Paper 2 Indian Constitution and Policy for CSE Main 2018 from September 2017 to June 2018

Transcription

1 from September 2017 to June Sl. No. Contents 331. Impact of Parliamentary logjam 332. Supreme Court s cancellation of an Election Commission Order on disqualification of 20 MLA of Delhi Assembly 333. Issues involved in Karnataka Government s recognition of Lingayats as a religious minority group The judicial power to review the decision of a Speaker is Article Power to decide on appointments, transfers and postings of judges 336. Appointment of an Indian Judge in the International Court of Justice 337. Status of Delhi as a State 338. Constitutional Bench declares Right to privacy as a Fundamental Right 339. Matter of referring of Bills to Standing or Select Committees 340. Legal Information Management and Briefing System (LIMBS) 341. How the collegium system works: 342. At a glance graphic on Law Commission s Report on simultaneous elections 343. On challenging the contents of Parliamentary reports 344. Indian Arbitration Council established to replace International Centre for Alternative Dispute Resolution 345. Repealing of obsolete laws 346. Judicial intervention on Caste Violence in April 347. Judicial Reforms suggested by the President of India 348. Removal of a Supreme Court Judge 349. Article 2 on Issues in appointment of Justice K. M. Joseph to the Supreme Court of India adapted for main points 10 x10 Learning TM Page 1

2 from September 2017 to June 331. Impact of Parliamentary Logjam: A non-functional legislature paves the way for the executive and judiciary to arrogate powers. Democracy is about discussion, debate, disagreement, agreeing to disagree, argument and working together to find solutions to existing problems. Disrupting parliament repeatedly as a set pattern achieves nothing. It erodes public trust in Parliament. It disrupts law making and governance. More importantly, it undermines the delicate system of checks and balance essential for a functioning democracy. a) The Budget of was passed by the Lok Sabha without any discussion. The vote was drowned out by the angry voices of MPs. This is deplorable and undermines representative democracy. b) Democracy is about discussion and engagement. Protest, or the act of expressing objection or dissatisfaction, is central to democracies. However, protest cannot become an end in itself. Members must question, object and suggest alternative courses of action, but they must do so through reasoned and persuasive argument. c) The government has said that it is ready to discuss all issues and some opposition parties have given notices for discussions on specific issues. Despite this, instead of allowing for regular order business, some members, notably from the opposition, prefer to disrupt the smooth functioning of the House. d) As the legislative arm, Parliament is central to ensuring that laws and policies reflect the will and interest of the people. It is the institution that provides elected representatives a forum to safeguard the interests and wellbeing of all constituents. e) The rules that define conduct of business in Parliament matter because these enable productive conduct. The onus of ensuring that Parliament functions and delivers for the people lies with each and every member. The Opposition could say the current ruling party had been similarly 10 x10 Learning TM Page 2

3 from September 2017 to June obstructive in the past, when in the Opposition. But so what? The conduct was wrong then, it is wrong now Supreme Court s cancellation of an Election Commission Order on disqualification of 20 MLA of Delhi Assembly: EC is a constitutional body charged with the responsibility of administering elections in our fractious democracy. It is a trusted institution that has made efforts to make elections impartial and fair. In part due to EC s initiatives such as the introduction of EVMs, malpractices like ballot-box stuffing have been phased out and election verdicts truly represent the electorate s mandate. Such innovations are often criticised by the losing political parties. One of the reasons the charges fail to stick is that EC has, through its conduct, come to be seen as an impartial referee. It is a key institution in the smooth functioning of Indian democracy. The criticism of EC was not about an arcane legal technicality. Its decision to disqualify AAP legislators was set aside because it failed to give them an adequate opportunity to defend their case. It s important for EC to 10 x10 Learning TM Page 3

