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Judicial Review

Why in News Recently, the Supreme Court (SC) refused to treat the Central Vista project as a unique one requiring greater or heightened judicial...

06 Jan 2021 Judicial Review
Article 356

This article is based on “Article 356 and an activist judiciary” which was published in The Hindu on 26/12/2020. It talks about the...

26 Dec 2020 Judicial Review
SC Stays Andhra HC Order to Examine Constitutional Breakdown

Why in News Recently, the Supreme Court (SC) has stayed an Andhra Pradesh High Court (HC) order intending to embark on a judicial enquiry into...

19 Dec 2020 Judicial Review
No Replies to SC or HCs: Maharashtra

Why in News Recently, both Houses of the Maharashtra State Legislature have passed proposals stating that they will not take cognizance of or reply...

17 Dec 2020 Judicial Review
Basic Structure Doctrine: Kesavananda Bharati Case

Why in News Main petitioner, Kesavananda Bharati, of Kesavananda Bharati Sripadagalvaru and Ors v State of Kerala Case, 1973 (known for the basic...

07 Sep 2020 Judicial Review
Sub Categorisation of Backward Classes

This editorial analysis is based on the article A Case For Equality which was published in The Indian Express on 29th of August 2020. It analyses...

29 Aug 2020 Judicial Review
Sub-Classification of Reserved Classes

Why in News A five-judge Bench of the Supreme Court held that States can sub-classify the list of Scheduled Castes (SCs), Scheduled Tribes (STs),...

28 Aug 2020 Judicial Review
Contempt of Court

Why in News The Supreme Court found civil rights lawyer Prashant Bhushan guilty of criminal contempt of court. The lawyer had made a defamatory...

20 Aug 2020 Judicial Review
Secrecy of Ballot

Why in News In a recent judgement, the Supreme Court has held that secrecy of ballot is the cornerstone of free and fair elections. The choice of...

22 Jun 2020 Judicial Review
SC Refuses to Restore 4G Services in J&K

Why in News Recently, the Supreme Court refused to restore 4G services in Jammu & Kashmir and ordered setting up of a high-powered committee to...

12 May 2020 Judicial Review
Reservation Review: SC

Why in News Recently, the Supreme Court of India has ruled the January 2000 order of the Governor of the erstwhile state of Andhra Pradesh which...

23 Apr 2020 Judicial Review
Freedom of Speech and Expression on Social Media

Why in News The High Court of Tripura has held that posting on social media was virtually the same as a fundamental right applicable to all...

24 Jan 2020 Judicial Review
Public Interest Litigation

Introduction The expression ‘Public Interest Litigation’ has been borrowed from American jurisprudence, where it was designed to...

23 Dec 2019 Judicial Review
Mercy Petition

Why in News The Tihar Jail administration had asked the convicts in the Nirbhaya case, 2012 to apply for mercy petition before the President...

01 Nov 2019 Judicial Review
The Big Picture: UK’s Constitutional Crisis

A defiant Boris Johnson (United Kingdom’s Prime Minister) has vowed to take the country out of the European Union next month, despite...

03 Oct 2019 Judicial Review
Constitutional Rights, Judicial Review and Parliamentary Democracy

(This editorial is based on the article 'Constitutional Rights, Judicial Review and Parliamentary Democracy' which appeared in 'The EPW' on 13th...

13 Apr 2019 Judicial Review
PILs: From Public Interest to 'Publicity Interest' Litigations

(This editorial is based on the article ‘PILs: From Public Interest to 'Publicity Interest' Litigations’ which appeared in ‘The...

23 Mar 2019 Judicial Review
Is Judiciary Supporting Centralising Tendencies of the Government?

(The editorial is based on the article “The imperial cabinet and an acquiescent court” which appeared in The Hindu for 8th March 2019. In...

08 Mar 2019 Judicial Review
Government’s Stand on Lokpal Appointment is Unsatisfactory: SC

The Supreme Court has stated that the government’s stand on not being able to complete the appointment of a Lokpal has been unsatisfactory. The...

