Note4Students
From UPSC perspective, the following things are important :
Prelims level: Tribunals
Mains level: Read the attached story
Central Idea
- The Supreme Court clarified that tribunals, bound by their governing legislations, cannot compel the government to formulate policy.
- It emphasized the separation of powers, stating that policy-making is outside the judiciary’s domain, including quasi-judicial bodies like tribunals.
What are Tribunals?
|
Details |
| Nature |
Judicial or quasi-judicial institutions established by law |
| Purpose |
Provide faster adjudication compared to traditional courts
Offer expertise on specific subject matters |
| Functions |
Adjudicating disputes
Determining rights between parties
Making administrative decisions
Reviewing existing administrative decisions |
| Constitutional Recognition |
42nd Amendment Act, 1976 introduced Articles 323-A and 323-B in the Constitution |
| Article 323A |
Empowers Parliament to constitute administrative Tribunals for public service matters |
| Article 323B |
Allows Parliament or state legislatures to constitute tribunals for specific subjects like taxation, land reforms |
| Composition |
Comprises expert (technical) members and judicial members |
| Expert Members |
Selected from various fields, including central government departments |
| Judicial Members |
Persons with a judicial background, such as High Court judges or eligible lawyers |
| Supreme Court’s Stance |
Technical members not required if tribunal’s aim is expeditious disposal of matters |
Case in Focus: Armed Forces Tribunal (AFT) and Policy Direction
- Specific Case Reviewed: The Bench addressed whether the AFT could direct the government to create a policy for appointing the Judge Advocate General (Air).
- General Observation: It has been consistently observed that courts cannot mandate the government to enact legislation or develop a policy.
Judicial Analysis and Reasoning
- Justice Karol’s Observations: Justice Sanjay Karol noted that the AFT, with powers akin to a civil court, lacks the authority of the Supreme Court or High Courts.
- High Courts’ Limitations: Even High Courts, under Article 226 of the Constitution, cannot order the government or its departments to establish specific policies.
- Government’s Prerogative: The judgment reinforced that policy creation, especially concerning defense personnel services or their regularization, is exclusively the government’s responsibility.
Implications of the Judgment
- Tribunals’ Restricted Powers: Tribunals must operate within the confines of their governing legislation and lack the jurisdiction to influence policy formation.
- Judiciary’s Role in Policy Matters: The judgment highlights the judiciary’s limited role in policy-making, even in cases where fundamental rights might be at stake.
- Separation of Powers: This ruling underscores the principle of separation of powers, delineating the distinct functions of the legislative, executive, and judicial branches.
Conclusion
- Respecting Institutional Boundaries: The judgment serves as a reminder of the importance of respecting the boundaries and roles of different government institutions in a democratic setup.
- Broader Implications: This decision has significant implications for how tribunals and courts interact with policy-making processes, emphasizing judicial restraint and adherence to the constitutional framework.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Enforcement Directorate (ED)
Mains level: Read the attached story
Central Idea
- The Supreme Court ruled on the procedures for arrests made by the Enforcement Directorate (ED).
About Enforcement Directorate (ED)
|
Details |
| Establishment |
May 1, 1956
Initially set up as an ‘Enforcement Unit’ |
| Mandate |
Enforces economic and financial regulations |
| Jurisdiction |
Nationwide |
| Legal Authority |
– Prevention of Money Laundering Act, 2002
– Foreign Exchange Management Act, 1999 |
| Functional Focus |
Economic and financial offenses including money laundering, foreign exchange irregularities |
| Investigative Powers |
– Attachment, confiscation, and arrest
– Conduct raids and searches
– Summon and question individuals |
| Collaboration |
Coordinates with various agencies (CBI, local police) and banks |
| Reporting Authority |
Department of Revenue, Ministry of Finance |
| Corruption Investigations |
Has a separate Economic Offenses Division |
| Notable Cases |
– Vijay Mallya extradition
– PNB fraud case
– Augusta Westland VVIP chopper scam |
| International Cooperation |
Works with international law enforcement for cross-border investigations (Interpol, FATF) |
| Public Interface |
Accepts complaints and information regarding economic offenses |
| Transparency and Accountability |
Regular reports to the Ministry of Finance; subject to oversight by judiciary and government bodies |
Issue: Revision of ED Arrest Norms
- Supreme Court Ruling: On Friday, the Supreme Court ruled that the Enforcement Directorate (ED) needs only to orally inform an accused of the grounds of their arrest at the time of arrest.