4 from September 2017 to June not just be fair but also be perceived to be fair. This aspect is critical because it is directly linked to the credibility of Indian democracy Recognising a religious group as separate from Hinduism: The Karnataka government has recognised the religion of Lingayats as entirely separate from Hinduism. The issue is likely to escalate into a major religious and political controversy for several reasons. Protecting public rights of religious communities is an intensely political issue. BJP, the largest constituent of the ruling NDA, believes in an all-pervasive Hinduism that seeks to enfold all dissenting sects. a) The Indian Constitution grants minority religious groups the right to establish and administer educational institutions. These enjoy special immunities, such as exemption from reservation rules. When the religious minority status is granted, these educational institutions will qualify for an elevated legal status. The Lingayat demand is not new. b) The Constituent Assembly debated about whether they deserve a minority religion status. The appeal was not granted largely for the reason that there was some ambiguity about what exactly constitutes the core practices of the Lingayats as distinct from Hinduism. How to distinguish Lingayats from Veerashaivas was the operative question. c) It has since been claimed that Lingayats are distinguished by their rejection of classical Hindu or Sanatana Dharma texts such as the Vedas, Smritis, Sastras or Upanishads, the caste system, the doctrine of karma and the concept of paap-punya or heaven and hell and of temple and idol worship. All of these are reportedly accepted by the Veerashaivas. d) Lingayats are not claiming merely a religion but a religious minority status that brings in its wake a range of constitutional rights and entitlements. The National Minorities Commission is tasked with safeguarding them, but there seem to be no clear 10 x10 Learning TM Page 4

5 from September 2017 to June guidelines before it on how to rule on what distinct grounds constitute a new religion. e) If rejection of caste system and idol worship are the qualifications for a separate religious status, then hundreds of sects will be keen to claim a separate religious status. The temptation of special entitlements in running educational institutions may encourage many religious institutions The judicial power to review the decision of a Speaker is Article 212 of the Constitution: Article 212 is intended to protect the legislature and the officers of the legislature, when attacked on the ground of irregularity of procedure. The Article would not offer a shield when what is at stake is action, which is in violation of constitutional guarantees or of mandatory provisions of a statute. The courts have laid down four parameters for weighing the judicial competence to review the decision of the Speaker. These are: perversity, non-compliance with principles of natural justice, mala fides and violation of Constitutional mandate. 10 x10 Learning TM Page 5

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7 from September 2017 to June 335. Power to decide on appointments, transfers and postings of judges: 336. Appointment of an Indian Judge in the International Court of Justice : UN General Assembly and UN Security Council convened independently in New York on November 20, 2017, to fill the fifth vacancy for the term. The UN Security Council and the General Assembly voted overwhelmingly in support of India. Judge Dalveer Bhandari received all 15 votes in the UN Security Council and 183 out of the 193 votes in the UN General Assembly Status of Delhi as a State: The National Capital Territory of Delhi was never intended to be a state and cannot claim the status of a state through a judicial order. Nor does the NCT government enjoy any exclusive, untrammeled vertical powers, Parliament in its wisdom has not conferred the status of a state on the NCT of Delhi. They cannot demand such a 10 x10 Learning TM Page 7

8 from September 2017 to June status through a judicial interpretation. Both the text of the law and the context of the law, no special status was intended. Delhi is under continuous control of the President in all its affairs, he said. Any other interpretation would be doing violence to the Constitution. Delhi has to remain a union territory to deal with the concerns of the common man while the central government retains overall control, through the President, he said Right to privacy as a Fundamental Right i : A nine judges Constitutional Bench of the Supreme Court has affirmed that the Right to privacy constitutes a Fundamental Right. It draws colour from the Right to life and liberty under Article 21 and many other freedoms guaranteed under Part III of the Constitution. Five separate judgments delivered by the bench converged on all these points. a) Impact: This verdict will have many implications for negative freedoms that involve protection from intrusions into personal space and personality; and positive freedoms for which there is obligation on the state to adopt protective measures. b) While enforceability against the state is obvious, privacy threats also emanate from non-state actors in the digital age. c) It is therefore the duty of the state to bring about legislative interventions for such situations. The data protection law promised by the government is one obvious step in this direction. d) Three immediate implications of the verdict are: 1. First, is review of Supreme Court s last judgement on Section 377 of the Indian Penal Code, as recognising sexual orientation is an integral element of privacy. 2. The second implication will be on the pending challenges to Aadhaar. That bench will now assess whether Aadhaar's framework satisfies the tests of legality, legitimate state aim, and proportionality (rational nexus between the objects and means of interference) specified in justice Chandrachud's 10 x10 Learning TM Page 8

