Note4Students
From UPSC perspective, the following things are important :
Prelims level: Article 19
Mains level: Farmers protests and related issues
The Supreme Court has said farmers protesting at Delhi borders against the three farms laws have the right to agitate but they cannot block roads indefinitely.
For students with Sociology optional, can someone list the differences between- Dissent, Protest, Agitation and Movement?
What is 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.
Issues with ongoing protest in Delhi
- The question as to the absolute nature of the right to protest is not even a question in the true sense here.
- We have seen the vandalism protest at Red Fort last year.
- Hence the rights mentioned above are subject to reasonable restrictions under 19 (2) and 19 (3) on grounds such as sovereignty and integrity of India, and public order.
Right to Protest in India
- The right to protest is the manifestation of three FRs:
- Right to Freedom of Assembly
- Right to Freedom of Association and
- 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.
In detail: Article 19(1)
It 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
Do you know?
Right to Internet is a fundamental right and is an essential part of freedom of speech and expression. One might get confused if it is an FR under Article 21.
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.
- Article 19(2) imposes reasonable restrictions on this.
- The court held it was entirely the responsibility of the administration to prevent encroachments in public spaces.
Conclusion
- 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.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Minority Rights in India
Mains level: Read the attached story
The right of an institution, whether run by a majority or minority community, to get government aid is not a fundamental right. Both have to equally follow the rules and conditions of the aid, the Supreme Court held in a judgment.
What is the case about?
- The judgment came in an appeal filed by Uttar Pradesh against a decision of the Allahabad High Court to declare a provision of the Intermediate Education Act of 1921 unconstitutional.
Key takeaways from the Judgment
- The SC has clarified that if the government made a policy call to withdraw aid, an institution cannot question the decision as a “matter of right”.
- Whether it is an institution run by the majority or the minority, all conditions that have relevance to the proper utilisation of the grant-in-aid by an educational institution can be imposed.
- All that Article 30(2) states is that on the ground that an institution is under the management of a minority, whether based on religion or language.
- The grant of aid to that educational institution cannot be discriminated against, if other educational institutions are entitled to receive aid.
Basis of the Judgment
- A grant of government aid comes with accompanying conditions.
- An institution is free to choose to accept the grant with the conditions or go its own way.
- If an institution does not want to accept and comply with the conditions accompanying such aid, it is well open to it to decline the grant and move in its own way.
- On the contrary, an institution can never be allowed to say that the grant of aid should be on its own terms, the Bench observed.
Various grounds discussed
The court explained why institutions cannot view government aid as a “matter of right”.
- Government aid is a policy decision: It depends on various factors including the interests of the institution itself and the ability of the government to understand the exercise. Therefore, even in a case where a policy decision is made to withdraw the aid, an institution cannot question it as a matter of right.
- Financial constraints and deficiencies: These are the factors which are considered relevant in taking any decision qua aid, including both the decision to grant aid and the manner of disbursement of an aid.
- Not arbitrary decision: The bench said that a policy decision is presumed to be in public interest, and such a decision once made is not amenable to challenge, until and unless there is manifest or extreme arbitrariness, a Constitutional court is expected to keep its hands off.
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Back2Basics: Minority Rights in India
- Article 15: prohibits discrimination on grounds of religion race cast sex or place of birth
- Article 17: prohibits untouchability
- Article 25 provides the right to practice any religion.
- Article 26 allows religious institutions to be opened.
- Article 27 provides that no person shall be forced to pay any taxes which is not mandatory.
- Article 28 provides that there shall be no religious instruction to be followed in any particular educational institutions.
- Article 29 provides that no citizen shall be denied admission in any educational institution on grounds of religion race caste.
- Article 30 provides that minority shall not be prohibited from any educational institutions.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Vishnuonyx neptuni
Mains level: NA
Between 12.5 million and 14 million years ago, members of a genus of otters called Vishnuonyx lived in the major rivers of southern Asia.
