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- “The News”: This covers the central idea/news which is the subject of our study. This can be the occurrence of a certain event such as the launch of a new Government Scheme, the passage of a particular Act of Parliament, the commencement of an international dialogue, observations made by the Courts of our country, etc.
- “Larger Background”: The talks about the broader context of the issue, taking into consideration specific points that may have been featured in previous editions of The Hindu. The thought process behind including this section is to give a ‘storyline’ approach to an aspirant when he/she goes through this topic.
- “Editorial Analysis”: This particular section gives an insight towards the specific points covered in the specific editorial/opinion section that is the subject of our study.
- “The Way Forward/Concluding Remarks”: This sections gives aspirants concluding points that are taken from the article in question as well as some forwarding looking points taken from other articles, as and when required.
The important aspect to note here is that the issue being discussed in the news assumes priority over just the article. Thus, such a coverage of an editorial would give aspirants a broader, more comprehensive view of the topic.
- The News:
- In a recent judgement by the Supreme Court of India, four out of five judges on a Constitution Bench ruled that the law enabling the implementation of the unique identification programme (Aadhar) does not violate the right to privacy of citizens.
- The Supreme Court upheld the constitutional validity of Aadhaar and clarified areas in which it cannot be made mandatory.
- The court is of the view that the project empowers marginalised sections and procures dignity for them along with services, benefits and subsidies by leveraging the power of technology.
- Larger Background:
- It is important to note that the Aadhaar Act was passed as a money bill.
- The Speaker of the Lok Sabha had classified this bill as a money bill.
What is a Money Bill?
- A Bill is said to be a Money Bill if it only contains provisions related to
- borrowing of money by the government,
- expenditure from or receipt to the Consolidated Fund of India. Bills that only contain provisions that are incidental to these matters would also be regarded as Money Bills.
- A Money Bill may only be introduced in Lok Sabha. This is done so on the recommendation of the President.
- It must be passed in Lok Sabha by a simple majority of all members present and voting. Following this, it may be sent to the Rajya Sabha for its recommendations, which Lok Sabha may reject if it chooses to.
- If such recommendations are not given within 14 days, it will deemed to be passed by Parliament.
What is a Financial Bill?
- A Bill that contains some provisions related to taxation and expenditure, and additionally contains provisions related to any other matter is called a Financial Bill. Therefore, if a Bill merely involves expenditure by the government, and addresses other issues, it will be a financial bill.
- A Financial Bill may only be introduced in Lok Sabha, on the recommendation of the President. The Bill must be passed by both Houses of Parliament, after the President has recommended that it be taken up for consideration in each House.
- It is important to note that the Rajya Sabha has no power to reject or amend a Money Bill. However, a Financial Bill must be passed by both Houses of Parliament.
- The Speaker certifies a Bill as a Money Bill, and the Speaker’s decision is final.
- In recent times, the unique identification programme was projected by sceptics, detractors and activists as an intrusion on citizens’ privacy.
- Many sceptics were of the opinion that the Aadhar was a grand project to appropriate personal data for commercial exploitation by private parties and profiling by the state.
- Last year, 2017, a nine-judge Bench had unanimously ruled that privacy is a fundamental right.
- Ever since this decision by the Supreme Court, opinion began to spread that the unique identification programme was vulnerable in the face of judicial scrutiny.
- On studying this judgement, one draws the conclusion that the Supreme Court has restored the original intent of the programme, which is to plug leakages in subsidy schemes and to have better targeting of welfare benefits.
- Over the past few years, the Aadhaar came to play a large role in the lives of ordinary people.
- The Aadhaar has acquired the shape of a basic identity document that was required to access services, such as:
a) birth and death certificates,
- b) SIM cards,
- c) school admissions,
- d) property registrations and
e) vehicle purchases.
- The recent judgment of the Supreme Court narrows the scope of Aadhaar but provides a framework within which it can work.
- This judgement has two views,
a) The majority opinion
- b) The dissenting opinion/judgement
The majority opinion:
- The majority opinion has sought to limit the import of the scheme to aspects directly related to welfare benefits, subsidies and money spent from the Consolidated Fund of India.
- Relying on official statistics, the majority favoured the scheme’s continuance for the sake of the 99.76% of people included under the scheme, rather than show anxiety over the 0.24% who were excluded because of authentication failure.
- The Bench made an important statement by saying that “The remedy is to plug the loopholes rather than axe the project,”.
