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- It is believed that this verdict of the Supreme Court establishes the legal principle that individual freedom prevails over purported group rights, even in matters of religion.
- It is important to note that the state of Kerala had supported the entry of women into the temple, arguing that the “custom” of excluding women violated their rights.
- However, on the other hand, the Travancore Devaswom Board had supported the custom of not allowing women into the temple, saying that temples across the country do not allow women who are menstruating. The Ayyappa Seva Sangham had argued that the court has to find a way to uphold this custom so that other “similar customs” are not disturbed.
A look at the majority view:
- The majority held that devotees of Lord Ayyappa do not constitute a separate religious denomination and that the prohibition on women is not an essential part of Hindu religion.
A look at the dissenting view:
- Justice Indu Malhotra was the lone dissenting voice.
- Justice Indu Malhotra chose not to review the religious practice on the touchstone of gender equality or individual freedom.
- Her view that the court “cannot impose its morality or rationality with respect to the form of worship of a deity” accorded greater importance to the idea of religious freedom as being mainly the preserve of an institution rather than an individual’s right.
- She asserted that issues of deep religious sentiments should not be ordinarily be interfered by the court.
- Further, she went on to add that the court should not interfere unless if there is any aggrieved person from that section or religion. What constitutes essential religious practice is for the religious community to decide, not for the court.
- In conclusion, the Court has attempted to grapple with the stigmatisation of women devotees that is largely based on a medieval view of menstruation as symbolising impurity and pollution.
- To Chief Justice Dipak Misra, any rule based on segregation of women pertaining to biological characteristics is indefensible and unconstitutional.
- Further, devotion cannot be subjected to the stereotypes of gender.
- Justice D.Y. Chandrachud asserted that stigma built around traditional notions of impurity has no place in the constitutional order, and exclusion based on the notion of impurity is a form of untouchability.
- CJI Misra also went on to add that the devotees of Ayyappa do not constitute a separate religious denomination.
- Justice Rohinton F. Nariman said the fundamental rights claimed by worshippers based on ‘custom and usage’ must yield to the fundamental right of women to practise religion. The decision reaffirms the Constitution’s transformative character and derives strength from the centrality it accords to fundamental rights.
- 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.
Constitutional grounds for “reasonable restrictions”
- 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 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.
III. Editorial Analysis:
- Experts have cited certain lapses when it comes to the implementation of the Aadhar. There have been instances where owing to the cancellation of a family’s ration card by the State government because of not linking it to the Aadhaar, people have lost their lives out of hunger.
- It is important to note that, as a percentage of the population, the number of people excluded from getting Aadhaar, may be small, but they happen to be the most vulnerable sections of our society. They include, bed-ridden old persons, victims of accidents, people with visual disabilities, etc.
- Further, critics allege that there is a misconception that for millions of Indians, it is the only (or first) ID they have. They assert that according to a response to an RTI, 99.97% of those who got Aadhaar numbers did so on the basis of existing IDs.
The Aadhar and PDS: A Critical Look
- It is important to note that each government programme has its own eligibility criterion.
- In the Public Distribution System (PDS), there are State-specific inclusion/exclusion criteria.
- In certain States, if you have a government job or live in a concrete/pucca home, even if you have an Aadhaar card. you cannot get a PDS ration card.
- Alternatively, if one lived in a mud hut or were an Adivasi, one would get a PDS ration card. After the induction of the Aadhaar, on top of satisfying the State eligibility criteria, one would need to procure and link one’s Aadhaar number in order to continue to remain eligible for your PDS ration card.
- Crucially, before the Aadhaar was made mandatory, on one hand, one could get subsidised PDS grain without Aadhaar and on the other hand, possessing Aadhaar alone did not entitle one to PDS grain. However, with Aadhaar being made compulsory, it has become necessary, but it is not sufficient to get welfare.
- Critics allege that this perspective wasn’t given much attention.
The Scope for Corruption: Does it still persist?