- Requirement for Written Grounds: The court also specified that the written grounds of arrest must be supplied to the accused within 24 hours of their arrest.
Modification of Previous Supreme Court Ruling
- Earlier Mandate: A two-judge Bench of the Supreme Court on October 3 had mandated the ED to provide the grounds of arrest in writing at the time of custody.
- Current Ruling: The latest ruling by Justices Bela Trivedi and Satish Chandra Sharma modified this requirement.
Legal Framework: Section 19 of PMLA
- ED’s Arrest Power: Section 19 of the Prevention of Money Laundering Act (PMLA) authorizes the ED to arrest individuals based on material evidence.
- Notification Requirement: The law requires that the reasons for such belief must be recorded in writing, and the grounds of arrest be informed to the accused “as soon as may be.”
- Understanding ‘As Soon As May Be’: The court interpreted the phrase to mean “as early as possible”, “without avoidable delay”, “within reasonably convenient” or a “reasonably requisite” period.
Case Background: Supertech Limited’s Founder’s Challenge
- Delhi High Court’s Decision: The Delhi High Court had dismissed a petition by a person to declare his arrest illegal.
- Argument: He contended that his arrest violated Section 19(1) of the PMLA and his fundamental rights, as he was not supplied with written grounds for arrest.
Supreme Court’s December 15 Ruling
- Non-Retrospective Application: The court stated that the October 3 ruling in Pankaj Bansal vs. UOI cannot be applied retrospectively to cases before that date.
- Reference to Vijay Madanlal’s Case: The court relied on its July 27 decision in Vijay Mandanlal Choudhary vs. UOI, by a three-judge Bench, to support its ruling.
- Upholding PMLA Provisions: The validity of Section 19 was upheld, affirming its reasonable nexus with the PMLA’s objectives.
Resolving Bench Discrepancies
- 2002 Ruling: In “Pradip Chandra Parija vs. Pramod Chandra Patnaik,” a Constitution Bench ruled that if two Benches of equal strength arrive at different conclusions on the same question of law, the matter must be referred to a higher Bench.
- Implications for Current Case: This precedent is relevant in resolving discrepancies when two Benches of equal strength, like in the current scenario, differ in their rulings.
Conclusion
- Legal Clarity: The Supreme Court’s ruling provides clarity on the procedures for arrests made by the ED, balancing prompt enforcement action with the rights of the accused.
- Impact on Future Cases: This decision sets a precedent for how the ED’s arrests are to be conducted, influencing future cases involving the agency.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Article 370, SR Bommai Verdict
Mains level: Read the attached story
Central Idea
- A Constitution Bench of the Supreme Court on Monday unanimously upheld the power of the President to abrogate Article 370 in August 2019, leading to the reorganisation of the full-fledged State of Jammu and Kashmir to two Union Territories and denuding it of its special privileges.
Key Issues and Court’s Findings
[A] On the Sovereignty of Jammu and Kashmir:
- Petitioners’ Claim: They argued that J&K retained an element of sovereignty when it acceded to India in 1947, different from other princely states.
- Court’s Examination: The Court noted that J&K was listed as a Part III state in the Indian Constitution and Section 3 of J&K’s Constitution declared it an integral part of India.
- Final Ruling: The Court held that J&K did not retain sovereignty, and the process of integration was ongoing, culminating in the Presidential declaration under Article 370(3).
[B] Whether Article 370 is Temporary or Permanent:
- Arguments Presented: Petitioners argued for Article 370’s permanence, while others viewed it as temporary.
- Court’s Opinion: Both CJI Chandrachud and Justice Kaul concurred that Article 370 was a temporary provision.
[C] Legality of Abrogating Article 370:
- Abrogation Process: On August 5, 2019, President Ram Nath Kovind issued CO 272, amending Article 367 and redefining “Constituent Assembly of Jammu and Kashmir” as the “Legislative Assembly of Jammu and Kashmir.”
- Court’s Upholding: The Court upheld this process, with CJI Chandrachud stating that post-dissolution of J&K’s Constituent Assembly, the President could have unilaterally abrogated Article 370.
[D] Actions Under President’s Rule:
- Challenge to Union’s Actions: The challenge was to the extent of powers appropriated under Article 356 (President’s rule).
- Reference to Bommai Ruling: The Court, citing the 1994 Bommai ruling, stated that actions under the President’s rule must not be mala fide or irrational.