A few implications of the majority opinion:
- The various controversial circulars and rules making it mandatory to
link mobile phone numbers and bank accounts to Aadhaar numbers have been declared unconstitutional.
- Further, Section 57 of the Aadhaar (Targeted Delivery Of Financial And Other Subsidies, Benefits And Services) Act, 2016, has been struck down to the extent that it authorised body corporates and individuals to use the Aadhaar number to establish someone’s identity.
- Schools have been barred from making the submission of the Aadhaar number mandatory to enrol children.
- A few other provisions have also been read down or clarified.
- Justice DY Chandrachud in his dissenting judgement said that the “Aadhaar allows constructing profiles of individuals, which is against the right to privacy and enables potential surveillance,”.
- Justice Chandrachud said: “Bypassing Rajya Sabha to pass Aadhaar Act amounts to subterfuge and the law can be struck down.”
- He further observed that the Aadhaar cannot be treated as money bill and passing a bill as money bill which is not a money bill is a fraud on the Constitution,”.
- Justice Chandrachud said if Aadhaar is seeded with every database then there is chance of infringement of right to privacy. He said there was absence of regulatory mechanism to provide robust data protection.
- He went on to add that allowing private players to use Aadhaar will lead to profiling which could be used to ascertain political views of citizens.
- Having said this, he agreed with the majority decision that mobile companies cannot insist on Aadhaar.
- He also highlighted that biometric authentication failures have led to denial of rights and legal entitlements. He sighted the reason for such failures in the project’s inability to account for and remedy flaws in its network and design.
- It is important to note that while a dissenting judgement has no force of law, it leaves open the possibility of being referred to a larger bench at a later stage.
- He further ruled that the denial of benefits arising out of any social security rights is “violative of human dignity and impermissible under our constitutional scheme”.
- He also observed that there was no institutional responsibility of the UIDAI to protect the data of citizens.
III. Editorial Analysis:
- Although the Honourable Supreme Court of India had observed that the Right to Privacy would be now recognized as a Fundamental Right under Part III of the Constitution of India.
- This was observed under the K.S. Puttaswamy v. Union of India (2017) case.
- But the nine-judge Bench had left open the question of Aadhaar.
- Crucially, the point before the Court was whether the “national security” perspective and “social welfare state” perspective provided constitutional grounds for “reasonable restrictions” (reasonable because non-arbitrary).
Here, “national security” perspective refers to the vital role of surveillance to curb terror and prevent money laundering and crime financing.
Social welfare state” perspective refers to how Aadhaar ensured that subsidies went to the right people.
The issue of contention: Passing the Aadhar as a Money Bill:
- From this issue, one thing that has emerged is the question of finality of the Speaker’s decision on what amounts to a Money Bill under Article 110(3) of the Constitution.
- There are two competing views that emerge here. These are:
1) An Expansionist View
2) A Contractionist View
- The Expansionist view, while acknowledging the high constitutional status of the Speaker, suggests that any bill which involves recourse to Consolidated Fund of India is a Money Bill, and the charge levelled is that the finality of the Speaker’s decision is virtually unchallengeable.
- The Contractionist view suggests that just like all constitutional functionaries, the Speaker is bound to exercise the discretion reasonably;
- The fact that increasingly one observes that a large number of bills are being tagged as Money Bills sets a dangerous precedent because it removes the rationale for bicameral legislatures.
- From a critical standpoint, Justice Chandrachud fully dissents and holds the law invalid as a “fraud on the Constitution”, asserting that it is a colourable exercise of constitutional power.
- Importantly, Justice Chandrachud holds that the decision to give the Aadhaar Bill the status of a Money Bill violates the principle of bicameralism and an aspect of federalism. It is important to note that the principle of bicameralism is declared as a part of the basic structure of the Constitution of India.
- The assassination of Rajiv Gandhi, former Prime Minister of India, occurred as a result of a suicide bombing in Sriperumbudur, near Chennai, in Tamil Nadu, India on 21st May, 1991.
The points mentioned here, agree with the argument that the convicts should be released.
- This view asserts that any further delay in ordering the release of the seven convicts in the Rajiv Gandhi assassination case will run the risk of the state falling foul of Article 14 of the Constitution which says that it “shall not deny to any person equality before the law or the equal protection of the laws”.
- It is important to note that many prisoners who have been convicted of similar crimes have had their sentences pardoned under Article 161.
- Further, it is important to note that the legal history of these prisoners has endured twists and turns. The mercy petitions of these prisoners were kept undecided for 11 years, between 2000 and 2011, by the highest constitutional offices.