9 from September 2017 to June judgment. Justice Kaul adds to this a fourth element of assessing the procedural guarantees against the abuse of any interference, while Justice Chelameswar notes that the exacting standard of compelling state interest should be used only in privacy claims which deserve the strictest scrutiny. 3. The judges make two pertinent observations. One is the suggestion that programmes to provide benefits and prevent the diversion of resources could be legitimate grounds for collection and storage of data. Two, they clarify that any such data has to be utilised for legitimate purposes of the state and ought not to be utilised unauthorizedly for extraneous purposes. This is bound to shape future arguments in the Aadhaar case. 4. A third key implication will be seen on the pending Facebook-WhatsApp case. That matter relates to the privacy and data-sharing policies of WhatsApp and the effectiveness of the consent given by consumers while signing up for such services. 5. The pace of the government's decision making process (a privacy and data protection bill has been in circulation since 2011) and the court's hearing schedule will determine whether the issue will be resolved through a legislation or guidelines from the court, similar to the Vishaka guidelines on sexual harassment. 6. Any data protection law would focus primarily on issues of informational privacy. Other possible intrusions into privacy could, however, be as varied as the categories of privacy itself. For instance, the extensive use body scanning machines at security checks can intrude on physical privacy; technologies like drones and cell signal triangulation can be used to violate spatial privacy, and so on. 10 x10 Learning TM Page 9

10 from September 2017 to June 7. The SC recognises technological change has given rise to concerns that were not present seven decades ago. Accordingly, the key takeaway is that as technology evolves, the scope of the right to privacy and legislative protections against new intrusions will also have to keep progressing Referring of Bills to Standing or Select Committees: The government has taken advantage of its majority in the Lok Sabha to get most bills passed without sending them to a standing committee. The Opposition, in the Rajya Sabha, has forced most bills to be referred to either a joint or standing committee with members from both Houses or a select committee of the Upper House. In fact, the Opposition has managed to refer some bills to select committees of the Rajya Sabha even after scrutiny by a standing committee; one example being the Motor Vehicles (Amendment) Bill, The Opposition also wanted to send the Muslim Women (Protection of Rights on Marriage) Bill, 2017, to a select committee of the Rajya Sabha, but the government did not agree Legal Information Management and Briefing System (LIMBS) is a Webbased online tool for monitoring court cases in a transparent and proactive manner. Currently it is open to lawyers only. Currently, LIMBS provides a standardised screen to capture basic information of court cases. The system provides information on court cases on a real-time basis to ministries and other involved. It sends SMS alerts to lawyers, other users and concerned officers about forthcoming court cases so that they don t go unnoticed. More than 7,700 users from 62 ministries and 208 government departments or organisations have uploaded over 2.15 lakh court cases (1.92 lakh live) in two years. Clubbing of government court cases is also on the anvil. 10 x10 Learning TM Page 10

11 from September 2017 to June 341. How the collegium system works ii : The system has its genesis in a series of judgements known as judges cases: : SP Gupta vs Union of India (called First Judges Case) Judges appointment proposal could come from any of constitutional functionaries mentioned in Art 217 and not necessarily from the CJI. The President is not duty-bound to follow their advice. Impact: Executive had upper hand in appointment of judges : Supreme Court Advocates-on-Record Association Vs Union of India, 1993 (second Judges Case) a) A nine-judge bench overruled the decision in the SP Gupta case and CJI accorded primacy. He had to consult two senior-most judges and had to take into account their opinion. Thus the collegium system came into being. b) This recommendation (by the collegium) should be given effect by the executive. Although the executive could ask the collegium to reconsider suggestion, it finally had to clear appointment if the collegium stuck to its earlier recommendations. Impact: CJI s opinion gets primacy, and a collegium system of appointment and transfer of judges in higher judiciary put into place Presidential reference made to SC over the meaning of the term consultation. Does it mean opinion of a number of judges or whether only the opinion of CJI could constitute consultation? (Third Judges case) a) Consultation clarified through nine guidelines. SC lays down that recommendation should be made by the CJI and four senior-most judges for SC appointments and two for HC appointments; even if two judges gave an adverse opinion, the CJI should not send the recommendation to the government. 10 x10 Learning TM Page 11