25 Jul 2018 Judicial Review

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		'title' => 'Judicial Review',
		'description' => '<h3>Why in News</h3>
<p>Recently, the <strong><a href="/important-institutions/drishti-specials-important-institutions-national-institutions/supreme-court-of-india" target="_blank" rel="noopener">Supreme Court</a> (SC)</strong> refused to treat the <strong>Central Vista project</strong> as a unique one requiring greater or heightened <strong>judicial review.</strong></p>
<ul style="list-style-type: square;">
<li>The <strong>SC</strong> said the <strong>government</strong> was <strong>&ldquo;entitled to commit errors or achieve successes&rdquo;</strong> in <strong>policy matters</strong> without the court&rsquo;s interference <strong>as long as it follows constitutional principles.</strong></li>
<li>The <a href="/daily-updates/daily-news-analysis/Central-Vista-redevelopment-project" target="_blank" rel="noopener"><strong>Central Vista project</strong></a> of New Delhi includes <strong>Rashtrapati Bhawan, Parliament House, North</strong> and <strong>South Block, India Gate, National Archives</strong> among others.</li>
<li>The Indian Constitution <strong>adopted the Judicial Review</strong> on <strong>lines of the American Constitution.</strong></li>
</ul>
<h3>Key Points</h3>
<ul style="list-style-type: square;">
<li><strong>Judicial Review:</strong><br />
<ul style="list-style-type: circle;">
<li>It is a type of <strong>court proceeding</strong> in which a judge <strong>reviews the lawfulness of a decision or action made by a public body.</strong><br />
<ul style="list-style-type: disc;">
<li>In other words, judicial reviews are a <strong>challenge to the way in which a decision has been made</strong>, rather than the rights and wrongs of the conclusion reached.</li>
<li><strong>Concepts of Law:</strong><br />
<ul style="list-style-type: disc;">
<li><strong>Procedure Established by Law:</strong> It means that a law enacted by the legislature or the concerned body is valid only if the correct procedure has been followed to the letter.</li>
<li><strong>Due Process of Law:</strong> It is a doctrine that not only checks if there is a law to deprive the life and personal liberty of a person but also ensures that the law is made fair and just.</li>
<li>India follows <strong>Procedure Established by Law.</strong></li>
</ul>
</li>
</ul>
</li>
<li>It is the <strong>power exerted by the courts of a country to examine the actions of the legislatures, executive and administrative arms of government and to ensure that such actions conform to the provisions of the nation&rsquo;s Constitution.</strong></li>
<li>Judicial review has <strong>two important functions, like, of legitimizing government action</strong> and <strong>the protection of constitution against any undue encroachment by the gov&shy;ernment.</strong><br />
<ul style="list-style-type: disc;">
<li>Judicial review is considered a <strong><a href="/daily-updates/daily-news-analysis/basic-structure-of-constitution#:~:text=Origin%3A%20The%20basic%20structure%20theory,fundamental%20features%E2%80%9D%20of%20their%20Constitution." target="_blank" rel="noopener">basic structure of the constitution</a> (<a href="/printpdf/major-constitutional-amendments-part-2" target="_blank" rel="noopener"><em>Indira Gandhi vs Raj Narain Case</em></a> 1975)</strong>.</li>
<li>Judicial review is also called the <strong>interpretational and observer roles of the Indian judiciary.</strong></li>
<li><strong>Suo Moto cases</strong> and the <a href="/to-the-points/Paper2/public-interest-litigation" target="_blank" rel="noopener"><strong>Public Interest Litigation (PIL)</strong></a>, with the discontinuation of the principle of Locus Standi, have <strong>allowed the judiciary to intervene in many public issues</strong>, even when there is no complaint from the aggrieved party.</li>
</ul>
</li>
</ul>
</li>
<li><strong>Types of Judicial Review:</strong><br />
<ul style="list-style-type: circle;">
<li><strong>Reviews of Legislative Actions:</strong><br />
<ul style="list-style-type: disc;">
<li>This review implies the power to ensure that <strong>laws passed by the legislature are in compliance with the provisions of the Constitution.</strong></li>
</ul>
</li>
<li><strong>Review of Administrative Actions:</strong><br />
<ul style="list-style-type: disc;">
<li>This is a tool for <strong>enforcing constitutional discipline</strong> over administrative agencies while exercising their powers.</li>
</ul>
</li>
<li><strong>Review of Judicial Decisions:</strong><br />
<ul style="list-style-type: disc;">
<li>This review is used to correct or make any change in previous decisions by the judiciary itself.</li>
</ul>
</li>
</ul>
</li>
<li><strong>Importance of Judicial Review:</strong><br />
<ul style="list-style-type: circle;">
<li>It is essential for maintaining the <strong>supremacy of the Constitution.</strong></li>
<li>It is essential for <strong>checking</strong> the possible <strong>misuse of power</strong> by the legislature and executive.</li>
<li>It <strong>protects the rights</strong> of the people.</li>
<li>It <strong>maintains</strong> the federal <strong>balance</strong>.</li>
<li>It is essential for securing the <strong>independence of the judiciary</strong>.</li>
<li>It <strong>prevents tyranny</strong> of executives.</li>
</ul>
</li>
<li><strong>Problems with Judicial Review:</strong><br />
<ul style="list-style-type: circle;">
<li>It <strong>limits the functioning of the government.</strong></li>
<li>It <strong>violates the limit of power set to be exercised by the constitution</strong> when it overrides any existing law.<br />
<ul style="list-style-type: disc;">
<li>In India, a <strong>separation of functions rather than of powers is followed.</strong></li>
<li>The concept of separation of powers is not adhered to strictly. However, a system of <a href="/daily-updates/daily-news-editorials/checks-balances-1" target="_blank" rel="noopener"><strong>checks and balances</strong></a> have been put in place in such a manner that the judiciary has the power to strike down any <strong>unconstitutional laws passed by the legislature.</strong></li>
</ul>
</li>
<li>The judicial opinions of the judges once taken for any case becomes the standard for ruling other cases.</li>
<li>Judicial review can harm the public at large as the judgment may be <strong>influenced by personal or selfish motives.</strong></li>
<li>Repeated interventions of courts can <strong>diminish the faith of the people in the integrity, quality, and efficiency of the government.</strong></li>
</ul>
</li>
</ul>
<div class="border-bg">
<p><strong>Constitutional Provisions for Judicial Review</strong></p>
<ul style="list-style-type: square;">
<li>There is no direct and express provision in the constitution empowering the courts to invalidate laws, but <strong>the constitution has imposed definite limitations upon each of the organs, the transgression of which would make the law void.</strong></li>
<li>The <strong>court is entrusted with the task of deciding whether any of the consti&shy;tutional limitations has been transgressed or not.</strong></li>
<li>Some provisions in the constitution supporting the process of judicial review are:<br />
<ul style="list-style-type: circle;">
<li><strong>Article 372 (1)</strong> establishes the judicial review of the pre-constitution legislation.</li>
<li><strong>Article 13</strong> declares that any law which contravenes any of the provisions of the part of Funda&shy;mental Rights shall be void.</li>
<li><strong>Articles 32 and 226</strong> entrusts the roles of the protector and guarantor of fundamental rights to the Supreme and High Courts.</li>
<li><strong>Article 251 and 254</strong> states that in case of inconsistency between union and state laws, the state law shall be void.</li>
<li><strong>Article 246 (3)</strong> ensures the state legislature&rsquo;s exclusive powers on matters pertaining to the State List.</li>
<li><strong>Article 245</strong> states that the powers of both Parliament and State legislatures are subject to the provisions of the constitution.</li>
<li><strong>Articles 131-136</strong> entrusts the court with the power to adjudicate disputes between individuals, between individuals and the state, between the states and the union; but the court may be required to interpret the provisions of the constitution and the interpretation given by the Supreme Court becomes the law honoured by all courts of the land.</li>
<li><strong>Article 137</strong> gives a special power to the SC to review any judgment pronounced or order made by it. An order passed in a criminal case can be reviewed and set aside only if there are errors apparent on the record.</li>
</ul>
</li>
</ul>
</div>
<h3>Way Forward</h3>
<ul style="list-style-type: square;">
<li>With the power of judicial review, the courts <strong>act as a custodian of the fundamental rights.</strong></li>
<li>With the growing functions of the modern state, <strong>judicial intervention in the process of making administrative decisions and executing them has also increased.</strong></li>
<li>When the judiciary surpasses the line of the powers set for it in the name of judicial activism, it could be rightly said that the judiciary then <strong>begins to invalidate the concept of separation of powers set out in the Constitution.</strong></li>
<li><strong>Making laws is the function and duty of the legislature</strong>, to fill the gap of laws and to implement them in a proper manner is responsibility of the executive. So that the only work remaining for the judiciary is interpretations. Only a <strong>fine equilibrium between these government bodies can sustain the constitutional values.</strong></li>
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		'article_id' => (int) 7313,
		'category_id' => (int) 22,
		'title' => 'Article 356',
		'description' => '<div class="border">
<p>This article is based on <a href="https://www.thehindu.com/opinion/lead/article-356-and-an-activist-judiciary/article33419769.ece" target="_blank" rel="noopener"><strong>&ldquo;Article 356 and an activist judiciary&rdquo;</strong></a> which was published in The Hindu on 26/12/2020. It talks about the Article 356 and recent Andhra Pradesh High court&rsquo;s order to sou-moto question of a &ldquo;constitutional breakdown&rdquo; or the failure of constitutional machinery in Andhra Pradesh.</p>
</div>
<p>Recently, the Supreme Court stayed the Andhra Pradesh High Court order that sought to convene a suo moto judicial inquiry into whether there is a &ldquo;constitutional breakdown&rdquo; in the Andhra Pradesh Government.</p>
<p>This was clearly a case of<strong> judicial overreach by the A.P. High Court</strong>. The question of a<strong> &ldquo;constitutional breakdown&rdquo; or the failure of constitutional machinery</strong> is dealt with under <strong>Article 356</strong> of the Constitution, whose invoking comes under the prerogative of the executive and not the judiciary.</p>
<p>Though the Supreme Court has rightfully intervened in a tussle between the judiciary and the elected government in Andhra Pradesh, the A.P High court&rsquo;s order opens up the possibility of use or even misuse of Article 356 by the judiciary.</p>
<p>Hence, there is a need for making essential changes to the constitution, so as to stop the misuse of Article 356 and strengthen Indian Federalism in true spirit.</p>
<h3>Article 356: Background</h3>
<ul style="list-style-type: square;">
<li>No liberal democratic Constitution in the world has a provision such as an Article 356 that gives the central government the power to dismiss a democratically-elected State government except the Constitution of Pakistan.</li>
<li>Both India and Pakistan borrowed this provision from the <strong>Government of India Act, 1935.</strong></li>
<li>The leaders of the Indian freedom struggle were so very opposed to this provision that they forced the British government to suspend it. Section 93 of the Government of India Act, 1935 was never brought into effect.</li>
<li>However, the provision which we had opposed during our freedom struggle was incorporated in the Constitution for the preservation of democracy, federalism and stability in the post-independent era.</li>
</ul>
<h3>Article 356 And Its Misuse</h3>
<ul style="list-style-type: square;">