- In August 2011, the Tamil Nadu Legislative Assembly adopted a resolution recommending commutation of their death sentences.
- In the Union of India v. V. Sriharan (2015) case, the Supreme Court of India eventually commuted the death sentences to rigorous imprisonment for the remainder of their lives.
- This action taken by the Supreme Court of India provided a glimmer of hope for further commutation of sentences under Section 435 of the Code of Criminal Procedure (CrPC).
- It is crucial to note that the division of powers places “public order” under Entry 1 of List II (which is the State List) of the Seventh Schedule of the Constitution of India.
- As a consequence to this, the matter must lie within the exclusive remit of the State government.
- It is important to also note that the commutation of sentence vide V. Sriharan v. Union of India (2014) automatically brings the Tamil Nadu Prison Rules into play.
- Rule 341 of the Tamil Nadu Prison Rules states that the Advisory Board of the prison shall deem life imprisonment to be “imprisonment for twenty years” for consideration for premature release or parole. As a consequence to this, it naturally follows that these prisoners in question must be dealt with under the Rules in the same manner as would any other prisoner serving a sentence in a prison in Tamil Nadu. Any divergence from this principle would be ultra vires on the ground of arbitrariness.
The idea of Reformative Justice:
- It is based on the humanistic principle that even if an offender commits a crime, he does not cease to be a human being.
- Under this theory, the object of punishment should be the reform of the criminal.
- He may have committed a crime under circumstances which might never occur again. Therefore an effort should be made to reform him.
- The object of punishment should be to bring about the moral reform of the offender.
- It is important to note that in India, the prisons, for all their faults, must ultimately stay loyal to the theory of reformative justice.
- It is believed that the focus of our prison system should be in bringing about reform in the moral character of each prisoner and enabling him to restart his life outside the jail complex after serving his sentence.
In conclusion, prisoners who have served the prescribed sentence of 20 years in Tamil Nadu must be considered for reintegration into our society.
The points mentioned here, doesn’t take a stand on whether or not the convicts must be released; however, these points highlight the fact that certain difficult questions of law and policy are involved, which may have to be resolved first
- In the Gopal Vinayak Godse v. the State of Maharashtra (1961) case, the Supreme Court ruled that a sentence of imprisonment for life means imprisonment for the rest of one’s natural life.
- Thus, it is a misconception that upon the completion of 14 years of imprisonment, a life sentence has been served.
- Having said this, there is always the power of executive remission.
- Under this power, the appropriate government reduces part of the sentence for the convict’s good behaviour. Remission is also necessary; otherwise overcrowded prisons will overflow with old and ailing prisoners who have no hope of release.
- In the Rajiv Gandhi assassination case, the question is, would it be appropriate or not to remit the rest of the sentence?
- This case involves not only the assassination of a former Prime Minister, but also the deaths of several others in the incident, including policemen and bystanders.
- Although the family of Rajiv Gandhi may have no objection, but the families of the other victims need to express their preferences.
- This is because, mercy cannot be extended only because a prominent victim’s family desires it.
- It is important to note that, it was the intervention of the Gandhi family, among other things, which saw the death sentences being commuted to imprisonment of life.
- Crucially, since many of those who are currently imprisoned were imprisoned when they were barely in their 20s, they still have a long life ahead of them. Thus the question is, should they be spending their remaining years in prison?
- Having said this, there are a few factors to be considered. These are:
- The perpetrator and the principal conspirator are dead, and that those who were imprisoned were mere pawns, some of whom may not have known the entirety of the enterprise.
Thus, when these circumstances are taken into account, to routinely deny the benefit of remission may not always be appropriate.
- b) Another factor to be considered is the social impact of a remission order, in case it is passed in this case.
The question that it raises is that if people can be freed even after being convicted for the murder of a former Prime Minister in a terror incident, there are bound to be questions which could be asked on whether or not India is a soft state on matters of terrorism.
This view subscribes to the opinion that the prisoners should not be released. Crucially, it observes that Pardon is not meant to be exercised without justifiable grounds.
- It is important to note that Pardon is not a right.
- Pardon is an act of discretion exercised in specific circumstances where an individual deserving of clemency is examined in the context of his family background.
- Further, it is important to note that these convicts are political convicts.
To compound matters, the Supreme Court has cautioned against their release.
- Given the fact that there was a large political conspiracy involved in the assassination of Rajiv Gandhi, there does not appear to be any justification for exercising the extraordinary powers of pardon in their case.
