Note4Students
From UPSC perspective, the following things are important :
Prelims level: Right to Protest
Mains level: Reasonable restrictions on Fundamental Rights
The Supreme Court took a nuanced stand saying farmers have the right to protest but the agitation should not hinder traffic or public movement.
Right to Protest
- When a group, community, or even a person goes up to protest, it is usually to showcase their disapproval or demur against any action, policy, statement, etc of state or government or any organization.
- Mostly the flow of protest is driven through political waves that also demonstrate the collective organization of people to make the government or state address their issues and take steps to overcome them.
- In India, the right to protest is the manifestation of the right to freedom of assembly, the right to freedom of association, and the right to freedom of speech.
Constitutional Backing
- Article 19(1) states that All citizens shall have the right:
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f) omitted
(g) to practice any profession, or to carry on any occupation, trade or business
Reasonable restrictions on Protest
- Article 51A makes it a fundamental duty for every person to safeguard public property and to avoid violence during the protests and resorting to violence during public protests results in infringement of key fundamental duty of citizens.
- Article 19(1)(b) states about the right to assemble peaceably and without arms. Thereby, the right to peaceful protest is bestowed to Indian citizens by our Constitution.
- Article 19(2) imposes a restriction on a person to prevent him from making a defamatory statement which defames the reputation of another person.
- Article 19(3): The reasonable restrictions are imposed in the interests of the sovereignty & integrity of India, the 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.
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From UPSC perspective, the following things are important :
Prelims level: Tribunals
Mains level: Issues with Tribunals Reform Bill 2021
The Supreme Court has challenged the government to produce material showing its reasons for introducing the Tribunal Reforms Bill of 2021, which abolishes nine appellate tribunals and revives provisions of an ordinance struck down by the Supreme Court, in the Parliament.
What are Tribunals?
- Tribunals are specialist judicial bodies that decide disputes in a particular area of law.
- They are institutions established for discharging judicial or quasi-judicial duties.
- The objective may be to reduce the caseload of the judiciary or to bring in subject expertise for technical matters.
Do you know?
The Income Tax Appellate Tribunal was established as the first Tribunal in India back in 1941.
Creation of Tribunals
In 1976, Articles 323A and 323B were inserted in the Constitution of India through the 42nd Amendment.
- Article 323A: This empowered Parliament to constitute administrative Tribunals (both at central and state level) for adjudication of matters related to recruitment and conditions of service of public servants.
- Article 323B: This specified certain subjects (such as taxation and land reforms) for which Parliament or state legislatures may constitute tribunals by enacting a law.
- In 2010, the Supreme Court clarified that the subject matters under Article 323B are not exclusive, and legislatures are empowered to create tribunals on any subject matters under their purview as specified in the Seventh Schedule.
SC stance on Tribunals
- The Supreme Court has ruled that tribunals, being quasi-judicial bodies, should have the same level of independence from the executive as the judiciary.
- Key factors include the mode of selection of members, the composition of tribunals, and the terms and tenure of service.
- In order to ensure that tribunals are independent of the executive, the Supreme Court had recommended that all administrative matters be managed by the law ministry rather than the ministry associated with the subject area.
- Later, the Court recommended the creation of an independent National Tribunals Commission for the administration of tribunals.
- These recommendations have not been implemented.
Issues with tribunals
- Pendency: Whereas the reasoning for setting up some tribunals was to reduce the pendency of cases in courts, several tribunals are facing the issue of a large caseload and pendency.
- No appointment: With over 240 vacancies in key tribunals where thousands of cases were pending, not a single appointment had been made by the government in any of these tribunals till date.
Tribunals Reforms Bill, 2021
What is the recent news?
- A three-judge Bench led by CJI has put the government on the dock about the complete absence of material justifying the Bill and also the lack of proper debate in the Parliament.
- The provisions regarding conditions of service and tenure of Tribunal Members and Chairpersons were struck down by the Supreme Court.
- However, the same provisions re-appeared in the Tribunal Reforms Bill recently passed.
- The court has also noted its reservations against the complete dissolution of some tribunals.
What happens to cases pending before the tribunals are dissolved?
- These cases will be transferred to High Courts or commercial civil courts immediately. Legal experts have been divided on the efficacy of the government’s move.
- While on the one hand, the cases might get a faster hearing and disposal if taken to High Courts, experts fear that the lack of specialization in regular courts could be detrimental to the decision-making process.
- For example, the FCAT exclusively heard decisions appealing against decisions of the censor board, which requires expertise in art and cinema.
Observations made by the Court
- With over 240 vacancies in key tribunals where thousands of cases were pending, not a single appointment had been made by the government in any of these tribunals to date.
- The CJI repeated his question of whether the government was moving towards closing down the tribunals.
A new flashpoint between Executive and Judiciary
- The verdict discussed the possibility of legislation overriding the court’s directions.
- In other cases, too, the SC and Parliament have been at loggerheads on the issue of rationalization of tribunals.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Not much
Mains level: De-criminalization of Politics
The Supreme Court has directed the political parties to publish the criminal history if any, of their election candidates on the homepage of their party websites under the caption ‘candidates with criminal antecedents’ within 48 hours of their selection.
Try this PYQ:
Q.Consider the following statements:
- According to the Constitution of India, a person who is eligible to vote can be made a minister in a State for six months even if he/she is not a member of the Legislature of that State.
- According to the Representation of People Act, 1951, a person convicted of a criminal offence and sentenced to imprisonment for five years is permanently disqualified from contesting an election even after his release from prison.
Which of the statements given above is/are correct? (CSP 2020)
(a) 1 only
(b) 2 only
(c) Both 1 and 2
(d) Neither 1 nor 2
Post your answers here:
Criminalization of politics: Indian Case
- The criminalization of politics has become a headache for the Indian democracy and it is a harsh reality now.
- Criminalization of politics in India includes political control of the police, state money, corruption, weak laws, lack of ethics, values, vote bank politics and loopholes in the function of the election commission.