<li>Even though B.R. Ambedkar had assured that it would remain a dead letter, Article 356 has been used/misused more than 125 times.</li>
<li>In almost all cases it was used for political considerations rather than any genuine breakdown of constitutional machinery in the States.</li>
<li>Former Prime Minister Indira Gandhi used Article 356 as many as 27 times, and in most cases to remove majority governments on the ground of political stability, absence of clear mandate or withdrawal of support, etc.</li>
<li>In retaliation, the Janata government removed nine state Congress governments, when for the first time they formed the government in 1977.</li>
<li>Indira Gandhi on her return to power in 1980, removed nine Opposition majority governments at one go.</li>
<li>Subsequent governments too acted in a similar fashion.</li>
</ul>
<h3>Article 356 And Safeguards</h3>
<ul style="list-style-type: square;">
<li>The 1994 Supreme Court (<a href="/printpdf/governor" target="_blank" rel="noopener"><strong>S.R. Bommai case</strong></a>) majority decision, in essence, overturned a long tradition that the use of Article 356 was not really subject to review by courts, a doctrine articulated in a landmark 1977 case, State of Rajasthan vs Union of India. <br />
<ul style="list-style-type: circle;">
<li>The Bommai case verdict laid down the conditions under which State governments may be dismissed, and mechanisms for that process.</li>
</ul>
</li>
<li>In the S.R. Bommai case, a nine-member bench of the Supreme Court construed the scope of Article 356, which also allows the imposition of President&rsquo;s Rule in the States, with stringent conditions.<br />
<ul style="list-style-type: circle;">
<li>These included ascertaining whether objective conditions exist which render it impossible to carry out governance in the State where the proclamation has been made and the process has to be approved by both Houses of Parliament before consideration for judicial review.</li>
</ul>
</li>
</ul>
<h3>Way Forward</h3>
<ul style="list-style-type: square;">
<li><strong>Judiciary Restraining Itself:</strong> Judiciary should realise that Judicial activism may be good as a rare exception but an activist judiciary is neither good for the country nor for the judiciary itself.</li>
<li><strong>Fine-tuning Role of Governor:</strong> In order for the smooth functioning of democratic government and strengthening the spirit of federalism, it is important that the governor must act judiciously, impartially and efficiently while exercising his discretion and personal judgment.<br />
<ul style="list-style-type: circle;">
<li>In this context, the recommendations of the <a href="/pdf/governor.pdf" target="_blank" rel="noopener"><strong>Sarkaria Commission and Punchhi Commission</strong></a> should be followed in true spirit.</li>
<li>For example, the 'procedure for appointment of governors should be clearly laid down' and conditions of appointment must also be laid down and must assure a fixed tenure for the governor.</li>
</ul>
</li>
<li><strong>Need for President&rsquo;s Activism:</strong> President under the Indian constitution is bound by the aid and advice of the Indian Constitution. However, the President can use its suspensive veto in case of malicious application of Article 356.<br />
<ul style="list-style-type: circle;">
<li>For example, former president K.R. Narayanan twice returned the cabinet&rsquo;s recommendation on October 22, 1997, in respect of the Kalyan Singh government in Uttar Pradesh which had just won the controversial confidence vote and stating that imposition of President&rsquo;s Rule would be constitutional impropriety.</li>
</ul>
</li>
</ul>
<h3>Conclusion</h3>
<p>The nullification of the A. P High Court order by the Supreme Court will ensure that such legal adventures impinging upon the separation of powers in the State are curtailed. However, in order to prevent repeated misuse of Article 356 major constitutional amendments and strong political will is required.</p>
<p><a href="http://www.drishtiias.com/images/uploads/1608986917_image%200.jpg" target="_blank" rel="noopener"><img class="content-img" src="http://www.drishtiias.com/images/uploads/1608986917_image 0.jpg" style="display: block; margin-left: auto; margin-right: auto;" width="600" caption="false" /></a></p>
<table border="1" style="border-collapse: collapse; width: 100%;">
<tbody>
<tr>
<td style="width: 100%; border-style: dotted; border-color: #ff0000; background-color: #f7fff7;">
<p><span style="color: #000080;"><em><strong>Drishti Mains Question</strong></em></span></p>
<p>There is a need for making changes to the constitution, so as to stop the misuse of Article 356. Discuss.</p>
</td>
</tr>
</tbody>
</table>
<p style="text-align: center;"><iframe width="560" height="315" src="https://www.youtube.com/embed/RbyOGZTqJyo" frameborder="0" allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen="allowfullscreen"></iframe></p>
<p>This editorial is based on<a href="https://www.thehindu.com/opinion/editorial/vocal-for-local-the-hindu-editorial-on-jks-first-district-development-council-polls/article33405406.ece" target="_blank" rel="noopener"><strong> &ldquo;Vocal for local: On J&amp;K DDC polls&rdquo;</strong></a> which was published in The Hindu on December 24<sup>th</sup>, 2020. Now watch this on our Youtube channel.</p>',
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		'title' => 'SC Stays Andhra HC Order to Examine Constitutional Breakdown',
		'description' => '<h3>Why in News</h3>
<p>Recently, the <a href="/important-institutions/drishti-specials-important-institutions-national-institutions/supreme-court-of-india" target="_blank" rel="noopener"><strong>Supreme Court</strong> </a>(SC) has stayed an <strong>Andhra Pradesh High Court</strong> (HC) order intending to embark on a <strong>judicial enquiry into whether there is a constitutional breakdown in the State machinery,</strong> requiring a declaration of <a href="/daily-updates/daily-news-analysis/president-s-rule-in-maharashtra#:~:text=Under%20Article%20356%2C%20President's%20Rule,the%20provisions%20of%20the%20Constitution." target="_blank" rel="noopener"><strong>President&rsquo;s rule</strong></a> <strong>(Article 356).</strong></p>
<ul style="list-style-type: square;">
<li>A three-judge bench headed by<strong> Chief Justice of India S A Bobde</strong> found the order <strong>disturbing</strong> and will take up the matter later on after vacations.</li>
</ul>
<h3>Key Points</h3>
<ul style="list-style-type: square;">
<li><strong>Andhra Pradesh High Court&rsquo;s Move:</strong><br />
<ul style="list-style-type: circle;">
<li>While hearing a clutch of <em><a href="/daily-updates/daily-news-analysis/habeas-corpus-cases-in-jammu-kashmir" target="_blank" rel="noopener"><strong>habeas corpus</strong></a></em> petitions in <strong>October 2020,</strong> it<em><strong> suo motu</strong> </em><strong>summoned the State counsel</strong> to assist it in deciding &ldquo;whether in circumstances prevailing in the State, the<strong> court can record a finding that there is constitutional breakdown or not&rdquo;.</strong><br />
<ul style="list-style-type: disc;">
<li><strong>Habeas Corpus</strong> is a<strong> Latin term</strong> which literally means <strong>&lsquo;to have the body</strong> of&rsquo;. Under this the court issues an order to a person who has detained another person, to produce the body of the latter before it.</li>
<li>This <a href="/daily-updates/daily-news-analysis/reservation-not-a-fundamental-right-supreme-court" target="_blank" rel="noopener"><strong>writ</strong> </a>is a <strong>bulwark of individual liberty against arbitrary detention</strong> and can be issued <strong>against both public authorities as well as private individuals.</strong></li>
</ul>
</li>
</ul>
</li>
<li><strong>State Government&rsquo;s Appeal:</strong><br />
<ul style="list-style-type: circle;">
<li>The HC<strong> framed the question in an unprecedented manner</strong> and <strong>without any basis or pleadings</strong> by any of the parties to that effect.</li>
<li>It highlighted that <strong>Article 356,</strong> which deals with<strong> failure of Constitutional machinery in a State,</strong> is a <strong>power exclusively vested in the executive</strong> and <strong>not the judiciary.</strong></li>
<li>Under the Constitutional framework, it is<strong> not for the Courts to decide</strong> as to whether there is a Constitutional breakdown in a State as they<strong> do not have any judicially discoverable and manageable standards to determine</strong> so.</li>
<li>The said fact is<strong> essentially an executive function and is necessarily required to be based on a detailed factual analysis.</strong></li>
<li>The HC order is a<strong> serious encroachment on the powers of the executive</strong> as enumerated under the Constitution and is<strong> violative of the <a href="/daily-updates/daily-news-editorials/checks-balances-1#:~:text=of%20the%20government.-,The%20Doctrine%20of%20Separation%20of%20Powers,arbitrary%20excesses%20by%20the%20government." target="_blank" rel="noopener">doctrine of separation of powers</a></strong> and thus, <strong>violative of the <a href="/daily-updates/daily-news-analysis/basic-structure-of-constitution#:~:text=Origin%3A%20The%20basic%20structure%20theory,fundamental%20features%E2%80%9D%20of%20their%20Constitution." target="_blank" rel="noopener">basic structure of the Constitution.</a></strong><br />
<ul style="list-style-type: disc;">
<li>Separation of powers is the <strong>division of the legislative, executive, and judicial functions</strong> of government.</li>
<li>Since the sanction of all three branches is required for the making, executing, and administering of laws, it <strong>minimises the possibility of arbitrary excesses by the government.</strong></li>
<li>The constitutional demarcation <strong>precludes the concentration of excessive power by any branch</strong> of the government.</li>
</ul>
</li>
</ul>
</li>
</ul>
<div class="border-bg">
<p><strong>President&rsquo;s Rule</strong></p>
<ul style="list-style-type: square;">
<li>It implies the <strong>suspension of a state government</strong> and the<strong> imposition of direct rule of the Centre.</strong> It is also known as<strong> &lsquo;State Emergency&rsquo;</strong> or<strong> &lsquo;Constitutional Emergency&rsquo;.</strong></li>
<li>The SC in <em><strong>Bommai case 1994</strong></em> <strong>enlisted the situations</strong> where the exercise of power under Article 356 could be used.<br />
<ul style="list-style-type: circle;">
<li>One such situation is that of <a href="/daily-updates/daily-news-editorials/perils-of-electoral-politics" target="_blank" rel="noopener"><strong>&lsquo;Hung Assembly&rsquo;</strong></a>, i.e. where after general elections to the assembly, no party secures a majority.</li>
</ul>
</li>
<li>The President&rsquo;s rule is imposed through the invocation of <strong>Article 356</strong> of the Constitution <strong>by the President on the advice of the Union Council of Ministers</strong> (executive).<br />
<ul style="list-style-type: circle;">
<li>If the President, upon <strong>receipt of the report from the Governor of the State</strong> or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of the Constitution.</li>
</ul>
</li>
<li><strong>Parliamentary Approval and Duration:</strong><br />
<ul style="list-style-type: circle;">
<li>A proclamation imposing President&rsquo;s Rule<strong> must be approved by both the Houses of Parliament within two months</strong> from the date of its issue.</li>
<li>The approval<strong> takes place through simple majority</strong> in either House, that is, a majority of the members of the House present and voting.</li>
<li><strong>Initially valid for six months</strong>, the President&rsquo;s Rule can be <strong>extended for a maximum period of three years</strong> with the approval of the Parliament, every six months.</li>
</ul>
</li>
</ul>
</div>
<p><a href="https://www.thehindu.com/news/national/sc-stays-andhra-hc-order-to-study-constitutional-breakdown-in-state/article33364452.ece#:~:text=The%20Supreme%20Court%20on%20Friday,a%20declaration%20of%20President's%20rule.&amp;text=As%20the%20apex%20court%2C%20we%20find%20this%20disturbing." target="_blank" rel="noopener"><strong>Source: TH</strong></a></p>',
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	(int) 3 => object(Cake\ORM\Entity) {

