape,
- Matters where publicity would be antithetical to the administration of justice, and
- Cases which may provoke sentiments and arouse passion and provoke enmity among communities.
Live streaming in HCs
- Following the SC’s decision, Gujarat High Court began live streaming its proceedings in July 2021.
- Currently, the Jharkhand, Karnataka, Madhya Pradesh, Orissa, and Patna High Courts live stream their proceedings.
- Allahabad High Court is learnt to be considering doing the same.
Global examples of live streaming
- United States of America: While the US Supreme Court has rejected pleas for broadcast of its proceedings, it has since 1955 allowed audio recording and transcripts of oral arguments.
- United Kingdom: In 2005, the law was amended to remove contempt of court charges for recording proceedings of the Supreme Court.
Why need live streaming of court?
- Improved accountability: Live-streaming of court proceedings would serve as an instrument for greater accountability and formed part of the Code of Criminal Procedure, 1973.
- Living up the expectation of Constitution: Live Streaming of Court proceedings is manifested in public interest. Public interest has always been preserved through the Constitution article 19 and 21
- Empowering the masses: It will enable the legal system to deliver on its promise of empowering the masses.
- More transparency: It will encourage the principle of open court and reduce dependence on second-hand views. It will effectuate the public’s right to know.
- This would inspire confidence in the functioning of the judiciary as an institution and help maintain the respect that it deserved as a co-equal organ of the state.
- Academic help: Live streaming may also be a help for academic purposes.
Concerns around live streaming
- Contempt of court: Video clips of proceedings from Indian courts are already on YouTube and other social media platforms with sensational titles and little context, such as “HIGH COURT super angry on army officer”.
- Disinformation and sensationalism: There are fears that irresponsible or motivated use of content could spread disinformation among the public.
- Unnecessary activism: With the advent of social media, every citizen became a potential journalist. Study shows that justices behave like politicians when given free television time, they act to maximize their individual exposure.
Issues to judicial functioning
- Decency of questions: During hearings judges may not ask questions or make comments that could be perceived as unpopular.
- Triggers for oral observations: There is an increasing trend of oral observations of the court, which are not binding on parties replacing reasoned judgment and orders that are consequential.
- Dignity of court may be compromised: Similarly, lawyers, aware of their new audience, may choose to grandstand and play to the gallery, especially in a case they expect to lose.
Way forward
- Selective broadcast: The solution may lie in carefully determining how the live streaming proceeds.
- Careful selection of cases: Not uploading archived stream on the SC website until it is legally/technologically possible to ensure that such videos cannot be spliced.
- Understanding public perception and sentiments: Other similar measures that reflect an understanding of how the public consumes (dis)information will ensure that live streaming enriches constitutionalism across the country.
Conclusion
- A hasty and wholesale introduction on the other hand is likely to land the SC right in the middle of the majoritarian and toxic information swamp that prevails in the country.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Special Marriage Act, 1954
Mains level: Issues with inter-faith marriage
The Supreme Court has dismissed a writ petition challenging the Constitutional validity of certain provisions of the Special Marriage Act, 1954 under which couples seek refuge for inter-faith and inter-caste marriages.
What is Special Marriage Act, 1954?
- The Special Marriage Act, 1954 (SMA) was enacted to facilitate the marriage of couples professing different faiths, and preferring a civil wedding.
- However, some practical problems arise in registering such marriages.
- The law’s features on prior public notice being given and objections for the safety and privacy of those intending to marry across religions.
- To overcome this, many settle for marriage under the personal law of one of them, with the other opting for religious conversion.
What does the petition seek?
- The Supreme Court dismissed a writ petition challenging the Constitutional validity of certain provisions of the SMA under which couples seek refuge for inter-faith and inter-caste marriages.
- The writ petition has called these provisions violative of Article 21, which guarantees the right to privacy.
- Under this act, the couples require to give a notice of 30 days before the date of marriage inviting objections from the public.
- The provisions contravene Article 14 on prohibition of discrimination on grounds of religion, race, caste and sex as well as Article 15 on right to equality as these requirements are absent in personal laws.
What did the court say?
- The SC Bench rejected the writ petition on the grounds that the petitioner was no longer an aggrieved party as she had already solemnised her marriage under SMA.
- The petitioner’s lawyers said that they were now deliberating on an alternative approach to initiate this litigation such as through a public interest litigation involving other victims.
- Another writ petition is admitted by the Supreme Court in 2020 and the government’s reply to is awaited.
What are the provisions that have been challenged?
- Section 5 of the SMA requires couples getting married under it to give a notice to the Marriage Officer 30 days before the date of marriage.
- Section 6 requires such a notice to be then entered into the Marriage Notice Book maintained by the Marriage Officer, which can be inspected by any person desirous of inspecting the same.
- These notices have to be also affixed at a “conspicuous place” in the office of the Marriage Officer so that anyone can raise an objection to the marriage.
- Section 7 provides the process for making an objection such as if either party has a living spouse, is incapable of giving consent due to “unsoundness of mind” or is suffering from mental disorder resulting in the person being unfit for marriage or procreation.
- Section 8 specifies the inquiry procedure to be followed after an objection has been submitted.
Why are these provisions contentious?
- The provisions throw the personal information of the individuals open to public scrutiny. This may result into vigilantism.
- This seriously damages one’s right to have control over her or his personal information and its accessibility.
- By making the personal details of the couple accessible to everyone, the very right of the couple to be the decision makers of their marriage is being hampered by the state.
How do these provisions make couples vulnerable?
- These public notices have been used by anti-social elements to harass couples getting married.
- For many who often marry without their parent’s consent this can be life-threatening.
- Many states publicly share the details of couples marrying under SMA on their websites.
- Many also complain about the behaviour of the staff at the SDM’s office who often delete or delay applications and dissuade couples from marrying under SMA.
- With as many as 11 States passing anti-conversion (or so-called love-jihad) laws, parents and the State are now armed to punish and harass such couples.
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