Quantity fraud continues with Aadhaar-based biometric authentication.
What is Quantity fraud?: It is a type of fraud wherein a beneficiary is sold less than his/her entitlement, but signs off on the full amount.
In conclusion, critics allege that those who benefit from these programmes and who understand why Aadhaar cannot improve inclusion do not have a voice in the media or policy-making.
Recently, the Supreme Court decriminalised the offence of adultery by holding Section 497 of the Indian Penal Code (IPC) unconstitutional.
A Note on Section 497 in The Indian Penal Code:
- This section deals with Adultery.
- Specifically, whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.
- Until a few days ago, India was one of the few countries in the world that still considered adultery an offence.
- This draconian law punished the adultering man, or rather ‘the outsider’, for having extra-marital relations with a woman who he knows to be married.
- Further, this was only deemed to have been an offence if the husband had not consented to this relation- thus, implicitly suggesting that the wife was the property of her husband.
- Hence, the husband was considered to be the “victim” of adultery and could file a case. Unfortunately, the same recourse was, however, not available to the wife.
- Thus, as the law previously stood, in this offence, the victim would be the husband alone, whose property (i.e. the wife) was trespassed upon.
Arguments for retaining the provision:
The main argument for retaining the criminal provision was that:
- The outsider should be punished for breaching the matrimonial unit and that the law should mandate punishment for such a moral wrong.
- It was this violation that was seen as a crime against the institution of marriage.
- This crime against the institution of marriage thus justified it to be a breach of security and well-being of society.
Observations by the Court:
- The court observed that the issue of adultery between spouses was a private matter.
- Further, it observed that it could be a ground for divorce under civil law.
- It did not warrant the use of criminal sanction against any party involved.
- Moreover, no justification can be given by the state for penalising people with imprisonment for making intimate and personal choices.
- The Supreme Court dismissed the regressive patriarchal notion of women being the property of their husband. The court held that Section 497, as it existed, denied women ownership of their sexuality and agency over their own relationships.
- Further, the court relied on K.S. Puttaswamy v. Union of India to explain this deprivation of autonomy as a violation of their right to privacy and to live with dignity, which is thus violative of their fundamental rights under Article 21 of the Constitution.
- The adultery provision also violated the right to equality guaranteed under Article 14. The court observed that women were treated as passive entities, and possessions of their husband.
The idea of Equality:
- Section 497 consumed the identity of a wife, as an individual with rights as an equal partner to the marriage, tipping the scales to favour the husband.
- The court further explained: “Marriage in a constitutional regime is founded on the equality of and between spouses. Each of them is entitled to the same liberty which Part III [of the Constitution] guarantees.”
- As a consequence to the above, not affording both parties to a marriage equal rights and opportunities would be discriminatory and a violation of their right to equality.
- Many world leaders are convening in New York for the annual United Nations General Assembly which is the closest that we have to a world parliament
- Even as heads of state and government from around the globe gather to debate the big challenges of our times, we have to face the fact that political differences are deepening
- A sense of common purpose, needed to find effective solutions to those challenges, is looking ever more elusive
- Many of the multilateral agreements that the UN has painstakingly achieved in recent decades are being seriously questioned
Key responsibilities of UN need to include current problems
- UN’s key role is in bringing nations together in order to get an agreement on everything from climate change to Middle East peace and from security to migrant rights
- One of the greatest challenges we now face is a widespread lack of trust in the political institutions established to serve all citizens but increasingly seen as favouring the select few
- Terrible conflicts continue inside some countries, with all of the destruction, degradation and misery that the UN was established to prevent
- We have to recognise that the growing inequality and joblessness is helping to fuel a real sense of frustration in rich and poor countries alike
Growing feeling of isolationism
- Confidence in multilateralism is decreasing and isolationism, extreme forms of nationalism and xenophobia are increasing
- This can be attributed to a dangerous view that individual nation states can act more effectively by themselves than in concert with others
What needs to be done?