- Deep down, it’s a large nexus of police, money, corrupt bureaucracy, casteism, religion and the drawbacks of functioning in the election commission.
On a serious note
- The Supreme Court has warned Parliament that the nation is losing patience with the advent of criminals in politics even as it imposed fines on major political parties for covering up from voters the criminal past of the candidates.
- Cleansing the polluted stream of politics is obviously not one of the immediate pressing concerns of the legislative branch of government.
- The court said it did not take political parties much time to flout its February 2020 judgment, which had directed them to prominently publish the criminal antecedents.
What was the Feb 2020 Judgment?
The Supreme Court earlier in Feb 2020 had ordered political parties to publish the entire criminal history of their candidates for Assembly and Lok Sabha elections.
- Reasons for nomination: It has also asked for the reasons that goaded them to field suspected criminals over decent people.
- Publication of records: The information should be published in a local as well as a national newspaper as well as the parties’ social media handles.
- 48hr time frame: It should mandatorily be published either within 48 hours of the selection of candidates or less than two weeks before the first date for filing of nominations, whichever is earlier.
- Contempt for non-compliance: It also ordered political parties to submit compliance reports with the Election Commission of India within 72 hours or risk contempt of court action.
- No escape: The judgment is applicable to parties both at Central and State levels.
Immediate Reason
- The immediate provocation is the finding that 46% of MPs have criminal records.
- The number might be inflated as many politicians tend to be charged with relatively minor offences —“unlawful assembly” and “defamation”.
- The real worry is that the current cohort of Lok Sabha MPs has the highest (29%) proportion of those with serious declared criminal cases compared to its recent predecessors.
Why are such tainted candidates inducted by political parties?
- Popularity: Such candidates with serious records seem to do well despite their public image, largely due to their ability to finance their own elections and bring substantive resources to their respective parties.
- Vested interests: Some voters tend to view such candidates through a narrow prism: of being able to represent their interests by hook or by crook.
- Destabilizing other electors: Others do not seek to punish these candidates in instances where they are in contest with other candidates with similar records.
A harsh reality
- The NN Vohra committee’s report on the criminalization of politics discussed how criminal gangs flourish under the care and protection of politicians.
- Many times the candidates themselves are the gang leaders.
- This protection is paid back to them during elections through capital investment in election spending and voter support.
Need for clean politics
- Upholding morality: It is extremely important that the people who enter the field of politics have a clear image and high moral character.
- Ensuring rule of law: A leader with criminal character undoubtedly tends to undermine the rule of law.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Article 21, 22
Mains level: Need for preventive detention
Preventive detention, the dreaded power of the State to restrain a person without trial, could be used only to prevent public disorder, the Supreme Court held in a judgment.
What is Preventive Detention?
- Preventive detention means detaining a person so that to prevent that person from commenting on any possible crime.
- In other words, preventive detention is an action taken by the administration on the grounds of the suspicion that some wrong actions may be done by the person concerned which will be prejudicial to the state.
PD in India
A police officer can arrest an individual without orders from a Magistrate and without any warrant if he gets any information that such an individual can commit any offense.
- Preventive Detention Law, 1950: According to this law any person could be arrested and detained if his freedom would endanger the security of the country, foreign relations, public interests, or otherwise necessary for the country.
- Unlawful Activities Prevention Act (UAPA) 1968: Within the ambit of UAPA law the Indian State could declare any organization illegal and could imprison anyone for interrogation if the said organization or person critiqued/questioned Indian sovereignty territorially.
What is the difference between preventive detention and an arrest?
- An ‘arrest’ is done when a person is charged with a crime.
- In the case of preventive detention, a person is detained as he/she is simply restricted from doing something that might deteriorate the law-and-order situation.
- Article 22 of the Indian Constitution provides protection against arrest and detention in certain cases.
Rights of an Arrested Person in India
A/c to Article 22(1) and 22(2) of the Indian constitution:
- A person cannot be arrested and detained without being informed why he is being arrested.
- A person who is arrested cannot be denied to be defended by a legal practitioner of his choice. This means that the arrested person has right to hire a legal practitioner to defend himself/ herself.
- Every person who has been arrested would be produced before the nearest magistrate within 24 hours.
- The custody of the detained person cannot be beyond the said period by the authority of magistrate.
Exceptions for Preventive Detention
Article 22(3) says that the above safeguards are not available to the following:
- If the person is at the time being an enemy alien
- If the person is arrested under certain law made for the purpose of “Preventive Detention”
Constitutional provision
- It is extraordinary that the framers of the Indian Constitution, who suffered most because of the Preventive Detention Laws, did not hesitate to give Constitutional sanctity.
- B.R. Ambedkar was of the opinion that the freedom of the individual should not supersede the interests of the state.
- He had also stated that the independence of the country was in a state of inflancy and in order to save it, preventive detention was essential.
Issues with preventive detention
- Arbitrariness: The police determinations of whether a person poses a threat are not tested at a trial by leading evidence or examined by legally trained persons.
- Rights violation: Quiet often, there is no trial (upto 3 months), no periodic review, and no legal assistance for the detained person.
- Abuse: It does not provide any procedural protections such as to reduce detainees’ vulnerability to torture and discriminatory treatment, and to prevent officials’ misusing preventive detention for subversive activities.
- Tool for suppression: In the absence of proper safeguards, preventive detention has been misused, particularly against the Dalits and the minorities.
What has the apex court recently rule?
- Preventive detention is a necessary evil only to prevent public disorder.
- The court must ensure that the facts brought before it directly and inevitably lead to harm, danger or alarm, or feeling of insecurity among the general public or any section thereof at large.
- The State should not arbitrarily resort to “preventive detention” to deal with all and sundry “law and order” problems, which could be dealt with by the ordinary laws of the country.
- Whenever an order under a preventive detention law is challenged, one of the questions the court must ask in deciding its legality is: was the ordinary law of the land sufficient to deal with the situation?
