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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Note4Students
From UPSC perspective, the following things are important :
Prelims level: NA
Mains level: Lofty poll promises and election freebies
The Supreme Court has decided to reconsider a 2013 judgment on Poll Promises, which held that promises in the election manifesto do not constitute a “corrupt practice” under the law.
What is the news?
- A Bench led by the CJI, Ramana, ordered a three-judge Bench to be set up to review the court’s earlier position.
Subramaniam Balaji Judgment: Invalidating certain Poll Promises
- It was held that pre-poll promises made by political parties to entice voters do not fall within the ambit of Section 123 (corrupt practices) under the Representation of the People (RP) Act.
- The judgment, delivered by a two-judge Bench, had observed that although the law is obvious that the promises in the election manifesto cannot be construed as ‘corrupt practice’ under Section 123 of RP Act.
- The reality cannot be ruled out that distribution of freebies of any kind, undoubtedly, influences all people.
Why revisit this judgment?
- Rationale of the freebie: Now the CJI has said the three-judge Bench should consider whether an enforceable order can be passed to stop political parties in power from promising and distributing “irrational freebies”.
- Freebie vs. Welfare schemes: He opined that such freebies are completely divorced from actual welfare schemes, using public money in order to merely “capture vote banks”.
- Prevent bankruptcy: Freebies may create a situation wherein the State government cannot provide basic amenities due to lack of funds and the State is pushed towards imminent bankruptcy.
- Expert review: The new Bench would also deliberate if an expert body can be formed to independently study and make recommendations against the distribution of largesse at the cost of the national economy and public welfare.
What amounts to Freebie?
- The term Freebies is not new; rather it is a prevalent culture in Indian politics (in the name of socialism).
- The political parties are always trying to outdo each other in luring the Indian voters with assorted freebies.
- From free water to free smartphones the Indian politicians promise everything to attract prospective voters in favour.
- This trend has gained more momentum in the recent times with the political parties being innovative in their offerings as the ‘traditional free water and electricity’ is no longer sufficient as election goodies.
Examples of freebies
- Promise of Rs 15 lakh in our bank accounts
- Free TV, Laptops
- Free electricity
- Loan waivers
- Offering free public transport ride to all women in Delhi
Why are such policies popular among the public?
- Failure of economic policies: The answer lies in the utter failure of our economic policies to create decent livelihood for a vast majority of Indians.
- Quest for decent livelihood: The already low income had to be reoriented towards spending a disproportionately higher amount on education and health, from which, the state increasingly withdrew.
- Prevailing unemployment: Employment surveys have shown that employment growth initially slowed down from the 1990s, and then has turned negative over the past few years.
- Increased cost of living: Real income growth of the marginal sections has actually slowed down since 1991 reforms.
- Increased consumerism: The poor today also spend on things which appear to be luxuries; cellphones and data-packs are two such examples which are shown as signs of India’s increased affluence.
- Necessity: For migrant workers, the mobile phone helps them keep in touch with their families back home, or do a quick video-call to see how their infant is learning to sit up or crawl.
Can Freebies be compared with Welfare Politics?
- These freebies are not bad. It is a part of social welfare.
- Using freebies to lure voters is not good.
- Voter’s greediness may lead to a problem in choosing a good leader.
- When we don’t have a good leader then democracy will be a mockery.
Impact of such policies
- Never ending trail: The continuity of freebies is another major disadvantage as parties keep on coming up with lucrative offers to lure more number of votes to minimize the risk of losing in the elections.
- Burden on exchequer: People forget that such benefits are been given at the cost of exchequer and from the tax paid.
- Ultimate loss of poors: The politicians and middlemen wipe away the benefits and the poor have to suffer as they are deprived from their share of benefits which was to be achieved out of the money.
- Inflationary practice: Such distribution freebie commodity largely disrupts demand-supply dynamics.
- Lethargy in population: Freebies actually have the tendency to turn the nation’s population into: Lethargy and devoid of entrepreneurship.
- Money becomes only remedy: Everyone at the slightest sign of distress starts demanding some kind of freebies from the Govt.
- Popular politics: This is psychology driving sections of the population expecting and the government promptly responds with immediate monetary relief or compensation.
What cannot be accounted to a freebie?
- MGNREGA scheme (rural employment guarantee scheme)
- Right to Education (RTE)
- Food Security through fair price shops ( under National Food Security Act)
- Prime Minister Kisan Samman Yojana (PM-KISAN)
Arguments in favour
- Social investment: Aid to the poor is seen as a wasteful expenditure. But low interest rates for corporates to get cheap loans or the ‘sop’ of cutting corporate taxes are never criticized.
- Socialistic policy: This attitude comes from decades of operating within the dominant discourse of market capitalism.
- Election manifesto: Proponents of such policies would argue that poll promises are essential for voters to know what the party would do if it comes to power and have the chance to weigh options.
- Welfare: Economists opine that as long as any State has the capacity and ability to finance freebies then its fine; if not then freebies are the burden on economy.
- Other wasteful expenditure: When the Centre gives incentives like free land to big companies and announce multi-year tax holidays, questions are not asked as to where the money will come from.
Conclusion
- There is nothing wrong in having a policy-led elaborate social security programme that seeks to help the poor get out of poverty.
- But such a programme needs well thought out preparation and cannot be conjured up just before an election.
Also read:
[Sansad TV] Mudda Aapla: Culture of Freebies
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: MRTP Act
Mains level: Global abortion debate
The Supreme Court has said it may loosen the restrictive grip of a 51-year-old abortion law that bars unmarried women from terminating pregnancies up to 24 weeks old.
What is the news?
- The Medical Termination of Pregnancy Act of 1971 and its Rules of 2003 prohibit unmarried women who are between 20 weeks and 24 weeks pregnant to abort with the help of registered medical practitioners.
What did the Court say now?
- In a very significant move, the court said that the prohibition was manifestly arbitrary and violative of women’s right to bodily autonomy and dignity.
- The danger to life is as much in the case of an unmarried woman as in the case of a married woman said Justice Chandrachud.
- The danger of suffering a mental breakdown is much more prominent for unmarried women, said the court.
Earlier observations
- A woman’s right to reproductive choice is an inseparable part of her personal liberty under Article 21 of the Constitution.
- She has a sacrosanct right to bodily integrity, the court quoted from precedents.
- The court said forcing a woman to continue with her pregnancy would not only be a violation of her bodily integrity but also aggravate her mental trauma.
Indispensable clause of safety
- The court ordered a medical board to be formed by the AIIMS to check whether it was safe to conduct an abortion on the woman and submit a report in a week.