		'article_id' => (int) 7232,
		'category_id' => (int) 21,
		'title' => 'No Replies to SC or HCs: Maharashtra',
		'description' => '<h3>Why in News</h3>
<p>Recently, <strong>both Houses of the Maharashtra State Legislature</strong> have passed proposals stating that they <strong>will not take cognizance of or reply to any notice sent by the High Court</strong> (HC) or the <strong>Supreme Court</strong> (SC)<strong> in the <a href="/daily-updates/daily-news-analysis/privilege-motion-1" target="_blank" rel="noopener">Breach of Privilege Motion</a></strong> against a TV editor and anchor.</p>
<h3>Key Points</h3>
<ul style="list-style-type: square;">
<li><strong>Background:</strong><br />
<ul style="list-style-type: circle;">
<li>A Breach of Privilege Motion was moved in the State Assembly against the TV anchor, accused of using <strong>&ldquo;derogatory language&rdquo;</strong> and <strong>&ldquo;making baseless remarks&rdquo;</strong> against the Chief Minister of the State and <strong>&ldquo;frequently insulting&rdquo;</strong> Ministers and MPs during TV debates.</li>
<li>The anchor <strong>filed a petition challenging the Breach of Privilege Motion</strong> in the SC.</li>
<li>The <strong>assistant secretary of the Assembly questioned this move</strong> as well as <strong>producing &ldquo;confidential&rdquo; communications</strong> from the Speaker and the House Privileges Committee.</li>
<li>The <strong>SC then issued a contempt notice</strong> to the assistant secretary of the Assembly and also held that it might be &ldquo;necessary in all probability to serve the Speaker&rdquo; to know his version in matter.</li>
</ul>
</li>
<li><strong>Current Scenario and State Assembly&rsquo;s Stand:</strong><br />
<ul style="list-style-type: circle;">
<li>The House Speaker<strong> initiated the motion of the Treasury benches</strong> and cited <strong>Article 194 of the Constitution,</strong> which lays down the powers and privileges of the Houses of Legislatures, and <strong>Article 212,</strong> which pertains to courts not inquiring into proceedings of the legislature.</li>
<li>The proposals held that <strong>replying to such notices could mean accepting that the judiciary can keep a check on the legislature</strong> and would be inconsistent with the <strong>Basic Structure of the Constitution.</strong></li>
<li>The proposals were <strong>passed unanimously,</strong> which stated that the Speaker and Deputy Speaker would not respond to any notice or summons issued by the SC.</li>
<li>The <strong>Legislative Council also passed the proposal unanimously</strong> and stated that <strong>no cognizance will be taken of any notice or summons issued by the HC or SC.</strong></li>
</ul>
</li>
<li><strong>Reactions:</strong><br />
<ul style="list-style-type: circle;">
<li>Politicians have noted that the<strong> notice was in exception to the language used in the letter and has not encroached in any way on the rights of the legislature</strong> to legislate. If the legislature passes such a motion, it will set a wrong precedent.</li>
<li>Parliamentary Affairs Minister has held that the <strong>proposal was limited to upholding the esteem of the Speaker&rsquo;s chair</strong> and<strong> ensuring that the presiding authority is safeguarded from judicial scrutiny</strong> in matters of legislation.</li>
</ul>
</li>
</ul>
<div class="border-bg">
<p><strong>Privilege Motion</strong></p>
<ul style="list-style-type: square;">
<li>It is concerned with the <strong>breach of parliamentary privileges</strong> by a minister.</li>
<li><strong>Breach of Privileges:</strong><br />
<ul style="list-style-type: circle;">
<li>Parliamentary Privileges are certain <strong>rights and immunities enjoyed by members of Parliament, individually and collectively,</strong> so that they can &ldquo;effectively discharge their functions&rdquo;.</li>
<li>When any of these rights and immunities are <strong>disregarded,</strong> the <strong>offence is called a breach of privilege</strong> and is <strong>punishable</strong> under law of Parliament.</li>
<li>A <strong>notice is moved in the form of a motion by any member</strong> of either House against those being held guilty of breach of privilege.</li>
</ul>
</li>
<li><strong>Role of the Speaker/Chair:</strong><br />
<ul style="list-style-type: circle;">
<li>The Speaker/Chair is the first level of scrutiny of a privilege motion.</li>
<li>The Speaker/Chair can decide on the privilege motion himself or herself or refer it to the privileges committee of Parliament. If the Speaker/Chair gives consent under relevant rules, the member concerned is given an opportunity to make a short statement.</li>
</ul>
</li>
<li><strong>Rules Governing Privilege:</strong><br />
<ul style="list-style-type: circle;">
<li><strong>Rule 222 in Chapter 20 </strong>of the<strong> Lok Sabha Rule Book</strong> and correspondingly<strong> Rule 187 in Chapter 16</strong> of the <strong>Rajya Sabha Rule Book</strong> governs privilege.</li>
<li>Rules say that a member may, with the consent of the Speaker or the Chairperson, raise a question involving a breach of privilege either of a member or of the House or a committee thereof.</li>
</ul>
</li>
</ul>
</div>
<p><a href="https://indianexpress.com/article/india/privilege-motion-maharashtra-house-wont-take-note-of-court-in-arnab-case-7106543/" target="_blank" rel="noopener"><strong>Source: IE</strong></a></p>',
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		'article_id' => (int) 6409,
		'category_id' => (int) 21,
		'title' => 'Basic Structure Doctrine: Kesavananda Bharati Case',
		'description' => '<h3 style="padding-left: 30px;">Why in News</h3>
<p>Main petitioner,<strong> Kesavananda Bharati,</strong> of <em><strong>Kesavananda Bharati Sripadagalvaru and Ors v State of Kerala Case,</strong> </em>1973 (known for the <strong><a href="/daily-updates/daily-news-analysis/basic-structure-of-constitution" target="_blank" rel="noopener">basic structure doctrine of the</a> Supreme Court),</strong> passed away.</p>
<h3>Key Points</h3>
<ul style="list-style-type: square;">
<li><strong>Kesavananda Bharati:</strong><br />
<ul style="list-style-type: circle;">
<li>He <strong>challenged the Kerala land reforms legislation in 1970,</strong> which imposed restrictions on the management of religious property.</li>
<li>The case was<strong> challenged under Article 26,</strong> concerning the right to manage religiously owned property without government interference.</li>
<li>A<strong> 13-judge Bench</strong> was set up by the Supreme Court, the biggest so far, to hear the case.</li>
<li><strong>Question underlying the case also included:</strong> Was the power of Parliament to amend the Constitution unlimited? In other words, could Parliament alter, amend, abrogate any part of the Constitution even to the extent of taking away all fundamental rights?</li>
</ul>
</li>
<li><strong>Background:</strong><br />
<ul style="list-style-type: circle;">
<li>The Supreme Court conceded absolute power to Parliament in amending the Constitution, as was seen in the verdicts in <em><strong>Shankari Prasad case</strong></em> <strong>(1951)</strong> and <em><strong>Sajjan Singh case </strong></em><strong>(1965).</strong><br />
<ul style="list-style-type: disc;">
<li>In <strong>both the cases</strong> the court had ruled that the term<strong> &ldquo;law&rdquo; in Article 13</strong> must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent power under <strong>Article 368.</strong></li>
<li>This means <strong>Parliament had the power to amend any part of the Constitution</strong> including Fundamental rights.<br />
<ul style="list-style-type: disc;">
<li>But <strong>Article 13(2)</strong> reads - "The State shall not make any law which takes away or abridges the right conferred by this Part (i.e. Part-III) and any law made in contravention of this clause shall, to the extent of contravention, be void."</li>
</ul>
</li>
</ul>
</li>
<li>However, in the <em><strong>Golaknath case</strong> </em><strong>(1967)</strong>, the Supreme Court held that <strong>Parliament could not amend Fundamental Rights,</strong> and power to amend the Constitution would be only with a Constituent Assembly.<br />
<ul style="list-style-type: disc;">
<li>The Court held that an <strong>amendment under Article 368 is "law" within the meaning of Article 13</strong> of the Constitution and therefore, if an amendment "takes away or abridges" a Fundamental Right conferred by Part III, it is void.</li>
</ul>
</li>
<li>To dis-effect the judgments of the Supreme Court in the <em>Golaknath case</em> (1967), <em>RC Cooper case</em> (1970), and Madhavrao Scindia case (1970), the then government enacted major amendments to the Constitution. Most notably:<br />
<ul style="list-style-type: disc;">
<li><strong>24<sup>th</sup> Constitutional (Amendment) Act, 1971-</strong> Parliament had also given itself the power to amend any part of the Constitution.</li>
<li><strong>25<sup>th</sup> Constitutional (Amendment) Act, 1972-</strong> The right to property had been removed as a fundamental right.</li>
</ul>
</li>
</ul>
</li>
<li><strong>Verdict in the Kesavananda Bharati Case:</strong><br />
<ul style="list-style-type: circle;">
<li>The landmark judgement was delivered on 24<sup>th</sup> April 1973 by a <strong>thin majority of 7:6</strong> wherein the majority held that <strong>any provision of the Indian Constitution can be amended by the Parliament</strong> in order to fulfil its socio-economic obligations that were guaranteed to the citizens as given in the Preamble, provided that such amendment <strong>did not change the Constitution&rsquo;s basic structure.</strong></li>
<li>The minority, however, in their dissenting opinion, were wary of giving the Parliament unlimited amending power.</li>
<li>The court held that the <strong>24<sup>th</sup> Constitutional Amendment was entirely valid.</strong> But it found the <strong>second part of the 25<sup>th</sup> Constitutional Amendment to be ultra vires.</strong><br />
<ul style="list-style-type: disc;">
<li>The Supreme Court declared the <strong>Article 31C</strong> as unconstitutional and invalid on the ground that judicial review is basic structure and hence cannot be taken away.</li>
</ul>
</li>
<li>Despite the ruling that Parliament cannot breach fundamental rights, the court upheld the amendment that removed the fundamental right to property.<br />
<ul style="list-style-type: disc;">
<li>The court ruled that in spirit, the amendment would not violate the &ldquo;basic structure&rdquo; of the Constitution.</li>
</ul>
</li>
</ul>
</li>
<li><strong>Doctrine of the Basic Structure:</strong><br />
<ul style="list-style-type: circle;">
<li>The <strong>origins of the basic structure doctrine</strong> are found in the <strong>German Constitution</strong> which,<strong> after the Nazi regime,</strong> was amended to protect some basic laws.</li>
<li>Learning from that experience, the new German Constitution introduced substantive limits on Parliament&rsquo;s powers to amend certain parts of the Constitution which it considered &lsquo;basic law&rsquo;.</li>
<li><strong>In India,</strong> the basic structure doctrine has formed the <strong>bedrock of judicial review</strong> of all laws passed by Parliament.</li>
<li>No law can impinge on the basic structure. What the basic structure is, however, has been a continuing deliberation.</li>
<li><strong>Parliamentary democracy, fundamental rights, judicial review, secularism-</strong> are all held by courts as basic structure, the list is not exhaustive.</li>
<li>It is the Judiciary that is responsible to decide what constitutes the basic structure.</li>
</ul>
</li>
<li><strong>Implications of the Judgement:</strong><br />
<ul style="list-style-type: circle;">
<li>Politically, as a result of the verdict, the judiciary faced its biggest litmus test against the executive. The government ignored the opinion and superseded three judges.</li>
<li>Within less than two years of the restoration of Parliament's amending powers to near absolute terms, the <strong>Forty-second amendment</strong> was challenged before the Supreme Court by the owners of Minerva Mills (Bangalore) a sick industrial firm which was nationalised by the government in 1974. Basic structure doctrine was <strong>reaffirmed in the <em>Minerva Mills</em></strong> and later in the<strong><em> Waman Rao case</em>, 1981.</strong></li>
</ul>
</li>
</ul>
<p><a href="https://indianexpress.com/article/explained/kesavananda-bharati-case-basic-structure-of-the-constitution-supreme-court-6585110/#:~:text=Kesavananda%20Bharati%20was%20the%20head,district%20of%20Kerala%20since%201961.&amp;text=The%20landmark%20ruling%20in%20which,Ors%20v%20State%20of%20Kerala." target="_blank" rel="noopener"><strong>Source IE</strong></a></p>',
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		'article_id' => (int) 6336,
		'category_id' => (int) 22,
		'title' => 'Sub Categorisation of Backward Classes',
		'description' => '<div class="border">
<p>This editorial analysis is based on the article <a href="https://indianexpress.com/article/opinion/editorials/sc-st-sub-category-reservation-supreme-court-6574052/" target="_blank" rel="noopener"><strong>A Case For Equality</strong></a> which was published in The Indian Express on 29<sup>th</sup> of August 2020. It analyses the Supreme Court Judgement on sub categorisation of the SCs/STs and different dimensions related to it.</p>
</div>
<p>A five-judge Constitution Bench of the Supreme Court has recently ruled that states can sub-classify the list of Scheduled Castes (SCs), Scheduled Tribes (STs), and <a href="/daily-updates/daily-news-analysis/extension-to-obc-sub-categorisation-commission" target="_blank" rel="noopener"><strong>Socially and Educationally Backward Classes (SEBCs)</strong></a>, to provide preferential treatment to the especially deprived among them &ldquo;to achieve the real purpose of reservation&rdquo;.</p>
<p>The Supreme Court of India has thus reopened the legal debate on <a href="/daily-updates/daily-news-analysis/sub-classification-of-reserved-classes" target="_blank" rel="noopener"><strong>sub-categorisation of Scheduled Castes and Scheduled Tribes for reservations</strong></a>, or what is commonly referred to as &ldquo;quota within quota&rdquo; for SCs and STs. However, the court has referred the issue to a larger Bench to decide.</p>
<h3>What was the case?</h3>
<ul style="list-style-type: square;">
<li>The present case before The Supreme Court of India <strong>was an appeal against the Punjab and Haryana High Court which had struck down a state law empowering the government to sub-classify SC/STs for grant of quotas.</strong></li>
<li>The High Court judgment had struck down a circular of the Punjab government, which provided that out of the seats reserved for SCs, 50 percent would be offered to Balmikis and Mazhabi Sikhs.</li>
<li>The High Court in this judgement had relied on the <a href="/daily-updates/daily-news-analysis/sub-classification-of-reserved-classes" target="_blank" rel="noopener"><strong>Chinnaiah judgment</strong></a> for concluding so.</li>
</ul>
<h3>Meaning of Sub-Categorisation</h3>
<ul style="list-style-type: square;">
<li>Scheduled Castes or Scheduled Tribes are made up of several castes which are <strong>not homogenous.</strong></li>
<li>It is argued that <strong>some of the castes among the category remain grossly under-represented</strong> despite reservation in comparison to other Scheduled Castes.</li>
<li>This inequality within the Scheduled Castes is underlined in several reports, and special quotas have been framed to address it.</li>
<li>The <strong>&ldquo;creamy layer&rdquo;</strong> concept puts an income ceiling on those eligible for reservation.
<ul style="list-style-type: circle;">
<li>While this concept applies to Other Backward Castes (OBCs), it was applied to <a href="/daily-updates/daily-news-editorials/creamy-layer-for-sc-s-st-s" target="_blank" rel="noopener"><strong>promotions of Scheduled Castes</strong></a> for the first time in 2018.</li>
</ul>
</li>
<li>The central government has sought a review of the 2018 verdict and the case is currently pending.</li>
</ul>
<h3>Why was the issue referred to a larger bench?</h3>
<ul style="list-style-type: square;">
<li>This was because in 2004 another five-judge Constitution Bench of the Supreme Court of India in <strong>EV Chinnaiah judgement</strong> had ruled that state governments had no power to create sub-categories of SCs for the purpose of reservation.</li>
<li>Since <strong>a Bench of equal strength cannot overrule a previous decision, the court referred it to a larger Bench to settle the law.</strong></li>
<li>The larger Bench, whenever it is set up by the Chief Justice of India, will reconsider the two judgements.</li>
</ul>
<h3>Arguments For Sub-categorisation</h3>
<ul style="list-style-type: square;">
<li>As India is a welfare state, its obligation is to undertake the emancipation of the deprived section of the community and<strong> eradicate inequalities.</strong></li>
<li>When the reservation creates inequalities within the reserved castes itself, it is required to be taken care of by the State making sub-classification and adopting a <a href="/mains-practice-question/question-512#:~:text=The%20basic%20principle%20of%20distributive,share%20of%20the%20rewards%2Fcosts." target="_blank" rel="noopener"><strong>distributive justice</strong> </a>method so that State resources do not concentrate in few hands and equal justice to all is provided.</li>
<li><strong>Justice involves redistribution and reallocation of resources and opportunities and equitable access to all public and social goods</strong> to fulfil the very purpose of the constitutional mandate of equal justice to all.
<ul style="list-style-type: circle;">
<li>Reservation was <strong>not contemplated for all the time by the framers of the Constitution.</strong></li>
</ul>
</li>
<li>If sub-classification is denied, it <strong>would defeat the right to equality by treating unequal as equal.</strong>
<ul style="list-style-type: circle;">
<li>There are unequals within the list of Scheduled Castes, Scheduled Tribes, and socially and educationally backward classes.</li>
</ul>
</li>
<li>Various reports indicate that <strong>Scheduled Castes and Scheduled Tribes do not constitute a homogenous group.</strong></li>
<li>The Supreme Court has also stated that States can sub-classify SC and ST in the Central List <strong>to provide preferential treatment to the &ldquo;weakest out of the weak&rdquo;.</strong></li>
</ul>
<h3>Arguments Against Sub-categorisation</h3>
<ul style="list-style-type: square;">
<li>The argument is that the test or requirement of social and educational backwardness cannot be applied to Scheduled Castes and Scheduled Tribes.
<ul style="list-style-type: circle;">
<li>The special treatment is given to the SCs <strong>due to untouchability with which they suffer since ages.</strong></li>
</ul>
</li>
<li>In the N M Thomas V/S State Of Kerala case in 1976, the Supreme Court itself has admitted that <strong>Scheduled Castes are not castes but they are a class</strong> and hence should be treated as a class.</li>
<li>Sub categorisation will be <strong>used to appease one vote-bank or the other among the SC/ST and thus a cause of social justice would end being politicised.</strong></li>
</ul>
<div class="border-bg">
<p><strong>Identification of SC/ST</strong></p>
<ul style="list-style-type: square;">
<li>The Constitution, while providing for special treatment of SCs and STs to achieve equality, <strong>does not specify the castes and tribes that are to be called Scheduled Castes and Scheduled Tribes.</strong></li>
<li>This power is left to the central executive, <strong>The President, under Article 341.</strong></li>
<li>As per Article 341, those castes notified by the President are called SCs and STs.</li>
<li>A caste notified as SC in one state may not be a SC in another state.</li>
</ul>
</div>
<h3>Conclusion</h3>
<p>The Supreme Court of India in the landmark <a href="/to-the-points/Paper2/reservation-in-india" target="_blank" rel="noopener"><strong>Mandal case</strong></a> had held that there was no constitutional bar on a state classifying SEBCs as backward and more backward. The constitutional goal of social transformation cannot be achieved without taking into account changing social realities.</p>
<p><a href="http://www.drishtiias.com/images/uploads/1598702065_image3.png" target="_blank" rel="noopener"><img class="content-img" src="http://www.drishtiias.com/images/uploads/1598702065_image3.png" style="display: block; margin-left: auto; margin-right: auto;" caption="false" width="444" height="347" /></a></p>
<table border="1" style="border-collapse: collapse; width: 100%;">
<tbody>
<tr>
<td style="width: 100%; border-style: dotted; border-color: #ff0000; background-color: #f0ffe8;">
<p><span style="color: #000080;"><em><strong>Drishti Mains Question</strong></em></span></p>
<p>&ldquo;Reservation in India is a system of affirmative action that provides representation for historically and currently disadvantaged groups in Indian society.&rdquo; Discuss the statement in the light of the recent judgement of the Supreme Court on sub categorisation of SC and ST.</p>
</td>
</tr>
</tbody>
</table>
<p style="text-align: center;"><iframe width="560" height="315" src="https://www.youtube.com/embed/mYBNPbLrv9w" frameborder="0" allow="accelerometer; autoplay; encrypted-media; gyroscope; picture-in-picture" allowfullscreen="allowfullscreen"></iframe></p>
<p>This editorial is based on<a href="https://indianexpress.com/article/opinion/editorials/jee-neet-exam-covid-19-pandemic/" target="_blank" rel="noopener"><strong> &ldquo;Testing Times&rdquo;</strong></a> which was published in The Indian Express on August 28<sup>th</sup>, 2020. Now watch this on our Youtube channel.</p>',
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	(int) 6 => object(Cake\ORM\Entity) {