- If the answer is in the affirmative, the detention order will be illegal.
Upholding the Article 21
- Preventive detention must fall within the four corners of Article 21 (due process of law) read with Article 22 (safeguards against arbitrary arrest and detention) and the statute in question, Justice Nariman ruled.
- The Liberty of a citizen is a most important right won by our forefathers after long, historical, and arduous struggles.
Conclusion
- The constitutional philosophy of personal liberty is an idealistic view, the curtailment of liberty for reasons of State’s security; public order, disruption of national economic discipline, etc.
- They are envisaged as a necessary evil to be administered under strict constitutional restrictions.
- India is a large country and many separatist tendencies against the national security and integrity existed and existing and a strict law is required to counter the subversive activities.
- The number of persons detained in these acts is not a very large and due attention is made before preventive detention.
- Having such kind of acts has a restraining influence on the anti-social and subversive elements.
- The state should have very effective powers to deal with the acts in which the citizens involve in hostile activities, espionage, coercion, terrorism, etc.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: PM-CARES Fund
Mains level: Impact of pandemic on Children
The Supreme Court has clarified that welfare schemes such as the PM CARES Fund should cover both children, who became orphans during the Covid-19 pandemic and those, who became orphans due to Covid-19.
What is PM-CARES Fund?
- The Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund (PM CARES Fund) was created on 28 March 2020 following the COVID-19 pandemic in India.
- The fund will be used for combat, containment, and relief efforts against the coronavirus outbreak and similar pandemic-like situations in the future.
- The PM is the chairman of the trust. Members will include the defense, home, and finance ministers.
- The fund will also enable micro-donations. The minimum donation accepted for the PM CARES Fund is ₹10.
- The donations will be tax-exempt and fall under corporate social responsibility.
Why cover orphaned children?
- Over 75,000 children have been orphaned, abandoned, or have lost a parent during the COVID pandemic.
- It is feared that many of them may become victims of human trafficking rackets or descend into crime.
Under the scrutiny of the court
- The Supreme Court has endorsed the PM CARES Fund as a “public charitable trust” to which donors contribute voluntarily.
- The court said that PM-CARES is “not open” for a PIL petitioner to question the “wisdom” that created the fund in an hour of need.
- The court dismissed the idea that the PM CARES was constituted to “circumvent” the National Disaster Response Fund (NDRF).
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: ONORC
Mains level: Benefits of ONORC for Migrants
The Supreme Court directed all states and UTs to implement the One Nation, One Ration Card (ONORC) system, which allows for inter-and intra-state portability, by July 31.
ONORC Scheme
- The ONORC scheme is aimed at enabling migrant workers and their family members to buy subsidized ration from any fair price shop anywhere in the country under the National Food Security Act, 2013.
- For instance, a migrant worker from will be able to access PDS benefits elsewhere in India, where he or she may have gone in search of work.
- While the person can buy food grains as per his or her entitlement under the NFSA at the place where he or she is based, members of his or her family can still go to their ration dealer back home.
- To promote this reform in the archaic Public Distribution System (PDS), the government has provided incentives to states.
How does ONORC work?
- ONORC is based on technology that involves details of beneficiaries’ ration card, Aadhaar number, and electronic Points of Sale (ePoS).
- The system identifies a beneficiary through biometric authentication on ePoS devices at fair price shops.
- The system runs with the support of two portals —Integrated Management of Public Distribution System (IM-PDS) (impds.nic.in) and Annavitran (annavitran.nic.in), which host all the relevant data.
- When a ration card holder goes to a fair price shop, he or she identifies himself or herself through biometric authentication on ePoS, which is matched real time with details on the Annavitaran portal.
- Once the ration card details are verified, the dealer hands out the beneficiary’s entitlements.
- While the Annavitaran portal maintains a record of intra-state transactions — inter-district and intra-district — the IM-PDS portal records the inter-state transactions.
How many people will it benefit?
- Under the National Food Security Act, 2013, about 81 crore people are entitled to buy subsidised foodgrains — rice at Rs 3/kg, wheat at Rs 2/kg, and coarse grains at Re 1/kg – from designated fair price shops.
- As on 28 June 2021, there are about 5.46 lakh fair price shops and 23.63 crore ration cardholders across the country.
- Each NFSA ration cardholder is assigned to a fair price shop near the place where his ration card is registered.
What factors led to the launch of ONORC?
- Earlier, NFSA beneficiaries were not able to access their PDS benefits outside the jurisdiction of the specific fair price shop to which they have been assigned.
- The government envisioned the ONORC to give them access to benefits from any fair price shop.
- The idea was to reform the PDS, which has been historically marred by inefficiency and leakages.
- ONORC was initially launched as an inter-state pilot.
- When the Covid-19 pandemic forced thousands of migrant workers to return to their villages last year, a need was felt to expedite the rollout.
What has been the coverage so far?
- Till date, 32 states and Union Territories have joined the ONORC, covering about 69 crore NFSA beneficiaries.
- About 1.35 crore portability transactions every month are being recorded under ONORC on an average.
- While inter-state ration card portability is available in 32 states, the number of such transactions is much lower than that of intra-district and inter-district transactions.
States not joining
- Four states are yet to join the scheme — Assam, Chhattisgarh, Delhi and West Bengal. There are various reasons.
- For instance, Delhi is yet to start the use of ePoS in fair price shops, which is a prerequisite for the implementation of ONORC.
- In the case of West Bengal, the state government has demanded that the non-NFSA ration cardholders — ration cards issued by the state government — should also be covered under the ONORC.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: 102nd Constitution Amendment
Mains level: Paper 2- The Supreme Court strikes down law granting reservation to Maratha community
About the judgment
- The Supreme Court on Wednesday struck down the provisions of a Maharashtra law providing reservation to the Maratha community.
- It rejected demands to revisit the verdict or to refer it to a larger Bench for reconsideration.