What is the case?
- A Bench led by Justice D.Y. Chandrachud was hearing the appeal of a woman who wanted to abort her 24-week pregnancy after her relationship failed and her partner left her.
- The lower court had taken an “unduly restrictive view” that her plea for a safe abortion was not covered under the Medical Termination of Pregnancy Act.
- This was since the pregnancy arose from a consensual relationship outside wedlock.
What was the last amendment?
- The court noted that an amendment to the Act in 2021 had substituted the term ‘husband’ with ‘partner’, a clear signal that the law covered unmarried women within its ambit.
Reiterating the live-in recognition
- Chastising the lower court, the Bench said live-in relationships had already been recognized by the Supreme Court.
- There were a significant number of people in the social mainstream who see no wrong in engaging in pre-marital sex.
- The law could not be used to quench “notions of social morality” and unduly interfere in their personal autonomy and bodily integrity.
Back2Basics: Medical Termination of Pregnancy (MTP) Act
- Abortion in India has been a legal right under various circumstances for the last 50 years since the introduction of the Medical Termination of Pregnancy (MTP) Act in 1971.
- The Act was amended in 2003 to enable women’s access to safe and legal abortion services.
- Abortion is covered 100% by the government’s public national health insurance funds, Ayushman Bharat and Employees’ State Insurance with the package rate for surgical abortion.
The idea of terminating your pregnancy cannot originate by choice and is purely circumstantial. There are four situations under which a legal abortion is performed:
- 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
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.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: ED, PMLA
Mains level: Read the attached story
The Supreme Court upheld the core amendments made to the Prevention of Money Laundering Act (PMLA), which gives the government and the Enforcement Directorate (ED) virtually unbridled powers of summons, arrest, and raids, and makes bail nearly impossible while shifting the burden of proof of innocence on to the accused rather than the prosecution.
Did the judgement say?
- The Supreme Court called the PMLA a law against the “scourge of money laundering” and not a hatchet wielded against rival politicians and dissenters.
- Money laundering is an offence against the sovereignty and integrity of the country. It is no less a heinous offence than the offence of terrorism, the court noted.
Why in news?
- The verdict came on an extensive challenge raised against the amendments introduced in 2002 Act by way of Finance Acts.
- The three-judge Bench said the method of introduction of the amendments through Money Bills would be separately examined by a larger Bench of the top court.
What were the petitions?
- Petitions were filed against the amendments, which the challengers claimed would violate personal liberty, procedures of law and the constitutional mandate.
- The petitioners included many veteran politicians who all claimed that the “process itself was the punishment”.
- There were submissions that the accused’s right against self-incrimination suffered when the ED summoned them and made them sign statements on threats of arrest.
- But the court said these statements were recorded as part of an “inquiry” into the proceeds of crime.
- A person cannot claim right against self-incrimination at a summons stage.
About Enforcement Directorate (ED)
- It goes back to May 1, 1956, when an ‘Enforcement Unit’ was formed in the Department of Economic Affairs.
- It then aimed for handling Exchange Control Laws violations under the Foreign Exchange Regulation Act (FERA).
- The ED today is a multi-dimensional organisation investigating economic offences under the Prevention of Money Laundering Act (PMLA), Fugitive Economic Offenders Act, Foreign Exchange Management Act and FERA.
From where does the ED get its powers?
- When proceeds of crime (property/money) are generated, the best way to save that money is by parking it somewhere, so one is not answerable to anyone in the country.
- Therefore, there was a need to control and prevent the laundering of money.
- The PMLA was brought in for this exact reason in 2002, but was enacted only in 2005.
- The objective was to prevent parking of the money outside India and to trace out the layering and the trail of money.
- So as per the Act, the ED got its power to investigate under Sections 48 (authorities under act) and 49 (appointment and powers of authorities and other officers).
At what stage does the ED step in when a crime is committed?
- Whenever any offence is registered by a local police station, which has generated proceeds of crime over and above ₹1 crore, the investigating police officer forwards the details to the ED.
- Alternately, if the offence comes under the knowledge of the Central agency, they can then call for the First Information Report (FIR) or the chargesheet if it has been filed directly by police officials.
- This will be done to find out if any laundering has taken place.
What differentiates the probe between the local police and officers of the ED?
Case study:
- If a theft has been committed in a nationalised bank, the local police station will first investigate the crime.
- If it is learnt that the founder of the bank took all the money and kept it in his house, without being spent or used, then the crime is only theft and the ED won’t interfere because the amount has already been seized.
- But if the amount which has been stolen is used after four years to purchase some properties, then the ill-gotten money is brought back in the market.
- Or if the money is given to someone else to buy properties in different parts of the country, then there is ‘laundering’ of money.
- Hence the ED will need to step in and look into the layering and attachment of properties to recover the money.
- If jewellery costing ₹1 crore is stolen, police officers will investigate the theft. The ED, however, will attach assets of the accused to recover the amount of ₹1 crore.
What are the other roles and functions of the ED?
- The ED carries out search (property) and seizure (money/documents) after it has decided that the money has been laundered, under Section 16 (power of survey) and Section 17 (search and seizure) of the PMLA.
- On the basis of that, the authorities will decide if arrest is needed as per Section 19 (power of arrest).
- Under Section 50, the ED can also directly carry out search and seizure without calling the person for questioning.
- It is not necessary to summon the person first and then start with the search and seizure.
- If the person is arrested, the ED gets 60 days to file the prosecution complaint (chargesheet) as the punishment under PMLA doesn’t go beyond seven years.
- If no one is arrested and only the property is attached, then the prosecution complaint along with attachment order is to be submitted before the adjudicating authority within 60 days.
Can the ED investigate cases of money laundering retrospectively?
- If an ill-gotten property is acquired before the year 2005 (when the law was brought in) and disposed off, then there is no case under PMLA.
- But if proceeds of the crime were possessed before 2005, kept in storage, and used after 2005 by buying properties, the colour of the money is still black and the person is liable to be prosecuted under PMLA.
Under Section 3 of PMLA, a person shall be guilty of money-laundering, if such person is found to have directly or indirectly attempted to indulge or knowingly assist a party involved in one or more of the following activities:
- Concealment; possession; acquisition; use; or projecting as untainted property; or claiming as untainted property in any manner etc.
Also read:
[Burning Issue] Enforcement Directorate (ED): Dreaded nightmare of Indian Politicians & Businessmen
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Right to Safe Abortion
Mains level: MRTP Act
Denying an unmarried woman the right to a safe abortion violates her personal autonomy and freedom, the Supreme Court held in an order.