12 from September 2017 to June Impact: This is how collegium system function at present. Attempt to replace collegium: 4. Justice MN Venkatachaliah Commission (appointed by the previous NDA government) favoured a change in the collegium system. It prescribed a National Judicial Appointments Commission (NJAC) consisting of the CJI and two senior-most judges, the law minister, and an eminent person from the public, to be chosen by the president in consultation with the CJI. 5. In May 2015, a five-judge Constitution bench declared as unconstitutional the constitutional amendment that sought to create the NJAC. The bench admitted that all is not well even with the collegium system of judges appointing judges. It said it was time to improve the 21-year old system of judicial appointments 342. At a glance graphic on Law Commission s Report on simultaneous elections. 10 x10 Learning TM Page 12

13 from September 2017 to June 343. Challenging the contents of Parliamentary reports: The Supreme Court ruled unanimously that parliamentary reports can be used and relied upon in court, but their contents cannot be challenged because it would affect the privilege of elected members to speak their mind freely inside the House. Such reports are not conclusive but persuasive. Constitutional obligation persuades us to take the view that the Parliamentary Standing Committee Report or any Parliamentary Committee Report can be taken judicial notice of and regarded as admissible in evidence, but it can neither be impinged nor challenged Indian Arbitration Council is to be established as a flagship institution, to conduct international and domestic arbitration. The Council is to be headquartered in New Delhi, with branches in other places in the country will be declared as an institution of national importance. The Indian Arbitration Council will take over the undertakings of International Centre for Alternative Dispute Resolution. The International Centre for Alternative Dispute Resolution was set up in 1995 to promote alternative dispute resolution mechanism and providing facilities for the same. But it has not been able to actively engage and adopt developments in the arbitration ecosystem or create a reputation of excellence. A retired Supreme Court or High Court judge or an eminent person with special knowledge and experience in the conduct or administration of arbitration will chair the arbitration council. The person will be appointed by the central government in consultation with the Chief Justice of India. Other members of the council will include two eminent persons having substantial knowledge and experience in institutional arbitration, both domestic and international, nominated by the central government in consultation with the Chairperson Repealing of obsolete laws: The House passed two bills to repeal 245 obsolete and archaic laws, including the 158-year-old Calcutta Pilots Act of 1859 and the 1911 Prevention of Seditious Meeting Act. Union law minister Ravi Shankar Prasad said the old and many irrelevant pre- 10 x10 Learning TM Page 13

14 from September 2017 to June independence laws were the unfortunate part of the colonial legacy and repealing them was a progressive move that reflected the pro-reform approach of the government Judicial intervention on Caste Violence in April : A dalit employee had filed a case against him under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act for not allowing him to prosecute his immediate superior officers, whom he had primarily accused of committing a caste atrocity. The appellant was granted anticipatory bail, but he filed a case before the Bombay High Court to quash the proceedings. The high court had rejected his plea and, hence, he moved the Supreme Court. a) The Supreme Court went beyond a verdict to deal with the general misuse of the Act and to impose conditions. One such condition was requiring permission of the appointing authority before any arrest under the Act. It, thus, changed the rules integral to the law protecting this vulnerable group as passed by Parliament. b) The Supreme Court bench worried about the liberty of the accused and invoked Article 14 and 21, ignoring the constitutional exceptions of the special provisions in favour of SCs, STs and backward classes. The provisions vide Articles 15(4) and 16(4), among others, are unconstitutional. Nonetheless, if the Supreme Court finds a certain law contravening the Constitution, it can refer it back to the government for correction. The court itself cannot amend it Judicial Reforms suggested by the President of India iii : a) A few themes that dominate news on courts in India include the tussle between the judiciary and executive over appointments, activism by the higher judiciary, and the mounting backlog of cases. More urgent and systemic issues that affect the ordinary citizen seeking justice are often sidelined. b) President Ram Nath Kovind, in an insightful address while inaugurating the National Law Day celebrations in, focusdc 10 x10 Learning TM Page 14