What the Supreme Court said
- The Bench said that “providing reservation for the advancement of any socially and educationally backward class in public services is not the only means and method for improving the welfare of backward class”
- The 50% rule is to fulfill the objective of equality as engrafted in Article 14 of which Articles 15 and 16 are facets.
- To change the 50% limit is to have a society that is not founded on equality but based on caste rule.
- If the reservation goes above the 50% limit, it will be a slippery slope, the political pressure, make it hard to reduce the same.
- It added that “the Constitution (Eighty-first Amendment) Act, 2000 by which sub-clause (4B) was inserted in Article 16 makes it clear that ceiling of 50% “has now received constitutional recognition”
- The Supreme Court disapproved the findings of the Justice M G Gaikwad Commission on the basis of which Marathas were classified as a Socially and Educationally Backward Class.
- It said that “the data collected and tabled by the Commission as noted in the report clearly proves that Marathas are not socially and educationally backward class”.
SC upheld 102nd Constitution amendment
- The SC also upheld the 102nd Constitution amendment, saying it does not violate the basic structure of the Constitution.
- The bench, by 3:2 majority, held that after the amendment, only the President will have the power to identify backward classes in a state or Union Territory.
- The amendment inserted Articles 338B and 342A in the Constitution.
- Article 338B deals with the structure, duties and powers of the National Commission for Backward Classes.
- Article 342A speaks about the power of the President to notify a class as Socially and Educationally Backward (SEBC) and the power of Parliament to alter the Central SEBC list. He can do this in consultation with Governor of the concerned State. However, law enacted by Parliament will be required if the list of backward classes is to be amended.
————————————//————————————————-
BACK2BASICS
- 102nd Constitution Amendment Act, 2018 provides constitutional status to the National Commission for Backward Classes (NCBC).
- The Commission consists of five members including a Chairperson, Vice-Chairperson and three other Members appointed by the President by warrant under his hand and seal. It has the authority to examine complaints and welfare measures regarding socially and educationally backward classes.
- Previously NCBC was a statutory body under the Ministry of Social Justice and Empowerment.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Article 224A
Mains level: Paper 2- Appointment of retired judges in the High Court under Article 224A
Appointment of retired judges under Article 224A
- The Supreme Court cleared the way for appointment of retired judges as ad-hoc judges in High Courts under Article 224A of the Constitution.
- The court ruled that the Chief Justice of a High Court may initiate the process of recommending a name if the number of judges’ vacancies is more than 20 per cent of the sanctioned strength.
- The court said the appointments can follow the procedure laid down in the Memorandum of Procedure for appointment of judges.
- The move will help to deal with mounting backlog of cases.
- Since the nominees have been judges before, the need to refer the matter to the IB or other agencies would not arise, shortening the time period.
Back2Basics: About Article 224A
- It allows the Chief Justice of a High Court to allow a retired judge of any High Court to sit and act as the judge of the High Court for that State.
- Previous consent of the President is necessary.
- The acting retired judge would be entitled to such allowances as the President may by order determine and have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be, a Judge of that High Court.
- This Article was not part of the Constitution of India, 1950. It was inserted by the Constitution (Fifteenth Amendment) Act, 1963.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Article 217 of Indian Constitution
Mains level: Paper 2- SC sets timeline to Centre to clear names recommended by the Centre
Why the timeline
- The Supreme Court laid down a timeline for the Centre to clear names recommended by the High Court Collegiums.
- The Bench noted that there are almost 40% vacancies in the High Courts, with many of the larger High Courts working under 50% of their sanctioned strength.
- Against the sanctioned strength of 1,080 High Court Judges, 664 have been appointed but 416 vacancies remain.
- The Bench rejected the contention that laying down a timeline “would be contrary to” certain “observations made in the Third Judges case”, saying the “observations” referred to “deal with the judicial review of a particular appointment and not such aspects of the appointment process like delay”.
The timeline
- The Intelligence Bureau (IB) should submit its report/ inputs within 4 to 6 weeks from the date of recommendation of the High Court Collegium, to the Central Government.
- It would be desirable that the Central Government forward the file(s)/ recommendations to the Supreme Court within 8 to 12 weeks from the date of receipt of views from the State Government and the report/ input from the IB.
- It would be for the Government to thereafter proceed to make the appointment immediately on the aforesaid consideration and undoubtedly, if Government has any reservations on suitability or in public interest, within the same period of time it may be sent back to the Supreme Court Collegium with the specific reasons for reservation recorded.
- If the Supreme Court Collegium, after consideration of the aforesaid inputs, still reiterates the recommendation(s) unanimously…, such appointment should be processed and appointment should be made within 3 to 4 weeks.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Prakash Singh Judgment
Mains level: Police reforms
Political interference in police postings continues despite the landmark Prakash Singh judgment nearly a decade-and-a-half ago that addressed the issue and was pegged to be a watershed moment in police reforms.
Politics is a perplexing, but fascinating game. It takes ages to unravel the intricate secrets that shroud the kernel of closed room politics. But contrary has happened with the Maharashtra Police.
What is the SC’s Prakash Singh judgment on police reforms?
- Prakash Singh, who served as DGP of UP Police and Assam Police besides other postings, filed a PIL in the Supreme Court post-retirement, in 1996, seeking police reforms.
- In a landmark judgment, the Supreme Court in September 2006 had directed all states and Union Territories to bring in police reforms.
- The ruling issued a series of measures that were to be undertaken by the governments to ensure the police could do their work without worrying about any political interference.
What measures were suggested by the Supreme Court?
- The seven main directives from the Supreme Court in the verdict were fixing the tenure and selection of the DGP to avoid situations where officers about to retire in a few months are given the post.
- In order to ensure no political interference, a minimum tenure was sought for the Inspector General of Police so that they are not transferred mid-term by politicians.
- The SC further directed postings of officers being done by Police Establishment Boards (PEB) comprising police officers and senior bureaucrats to insulate powers of postings and transfers from political leaders.