What did the SC say?
- A woman’s right to reproductive choice is an inseparable part of her personal liberty under Article 21 of the Constitution.
- She has a sacrosanct right to bodily integrity, the court quoted from precedents.
- The court said forcing a woman to continue with her pregnancy would not only be a violation of her bodily integrity but also aggravate her mental trauma.
Indispensable clause of safety
- The court ordered a medical board to be formed by the AIIMS to check whether it was safe to conduct an abortion on the woman and submit a report in a week.
What is the case?
- A Bench led by Justice D.Y. Chandrachud was hearing the appeal of a woman who wanted to abort her 24-week pregnancy after her relationship failed and her partner left her.
- The lower court had taken an “unduly restrictive view” that her plea for a safe abortion was not covered under the Medical Termination of Pregnancy Act.
- This was since the pregnancy arose from a consensual relationship outside wedlock.
What was the last amendment?
- The court noted that an amendment to the Act in 2021 had substituted the term ‘husband’ with ‘partner’, a clear signal that the law covered unmarried women within its ambit.
Reiterating the live-in recognition
- Chastising the lower court, the Bench said live-in relationships had already been 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.
Back2Basics: Medical Termination of Pregnancy (MTP) Act
- Abortion in India has been a legal right under various circumstances for the last 50 years since the introduction of the Medical Termination of Pregnancy (MTP) Act in 1971.
- The Act was amended in 2003 to enable women’s access to safe and legal abortion services.
- Abortion is covered 100% by the government’s public national health insurance funds, Ayushman Bharat and Employees’ State Insurance with the package rate for surgical abortion.
The idea of terminating your pregnancy cannot originate by choice and is purely circumstantial. There are four situations under which a legal abortion is performed:
- 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
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.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Kihoto Collohan Case
Mains level: Political conundrum in states over defection
As the political battle in Maharashtra moves to the Supreme Court, the role and powers of the Deputy Speaker are in focus.
In the context of the crisis, references have been made to the landmark judgment in ‘Kihoto Hollohan vs Zachillhu And Others’ (1992).
What is the ‘Kihoto Hollohan’ case?
- A constitutional challenge to the Tenth Schedule was mounted, which was settled by the apex court in ‘Kihoto Hollohan’.
- The principal question before the Supreme Court in the case was whether the powerful role given to the Speaker violated the doctrine of basic structure.
- In this judgment, the Supreme Court upheld the sweeping discretion available to the Speaker in deciding cases of disqualification of MLAs.
- The Supreme Court laid down the doctrine of basic principle in its landmark judgment in ‘Kesavananda Bharati vs State Of Kerala’ (1973).
What does the Tenth Schedule of the Constitution say?
- The Tenth Schedule was inserted in the Constitution by the Constitution (Fifty-Second Amendment) Act, 1985.
- It provides for the disqualification of Members of Parliament and state legislatures who defect.
- It describes the Speaker’s sweeping discretionary powers to make decisions on case of defection.
What did the Supreme Court rule in ‘Kihoto Hollohan’?
- The petitioners in ‘Kihoto Hollohan’ argued whether it was fair that the Speaker should have such broad powers, given that there is always a reasonable likelihood of bias.
- The majority judgment authored by Justices M N Venkatachaliah and K Jayachandra Reddy answered this question in the affirmative. It read-
- The Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House.
- They are expected to and do take far reaching decisions in the Parliamentary democracy.
- Vestiture of power to adjudicate questions under the Tenth Schedule in them should not be considered exceptionable.
- The provisions were “salutory and intended to strengthen the fabric of Indian Parliamentary democracy by curbing unprincipled and unethical political defections.”
What was the dissenting opinion?
- Justices Lalit Mohan Sharma and J S Verma dissented and took a different view.
- The tenure of the Speaker, who is the authority in the Tenth Schedule to decide this dispute, is dependent on the continuous support of the majority in the House.
- Therefore, he does not satisfy the requirement of such an independent adjudicatory authority.
- They advocated for an independent adjudicatory machinery for resolving disputes relating to the competence of Members of the House,
- This is envisaged as an attribute of the democratic system which is a basic feature of our Constitution.
What about the role of the Deputy Speaker?
- Article 93 of the Constitution mentions the positions of the Speaker and Deputy Speaker of the House of the People (Lok Sabha), and Article 178 contains the corresponding position for Speaker and Deputy Speaker of the Legislative Assembly of a state.
- Maharashtra has been without a Speaker since February 2021, and Deputy has been carrying out the responsibilities of the position.
- Article 95(1) says: “While the office of Speaker is vacant, the duties of the office shall be performed by the Deputy Speaker”.
- In general, the Deputy Speaker has the same powers as the Speaker when presiding over a sitting of the House.
- All references to the Speaker in the Rules are deemed to be references to the Deputy Speaker when he presides.
Try this PYQ:
Q.Which one of the following Schedules of the Constitution of India contains provisions regarding anti-defection?
(a) Second Schedule
(b) Fifth Schedule
(c) Eighth Schedule
(d) Tenth Schedule
Post your answers here.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: NA
Mains level: Plight of the sex workers in India
In a significant order recognising sex work as a “profession”, the Supreme Court has directed that police should neither interfere nor take criminal action against adult and consenting sex workers.
What did the Supreme Court say?
- Sex Work is a profession whose practitioners are entitled to dignity and equal protection under law.
- Criminal law must apply equally in all cases, on the basis of ‘age’ and ‘consent’.
- It need not be gainsaid that notwithstanding the profession, every individual in this country has a right to a dignified life under Article 21 of the Constitution, the court observed.
- The order was passed after invoking special powers under Article 142 of Constitution.
A caution to the police
- It is clear that the sex worker is an adult and is participating with consent, the police must refrain from interfering or taking any criminal action.
- The Bench ordered that sex workers should not be “arrested or penalised or harassed or victimised” whenever there is a raid on any brothel.
- Since voluntary sex work is not illegal and only running the brothel is unlawful.
- Basic protection of human decency and dignity extends to sex workers and their children, the court noted.
- A child of a sex worker should not be separated from the mother merely on the ground that she is in the sex trade, the court held.
- Further, if a minor is found living in a brothel or with sex workers, it should not be presumed that the child was trafficked.
Sexual crimes against sex workers
- The court ordered the police to not discriminate against sex workers who lodge a criminal complaint of offence committed against them is of a sexual nature.
- Sex workers can also be victims of sexual assault should be provided every facility including immediate medico-legal care.