- Taking the present instance into account, the death sentence was commuted to life imprisonment, which can be interpreted as itself being an act of clemency.
- In conclusion, it is important to note that Security has become a key issue not only locally but globally.
- Further, it is not only our right but our duty as a part of the nation and the world to deal effectively with any attack or infringement or breach of security.
- Lastly, there exists a twofold objective to anti-terrorist measures.
These are: a) To deter future activity and b) To prevent terrorist activities.
Finally, the reason anti-terrorist laws are made, and are to some extent different from regular laws, is that they address acts that destabilise the country.
- Last week, the government unveiled its plans to celebrate surgical strike Day on 29 September, to commemorate the cross-border operation India had carried out against terror camps in Pakistan two years ago
- Almost on cue, the Indian army chief general Bipin Rawat called out for another “stern action” against Pakistan to avenge the recent death of Indian soldiers on the border, alluding to another surgical strike
Significance of this move
- These developments are indicative of a fundamental transformation of India’s strategic culture
- New Delhi now seems to be making strategic choices based on psychological gratification rather than to achieve well-thought-out goals.
- This is a dangerous trend that is likely to further worsen the already deteriorating security situation in South Asia
Was surgical strike a success?
- From a goal-oriented perspective, the choice to carry out the strike has proved to be an abject failure
- In the last two years since the strike, India’s security vis-à-vis Pakistan has degraded by all metrics
- The Kashmir insurgency has worsened since the strikes
- There were 358 insurgency-related fatalities in 2017, compared to 267 the year before
- Estimated infiltrations went up to 406 in 2017 from 371 in 2016
- Civilian deaths increased by 166% in 2017
- By all indicators, Islamabad’s covert support for the insurgency has also ramped up in the last two years
- This period has seen several Pakistan-sponsored terror attacks on the Indian armed forces, which specifically replicated the Uri attack which had prompted the surgical strike
- Border violence between Indian and Pakistani armies has become disturbingly brutal and regular like clockwork
- India-Pakistan ceasefire violations more than doubled in 2017, compared to the year before
- Both sides are now employing weapons of a higher calibre than the prior years
Options that were used previously
- If the decision-makers think that the conditions are favourable, they may use a diplomatic approach and bring international pressure upon Pakistan to change its policy
- India employed this route in the aftermath of the 2008 Mumbai terror attack
- Otherwise, the decision-makers may choose to precipitate a crisis by threatening Pakistan with a disproportionate military action in order to compel it to change its ways
- India tried this strategy in 2001 after the terror attack on the Indian Parliament, in what is today known as the Twin Peaks Crisis
- Both of these options are fraught with risks and other problems and aimed at achieving certain security goals
Does surgical strike really help?
- An operation like the surgical strike, which is really just a half-way measure, does little to enhance India’s security, although it does provide instinctive gratification
- In the long run, it ends up harming India’s overall security by eroding the credibility of its deterrence
Root cause analysis
- The root cause is the weakening normative sanctity of the line of control (LoC)
- Much of India’s security problems in Kashmir today stem from the fact that over the decades, the legitimacy and inviolability of the LoC has been steadily collapsing
- This cheapening of LoC’s notional value allows Pakistan to run elaborate cross-border terror networks, support constant infiltration, engage the Indian army in a continuous low-intensity conflict, and repeatedly challenge basic facts on the ground in international forums
- Successive governments have unwittingly gone along with Pakistan in reducing the LoC’s value and the celebration of surgical strike Day would be another egregious step in this direction
- Essentially what India would be celebrating is its decision to violate the LoC
- In effect, it would be admitting that LoC is not a sacred border endowed with all the legal and normative strengths of an international boundary, but rather simply a frontline that either countries may choose to violate whenever they please
- Indian policy should be to constantly prop up the normative strength of the LoC and insist on its legitimacy and unassailability
- The issue for debate before a bench of five judges of the Supreme Court in Jarnail Singh v. Lachhmi Narain Gupta was whether M. Nagaraj v. Union of India (Nagaraj) required reconsideration
- Nagaraj verdict had held that before the Scheduled Caste and Scheduled Tribe candidates can be promoted, the states had to prove by “quantifiable data” that they were indeed “backward”
Why the issue?