Upholding Centre’s (Union) Supremacy
- Parliament’s Unilateral Actions: The Court’s interpretation suggests Parliament can change a state’s status under the President’s rule.
- Article 3 Reference: The President referred the Jammu and Kashmir Reorganisation Bill, 2019, to Parliament for its views, as the state was under President’s rule.
- Validity of Executive Orders: The Court applied Bommai ruling standards to validate the executive orders, emphasizing the need for proof of mala fides to challenge the actions.
Conclusion
- J&K’s Integral Status Affirmed: The Court conclusively ruled that J&K has always been an integral part of India.
- Temporary Nature of Article 370: The ruling clarifies that Article 370 was a temporary provision.
- Expansion of Union Powers: The judgment potentially expands the Union’s powers under President’s rule, affecting the federal balance.
- Constitutional Precedent: This ruling sets a significant precedent in interpreting Union and state powers, reflecting on the dynamics of Indian federalism.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: SR Bommai Case
Mains level: NA
Central Idea
- The Supreme Court’s reliance on the 1994 SR Bommai judgment was pivotal in upholding the abrogation of Article 370.
- The SR Bommai case is a landmark judgment interpreting Article 356 of the Constitution, which deals with President’s rule in states.
SR Bommai Case: An Overview
- Origin of the Case: The case arose from the dismissal of the Janata Dal-led Karnataka government in 1989 by the Congress-led central government.
- Governor’s Recommendation: Karnataka Governor P Venkatasubbaiah recommended President’s rule citing the loss of majority by Chief Minister SR SR Bommai and the inability of other parties to form a government.
- Controversy: The move was controversial, especially as some MLAs later retracted their withdrawal of support, claiming their signatures were obtained by misrepresentation.
Supreme Court’s Verdict in the Case
- Judicial Review of President’s Proclamation: The Court unanimously held that the President’s proclamation is subject to judicial review on several grounds, including illegality, malafide, and abuse of power.
- Parliamentary Approval Requirement: The verdict mandated Parliamentary approval for imposing President’s rule. Without this approval, the dismissed government would automatically be revived after two months.
- Centre-State Relationship: The ruling emphasized the autonomy of states, stating that greater power at the Centre does not reduce states to mere appendages.
Impact of the Ruling
- Scrutiny of Governor’s Conduct: This was one of the first judgments to scrutinize the Governor’s role, especially in the context of frequent impositions of President’s rule.
- Decrease in President’s Rule Impositions: Research indicates a significant decrease in the frequency of President’s rule post-SR Bommai , from an average of 2.5 times a year (1950-1994) to just over once a year (1995-2021).
Kashmir Reference in the Article 370 Ruling
- Key Question: The central question was whether Article 370 could be abrogated while J&K was under President’s rule, which had been in place since 2018.
- Supreme Court’s Reliance on SR Bommai: The Court used the SR Bommai ruling to validate the President’s actions in J&K, applying the standards set by Justices PB Sawant and Jeevan Reddy for testing the validity of executive orders.
Conclusion
- Influence on Federal Dynamics: The SR Bommai judgment continues to influence the balance of power between the Centre and states, ensuring judicial oversight over central interventions in state governance.
- Relevance in Contemporary Rulings: Its principles, particularly regarding judicial review and the autonomy of states, remain crucial in contemporary constitutional interpretations, as seen in the Article 370 ruling.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Article 200
Mains level: Read the attached story
Central Idea
- The Supreme Court has taken notice of the Tamil Nadu government’s assertion that Governor R.N. Ravi lacks the “discretion” to withhold approval for the ten Bills “re-passed” by the State Legislative Assembly.
- This legal matter revolves around the interpretation of Article 200 of the Constitution, which governs the Governor’s role in granting assent to Bills passed by the State Legislature.
Article 200 of the Indian Constitution
- It pertains to the “Assent to Bills.”
- It outlines the procedure for the Governor of a state in India to give their assent to bills passed by the state legislature.
- Article 200 states that when a bill is passed by the legislative assembly of a state (or in the case of a bicameral legislature, by the legislative assembly and legislative council), it shall be presented to the Governor for their assent.
Governor’s Discretion: The Governor has the discretion to either:
- Give their assent to the bill, after which it becomes a law.
- Withhold their assent to the bill, in which case the bill does not become law.
- Return the bill (if it is not a money bill) to the legislature with a request for reconsideration, along with a specific message explaining the reasons for withholding assent.
Reconsideration by the Legislature: If the Governor returns a bill for reconsideration, the legislature can then reconsider the bill, taking into account the Governor’s message. They may choose to make amendments to the bill or pass it again without any changes.