- The court said media should take “utmost care not to reveal the identities of sex workers, during arrest, raid and rescue operations.
Sex work in India
- According to the Indian Penal Code (IPC), prostitution in its broader sense is not really illegal per se.
- But there are certain activities which constitute a major part of prostitution that are punishable under certain provisions of the act, which are:
- Soliciting prostitution services in public places
- Carrying out prostitution activities in hotels
- Indulging in prostitution by arranging for a sex worker
- Arrangement of a sexual act with a customer
Various issues faced by Sex Workers
- Stigma and Marginalization: This is experienced as the major factor that prevents women in sex work from accessing their rights.
- Denial of basic amenities: Due to this discrimination, women in sex work have been denied safety, proper healthcare, education and, most importantly, the right to practice the business of making money from sex.
- Risks of violence: People in sex work are not only at a higher risk for violence, but they are also less likely to get protection from the police—often the very perpetrators of this violence.
- Backwardness: Illiteracy, ignorance and fear of the medical establishment make it difficult for women to access healthcare.
- Health hazards: Current discourse on HIV/AIDS has served to further stigmatize sex workers by labeling them as “vectors” and “carriers” of the disease.
Protection against forceful sex work
- The Immoral Traffic (Prevention) Act, 1986 is an amendment of the original act.
- As per this act, prostitutes are to be arrested if they are found soliciting their services or seducing others.
- Furthermore, call girls are prohibited from making their phone numbers public.
- They can be punished for up to 6 months along with penalties if found doing so.
Constitutional protection
Article 23 of the Indian Constitution, amended in 2014, includes the following provisions:
- Prohibition of human trafficking and forced labour.
- Traffic in human beings and bears and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with the law.
- Nothing in this article precludes the State from imposing compulsory service for public purposes, and the State shall not discriminate solely on the basis of religion, race, caste, or class, or any combination thereof, in imposing such service.
So, where does India stand?
- Prostitution is not illegal in our country, but soliciting and public prostitution are.
- Owning a brothel is also illegal, but because places like GB Road are already in place, these laws are rarely enforced.
What will change in India if the Centre accepts the court’s direction?
- Sex workers will be accorded equal legal protection.
- If a sex worker reports a criminal/sexual or other type of offence, the police will take it seriously and act in accordance with the law.
- If a brothel is raided, the sex workers involved will not be arrested, penalised, harassed, or victimised.
- Any sex worker who is a victim of sexual assault will be given all of the same services as a survivor of sexual assault, including immediate medical attention.
- Police will be required to treat all sex workers with dignity and not verbally or physically abuse them, subject them to violence, or coerce them into any sexual activity.
Where do other countries stand?
Some countries choose to outright ban the practice, while others have attempted to regulate prostitution and provide health and social benefits to sex workers.
Here are a few examples of countries where prostitution is legal:
- New Zealand: Prostitution has been legal since 2003. There are even licenced brothels operating under public health and employment laws, and they get all the social benefits.
- France: Prostitution is legal in France, though soliciting in public is still not allowed.
- Germany: Prostitution is legalised and there are proper state-run brothels. The workers are provided with health insurance, have to pay taxes, and they even receive social benefits like pensions.
- Greece: The sex workers get equal rights and have to go for health checkups as well.
- Canada: Prostitution in Canada is legal with strict regulations.
Conclusion
- While sex worker collectives have shown tremendous progress in asserting the rights of sex workers across India, they face an uphill battle as the country continues to foster a globalized economy.
- In the globalized world, sex work will become more institutionalized, functioning through escort services, and will no longer need traditional street brothels.
- Legislators needs to ensure all rights to the sex workers at par with citizens.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: GST Council
Mains level: Read the attached story
The Supreme Court has held that Union and State legislatures have equal, simultaneous and unique powers to make laws on Goods and Services Tax (GST) and the recommendations of the GST Council are not binding on them.
What is the case?
- The apex court’s decision came while confirming a Gujarat High Court ruling that the Centre cannot levy Integrated Goods and Services Tax (IGST) on ocean freight from Indian importers.
Key takeaways of the Judgment
- The recommendations of the GST Council are the product of a collaborative dialogue involving the Union and the States.
- They are recommendatory in nature. They only have a persuasive value.
- To regard them as binding would disrupt fiscal federalism when both the Union and the States are conferred equal power to legislate on GST.
Basis of the Judgment
- The court emphasised that Article 246A of the Constitution gives the States power to make laws with respect to GST.
- It treats the Union and the States as “equal units”.
- It confers a simultaneous power (on Union and States) for enacting laws on GST.
- Article 279A, in constituting the GST Council, envisions that neither the Centre nor the States are actually dependent on the other.
What are the articles added/modified to the Constitution by the GST Act?
(1) Article 246A: Special Provision for GST
- This Article was newly inserted to give power to the Parliament and the respective State/Union Legislatures to make laws on GST respectively imposed by each of them.
- However, the Parliament of India is given the exclusive power to make laws with respect to inter-state supplies.
- The IGST Act deals with inter-state supplies. Thus, the power to make laws under the IGST Act will rest exclusively with the Parliament.
- Further, the article excludes the following products from the scope of GST until a date recommended by the GST Council:
- Petroleum Crude
- High-Speed Diesel
- Motor Spirit
- Natural Gas
- Aviation Turbine Fuel
(2) Article 269A: Levy and Collection of GST for Inter-State Supply
- While Article 246A gives the Parliament the exclusive power to make laws with respect to inter-state supplies.
- The manner of distribution of revenue from such supplies between the Centre and the State is covered in Article 269A.
- It allows the GST Council to frame rules in this regard. Import of goods or services will also be called as inter-state supplies.
- This gives the Central Government the power to levy IGST on import transactions.
- Import of goods was subject to Countervailing Duty (CVD) in the earlier scheme of taxation.
- IGST levy helps a taxpayer to avail the credit of IGST paid on import along the supply chain, which was not possible before.
(3) Article 279A: GST Council
- This Article gives power to the President to constitute a joint forum of the Centre and States called the GST Council.
- The GST Council is an apex member committee to modify, reconcile or to procure any law or regulation based on the context of GST in India.
(4) Article 286: Restrictions on Tax Imposition
- This was an existing article which restricted states from passing any law that allowed them to collect tax on sale or purchase of goods either outside the state or in the case of import transactions.
- It was further amended to restrict the passing of any laws in case of services too.
- Further, the term ‘supply’ replaces ‘sale or purchase’.