15 from September 2017 to June public attention on several such issues of which two substantive issues raised by him 1. the culture of seeking adjournments, and 2. the lack of attention paid to the lower judiciary c) His underlying message is potentially course-correcting: that the judiciary can no longer expect respect from the people by evoking awe and fear. Like other institutions of democracy, it would have to earn its respect through performance. d) A paradox in Indian litigation culture is that the poor shy away from legal battles due to their duration and cost, and the well-off often using litigation as a way to delay the resolution of disputes. Both of these occur because of the frequency with which adjournments are asked for by lawyers, and granted by courts. If the justice system is to work for the ordinary Indian, mindsets in the legal fraternity that tolerate generous adjournments need to change. e) A Vidhi Centre for Legal Policy study, Inefficiency and Judicial Delay: New Insights from the Delhi High Court (goo.gl/rke59l), published earlier this year, found that counsel sought adjournments in more than 91% of cases in the data set filed in that were over two years old. f) While the Code of Civil Procedure limits adjournments to three per case, the Delhi High Court granted more than three adjournments in nearly 70% of cases. g) The address also turned public attention from the Supreme Court to the subordinate courts that are much neglected by the media. He particularly pointed to the need to build capacity of judges in lower courts and enhance trust in their judgements. h) The quality of lower court judgements is viewed suspiciously by the higher judiciary. However, the only remedy so far has been a growing acceptance of appeals by the high courts and Supreme 10 x10 Learning TM Page 15

16 from September 2017 to June Court, leading to an acute pendency problem. More structural solutions regarding lower courts are, thus, needed. i) To do this, issues facing the lower courts must be analysed in far greater depth by policymakers. Another recent Vidhi report, Ranking Lower Court Appointments, found that the average timeline for recruitment of judges in most states far exceeds the timeline set by the Supreme Court, with a three-tier exam process for district judge and civil judge (junior) posts taking almost a year on average in different states. This is an unpardonably inefficient process that demotivates quality applications. j) Second, career growth prospects of lower court judges need to be created. Currently, more than half of high court judges are recruited from the bar, lowering the chances of progression for career judges. k) These dim career prospects are insufficient to attract talent to the lower judiciary that may feed the higher judiciary s tendency to appoint a greater number of its own from the bar. Therefore, capacity -building of lower court judges in the form of continuing legal education is essential. l) The President appeared to be subtly challenging the dominant mindset in the higher echelons of the legal fraternity that popular respect for courts will remain high, even if difficult questions of integrity, efficiency and accountability are glossed over. By saying that public life is today a glass house. There is a relentless demand for transparency and scrutiny. m) Our legal fraternity needs to be mindful of these legitimate urges of the people, the ultimate masters in a democracy, President Kovind firmly reminded the Bar and the Bench that they cannot shy away from higher scrutiny and accountability, that are the hallmarks of today s information age. 10 x10 Learning TM Page 16

17 from September 2017 to June 348. Removal of a Supreme Court Judge: Article 124(4) of the Constitution provided that a Supreme Court judge could be removed from his office by a presidential order, after an address by each house of Parliament, supported by a special majority, on the ground of proved mis behaviour or incapacity. a) By shifting the decision-making power from a judicial body to a political one, it would appear that the framers of the Constitution sought to make removal of judges a purely political act. It was not the intention to exclude judicial consideration. b) Reference to proved misbehaviour or incapacity was retained. Article 124(5) further clarified that Parliament could regulate the procedure for the investigation or proof of the alleged misbehaviour or incapacity of a sitting judge. c) Parliament framed the Judges (Inquiry) Act, 1968, which contemplated a detailed procedure for investigation and proof of misbehaviour or incapacity of a sitting judge. The Act required a motion, signed by at least 50 members of Rajya Sabha or 100 members of Lok Sabha, to be submitted to the chairman or Speaker, who after consulting people as he thought fit and considering the material before them, could admit or refuse to admit the motion. d) If admitted, a committee comprising three members, a Supreme Court judge, a chief justice of a high court, and a distinguished jurist, would investigate the charges and submit its report to Parliament. e) If the report found the judge to be guilty, then the motion would be taken up for consideration and put to vote by each House of Parliament. f) The Supreme Court has categorically ruled that the chairman is not bound to admit the motion as a matter of course. This presupposes the chairman s discretionary power. g) Is this discretionary power subject to the courts scrutiny? The answer to this would be influenced by whether the exercise of placing a motion before the chairman, and his decision, is part of the political process excluding any judicial review, or not. 10 x10 Learning TM Page 17