		'article_id' => (int) 6322,
		'category_id' => (int) 21,
		'title' => 'Sub-Classification of Reserved Classes',
		'description' => '<h3>Why in News</h3>
<p>A five-judge Bench of the <a href="/important-institutions/drishti-specials-important-institutions-national-institutions/supreme-court-of-india" target="_blank" rel="noopener"><strong>Supreme Court</strong> </a>held that States can sub-classify the list of Scheduled Castes (SCs), Scheduled Tribes (STs), and Socially and Educationally Backward Classes (SEBCs) to provide preferential treatment to the<strong> &ldquo;weakest out of the weak&rdquo;.</strong></p>
<h3>Key Points</h3>
<ul style="list-style-type: square;">
<li>The decision <strong>overruled</strong> a previous 2005 decision in<strong> E V Chinnaiah v State of Andhra Pradesh and Others,</strong> also by a five-judge Bench, that <strong>state governments had no power to create sub-categories of SCs</strong> for the purpose of reservation.</li>
<li>Since a Bench of equal strength cannot overrule a previous decision, the court also <strong>referred it to a 7-judge Bench.</strong></li>
<li>The judgment was on the constitutional validity of Section 4(5) of the <strong>Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006.</strong> <br />
<ul style="list-style-type: circle;">
<li>The act allows 50% of the reserved Scheduled Castes seats in the State to be allotted to Balmikis and Mazhabi Sikhs.</li>
</ul>
</li>
<li><strong>Judgment:</strong> <br />
<ul style="list-style-type: circle;">
<li><a href="/to-the-points/Paper2/reservation-in-india" target="_blank" rel="noopener"><strong>Reservation system</strong></a> has created <strong>inequalities within the reserved castes</strong> itself. There is a <strong>&ldquo;caste struggle&rdquo;</strong> within the reserved class as benefits of reservation are being usurped by a few.</li>
<li>Reservation <strong>was not contemplated for all the time</strong> by the framers of the Constitution.<br />
<ul style="list-style-type: disc;">
<li><strong>Article 334</strong> of the Constitution had originally required the reservation of<strong> elected seats</strong> to cease in <strong>1960,</strong> but it was extended by various amendments. The latest one being the 104<sup>th</sup> Amendment extending it to 2030.</li>
</ul>
</li>
<li>If sub-classification is denied, it would <strong>defeat the right to equality</strong> by treating unequal as equal.<br />
<ul style="list-style-type: disc;">
<li><strong>Article 14</strong> guarantees everyone <strong>&ldquo;equality before law&rdquo;</strong> and<strong> &ldquo;equal protection of law&rdquo;.</strong> Equal protection of the laws means that amongst equals the law should be equal and treating unequals as equals will be violation of law.</li>
</ul>
</li>
<li>Among the SCs, there are some that remain grossly under-represented despite reservation in comparison to other SCs. This<strong> inequality within the Scheduled Castes</strong> is underlined in several reports, and special quotas have been framed to address it.<br />
<ul style="list-style-type: disc;">
<li><strong>Justice Ramachandra Raju Commission, 1997</strong> recommended sub-dividing the SCs into four groups and apportioning reservations separately for each. It also recommended that <strong>Creamy layer of Scheduled Castes be excluded</strong> from receiving any reservation benefits in public appointments and admission to educational institutions.</li>
<li>In Andhra Pradesh, Punjab, Tamil Nadu and Bihar, <strong>special quotas</strong> were introduced for the <strong>most vulnerable Dalits.</strong> In 2007, Bihar set up the <strong>Mahadalit Commission</strong> to identify the castes within SCs that were left behind. In Tamil Nadu, a 3% quota within the SC quota is accorded to the<strong> Arundhatiyar caste.</strong></li>
</ul>
</li>
<li><strong>States have the competence</strong> to grant reservation benefits to SCs and STs in terms of Articles 15(4) and 16(4), and Articles 341(1) and 342(1).<br />
<ul style="list-style-type: disc;">
<li><strong>Article 16 (4)</strong> provides that the State can make any provision for the reservation of <strong>appointments or posts and in matters of promotion</strong> in favour of any backward class of citizens who, in the opinion of the state, are not adequately represented in the services under the State.</li>
<li><strong>Article 15(4)</strong> empowers the state to<strong> create special arrangements</strong> for promoting the interests and welfare of socially and educationally backward classes of the society such as SC and STs.</li>
<li>As per the Articles <strong>341(1) and 342(1),</strong> the President of India, after consultation with the Governor, may specify, the castes, races, tribes or parts of groups within castes or races, which shall be deemed to be Scheduled Castes and Scheduled tribes.</li>
</ul>
</li>
</ul>
</li>
</ul>
<h3>Background</h3>
<ul style="list-style-type: square;">
<li>In the <strong>Indra Sawhney v. Union of India 1992</strong> case, the Supreme Court held that it would be <strong>perfectly legal for the state to categorise backward classes as backward and more backward.</strong><br />
<ul style="list-style-type: circle;">
<li>It also upheld the concept of &lsquo;creamy layer&rsquo; within OBC to those who have overcome their backwardness. However, the concept of creamy layer in SCs and STs has been in debate since then.</li>
</ul>
</li>
<li>In the <strong>E V Chinnaiah v State of Andhra Pradesh and Others 2005</strong> case, the Supreme Court ruled that only the <strong>President has the power to notify the inclusion or exclusion of a caste</strong> as a Scheduled Caste, and states cannot tinker with the list.</li>
<li>In the <strong>M.Nagaraj &amp; Others vs Union Of India, 2006</strong> case, the Supreme Court said that the government<strong> had to collect quantifiable data</strong> showing backwardness of the class and inadequacy of representation of that class in public employment.</li>
<li>However, in <strong>Jarnail Singh vs Lachhmi Narain Gupta, 2018</strong> Supreme Court held that the government <strong>need not collect quantifiable data</strong> to demonstrate backwardness of public employees belonging to the SC/STs to provide reservations for them in <strong>promotions.</strong><br />
<ul style="list-style-type: circle;">
<li>It also observed that certain caste groups or subgroups have<strong> &ldquo;come out of untouchability or backwardness</strong> by virtue of belonging to the creamy layer&rdquo;.</li>
</ul>
</li>
<li>Recently, the Supreme Court has ruled that reservation in the matter of promotions in public posts is<a href="/daily-updates/daily-news-editorials/reservation-not-a-right" target="_blank" rel="noopener"><strong> not a fundamental right</strong></a>, and a state cannot be compelled to offer the quota if it chooses not to.</li>
</ul>
<h3>Way Forward</h3>
<ul style="list-style-type: square;">
<li>Dr B.R. Ambedkar described the Indian society as a gradation of castes forming an <strong>ascending scale of reverence and a descending scale of contempt.</strong> As is the nature of any hierarchical structure, no two castes are equal. The ones at the bottom of the ladder, those who have been most severely ostracised and subjugated, have not yet received the benefits of reservations as a tool to ensure their representation in society and government. This judgement will help <strong>trickle down the benefits of reservation to the most needy</strong> and establishment of an equal society.</li>
</ul>
<p><a href="https://indianexpress.com/article/explained/supreme-court-sc-st-reservation-quota-6572693/" target="_blank" rel="noopener"><strong>Source: IE</strong></a></p>',
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	(int) 7 => object(Cake\ORM\Entity) {