(5) Article 366: Addition of Important definitions
Article 366 was an existing article amended to include the following definitions:
- GST means the tax on supply of goods, services or both. It is important to note that the supply of alcoholic liquor for human consumption is excluded from the purview of GST.
- Services refer to anything other than goods.
- State includes Union Territory with legislature.
Back2Basics: GST Council
- The GST Council is a federal body that aims to bring together states and the Centre on a common platform for the nationwide rollout of the indirect tax reform.
- It is an apex member committee to modify, reconcile or to procure any law or regulation based on the context of goods and services tax in India.
- The GST Council dictates tax rate, tax exemption, the due date of forms, tax laws, and tax deadlines, keeping in mind special rates and provisions for some states.
- The predominant responsibility of the GST Council is to ensure to have one uniform tax rate for goods and services across the nation.
How is the GST Council structured?
- The GST is governed by the GST Council. Article 279 (1) of the amended Indian Constitution states that the GST Council has to be constituted by the President within 60 days of the commencement of the Article 279A.
- According to the article, the GST Council will be a joint forum for the Centre and the States. It consists of the following members:
- The Union Finance Minister will be the Chairperson
- As a member, the Union Minister of State will be in charge of Revenue of Finance
- The Minister in charge of finance or taxation or any other Minister nominated by each State government, as members.
Terms of reference
- Article 279A (4) specifies that the Council will make recommendations to the Union and the States on the important issues related to GST, such as the goods and services will be subject or exempted from the Goods and Services Tax.
- They lay down GST laws, principles that govern the following:
- Place of Supply
- Threshold limits
- GST rates on goods and services
- Special rates for raising additional resources during a natural calamity or disaster
- Special GST rates for certain States
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Various articles mentioned in news
Mains level: Death penalty
The Supreme Court has invoked its extraordinary powers to do complete justice under Article 142 of the Constitution and ordered the release of A.G. Perarivalan in former PM assassination case.
Among the factors that sustained Perarivalan’s long battle was the determination and commitment of his mother, Arputham Ammal, who emerged as the face of an anti-death penalty movement, and the sympathy and empathy that he received from people from all walks of life.
What is the news?
- A Bench led by Justice L. Nageswara Rao, in its judgment, took into consideration Perarivalan’s long jail term for over 30 years to order his release.
- The court held that the TN Council of Ministers’ advice to pardon Perarivalan was binding on the Governor under Article 161 (Governor’s power of clemency) of the Constitution.
- The advice of the State Cabinet is binding on the Governor in matters relating to commutation/remission of sentences under Article 161.
Note: As per Article 161, the Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends
What branded Perarivalan as a murderer?
- He had bought two 9 volt battery cells on behalf of the bomber.
- These were used to make the bomb explode.
- This confession statement taken under Section 15(1) of TADA to establish his link with the assassins and his knowledge and role in the assassination.
Why was this a case for Governor?
- Perarivalan was not a death sentenced convict.
- Earlier, the apex court had commuted his death penalty to life sentence for murder in 2014.
- The Governor had no business forwarding the pardon plea to the President after sitting on it for years together.
- Had this been a death penalty, the case would have been different.
Why did the Supreme Court intervene?
- Governor’s delay to decide Perarivalan’s pardon for more than two years has compelled the apex court to employ its constitutional powers under Article 142 to do justice to Perarivalan.
- After all, the court said, a Governor’s non-exercise of power under Article 161 of the Constitution was not immune from judicial review.
What is Article 142?
- Article 142 provides discretionary power to the Supreme Court.
- It states that the court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.
- Such decree shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament.
- It is usually used in cases involving human rights and environmental protection.
Other legal aspects of this pardon
- The Court dismissed the Centre’s argument that the President exclusively, and not the Governor, had the power to grant pardon in a case under Section 302 (murder) of the Indian Penal Code.
- The court had said that such a contention would render Article 161 a “dead-letter”.
- This would rather create an extraordinary situation whereby pardons granted by Governors in murder cases for the past 70 years would be rendered invalid.
Back2Basics:
Pardoning powers of the President
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From UPSC perspective, the following things are important :
Prelims level: Article 21
Mains level: Nature as a living entity
Holding that it is the right time to confer juristic status to ‘Mother Nature’, Justice S. Srimathy of the Madurai Bench of Madras High Court invoked the ‘parens patriae jurisdiction’, and declared ‘Mother Nature’ as a ‘living being’ having the status of a legal entity.
What is the news?
- The Madras HC observed that ‘Mother Nature’ was accorded the rights akin to fundamental rights, legal rights, constitutional rights for its survival, safety, sustenance and resurgence in order to maintain its status and also to promote its health and well-being.
Legal rights for nature: A backgrounder
- The movement for legal personhood for the environment and animals began in the 1970s.
- This concept was articulated by Christopher D. Stone in his thesis, Should Trees Have Standing.
- In this compelling piece, the author makes an argument for the environment to have independent legal rights, much like what was granted by the judgment of the Uttarakhand High Court in 2017.
- He highlights how the theory of rights has developed over the years and that many inanimate objects have both rights and legal duties. They can sue and be sued.
What is the case for Madras HC’s personification of nature?
- The Madras HC has made a personification of nature that focuses on the life-giving and nurturing aspects of nature by embodying it, in the form of the mother.
- It observed that the court is hereby declaring ‘Mother Nature’ a ‘living being’ having the status of a legal person with all corresponding rights, duties and liabilities of a living person, in order to preserve and conserve it.
- The State and Central governments are directed to protect ‘Mother Nature’ and take appropriate steps in this regard in all possible ways.
A different course: Ecological Jurisprudence
- The onset of climate change and the potential mass extinction of species is accompanied by the gradual closing window of opportunity to take meaningful action.
- Activists around the world are calling for anthropocentric legal and governance systems to be replaced with ecocentric ones.
- The last 15 years have seen a dramatic increase in the number of laws based on ecological jurisprudence.
- Ecological jurisprudence is a philosophy that sees nature not as a set of objects to be exploited but as a community of subjects (humans and non-humans) who are connected through interdependent, reciprocal relationships.
India’s typical case
- In 2017, the Uttarakhand HC ruled (in two separate orders) that the Ganga, the Yamuna, their tributaries, and the glaciers and catchments feeding these rivers in Uttarakhand had rights as a “juristic/legal person/living entity”.
- In 2018, the same HC ruled that the entire animal kingdom had rights similar to that of a living person (Narayan Dutt Bhatt vs Union of India).
- In March 2020, the Punjab and Haryana High Court passed an order declaring the Sukhna Lake in Chandigarh city a living entity, with rights equivalent to that of a person.