- Further, there was a recommendation of setting up the State Police Complaints Authority (SPCA) to give a platform where common people aggrieved by police action could approach.
- Apart from this, the SC directed the separation of investigation and law and order functions to better improve policing, setting up State Security Commissions (SSC) that would have members from civil society and forming a National Security Commission.
How did states respond to these directives?
- The Commonwealth Human Rights Initiative (CHRI), in its report of 2020 has some useful data.
- It tracked changes made in the police force following the 2006 judgment.
- It has found that not even one state was fully compliant with the apex court directives and that while 18 states passed or amended their Police Acts in this time, not one fully matches legislative models.
What has been the response of the Supreme Court to these issues?
- Prakash Singh said that he has followed up on these issues and has had nearly five contempt petitions issued in the past decades to states found to be non-compliant.
- Singh said that bigger states like Maharashtra, Tamil Nadu and UP have been the worst when it comes to bringing about systemic changes in line with the judgment and that it is only the North-Eastern states that have followed the suggested changes in spirit.
- Singh said states like Maharashtra make their own laws that are not effective.
- The need of the hour is an all-India Act that all states have to follow and small changes can be made in exceptional cases relating to the situation in a particular state.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Not Much
Mains level: Women in armed forces
The Supreme Court has held that the Army’s “selective” evaluation process discriminates against and disproportionately affects women short service commission officers seeking a permanent commission.
Must read
[Burning Issue] Women in Armed Forces
What did the Court say?
- The Court held the view that the evaluation criteria set by the Army constituted systemic discrimination against the petitioners (women officers).
- The evaluation pattern of women officers has caused them economic and psychological harm.
- In a series of directions, the court ordered that the cases of women officers who have applied for the permanent commission should be reconsidered in a month and the decision on them should be given in two months.
Asks for permanent commission
- They would be considered for permanent commission subject to disciplinary and vigilance clearance.
- The court said physical standards should be kept at a premium during selection.
- The court highlighted how one of the Army’s “administrative requirements” was to benchmark women officers, under consideration for permanent commission, with male officers who are lowest in merit.
- This is arbitrary and irrational, said Justice Chandrachud.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Not Much
Mains level: Gender sensitization of Judiciary
A judgment by the Supreme Court forbidding judges from making gender-stereotypical comments came as a corrective voice from within the highest judiciary.
Q.Discuss the need for gender sensitization of the judicial institutions.
What is the news?
- The judgment came days after the CJI, during a virtual hearing reportedly asked an alleged rapist’s lawyer to enquire whether his client would marry the survivor.
- His statement coincided with International Women’s Day.
- Days later, a Bench of Justices A.M. Khanwilkar and S. Ravindra Bhat urged courts to avoid using reasoning/language which diminished a sexual offence and tended to trivialize the survivor.
What did the Court say?
- The greatest extent of sensitivity is to be displayed in the judicial approach, language and reasoning adopted by the judge.
- Even a solitary instance of such order or utterance in court, reflects adversely on the entire judicial system of the country, undermining the guarantee to fair justice to all, and especially to victims of sexual violence.
- This judgment is one among a series of interventions with which the apex court has clamped down on abuse and sex stereotyping of women.
No institution is mightier than the modesty of a woman.
SC against stereotyping
Some of the notable judgments which have lashed out at sex stereotyping include:
- The framing of the Vishaka Guidelines on sexual harassment of women in working places, and
- Justice D.Y. Chandrachud’s historic judgment giving women Armed Forces officers’ equal access to Permanent Commission while debunking the establishment’s claim that women were physiologically weaker than men
- In the Anuj Garg case, the Supreme Court had rebuked “the notion of romantic paternalism”, which, “in practical effect, put women, not on a pedestal, but in a cage”
Avoid gender stereotypes such as:
The courts should desist from expressing any stereotype opinion, in words spoken during proceedings, or in the course of a judicial order, to the effect that
- women are physically weak and need protection;
- men are the “head” of the household and should take all the decisions relating to family;
- women should be submissive and obedient according to our culture;
- “good” women are sexually chaste;
- motherhood is the duty and role of every woman and assumptions to the effect that she wants to be a mother;
- being alone at night or wearing certain clothes make women responsible for being attacked;
- lack of evidence of physical harm in sexual offence case leads to an inference of consent by the woman.
Conclusion
- Stereotyping compromises the impartiality and integrity of the justice system, which can, in turn, lead to miscarriages of justice, including the re-victimization of complainants.
- Often judges adopt rigid standards about what they consider to be appropriate behaviour for women and penalize those who do not conform to these stereotypes.
There should be gender sensitization
- The court-mandated that a module on gender sensitization is included, as part of the foundational training of every judge.
- This module must aim at imparting techniques for judges to be more sensitive in hearing and deciding cases of sexual assault, and eliminating entrenched social bias, especially misogyny.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Election Commission
Mains level: Autonomy of the State Election Commission
The Supreme Court gas held that independent persons and not bureaucrats should be appointed State Election Commissioners.
No bureaucrats in SEC
- The judgment came on an appeal against an order of the Bombay High Court which had set aside the election notification issued by the Goa State Election Commission in some municipalities.
- Justice F. Nariman, in a judgment, said giving government employees the additional charge of State Election Commissioners is a “mockery of the Constitution”.
- It said government employees holding the post of State Election Commissioners as additional charge should give up the post.
- The Supreme Court said its direction should be followed strictly.
Why such a move?
- Under the constitutional mandate, it is the duty of the State to not interfere with the functioning of the State Election Commission.
- The independence of Election Commissions cannot be compromised at any cost, the Bench said.
State Election Commission
- Under the 73rd and 74th constitutional amendment acts, State Election Commissions were created for every state to conduct elections to panchayats and municipalities.
- The SECs came into as envisaged in Articles 243K and 243ZA of the Constitution of India.