Assent after Reconsideration: If the bill is passed again by the legislature, with or without amendments, and is presented to the Governor, the Governor is bound to give their assent to it. In other words, the Governor cannot withhold assent a second time. |
Governor’s Discretion
- Article 200 Interpretation: The Tamil Nadu government argued that once Bills have been re-passed by the Assembly, they are treated similarly to Money Bills and cannot be rejected by the Governor.
- Questioning the Process: The CJI questioned whether the Governor must send the Bills back to the Assembly for reconsideration after withholding assent.
- Limiting Presidential Referral: The State also emphasized that the Governor cannot refer the reiterated Bills to the President after withholding assent.
Background and Delay
- Delayed Bills: The Bills in question were sent to the Governor’s office between January 2020 and April 2023, and the State accused the Governor of holding them indefinitely.
- Special Session: The TN Assembly convened a special session to re-pass the Bills after the Governor withheld assent.
- Governor’s Statement: The Governor returned the Bills with a simple statement: “I withhold consent,” prompting the Assembly to take action.
Legal Perspectives
- Governor’s Ceremonial Role: The State contends that the Governor’s role is primarily ceremonial and that he must act within the State Legislature’s framework.
- Will of the People: The Bills passed by the Assembly represent the will of the people and should not be delayed or rejected without valid reasons.
Supreme Court’s Response
- Addressing Delay: The Supreme Court acknowledged the need to address whether there has been a delay in the Governor’s constitutional function.
- Bill Status: The Attorney General mentioned that 182 Bills were presented to the Governor, with 152 approved, five withdrawn, and nine reserved for referral to the President.
- Key Issue: The real issue in this case involves amendments to State universities’ legislations that affect the Governor’s powers to select Vice-Chancellors.
Conclusion
- The Supreme Court’s hearing on this matter raises critical questions about the Governor’s role in granting assent to Bills and the need to ensure timely decision-making in the best interest of the people and governance of the State.
- The interpretation of Article 200 of the Constitution will play a pivotal role in this legal dispute.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Read the attached story
Mains level: Adultery De-Criminalization
Central Idea
- The Parliamentary Committee on Home Affairs has proposed the reintroduction of adultery as a criminal offense in the Bharatiya Nyaya Sanhita (BNS), 2023, a law designed to replace the Indian Penal Code (IPC), 1860.
- The committee’s recommendations have sparked a debate on the legal position of adultery and its implications on constitutional rights and gender equality.
Adultery De-Criminalization in India
- Adultery in IPC (1860): Until 2018, Section 497 of the IPC defined adultery as a criminal offense, penalizing only men for engaging in adulterous relationships.
- Supreme Court’s Verdict (Joseph Shine vs. Union of India, 2018): The Supreme Court unanimously struck down Section 497, citing discrimination and violations of fundamental rights.
Parliamentary Committee’s Recommendations
- Gender-Neutral Adultery: The Committee suggests reinstating adultery as a criminal offense but making it gender-neutral, applicable to both men and women.
- Safeguarding Marriage Sanctity: The Committee argues that safeguarding the sanctity of marriage is crucial and justifies criminalizing adultery.
Legal and Constitutional Implications
- Discrimination and Violation of Fundamental Rights: The Supreme Court’s verdict in Joseph Shine case highlighted the discriminatory nature of Section 497 and its violation of Articles 14, 15, and 21 of the Constitution.
- Autonomy of Women: The judgment emphasized women’s autonomy and dignity, asserting that husbands do not possess legal sovereignty over their wives.
- Privacy and Matrimonial Sphere: Adultery as a criminal offense intrudes into the privacy of the matrimonial sphere, which is better left as a ground for divorce.
- Relic of Victorian Morality: The Court deemed Section 497 as a relic of Victorian morality that treats women as chattels and property of their husbands.
Can the Supreme Court’s Decision Be Overturned?
- Parliament’s Authority: While Parliament cannot directly overturn a Supreme Court ruling, it can pass legislation that addresses the basis of the court’s judgment.
- Validating Legislation: Parliament can enact validating legislation that changes the circumstances under which the court’s judgment was rendered, effectively altering the legal landscape.
Conclusion
- The debate surrounding the reintroduction of adultery as a criminal offence is fraught with legal, constitutional, and societal implications.
- It calls for a nuanced examination of individual rights, gender equality, and the sanctity of marriage within the framework of Indian law and society.
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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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