Beyond Rights
- Law is a modern human construct. It not only talks in the language of rights and duties that only humans understand but also operationalizes them in a way that can further entrench human-centeredness.
- In most cases where nature’s rights are recognized in law, they have done so by extending to it the concept of “personhood” in other words, akin to humans and, therefore, having human rights.
- Hence, any such movement on recognizing the rights of the rest of nature must challenge the fundamental forms of injustices, including capitalism, stateism, anthropocentrism and patriarchy.
Significance of such status
- These rights-based laws granting legal personhood for nature aim to shift the legal status of the natural world from being human property to living entities in their own right and subjects of law.
- This guarantees their right to exist, thrive, evolve and maintain their natural cycles.
- These rights are not conferred by humans; it is a recognition that these rights have always existed.
- It lays upon humans the duty to act as guardians for the more-than-human world.
Issues of implementation
- Assuming that these rights are recognised, nature or any of its entity cannot represent itself in a court of law.
- Moreover there is the issue of custodianship.
What would account for violations?
- The Uttarakhand court order did not mention what amounted to violation of rights of rivers.
- In order to be able to truly exercise the rights and implement appropriate redressal, there is a need for a comprehensive definition of the actions that amount to “violation of the rights”.
- Say, the violation of the rights of rivers may be defined as “any obstruction or impediment that disables the entity from performing its essential ecological functions”.
Restitution and compensation
- The New Zealand law has an extensive section lending itself to restitutive, restorative and compensatory action.
- It acknowledged the government’s decisions and actions for more than a century that resulted in the violation of the health of the Whanganui and the rights, culture and well-being of the indigenous people living along the river.
- Several specific examples were given, including the dismantling of traditional structures for fishing and river use, a hydroelectric project and mining.
- Such an acknowledgment is a necessary first step towards seeking appropriate restitutive and compensatory measures.
Another question: Bioregional Governance
- Recognizing river ecosystems or other entities of nature as having rights offers the possibility of managing and governing habitats based on the ecological realities of the region.
- It brings out the bizarre fact that the human-drawn nation state, and political lines on maps in various parts of the world have created conflict situations or disrupted ancient cultural and ecological flows and relations.
- We need to begin reimagining governance from a bioregional governance point of view.
- This would also mean bridging the gap between the customary ways of decision making and the current legal frameworks.
- There is a need for more imaginative lawyers, activists and judges to help move towards an eco-centric and diverse legal framework.
Way forward
- There is a need for a comprehensive system to implement and protect their rights.
- The rights can be safeguarded using the principles of custodianship.
- The Uttarakhand High Court order named several government functionaries and a couple of independent lawyers as “parents”.
- An alternative solution is that custodianship or guardianship be given to a body of local communities associated with the river.
- These communities have traditional or customary rights of the river such as fisherfolk, farmers along the riverbank, and people directly engaged in river-related services.
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From UPSC perspective, the following things are important :
Prelims level: Section 124A IPC
Mains level: Sedition law and Free speech
The Supreme Court has fixed May 5 for final hearing of the petitions challenging the constitutionality of the sedition law and made it clear that it will not brook any delay in the form of requests for adjournment.
What is the Sedition Law?
- Section 124A of the Indian Penal Code lays down the punishment for sedition. The IPC was enacted in 1860, under the British Raj.
- The then British government in India feared that religious preachers on the Indian subcontinent would wage a war against the government.
- Particularly after the successful suppression of the Wahabi/Waliullah Movement by the British, the need was felt for such law.
- Throughout the Raj, this section was used to suppress activists in favor of national independence, including Tilak and Mahatma Gandhi, both of whom were found guilty and imprisoned.
What is Sedition?
- The Section 124A defines sedition as:
An offence committed when “any person by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India”.
- Disaffection includes disloyalty and all feelings of enmity.
- However, comments without exciting or attempting to excite hatred, contempt or disaffection, will not constitute an offense.
- Sedition is a non-bailable offense.
- Punishment under Section 124A ranges from imprisonment up to three years to a life term with/without a fine.
Sedition as a cognizable offense
- Sedition was made a cognizable offense for the first time in history in India during the tenure of Prime Minister Indira Gandhi in 1973, that is, arrest without a warrant was now permissible.
- In 1962 the Supreme Court of India interpreted the section to apply only if there is, say, “incitement to violence” or “overthrowing a democratically elected government through violent means”.
Is it constitutionally valid?
- Violative of FRs: Two high courts had found it unconstitutional after Independence, as it violated the freedom of speech and expression.
- Reasonable restrictions: The Constitution was amended to include ‘public order’ as one of the ‘reasonable restrictions’ on which free speech could be abridged by law.
- Kedar Nath Case: Thereafter, the Supreme Court, in Kedar Nath Singh v. State of Bihar (1962) upheld its validity.
- Limited use: At the same time, it limited its application to acts that involve “intention or tendency to create disorder” or incitement to violence.
- Strong criticism doesn’t amount to sedition: Thus, even strongly worded remarks, as long as they do not excite disloyalty and enmity, or incite violence, are not an offence under this section.
Why the controversy now?
- Frequent use: In recent times, the resort to this section is seen as disturbingly frequent.
- Curbing dissent: Activists, cartoonists and intellectuals have been arrested under this section, drawing criticism from liberals that it is being used to suppress dissent and silence critics.
- Misuse for propaganda: Authorities and the police who invoke this section defend the measure as a necessary step to prevent public disorder and anti-national activities.
- Irrelevance: Many of them have also been detained under the National Security Act and UAPA.
What is being debated about it?
- Demand for its scrapping: Liberals and rights activists have been demanding the scrapping of Section 124A.
- Provision is outdated: It is argued that the provision is “overbroad”, i.e., it defines the offence in wide terms threatening the liberty of citizens.
- Various calls for its reconsideration: The Law Commission has also called for a reconsideration of the section.
- Tyranny of the law: It has pointed that Britain abolished it more than a decade ago and raised the question of whether a provision introduced by the British to put down the freedom struggle should continue to be law in India.
- Doctrine of severability: Some argue that a presumption of constitutionality does not apply to pre-constitutional laws as those laws have been made by foreign legislature or bodies.
Way forward
- India is the largest democracy in the world and the right to free speech and expression is an essential ingredient of democracy.
- The sedition law should not be abolished as some measures are needed to check communal violence & insurgency activities like Naxals.
- The definition of sedition should be narrowed down, to include only the issues pertaining to the territorial integrity of India as well as the sovereignty of the country.
- Section 124A should not be misused as a tool to curb free speech.