- The above Articles provide that the superintendence, direction and control of the preparation of electoral rolls for, and the Conduct of all elections to the Panchayats and Municipalities shall vest in the SEC.
- The Constitution itself has facilitated provision for smooth, free and fair, regular elections to the Local bodies and has, therefore, entrusted the SEC with the responsibility for holding such elections.
- In the domain of the elections to the local bodies, the SEC functions independently and has the same powers and duties as that of the Election Commission of India.
Try this PYQ:
Q.The Constitution (Seventy-Third Amendment) Act, 1992, which aims at promoting the Panchayati Raj Institutions in the country, provides for which of the following?
- Constitution of District Planning Committees.
- State Election Commissions to conduct all panchayat elections.
- Establishment of State Finance Commissions.
Select the correct answer using the codes given below:
(a) Only 1
(b) 1 and 2 only
(c) 2 and 3 only
(d) 1, 2 and 3
The Election Commissioner
- The State Election Commissioner is appointed by the Governor.
- It has the status, salary and allowance of a Judge of a High Court and cannot be removed from office except in the like manner and on the like grounds as a Judge of a High Court.
- The Election Commissioner is also the Chairman of the Delimitation Commission.
Its duties
- The first and foremost duty of the SEC is to prepare the elector rolls of Panchayats, Municipalities and Municipal Corporation and conduct their elections.
In addition to the above functions, the State Election Commission has also the following functions:
- Conduct of elections to the offices of the Mayor/Chairman/President/Deputy Mayor/Vice Chairman/Vice President and the no-confidence motion against them.
- Conduct of the Elections to various Standing Committees and their Chairpersons
- Determination of disqualification of elected members/Councilors.
- Determination of disqualification of elected members on the ground of defection.
Back2Basics: Election Commission of India (ECI)
- ECI is an autonomous and permanent constitutional authority responsible for administering election processes in India at the national and state level.
- The body administers elections to the Lok Sabha, Rajya Sabha, State Legislative Assemblies, State Legislative Councils and the offices of the President and Vice President of the country.
- The EC operates under the authority of the Constitution per Article 324 and subsequently enacted the Representation of the People Act.
- The commission has the powers under the Constitution, to act in an appropriate manner when the enacted laws make insufficient provisions to deal with a given situation in the conduct of an election.
- Being a constitutional authority, EC is amongst the few institutions which function with both autonomy and freedom, along with the country’s higher judiciary, the UPSC and the CAG.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Article 15, 16
Mains level: Quota in Promotion debate
The Supreme Court has asked Attorney General to compile the various issues being raised by States with regard to the 2006 M. Nagaraj case, which had upheld the application of creamy layer principle to members of the SC/ST communities in promotions.
Must read edition: Reservation not a Fundamental Right
What is the case about?
- The Centre’s plea came despite the Supreme Court, in September 2018, in Jarnail Singh case, reiterating the Nagaraj judgment of 2006.
- The 2006 judgment required the States to show quantifiable data to prove the ‘backwardness’ of a community to provide quota in promotion in public employment,
- The 2018 judgment, which was authored by Justice Rohinton F. Nariman, had refused the government’s plea to refer the 2006 Nagaraj judgment to a seven-judge Bench.
- It had while modifying the part of the Nagaraj verdict, rejected the Centre’s argument that Nagaraj misread the creamy layer concept by applying it to SC/ST.
Nagaraj Case
- In Jarnail Singh vs Lachhmi Narain Gupta (2018), the court dealt with a batch of appeals on the correctness of the Supreme Court’s judgment in M Nagaraj & Others vs Union of India (2006).
- The Nagaraj case, in turn, had arisen out of a challenge to the validity of four Constitution amendments, which the court eventually upheld.
What were the 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.
What is Art.335 about?
- Article 335 of the Constitution relates to claims of SCs and STs to services and posts.
- It reads: “The claims of the members of the SC’s and ST’s shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.”
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Sect 497 of IPC
Mains level: Adultery Laws and the associated gender bias
The Supreme Court has admitted a petition filed by the Ministry of Defence (MoD) seeking to exempt armed forces personnel from the ambit of a Constitution Bench judgment of 2018 that decriminalized adultery.
Q. Personnels of the Indian Armed Forces constitute a ‘Distinct Class’.
Discuss this statement in context to the extension of IPC section 497 to the Armed forces.
What was the 2018 historic Judgment?
- The Supreme Court had struck down Section 497 of the Indian Penal Code, which criminalized adultery.
- It also declared Section 198 of the Criminal Procedure Code as unconstitutional, which deals with the procedure for filing a complaint about the offence of adultery.
Important observations of the judgment
- Section 497 was unconstitutional and is violative of Article 21 (Right to life and personal liberty) and Article 14 (Right to equality).
- The court observed that two individuals may part if one cheats, but to attach criminality to infidelity is going too far. How married couples deal with adultery is absolutely a matter of privacy.
- Besides, there is no data to back claims that abolition of adultery as a crime would result in “chaos in sexual morality” or an increase of divorce.
- Any provision of law affecting individual dignity and equality of women invites the wrath of the Constitution.
- It’s time to say that a husband is not the master of the wife. Legal sovereignty of one sex over other sex is wrong, ruled the court.
- Marriage does not mean ceding autonomy of one to the other. Ability to make sexual choices is essential to human liberty. Even within private zones, an individual should be allowed her choice.
What about Armed forces?
- The judgment of 2018 created “instability”. It allowed personnel charged with carrying on an adulterous or illicit relationship to take cover under the judgment.
- The bench had then referred the case to the CJI to pass appropriate orders to form a five-judge Bench to clarify the impact of the 2018 judgment on the armed forces.
- This case is now being under the observation of the apex court.
Govt. stance over this
- The MoD has sought for an exemption to this decriminalization in the petition.
- It said that there will always be a concern in the minds of the Army personnel who are operating far away from their families under challenging conditions about the family indulging in untoward activity.