		'article_id' => (int) 6231,
		'category_id' => (int) 21,
		'title' => 'Contempt of Court',
		'description' => '<h3 style="padding-left: 30px;">Why in News</h3>
<p>The Supreme Court found civil rights lawyer Prashant Bhushan guilty of criminal contempt of court.</p>
<ul style="list-style-type: square;">
<li>The lawyer had made a defamatory tweet against the Chief Justice of India.</li>
</ul>
<h3>Key Points</h3>
<ul style="list-style-type: square;">
<li><strong>Defamation of SC:</strong> The judgment said that the tweet <strong>scandalised</strong> the Supreme Court as an institution. <br />
<ul style="list-style-type: circle;">
<li>It held that being the epitome of the Indian judiciary, an attack on the Supreme Court can lead to ordinary litigants and judges of High Courts across the country <strong>losing the confidence in the Supreme Court.</strong></li>
</ul>
</li>
<li><strong>Not to vindicate judges:</strong> However, the court acknowledged that its contempt powers could be used <strong>only to uphold the majesty of law</strong> and not to vindicate an individual judge against whom a defamatory remark is made.</li>
<li><strong>Suo Moto cognizance:</strong> The court said that the <strong>prior consent</strong> of the<a href="/daily-updates/daily-news-analysis/attorney-general-of-india" target="_blank" rel="noopener"><strong> Attorney General (AG) of India</strong></a> is not required to suo motu initiate the inherent contempt powers of the Supreme Court.<br />
<ul style="list-style-type: circle;">
<li>The <em>suo motu</em> contempt powers of the top court is drawn from <strong>Article 129 of the Constitution.</strong></li>
<li>The Contempt of Court Act of 1971 cannot limit this power of the court. The statute <strong>only provides the procedure in which such contempt is to be initiated.</strong></li>
</ul>
</li>
</ul>
<h3>Contempt of Court Act of 1971</h3>
<ul style="list-style-type: square;">
<li>According to the Contempt of Court Act of 1971, contempt of court is of <strong>two types:</strong><br />
<ul style="list-style-type: circle;">
<li><strong>Civil contempt:</strong> It is the <strong>wilful disobedience</strong> to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court.</li>
<li><strong>Criminal contempt:</strong> It is the publication of any matter or the doing of any other act which<strong> scandalises</strong> or lowers the authority of any court, or<strong> interferes</strong> with the due course of any judicial proceeding, or <strong>obstructs</strong> the administration of justice in any other manner.</li>
</ul>
</li>
<li><strong>Punishment:</strong> The Contempt of Court Act of 1971 punishes the guilty with imprisonment that may extend to<strong> six months or fine of ₹ 2,000 or both.</strong></li>
<li><strong>Amendment:</strong> It was amended in 2006 to include<strong> &ldquo;truth and good faith&rdquo;</strong> as a defence.<br />
<ul style="list-style-type: circle;">
<li>It was added that the court may impose punishments only if the act of the other person <strong>substantially</strong> interferes, or tends to interfere with the due course of justice</li>
</ul>
</li>
<li><strong>Criticism:</strong> <br />
<ul style="list-style-type: circle;">
<li>It is criticized to be<strong> reminiscent of british colonialism</strong> in india as the contempt laws have been abolished from the United Kingdom itself.</li>
<li>Demands have been raised to <strong>restrict contempt</strong> to only &ldquo;wilful disobedience&rdquo; of directions/judgments of the court and remove &ldquo;scandalizing the court&rdquo;.</li>
<li>It is also said that it may lead to <strong>judicial overreach.</strong></li>
<li>There are<strong> high numbers of contempt cases pending</strong> in various High Courts and the Supreme Courts, which delays the justice administration by an already <strong>overburdened judiciary.</strong></li>
</ul>
</li>
<li><strong>Review by the Law Commission:</strong> The Law Commission reviewed the Contempt of Court Act of 1971 in 2018 and noted:<br />
<ul style="list-style-type: circle;">
<li>The powers of the contempt of the Supreme Court and High Courts are independent of the Act, 1971&rdquo; and the <strong>contempt powers of the higher courts are derived from the articles 129 and 215 of the Constitution of India itself.</strong><br />
<ul style="list-style-type: disc;">
<li><strong>Article 129:</strong> The <strong>Supreme Court shall be a court of record</strong> and shall have all the powers of such a court including the<strong> power to punish for contempt of itself.</strong></li>
<li><strong>Article 215:</strong> Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.</li>
</ul>
</li>
<li>Therefore, deletion of the offence from the Act<strong> will not impact the inherent constitutional powers of the superior courts</strong> to punish anyone for its contempt.</li>
<li>India continues to have a high number of criminal contempt cases, while the last offence of Scandalising the Court in the UK was in 1931 which may be a reason for its abolition in the UK.</li>
<li>The Commission observed that abolishing the offence in India would <strong>leave a legislative gap.</strong></li>
<li>It empowers the High Court to act if someone is in contempt of the subordinate courts. Diluting the Act would <strong>expose the subordinate judiciary to acts of contempt of court.</strong></li>
<li>The 1971 Act <strong>contains adequate safeguards</strong> to exclude instances which may not amount to criminal contempt as defined under Section 2(c) of the Act 1971.</li>
<li>The statute has stood the<strong> test of judicial scrutiny for about five decades.</strong></li>
</ul>
</li>
</ul>
<div class="border-bg">
<p><strong>Suo Moto Cognizance</strong></p>
<ul style="list-style-type: square;">
<li>A Suo Moto cognizance is a <strong>Latin term</strong> which means an action taken by a government agency, court or other central authority on their own apprehension.</li>
<li>A court takes a Suo Moto Cognizance of a legal matter when it receives information about the<strong> violation of rights or breach of duty</strong> through media or a third party&rsquo;s notification.</li>
<li><strong>Article 32 of the Indian Constitution and Article 226 of the Indian Constitution</strong> lay down the provisions for filing<a href="/to-the-points/Paper2/public-interest-litigation" target="_blank" rel="noopener"><strong> Public Interest Litigation (PIL)</strong></a> in Supreme Court and High Courts respectively. This has given rise to the court's power to initiate legal action on their cognizance of a matter.</li>
<li>Suo Moto&rsquo;s power of supreme court has been provided under <a href="/loksabha-rajyasabha-discussions/the-big-picture-article-131-special-powers-of-supreme-court" target="_blank" rel="noopener"><strong>Article 131</strong></a> of the Indian Constitution.<br />
<ul style="list-style-type: circle;">
<li>Article 131 vests the Supreme Court with <strong>original jurisdiction</strong> over any dispute arising between the states or between the centre and state. The article gives the Supreme Court the power to take up such cases straight instead of going through a lower court or reviewing a lower court's judgement</li>
</ul>
</li>
<li>Suo Moto&rsquo;s actions by Indian courts are a reflection of <a href="/daily-updates/daily-news-editorials/evolution-of-indian-judiciary" target="_blank" rel="noopener"><strong>judicial activism.</strong></a></li>
</ul>
</div>
<p><a href="https://www.thehindu.com/news/national/suo-motu-contempt-power-is-inherent-sc/article32364132.ece" target="_blank" rel="noopener"><strong>Source: TH</strong></a></p>',
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	(int) 8 => object(Cake\ORM\Entity) {