Try answering this PYQ:
Q.With reference to Rowlatt Satyagraha, which of the following statements is/are correct?
- The Rowlatt Act was based on the recommendations of the ‘Sedition Committee’.
- In Rowlatt Satyagraha, Gandhiji tried to utilize the Home Rule League.
- Demonstrations against the arrival of Simon Commission coincided with Rowlatt Satyagraha.
Select the correct answer using the code given below:
(a) 1 only
(b) 1 and 2 only
(c) 2 and 3 only
(d) 1, 2 and 3
Post your answers here.
Also read
[Burning Issue] Should sedition law be scrapped?
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From UPSC perspective, the following things are important :
Prelims level: FCRA
Mains level: Read the attached story
The Supreme Court upheld amendments introducing restrictions in the Foreign Contribution Regulation Act (FCRA) while holding that no one has a fundamental or absolute right to receive foreign contributions.
What is FCRA?
- The FCRA regulates foreign donations and ensures that such contributions do not adversely affect internal security.
- First enacted in 1976, it was amended in 2010 when a slew of new measures was adopted to regulate foreign donations.
- The FCRA is applicable to all associations, groups and NGOs which intend to receive foreign donations.
- It is mandatory for all such NGOs to register themselves under the FCRA.
- The registration is initially valid for five years and it can be renewed subsequently if they comply with all norms.
Why was FCRA enacted?
- The FCRA sought to consolidate the acceptance and utilisation of foreign contribution or foreign hospitality by individuals, associations or companies.
- It sought to prohibit such contributions from being used for activities detrimental to national interest.
What was the recent Amendment?
- The FCRA was amended in September 2020 to introduce some new restrictions.
- The Government says it did so because it found that many recipients were wanting in compliance with provisions relating to filing of annual returns and maintenance of accounts.
- Many did not utilise the funds received for the intended objectives.
- It claimed that the annual inflow as foreign contributions almost doubled between 2010 and 2019.
- The FCRA registration of 19,000 organisations was cancelled and, in some cases, prosecution was also initiated.
How has the law changed?
There are at least three major changes that NGOs find too restrictive.
- Prohibition of fund transfer: An amendment to Section 7 of the Act completely prohibits the transfer of foreign funds received by an organisation to any other individual or association.
- Directed and single bank account: Another amendment mandates that every person (or association) granted a certificate or prior permission to receive overseas funds must open an FCRA bank account in a designated branch of the SBI in New Delhi.
- Utilization of funds: Fund All foreign funds should be received only in this account and none other. However, the recipients are allowed to open another FCRA bank account in any scheduled bank for utilisation.
- Shared information: The designated bank will inform authorities about any foreign remittance with details about its source and the manner in which it was received.
- Aadhaar mandate: In addition, the Government is also authorised to take the Aadhaar numbers of all the key functionaries of any organisation that applies for FCRA registration or for prior approval for receiving foreign funds.
- Cap on administrative expenditure: Another change is that the portion of the receipts allowed as administrative expenditure has been reduced from 50% to 20%.
What is the criticism against these changes?
- Arbitrary restrictions: NGOs questioning the law consider the prohibition on transfer arbitrary and too heavy a restriction.
- Non-sharing of funds: One of its consequences is that recipients cannot fund other organisations. When foreign help is received as material, it becomes impossible to share the aid.
- Irrationality of designated bank accounts: There is no rational link between designating a particular branch of a bank with the objective of preserving national interest.
- Un-ease of operation: Due to Delhi based bank account, it is also inconvenient as the NGOS might be operating elsewhere.
- Illogical narrative: ‘National security’ cannot be cited as a reason without adequate justification as observed by the Supreme Court in Pegasus Case.
What does the Government say?
- Zero tolerance against intervention: The amendments were necessary to prevent foreign state and non-state actors from interfering with the country’s polity and internal matters.
- Diversion of foreign funds: The changes are also needed to prevent malpractices by NGOs and diversion of foreign funds.
- Fund flow monitoring: The provision of having one designated bank for receiving foreign funds is aimed at making it easier to monitor the flow of funds.
- Ease of operation: The Government clarified that there was no need for anyone to come to Delhi to open the account as it can be done remotely.
What did the Supreme Court observed now?
- The apex court reasoned that unbridled inflow of foreign funds may destabilise the sovereignty of the nation.
- The petitioners have argued that the amendments suffered from the “vice of ambiguity, over-breadth or over-governance” and violated their fundamental rights.
- But the court countered that the amendments only provide a strict regulatory framework to moderate the inflow of foreign funds into the country.
- Free and uncontrolled inflow of foreign funds has the potential to impact the socio-economic structure and polity of the country.
- No one can be heard to claim a vested right to accept foreign donations, much less an absolute right, said the verdict.
Supreme Court’s assessment of Foreign Funds
- Philosophically, foreign contribution (donation) is akin to gratifying intoxicant replete with medicinal properties and may work like a nectar.
- However, it serves as a medicine so long as it is consumed (utilised) moderately and discreetly, for serving the larger cause of humanity.
- Otherwise, this artifice has the capability of inflicting pain, suffering and turmoil as being caused by the toxic substance (potent tool) — across the nation.
Way forward
- The court said charity could be found at home. NGOs could look within the country for donors.
- Fundamental rights have to give way in the larger public interest to the need to insulate the democratic polity from the “adverse influence of foreign contributions”.
- The third-world countries may welcome foreign donations, but it is open to a nation, which is committed and enduring to be self-reliant.
- An unregulated inflow of foreign donations would only indicate that the government was incapable of looking after its own affairs and needs of its citizens.
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From UPSC perspective, the following things are important :
Prelims level: Articles 25, 26
Mains level: Hijab Row
The Karnataka High Court has upheld the ban on the wearing of hijab (head scarf) by students in schools and colleges in the State.
[Burning Issue] Freedom of religion and attire
The Judgment
- The judgment was delivered by a three-judge bench comprising Chief Justice Ritu Raj Awasthi, Justice Krishna S. Dixit and Justice J.M. Khazi.
- It rejected all the petitions filed by girl students of pre-university colleges in Udupi district.
Key takeaways
- The HC held that wearing hijab is not an essential religious practice in Islam and is not, therefore, protected under by the right to freedom of religion guaranteed by Article 25 of the Constitution.
- The court said it was a reasonable restriction that was constitutionally permissible.
- The Bench also upheld the legality of the order prescribing guidelines for uniforms in schools and pre-university colleges under the provisions of the Karnataka Education Act, 1983.