- The petition goes on to say that personnel of the Army, Navy and the Air Force were a “distinct class”. They were governed by special legislation, the Army Act, the Navy Act and the Air Force Act.
- Adultery amounted to unbecoming conduct and a violation of discipline under these three Acts.
- Unlike Section 497, the provisions of the three Acts did not differentiate between a man and a woman if they were guilty of an offence.
Constitutional backing for an exception
- These special laws imposed restrictions on the fundamental rights of the personnel, who function in a peculiar situation requiring utmost discipline.
- The three laws were protected by Article 33 of the Constitution, which allowed the government to modify the fundamental rights of the armed forces personnel.
The core idea behind govt. proposition
- One has to remember that the armed forces exist in an environment wholly different and distinct from civilians. Honour is a sine qua non of the service.
- The provisions of the Acts should be allowed to continue to govern the personnel as a “distinct class”, irrespective of the 2018 judgment.
- This is because, the discipline necessary for the performance of duty, crucial for national safety, would break down.
- It said the court would not, at the time, have been appraised of the different circumstances under which the armed forces operated.
Back2Basics: Article 33 of the Indian Constitution
- It deals with the power of Parliament to modify the rights conferred by this Part III in their application etc.
- Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to-
(a) the members of the Armed Forces; or
(b) the members of the Forces charged with the maintenance of public order; or
(c) persons employed in any bureau or other organisation established by the State for purposes of intelligence or counterintelligence; or
(d) persons employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation referred to in clauses (a) to (c), be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Not Much
Mains level: Alimony
The Supreme Court has laid down uniform and comprehensive guidelines for family courts, magistrates and lower courts to follow while hearing the applications filed by women seeking maintenance from their estranged husbands’.
Debate: Alimony as a right of women or a feminist taboo
Why such a judgement?
- Usually, maintenance cases have to be settled in 60 days, but they take years, in reality, owing to legal loopholes.
- The top court said women deserted by husbands are left in dire straits, often reduced to destitution, for lack of means to sustain themselves and their children.
- Despite a plethora of maintenance laws, women were left empty-handed for years, struggling to make ends meet after a bad marriage.
What did the Court say?
- The Supreme Court has held that deserted wives and children are entitled to alimony/maintenance from the husbands from the date they apply for it in a court of law.
- To ensure that judicial orders for grant of maintenance are duly enforced by husbands, the court said a violation would lead to punishments such as civil detention and even attachment of the property of the latter.
- The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife, if he is able-bodied and has educational qualifications, the court declared.
- Both the applicant wife and the respondent-husband have to disclose their assets and liabilities in a maintenance case.
- Other factors such as “spiralling inflation rates and high costs of living” should be considered, but the wife should receive alimony which fit the standard of life she was used to in the matrimonial home.
Covering expenses
- The expenses of the children, including their education, basic needs and other vocational activities, should be factored in by courts while calculating the alimony.
- Education expenses of the children must be normally borne by the father. If the wife is working and earning sufficiently, the expenses may be shared proportionately between the parties.
Permanent alimony
- The court opined it would not be equitable to order a husband to pay his wife permanent alimony for the rest of her life, considering the fact that in contemporary society marriages do not last for a reasonable length of time.
- Anyway, the court said, the duration of marriage should be accounted for while determining the permanent alimony.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Right to Protest
Mains level: Right to Protest and restrictions over it
The Supreme Court has found the indefinite “occupation” of a public road by the Shaheen Bagh protestors unacceptable.
Right to Protest
- The right to protest is the manifestation of the right to freedom of assembly, the right to freedom of association, and the right to freedom of speech.
- The Constitution of India provides the right of freedom, given in Article 19 with the view of guaranteeing individual rights that were considered vital by the framers of the constitution.
- The Right to protest peacefully is enshrined in Article 19(1) (a) guarantees the freedom of speech and expression; Article 19(1) (b) assures citizens the right to assemble peaceably and without arms.
- Article 19(2) imposes reasonable restrictions on the right to assemble peaceably and without arms.
What did the Court say?
- The court said the protest, considered an iconic dissent mounted by mothers, children and senior citizens of Shaheen Bagh against the Citizenship (Amendment) Act, became inconvenient to commuters.
- The judgment upheld the right to peaceful protest against the law but made it unequivocally clear that public ways and public spaces cannot be occupied, and that too indefinitely.
- Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone.
- The present case was not even one of the protests taking place in an undesignated area but was a blockage of a public way which caused grave inconvenience to commuters.
Reasonable restrictions do exist in practice
- Fundamental rights do not live in isolation. The right of the protester has to be balanced with the right of the commuter. They have to co-exist in mutual respect.
- The court held it was entirely the responsibility of the administration to prevent encroachments in public spaces.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Presidential List
Mains level: Quota within Quota debate
A five-judge Bench of the Supreme Court has held that States can sub-classify Scheduled Castes and Scheduled Tribes in the Central List to provide preferential treatment to the “weakest out of the weak”.
Try this question for mains;
Q.Reservation is no more seen by the Supreme Court as an exception to the equality rule; rather, it is a facet of equality. Discuss this in light of the quest for sub-categorisation of Scheduled Castes/Tribes.
What is the sub-categorisation of SCs?
- States have argued that among the SCs, there are some that remain grossly under-represented despite reservation in comparison to other SCs.
- This inequality within the SCs is underlined in several reports, and special quotas have been framed to address it.
- For example, in AP, Punjab, Tamil Nadu and Bihar, special quotas were introduced for the most vulnerable Dalits.
- In 2007, Bihar set up the Mahadalit Commission to identify the castes within SCs that were left behind.
About the Judgement
- The judgment is based on a reference to the Constitution Bench the question of law involving Section 4(5) of the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006.
- The legal provision allows 50% of the reserved Scheduled Castes seats in the State to be allotted to Balmikis and Mazhabi Sikhs.