		'article_id' => (int) 5686,
		'category_id' => (int) 21,
		'title' => 'Secrecy of Ballot',
		'description' => '<h3>Why in News</h3>
<p>In a recent judgement, the <a href="/important-institutions/drishti-specials-important-institutions-national-institutions/supreme-court-of-india" target="_blank" rel="noopener"><strong>Supreme Court</strong></a> has held that <strong>secrecy of ballot</strong> is the cornerstone of free and fair elections.</p>
<ul style="list-style-type: square;">
<li>The choice of a voter should be free which is ensured by the secret ballot system in a democracy.</li>
</ul>
<h3>Key Points</h3>
<ul style="list-style-type: square;">
<li><strong>Highlights of the Judgement:</strong><br />
<ul style="list-style-type: circle;">
<li>The SC held that the principle of secrecy of ballots is an important postulate of <a href="/daily-updates/daily-news-editorials/upholding-constitutional-democracy" target="_blank" rel="noopener"><strong>constitutional democracy</strong></a> and referred to <strong>Section 94 of the<a href="/to-the-points/Paper2/the-representation-of-the-people-act-part-ii" target="_blank" rel="noopener"> Representation of People Act (RPA) 1951</a>.</strong><br />
<ul style="list-style-type: disc;">
<li>The section upholds the<strong> privilege of the voters to maintain confidentiality</strong> about their choice of the vote.</li>
</ul>
</li>
<li>The law must protect the right of voters to the secrecy of the ballot. Even a remote or distinct possibility that a voter can be forced to disclose for whom she/he has voted would act as a positive constraint and a check on the freedom to exercise the franchise.</li>
<li>However, a voter can also <strong>voluntarily waive the privilege of non-disclosure.</strong><br />
<ul style="list-style-type: disc;">
<li>The privilege ends when the voter decides to waive it and decides voluntarily to disclose their vote.</li>
<li>The court held that voters can neither be prevented from disclosing nor can be subjected to a complaint by anyone.</li>
</ul>
</li>
</ul>
</li>
<li><strong>Background:</strong><br />
<ul style="list-style-type: circle;">
<li>The judgment came on an appeal against the <strong>Allahabad High Court</strong> decision, setting aside the voting of a <a href="/daily-updates/daily-news-analysis/floor-test-is-governor-s-discretion-sc" target="_blank" rel="noopener"><strong>no-confidence motion</strong></a> in a Zila panchayat in Uttar Pradesh in 2018.<br />
<ul style="list-style-type: disc;">
<li>A <strong>no-confidence motion</strong> or <strong>vote of no-confidence</strong> or a<strong> no-trust vote</strong> can be sought to express that there is no longer confidence in the government.</li>
</ul>
</li>
<li>Allahabad HC found that some of the panchayat members had violated the rule of secrecy of the ballot.</li>
<li>The SC referred to <strong>Section 28(8) of the Uttar Pradesh Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961</strong> and ordered a re-vote of the motion within the next two months, by the secret ballot system.<br />
<ul style="list-style-type: disc;">
<li>This provision states that a motion of no confidence shall be put to vote in the prescribed manner by secret ballot.</li>
</ul>
</li>
</ul>
</li>
<li><strong>Restoring Secrecy of Ballot:</strong><br />
<ul style="list-style-type: circle;">
<li>Secrecy of ballot has become a <strong>notional concept</strong> after the introduction of <a href="/daily-updates/daily-news-editorials/electronic-voting-machine-and-voter-verifiable-paper-audit-trail" target="_blank" rel="noopener"><strong>Electronic Voting Machines</strong> </a>(EVMs).<br />
<ul style="list-style-type: disc;">
<li>Since voters believe that only they themselves and their trusted ones know who they voted for which is not true actually because<strong> EVMs give a near accurate idea of voting patterns.</strong></li>
<li>Each EVM is used for about 1,400 electors and votes cast in the <strong>EVMs are individually counted and tallied booth-wise.</strong></li>
<li>Before the introduction of EVMs, <strong>ballot papers were often mixed</strong> to prevent intimidation of voters by disclosure of voting patterns.</li>
</ul>
</li>
<li>The idea of voting patterns gives an<strong> advantage to political parties</strong> which can be neutralised if <strong>totalisers</strong> are deployed to count votes in a constituency.</li>
<li><strong>Totaliser:</strong><br />
<ul style="list-style-type: disc;">
<li>It is a mechanism which <strong>allows votes from 14 booths to be counted together.</strong></li>
<li>This result obtained is <strong>without disclosure of votes polled by candidates at particular voting booths/stations,</strong> which will allay the fears of voters against any pre-poll intimidation or post-poll victimisation by any candidate.</li>
</ul>
</li>
</ul>
</li>
</ul>
<div class="border-bg">
<p><strong>Representation of the People Act 1951</strong></p>
<ul style="list-style-type: square;">
<li>The holding of <strong>free and fair elections</strong> is the sine-qua-non of democracy. To ensure the conduct of elections in free, fair and in an impartial manner, the constitution-makers incorporated <strong>Part XV (Articles 324-329)</strong> in the constitution and empowered Parliament to make laws to regulate the electoral process.</li>
<li>The <a href="/important-institutions/drishti-specials-important-institutions-national-institutions/election-commission-of-india" target="_blank" rel="noopener"><strong>Election Commission of India</strong></a> (ECI) is the watchdog of free and fair elections in the country and <strong>Article 324</strong> of the Constitution provides for its establishment.</li>
<li>In this context, the Parliament has enacted the <a href="/to-the-points/Paper2/representation-of-people-s-act-part-i" target="_blank" rel="noopener"><strong>Representation of the People Act (RPA), 1950</strong></a> and <strong>Representation of the People Act, 1951.</strong></li>
<li><strong>Key provisions of the RPA 1951:</strong><br />
<ul style="list-style-type: circle;">
<li>It regulates the actual conduct of elections and by-elections.</li>
<li>It provides administrative machinery for conducting elections.</li>
<li>It deals with the registration of political parties.</li>
<li>It specifies the qualifications and disqualifications for membership of the Houses.</li>
<li>It provides provisions to curb corrupt practices and other offences.</li>
<li>It lays down the procedure for settling doubts and disputes arising out of elections.</li>
</ul>
</li>
</ul>
</div>
<h3>Way Forward</h3>
<ul style="list-style-type: square;">
<li>In a democracy, there is perhaps nothing more important than the credibility of the electoral process therefore elections should not only be fair but should be seen to be fair.</li>
<li>The Election Commission needs to bat for making democracy truly vibrant and for voters&rsquo; rights to free and fair elections as well as secrecy of their ballot. It cannot afford to allow parties the room to punish and reward voters on the basis of their voting patterns or indulge in what politicians euphemistically call booth management.</li>
</ul>
<p><a href="https://www.thehindu.com/news/national/secrecy-of-ballot-is-the-cornerstone-of-free-and-fair-elections-says-supreme-court/article31883015.ece" target="_blank" rel="noopener"><strong>Source: TH</strong></a></p>',
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	(int) 9 => object(Cake\ORM\Entity) {