- The court said that school uniform will cease to be a uniform if hijab is also allowed.
What else did the court observe?
- The Bench also spoke about the possibility of some “unseen hands” behind the hijab row to engineer social unrest and disharmony.
- It expressed dismay over the issue being blown out of proportion by the powers that be.
Reactions on the Judgment
- Some factions have said that the order is a blow to right to education for Muslim women.
- Other see it as an empowerment of women.
- Feminists says that it’s not about an item of clothing, it’s about the right of a woman to choose how she wants to dress.
- The Leftists perceived it as a blow against the universal right to education without discrimination, guaranteed by the law and the Constitution of India.
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From UPSC perspective, the following things are important :
Prelims level: Nagraj Case
Mains level: Quota in Promotions
The Supreme Court has refused to lay down the criteria for determining the inadequacy of representation for granting reservation in promotions for Scheduled Caste and Scheduled Tribe candidates in government jobs.
What did the court held?
- The court stuck firm by the decisions of its Constitution Benches in the Jarnail Singh and M. Nagaraj case that the question of adequate representation of SC/ST communities ought to be left to the respective States to determine.
- It held ‘cadre’, and not class or group or the entire service, as the unit for the purpose of collection of quantifiable data for giving promotion quotas.
Why such decision?
- Determination of inadequate representation depends upon myriad factors of states which this Court cannot envisage.
- Laying down of criteria for determining the inadequacy of representation would result in curtailing the discretion given to the State governments.
Quota in Promotions: A timeline
What was the case?
- The Union government has been pressing for reservation in promotion proportionate to the population of SCs and STs as per a 1995 judgment by the top court in the RK Sabharwal case.
- It wants it to be left open to the Centre and states to decide on promotional avenues for SCs and STs.
- It claims that the condition regarding the collection of quantifiable data to show the inadequacy of representation of SCs/STs is “vague”.
- Advocates representing the general category have contended that the reservation cannot be for an indefinite period and that it must stop as soon as the upper ceiling has been reached.
- Further, they have emphasized that reservation in promotion should be cadre-based only after quantifiable data is collected and the creamy layer has been excluded.
Defying the need for quantifiable data
- Attorney General sought to convince the court that the roster system, based on the proportionate population of SCs/STs, has been working quite well in all government departments.
- The condition of collecting quantifiable data on inadequacy of representation of SCs/STs may not be required at all.
- He urged that there is no need to verify any further or collect quantifiable data after the roster system.
What is the Nagraj Case?
- Article 16(4A) of Indian Constitution allows reservations to SCs and STs in promotions, as long as the government believes that they are not adequately represented in government services.
- In 2006, a Constitution bench’s ruling in the M Nagaraj case made it incumbent upon the state to collect quantifiable data showing inadequacy of representation in public employment.
- This was to be done in addition to maintaining overall administrative efficiency.
Related amendments
- 77th Amendment: It introduced Clause 4A to the Constitution, empowering the state to make provisions for reservation in matters of promotion to SC/ST employees if the state feels they are not adequately represented.
- 81st Amendment: It introduced Clause 4B, which says unfilled SC/ST quota of a particular year, when carried forward to the next year, will be treated separately and not clubbed with the regular vacancies of that year to find out whether the total quota has breached the 50% limit set by the Supreme Court.
- 82nd Amendment: It inserted a proviso at the end of Article 335 to enable the state to make any provision for SC/STs “for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State”.
- 85th Amendment: It said reservation in the promotion can be applied with consequential seniority for the SC/ST employee.
Why such demand for quotas in promotion?
- The Attorney General has said that it is tough for a member of the SC/ST to reach the ‘Group A’ category jobs.
- The time has come for the apex court to firm up and draw the basis for reservation in promotions for SC/ST candidates to fill up vacancies in top jobs.
- The Bench referred to records filed before it to note that there was low representation of SC/ST category in Group A jobs.
- Instead of improving the situation in the Group A ranks, the court said, efforts are on to ensure adequate representation in Groups B and C.
- This was not fair, it remarked.
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From UPSC perspective, the following things are important :
Prelims level: NEET Quota row
Mains level: Significance of the Judgment, New definition of Merit
The Supreme Court has pronounced its decision upholding the constitutional validity of providing 27% quota to Other Backward Classes (OBC) in NEET All India Quota (AIQ) seats for UG and PG medical courses.
What is the issue?
- The petitioners, several NEET aspirants, had argued that since the top court had limited reservation to 50% in the Indira Sawhney judgment, the government should have first applied to the court before tinkering with the quota calculations.
- The court further confirmed that there was no need for the Centre to have got the prior consent of the Supreme Court before introducing OBC quota in the AIQ seats under NEET.
- The court reasoned that material affluence of certain individual members of a socially backward group or ‘creamy layer’ could not be used against the entire group to deny it the benefits of reservation.
What is the background of this case?
- The government introduced OBC/EWS quota before the counselling of NEET counselling.
- The candidates applying for NEET PG were not provided any information on the distribution of the seat matrix.
- Such information is provided by the counselling authority only after the counselling session is to begin.
Key observations of the Apex Court
- The SC has held that reservation is not at odds with merit.
- It observed that ‘merit’ could not be narrowed to the limit of success in open competitive exams.
- Merit of a person is a sum total of “lived experiences” and his or her struggle to overcome cultural and social setbacks, observed the SC.
Why is this a landmark judgment?
- Merit cannot be reduced to narrow definitions of performance in an open competitive examination, which only provides formal equality of opportunities , said the SC.
- Current competencies are assessed by competent examinations but are not reflective of excellence, capability and potential of an individual.
Major justifications for Reservations
- Exams did not reflect how social, economic and cultural advantages that accrued to certain classes contributed to their success in them, the court noted.
- Examinations are not a proxy for merit.
- Merit should be socially contextualized and re-conceptualized.
- Reservation is not at odds with merit but furthers its distributive impact, Justice Chandrachud observed.
Constitutionality of the decision
- The court held that the power of the State governments to provide reservations under Article 15 (4) and (5) of the Constitution was not an “exception” to Article 15 (1).
- It enshrines the mandate that “the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, and place of birth or any of them”.
- The court held that the power of the State government to craft reservations for the OBC amplified the principle of “substantive equality” manifested through Article 15 (1).
Implications: Victory for States
- In a significant victory for States such as Tamil Nadu, the court confirmed their power to make “special provisions” and provide reservations in educational admissions, whether in aided or unaided institutions.
- TN provides government jobs for the advancement of “any socially and educationally backward classes of citizens or for the SCs and STs”.
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