18 from September 2017 to June h) In one of the earliest cases concerning the removal of a sitting judge, the Supreme Court, in the Sub-Committee of Judicial Accountability (SCJA) case, noted that the entire process, from the admission of a motion until the conclusion of the inquiry by the committee, is governed by the Act and subject to judicial review. i) Only after the committee makes a finding that the misbehaviour or incapacity is proved that the parliamentary process commences, excluding judicial review by the courts Article 2 on Issues in appointment of Justice K. M. Joseph to the Supreme Court of India Adapted for main issues for purpose of competitive exams iv The matter of the appointment of Justice K M Joseph to the Supreme Court has become a critical issue that will test the independence of the Indian Judiciary. a) The collegium had recommended his name on January 10,. Government of India, as the Executive, has blocked his name and requested the Supreme Court to reconsider on the following grounds that such an appointment is contrary to the law laid down for the Supreme Court. Justice Joseph is a reputable judge, having put in almost four years as a chief justice. b) April 26, asking the Supreme Court to reconsider, because Kerala, is adequately represented in the apex court. It also stated that a judge from the scheduled caste-scheduled tribe (SC-ST) community needed to be appointed, and that Joseph s all India seniority rank is 42. Implicit in this explanation was that he would otherwise be a worthy appointment. c) The reasons stated by Prasad are factors to be taken into account, not reasons for non-appointment. This would be abundantly clear from a cumulative reading of the Supreme Court judgment of 1982, 1993, 1998 (a presidential reference) and For our present purposes, the 1998 reference judgment is important. 10 x10 Learning TM Page 18

19 from September 2017 to June 1. Regarding the opinion that Joseph is not senior enough. Can junior puisne judges (not chief justices) of a high court be appointed to the Supreme Court? From 1947 to 1992, high court puisne judges to the federal court or Supreme Court were almost 50% of the appointments to the apex court. Later, this dipped when in 1993, the Supreme Court s Appointments Judgment made the apex court the initiator and ultimate arbiter on high court and Supreme Court appointments. But even after 1993, puisne high court judges were appointed on merit. 2. The presidential reference of 1998 states that it is for judges of the collegium to judge the comparative worth based on best information, irrespective of whether the prospective appointee s high court has been transferred to the high court as puisne judges or Chief Justice. The tests of merit and outstanding merit can only be judged by the collegium. And merit is the predominant consideration, not the government. 3. There is no doubt that inter se seniority in the high court or all India seniority has to be given due weight as a factor to be considered. The law minister s argument that the 41 before Joseph in all India seniority will have priority over him is absurd. Even now, there are judges of less seniority than others who were appointed by this government. 4. As for Kerala being over-represented, Justice Kurian Joseph will be retiring soon. More than one judge have come from some states, and then none from some. At present, there are two judges from Karnataka. One ex-cji recalls the emphasis on region, and not necessarily state. 5. The argument to make an SC-ST appointment is once again a factor, after merit has been considered. Judges have been appointed on merit and background. It is nobody s case that SC-STs and OBCs be excluded. But soon there will be over six vacancies in the Supreme Court. 10 x10 Learning TM Page 19

20 from September 2017 to June 6. Executive cannot dictate who should be appointed as a judge. That would be the death of the Constitution and of the rule of law. To point to Congress s mistakes in pursuing the matter, is now irrelevant. The independence of the judiciary cannot be bargained by GoI, which has been, on all counts, wrong on facts and law. i Adapted from By Invite - A Phenomenal Verdict & its Effects by SMRITI PARSHEERA Aug : The Economic Times (Delhi) ii Source: Various web sites. The Economic Times Delhi edition January iii Look at the Law from Below by Arghya Sengupta and Nitika Khaitan in the The Economic Times Delhi edition iv The Economic Times Delhi edition 09 May Article by Senior Advocate entitled Justice K. M. Joseph Hazir Ho! 10 x10 Learning TM Page 20