Vishnuonyx neptuni
- Vishnuonyx were mid-sized predators that weighed, on average, 10-15 kg.
- Before this, the genus was known only in Asia and Africa (recent findings show that Vishnuonyx reached East Africa about 12 million years ago, according to the release).
- Vishnuonyx depended on water and could not travel long distances over land.
Why in news?
- German researchers have discovered the fossil of a previously unknown species, which they have named Vishnuonyx neptuni, meaning ‘Neptune’s Vishnu’.
- Fossils of these now extinct otters were first discovered in sediments found in the foothills of the Himalayas.
- Now, a newly found fossil indicates it had travelled as far as Germany. ‘
- The dispersal of Vishnuonyx otters from the Indian subcontinent to Africa and Europe about 13 million years ago. ‘
- This is the first discovery of any member of the Vishnuonyx genus in Europe; it is also its most northern and western record till date.
How did it travel as far as Europe?
- According to the researchers, its travels over 6,000 km were probably made possible by the geography of 12 million years ago, when the Alps were recently formed.
- These Alps and the Iranian Elbrus Mountains were separated by a large ocean basin, which would have made it easier for the otters to cross it.
- Researchers believe ‘Neptune’s Vishnu’ first reached southern Germany, followed by Ancient Guenz and eventually, the Hammerschmiede.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Not much
Mains level: Indianization of Judiciary
Chief Justice of India NV Ramana has asserted the need for the “Indianisation of our legal system”, pointing out that the colonial system being followed currently may not be best suited to the complexities of India.
Prospects of Indianization by CJI
- CJI meant that the need to adapt to the practical realities of our society and localize our justice delivery systems.
- For example, parties from a rural place fighting a family dispute are usually made to feel out of place in the court.
- They do not understand the arguments or pleadings which are mostly in English, a language alien to them.
- These days judgments have become lengthy, which further complicates the position of litigants.
- For the parties to understand the implications of a judgment, they are forced to spend more money.
- For whom do the court’s function, the CJI asked. For the litigants, who are the “justice seekers”. They are the ultimate beneficiaries.
What did CJI say?
- CJI has said the ordinary Indian feels out of place in our courts where proceedings are lengthy, expensive and in English.
- Besides, judgments are either too long or technical or manage to be both.
- It is time for courts to wake up from their colonial stupor and face the practical realities of Indian society.
- Rules and procedures of justice delivery should be made simple.
- The ordinary, poor and rural Indian should not be scared of judges or the courts.
Reasons for Indianization
- Multiple barriers continue to thwart the citizen’s way to the courts.
- The working and the style of courts do not sit well with the complexities of India.
- The systems, practices and rules of courts are foreign and sourced from our colonial days. They do not take care of the practical realities of India.
Major suggestions by CJI:
(A) Simplification
- The simplification of justice delivery should be our pressing concern.
- It is crucial to make justice delivery more transparent, accessible and effective.
- Procedural barriers often undermine access to justice.
- The Chief Justice said both judges and lawyers have to create an environment which is comforting for the litigants and other stakeholders.
(B) Alternate dispute mechanisms
- The CJI said alternate dispute mechanisms like mediation and conciliation would go a long way in reducing pendency, unnecessary litigation and save resources.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: National Emergency
Mains level: Important judgments
The 1975 verdict of Justice Jagmohanlal Sinha of the Allahabad high court, disqualifying then PM Indira Gandhi on charges of electoral malpractices was a judgment of “great courage” that “shook” the nation, said CJI in his speech.
What was the case?
- It all started with the 1971 Lok Sabha elections, where the Congress (R), which was the newly formed faction of the Congress party floated by Indira Gandhi after her expulsion from the party in 1969, won a landslide victory securing 352 out of the 518 seats in the lower house.
- An election petition was filed directly before a High Court challenging the election of Indira Gandhi.
What is an Election Petition?
- Election Petition has to be filed within 45 days from the date of declaration of the election results.
- The Representation of People (RP) Act of 1951 lists out the grounds on which the election of a candidate can be called into question.