- We have to acknowledge that none of the problems mentioned arises from a vacuum
- We not only need to show that multilateralism can be more effective but ensure that national policy-makers have the room to mitigate the forces having a devastating effect over people’s livelihoods
- The better societies we all want to see are predicated to a large degree on building virtuous circles of economic, social and physical well-being that can lift all boats
- There should be a focus on taking the global opinion and political leadership towards seeking solutions together
- The Supreme Court has delivered its much-awaited pronouncement on the petitions asking it to bar politicians facing heinous criminal charges — like rape, murder and kidnapping — from contesting elections
- A five-judge bench led by Chief Justice said that the Court cannot play the role of Parliament
- The judgment left much to be desired
Role of judiciary and EC in democracy
- The judiciary can be called as the guardian angel of democracy
- This time, the SC has passed the buck to the EC, even though the Commission has been crying itself hoarse for the apex court’s aid for the past two decades
Directives by SC
- First, while filing their nominations, the candidates must declare if there are pending criminal cases against them in courts
- Second, political parties are also responsible for putting up details of criminal cases filed against their candidates on their websites
- Third, Parliament must legislate on the matter to ensure that candidates with criminal antecedents do not enter public life or become lawmakers
- Fourth, while filling the nomination forms, candidates must declare their criminal past and the cases pending against them in bold letters
- Fifth, political parties should publicise the background of their candidates via the electronic media and issue declarations
Flaws in the directives
- The recommendations have practical issues
- Parliament, regardless of who is in power, has always been reluctant to legislate on the issue
- Voters do not generally read the websites of political parties
- The recommendation regarding publicity campaigns about the criminal background of candidates by political parties sounds counter-intuitive. Why would they actively publicise anything that goes against their interests
Ban on convicted politicians but not undertrials
- Section 8 of the Representation of People Act, 1951, bans convicted politicians
- But those facing trial, no matter how serious the charges, are free to contest elections
- The political parties are united in their opposition to any law, which debars perpetrators of heinous offences during the pendency of cases
- They hold that this could lead to wrong cases being filed against candidates
EC’s proposals to avoid wrongful conviction
- First, all criminal cases will not invite a ban, only the heinous offences will do
- Second, the case should be registered at least six months before the elections
- Third, the court must have framed the charges
Opposition to EC’s proposals
- The opponents of the EC proposal have time and again stated that the candidates and the legislators are deemed “innocent until proven guilty”
- An argument can be raised about the 2.7 lakh undertrials, not yet convicted and hence innocent, but locked up in jails
- Four of their fundamental rights stand suspended — liberty, freedom of movement, freedom of occupation and the right to dignity
- If the rights of those undertrials can be suspended within the ambit of the law, what is the sanctity of the candidates’ right to contest elections — only a statutory right, and not a fundamental one?
No word on fast track courts
- The Court has not said a word on the provision of fast track courts for such cases though the issue is entirely in its domain
- Fast-tracking has been the accepted norm
- Many categories of special courts such as the CBI courts, consumer courts and, more recently, fast-track courts for rape cases do create special categories for the purpose of adjudication, and nobody has dubbed them as discriminatory
- The Representation of People Act also recognises this in principle, requiring the high courts to decide on election petitions within six months
- In a March 2014 SC judgment, the court had accepted the urgent need for cleansing politics and directed all subordinate courts to give their verdict on cases involving legislators within a year or give reasons for not doing so to the chief justice of the high court
- Progress in this matter has not been reviewed
- The present verdict seems a missed opportunity by the Supreme Court, especially when seen in the light of the nation’s fight for free, fair and clean elections
- Judicial activism has been at the root of some of the most groundbreaking reforms in India’s democratic history
- The doctrine of separation of powers has to be seen in the light of the need for checks and balances
- When the executive and legislature are unwilling to do their job, the judiciary must step in on behalf of the citizens
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