- There was no definition of the expression “backward” and whether it is social backwardness, educational backwardness, economic backwardness or untouchability of which “quantifiable data” was to be collected
- As a result, all promotions made post-Nagraj were struck down on the ground that there was no quantifiable data
Definition of SC & Backward caste
- The expression, “Scheduled Castes” simply refers to castes added to a Schedule in the Constitution
- The expression “backward class” in Article 16(4) of the Constitution refers to these “untouchable castes” known under British rule as “depressed classes”, and those we have come to be known as “other backward classes”
Flaws in Nagaraj verdict
- Article 16 (4-A) of the Constitution allows reservation in promotion for the untouchable castes and tribes only and not for “other backward classes”
- The marker of the identity of Scheduled Castes is the historic disadvantage of the untouchable
- Therefore the question of proving backwardness by quantifiable data does not arise
- At the heart of the problem is the inability of the Supreme Court to understand the very meaning of “equality” and the purpose of reservations
History of reservations in India
- Following the Poona Pact, B R Ambedkar gave up the demand of the Dalit community for separate electoral colleges
- Instead, it was agreed that the castes described by the British as “depressed classes” would be given reservation in employment with joint electorates (in the provincial and central legislatures) for a larger number of seats than envisaged by the Mac Donald award
- There was thus, a national compact that the “depressed classes” should be represented in appointments in public services as well as in local bodies, in other words, reservation in public services and local bodies
- The said ‘depressed classes’ came to be known as “Scheduled Castes” and “Scheduled Tribes”
Need for reservations
- There should be an equitable distribution of job opportunities among different sections of the society
- Everyone should have a stake in democratic governance, whether they determine their identities by gender or by caste or by a historic disadvantage
- A balance needs to be struck between the allotment of posts in the public sector between the claims of the upper castes and those of the untouchable castes and tribes
- This balance can be achieved by reserving the appropriate number of posts for the Scheduled Castes and Scheduled Tribes and the rest of the candidates
- Reservations are intended to achieve equality in the matter of representation in public employment and, consequentially, in state power
Exclusion of creamy layer also questionable
- Creamy layer is an expression not found in the Constitution
- Given that the identification of beneficiaries is not based on economic criteria, but on caste markers, how can there be such an exclusion
- If indeed economic cut off is to be put ostensibly to advance the cause of the surely backward, then why should reservation not be given to the people of below poverty line (BPL) of all castes, including the upper castes
- The Court has been myopic in suggesting that the more backward among the backward must only get promotion in a country in which people die while manual scavenging and all the public sector positions of sweepers are occupied by Scheduled Castes
- An obsessive concern of the Supreme Court while denying reservation in different forms has been “efficiency in administration”
- If a department is underperforming, how does one say that it is on account of the Scheduled Caste and Scheduled Tribe community
- The judgment in Jarnail Singh must be welcomed as paving the way for promotions for Scheduled Castes and Scheduled Tribes in public employment thereby furthering and deepening the Constitution’s equality
- Equality before the law does not only signify equal access to the law, but also equal exposure to the law
- This is one of the principles followed by the five-judge bench of the Supreme Court, which has struck down as unconstitutional Section 497 of the Indian Penal Code that had criminalised adultery for 158 years
- Section 198(2) of the Code of Criminal Procedure is also struck down
Giving women desired power
- In both cases, the court has found that the woman was robbed of agency and reduced to a chattel
- Law which allows only men to have agency and the right to be aggrieved is unacceptable at a time when sexual relations are understood to be between equals
What was Section 497?
- Section 497 criminalised men who knowingly had relations with the wife of another man, “without the consent or connivance of that man”
- The woman was not punishable as an abettor, while her husband was automatically the wronged party
- Section 198(2) clarified that only the woman’s husband can be the aggrieved party or, in his absence, “someone who had care of the woman”
Strains still remain
- Following the SC intervention, adultery is now a civil matter between individuals
- But a criminal residue remains — Section 306 of the IPC will be invoked if a suicide results from adultery
The road towards constitutional morality
- The striking down of Section 377
- Supreme Court ruling that a long-term live-in relationship to be indistinguishable from marriage, even for inheritance
- The triple talaq ruling and the right to privacy have maintained the trend
- With the decriminalisation of adultery, India has taken another step towards rights-based social relations, instead of a state-imposed moral order
- People can now look forward to the criminalisation of marital rape
- It is only in a progressive legal landscape that individual rights flourish
- However, it is a matter of concern that refreshing the statute books is being left to the judiciary, without any proactive role of Parliament in amending regressive laws
- Parliament has failed in its legislative responsibility to address the old age laws and should now act to rid India of various Victorian-era laws that are no longer acceptable
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