- Section 123 of the RP Act lists certain corrupt practices which, if proved successful, can be grounds to declare the election of a candidate void.
- While hearing an election petition, the High Court being the court of first instance, exercises powers similar to a trial court.
- Thus, there is cross-examination of witnesses and detailed examination of evidence which is normally employed in trial courts and not High Courts.
Findings against Gandhi
- Use of government machinery to set up stage, loudspeakers
- Use of gazetted officer as an election agent
A case that led to the promulgation of National Emergency
The verdict is widely believed to have led to the imposition of Emergency on June 25, 1975.
- A vacation bench of the Supreme Court allowed a partial stay of the judgment after Gandhi had appealed against the High Court verdict.
- Then Justice VR Krishna Iyer, said that she could continue as Member of Parliament (MP) in the Lok Sabha and could attend the House, but could not participate in its proceedings or vote as MP.
- She also could not draw any remuneration as an MP.
- Importantly, the apex court allowed her to continue as Prime Minister and allowed her to speak and participate in the proceedings of the House and to draw salary in her capacity as Prime Minister.
- The order by the apex court, while not completely against Gandhi, did not satisfy her.
- She wanted a blanket stay on the Allahabad High Court judgment.
- Since the Supreme Court did not grant her that, National Emergency was proclaimed the very next day, June 25.
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Back2Basics: National Emergency
- The Constitution employs the expression ‘proclamation of emergency’ to denote National Emergency under Article 352.
- Under Article 352, the president can declare a national emergency when the security of India or a part of it is threatened by war or external aggression or armed rebellion.
- The President can declare a national emergency even before the actual occurrence of war or armed rebellion or external aggression
- When a national emergency is declared on the grounds of ‘war’ or ‘external aggression’, it is known as ‘External Emergency’.
- On the other hand, when it is declared on the grounds of ‘armed rebellion’, it is known as ‘Internal Emergency’.
- The term ‘armed rebellion is inserted from the 44th amendment. Before this term, it was known as an internal disturbance.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Article 21
Mains level: Right to be Forgotten
The Delhi High Court upheld the view that the “Right to Privacy” includes the “Right to be Forgotten” and the “Right to be Left Alone”.
Right to be Forgotten in India
- The Right to be Forgotten falls under the purview of an individual’s right to privacy, which is governed by the Personal Data Protection Bill that is yet to be passed by Parliament.
- In 2017, the Right to Privacy was declared a fundamental right by the Supreme Court in its landmark verdict.
- The court said at the time that “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution”.
What was the recent case?
- The TV celebrity had moved Delhi High Court with the plea that orders be issued to Google and relevant entities to facilitate the removal of posts, videos, articles and any information related to incidents that he was involved.
- His plea cited that his presence on the internet is a source of “utmost psychological pain” to him.
Legal issues
- India does not have a law yet on right to be forgotten.
- In the meantime, the Information Technology Rules, 2011 — which is the current regime governing digital data — does not have any provisions relating to the right to be forgotten.
- The Personal Data Protection (PDP) Bill was tabled in Parliament in 2019 and is being examined by a Joint Parliamentary Committee (JPC).
Key features of PDP Bill
- Personal Data: Section 20 of the PDP Bill says that a ‘data principal’ — or the person who generates the data or to whom the information pertains — can rightfully ask a ‘data fiduciary’, which is any entity that stores or processes such data, to “restrict or prevent the continuing disclosure of his personal data” in specific circumstances.
- Purpose of data: To seek the erasure of data, it is necessary to establish that it “has served the purpose for which it was collected or is no longer necessary for the purpose; was made with the consent of the data principal.
- Right to be forgotten: The Bill says that the right to be forgotten can be enforced only on an order of an adjudicating officer following an application filed by the data principal.
- Contravention with Free Speech: However, the decision on whether the right to be forgotten can be granted with respect to any data will depend on whether it contravenes “the right to freedom of speech and expression and the right to information of any other citizen”.
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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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Note4Students
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.
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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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