There lies struggle within castes: SC
- There is a “caste struggle” within the reserved class as a benefit of reservation is being usurped by a few, the court pointed out.
- The million-dollar question is how to trickle down the benefit to the bottom rung.
- It is clear that caste, occupation, and poverty are interwoven.
- The State cannot be deprived of the power to take care of the qualitative and quantitative difference between different classes… to take ameliorative measures, said the judgment.
Overruling the old judgment
- With this, the Bench took a contrary view to a 2004 judgment delivered by another Coordinate Bench of five judges in the E.V. Chinnaiah case.
- The judgment had held that allowing States to unilaterally “make a class within a class of members of the Scheduled Castes” would amount to tinkering with the Presidential list.
- The judgment is significant as it fully endorses the push to extend the creamy layer concept to the Scheduled Castes and Scheduled Tribes.
- Citizens cannot be treated to be socially and educationally backwards till perpetuity; those who have come up must be excluded like the creamy layer, the judgment said.
What is the Presidential list?
- The Constitution, while providing for special treatment of SCs and STs to achieve equality, does not specify the castes and tribes that are to be called SCs and STs.
- This power is left to the central executive — the President. As per Article 341, those castes notified by the President are called SCs and STs.
- A caste notified as SC in one state may not be an SC in another state. These vary from state to state to prevent disputes as to whether a particular caste is accorded reservation or not.
- According to the annual report of the Ministry of Social Justice and Empowerment, there were 1,263 SCs in the country in 2018-19.
- No community has been specified as SC in Arunachal Pradesh and Nagaland, and Andaman & Nicobar Islands and Lakshadweep.
- The Constitution treats all Schedule Castes as a single homogeneous group.
Arguments against sub-categorisation
- The argument is that the test or requirement of social and educational backwardness cannot be applied to SCs and STs.
- The special treatment is given to the SCs due to untouchability with which they suffer.
- In a 1976 case, State of Kerala v N M Thomas, the Supreme Court laid down that “Scheduled Castes are not castes, they are class.”
- The petitioner’s argument against allowing states to change the proportion of reservation is also based on the perception that such decisions will be made to appease one vote-bank or the other.
- A watertight President’s list was envisaged to protect from such potential arbitrary change.
Way ahead with the Judgement
- The judgement reasoned that sub-classifications within the Presidential/Central List do not amount to “tinkering” with it.
- No caste is excluded from the list. The States only give preference to weakest of the lot in a pragmatic manner based on statistical data.
- Preferential treatment to ensure even distribution of reservation benefits to the more backward is a facet of the right to equality, judgement observed.
Also read:
[Burning Issue] SC judgement on Reservation not being a Fundamental Right
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: PM CARES Fund
Mains level: Disaster management in India
The Supreme Court has endorsed the PM CARES Fund as a “public charitable trust” to which donors contribute voluntarily.
Try this question:
Q. The creation of PM CARES fund is violative of the provision of the Disaster Management Act, 2005. Analyse.
What is the case?
- The petition had argued that the PM-CARES Fund was not subject to CAG audit.
- It was not under “public scrutiny”. Contributions to it were “100% tax-free”.
- It was accused that there was statutory fund already in existence under the Disaster Management Act of 2005 to receive contributions to finance the fight against a calamity.
About PM CARES Fund
- The Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund (PM CARES Fund) were created on 28 March 2020 following the COVID-19 pandemic in India.
- The fund will be used for combat, containment and relief efforts against the coronavirus outbreak and similar pandemic like situations in the future.
- The PM is the chairman of the trust. Members will include the defence, home and finance ministers.
- The fund will also enable micro-donations. The minimum donation accepted for the PM CARES Fund is ₹10 (14¢ US).
- The donations will be tax-exempt and fall under corporate social responsibility.
What did the Court rule?
- There is “no occasion” for the Comptroller and Auditor General (CAG) to audit a public charitable trust independent of budgetary support or government money.
- The court said that PM-CARES is “not open” for a PIL petitioner to question the “wisdom” that created the fund in an hour of need.
- The court dismissed the idea that the PM CARES was constituted to “circumvent” the National Disaster Response Fund (NDRF).
- The Bench also refused to direct the transfer of funds from the PM CARES Fund to the NDRF. It said they were two separate entities.
Also read:
PM-CARES Fund
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Contempt of Court and its types
Mains level: Contempt of Court and associated issues
A three-judge Bench of the Supreme Court has found a famous civil rights lawyer guilty of criminal contempt by ‘scandalizing the court’.
Try this question for mains:
Q.What is Contempt of Court? Discuss, how free speech can lead to the contempt of courts?
Contempt of Court
- According to the Contempt of Courts Act, 1971, contempt of court can either be civil contempt or criminal contempt.
- Civil contempt means willful disobedience to any judgment, decree, direction, order, writ or another process of a court or willful breach of an undertaking given to a court.
- On the other hand, criminal contempt means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which
- Scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court; or
- Prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
- Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.
What did the court rule in this case?
- The tweets had the effect of attempting to destabilize Indian democracy.
- A defamatory publication concerning “the judge is a serious impediment to justice”.
- The court could not ignore the disrespect and disaffection created by the “scurrilous” tweets.
- If such an attack is not dealt with a requisite degree of firmness, it may affect the national honour and prestige in the comity of nations.
A suo motu action
- The prior consent of the Attorney General (AG) of India is not required to suo motu initiate the inherent contempt powers of the Supreme Court.
- The Contempt of Court Act of 1971 cannot limit this power of the court. The statute only provides the procedure in which such contempt is to be initiated.
- The suo motu contempt powers of the top court are drawn from Article 129 of the Constitution, which says the Supreme Court, as a court of record, has the power to punish for contempt of itself.
What would be the penalty?
- The Contempt of Court Act of 1971 punishes with imprisonment that may extend to six months or fine of ₹ 2,000 or both.
- This is provided in case the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court.
Also read:
Explained: What is Contempt of Court?
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