		'article_id' => (int) 5304,
		'category_id' => (int) 21,
		'title' => 'SC Refuses to Restore 4G Services in J&K',
		'description' => '<h3>Why in News</h3>
<p>Recently, the <a href="/admin/articles/edit/India-Nepal%20on Kailash Mansarovar Link Road 11 May 2020 4 min read Tags: GS Paper - 2India and its NeighbourhoodBilateral Groupings &amp; AgreementsEffect of Policies &amp; Politics of Countries on India's InterestsGS Paper - 3Security Challenges &amp; their Management in Border Areas Why in News Nepal has strongly objected to the newly inaugurated link road which connects Pithoragarh (Uttarakhand) to Lipulekh pass (China border) significantly reducing the time of Kailash Mansarovar Yatra.  Nepal claims the territory at the Lipulekh pass around 400 sq km area east of Kali river in the tri-junction of Nepal, Tibet and India, through which the road passes as its own. Key Points Nepal's Stand Nepal referred to the 2014 agreement between Prime Ministers of both countries, for Foreign Secretaries to work out the &ldquo;outstanding boundary issues&rdquo; on Kalapani (where Lipulekh lies) and Susta (bordering Bihar). According to Nepal&rsquo;s Foreign Ministry, the unilateral decision to build a road there, is a breach of the 2014 agreement. For evidence, Nepal has the maps during the 1816 Sugauli treaty and other complementing treaties that followed, fixing that Limpiadhura, Kalapani and Lipulekh were shown east of Kali river and part of Nepal. These arrangements were made following Nepal&rsquo;s war with the British due to which Nepal had to cede a large part of territory which currently forms the present Uttarakhand. Nepal seeks to question China as well because China and India had signed an agreement in May 2015 to develop Lipulekh as a commercial passage without consulting Nepal which majorly affected the triangulation of the countries. The government of Nepal remains committed to seek diplomatic solutions to the boundary issues on the basis of historical treaty, documents, facts and maps in keeping with the spirit of close and friendly bilateral ties between the two countries.  Kali River  It is also known as Sharda river or Kali Ganga in Uttarakhand. It joins Ghagra river in Uttar Pradesh, which is a tributary of Ganga. River Projects: Tanakpur hydro-electric project, Chameliya hydro-electric project, Sharda Barrage. Lipulekh Pass  It is also known as Lipu-Lekh Pass/Qiangla or Tri-Corner is a high altitude mountain pass situated in the western Himalayas with a height of 5,334 metre or 17,500 feet. It is an International mountain pass between India, China and Nepal. India&rsquo;s Response According to India&rsquo;s Ministry of External Affairs, the road going through Pithoragarh lies completely within the territory of India. The road follows the pre-existing route used by the pilgrims of the Kailash Mansarovar Yatra which has been made pliable for the ease and convenience of pilgrims, locals and traders, under the present project. India held that the boundary delineation exercise with Nepal is in process and it is committed to resolving outstanding boundary issues through diplomatic dialogue. Other Issues In November 2019, Nepal protested against the publication of Indian maps that included the Kalapani area. However, India rejected Nepal&rsquo;s contention, asserting that the map accurately depicts the sovereign territory of India. Both nations are in the process of scheduling foreign secretary-level talks, which will be held once dates are finalised after the two governments have successfully dealt with the challenge of Covid-19." target="_blank" rel="noopener">Supreme Court</a> <strong>refused to restore <a href="/to-the-points/paper3/fifth-generation-cellular-technology-5g" target="_blank" rel="noopener">4G services</a> in Jammu &amp; Kashmir</strong> and ordered <strong>setting up of a high-powered committee</strong> to look into the contentions raised by petitioners against limited 2G services in the Union Territory.</p>
<ul style="list-style-type: square;">
<li>In August 2019, the Central government had suspended all modes of communications in the wake of<a href="/daily-updates/daily-news-analysis/article-370-and-35-a-revoked" target="_blank" rel="noopener"><strong> revocation of Jammu and Kashmir's special status, granted under Article 370.</strong></a> Eventually, services were partially restored, with internet speed restricted to 2G.</li>
<li>A plea was filed by &lsquo;Foundation for Media Professionals&rsquo; for restoration of high-speed internet in Jammu and Kashmir in view of the <a href="/daily-updates/daily-news-editorials/covid-19-and-india-1" target="_blank" rel="noopener"><strong>Covid-19</strong></a> situation.</li>
</ul>
<h3>Key Points</h3>
<ul style="list-style-type: square;">
<li><strong>Balance of Human Rights and National Security:</strong> The Court ruled that the special circumstances occur in the Union Territory which requires <strong>delicate balancing of national security concerns and human rights.</strong></li>
<li><strong>Reference to the Previous Judgement:</strong> The bench also referred to its earlier decision in the <strong>Anuradha Bhasin case (2020)</strong> wherein it ordered <a href="/daily-updates/daily-news-analysis/sc-s-verdict-on-curbs-imposed-in-j-k" target="_blank" rel="noopener"><strong>review of restrictions placed in J&amp;K</strong></a> in the wake of abrogation of Article 370 of the Constitution.</li>
<li><strong>Constitution of Special Committee:</strong> <br />
<ul style="list-style-type: circle;">
<li>The bench ordered the constitution of a Special Committee, headed by the Union Home Secretary, <strong>to determine the necessity of the continuation of limiting mobile Internet to 2G speed in the region.</strong></li>
<li>The committee is expected to suggest the <strong>alternatives regarding limiting the restrictions</strong> to those areas where it is necessary and the <strong>possible ways of allowing faster Internet (3G or 4G)</strong> on a trial basis over certain geographical areas.</li>
</ul>
</li>
</ul>
<h3>Need of 4G and National Security</h3>
<ul style="list-style-type: square;">
<li><strong>Need of 4G in the wake of Covid-19 Pandemic:</strong><br />
<ul style="list-style-type: circle;">
<li><strong>Health:</strong> 4G services are necessary to provide access to the medical fraternity including patients to access latest information, advisories, and guidelines.</li>
<li><strong>Education:</strong> The petition also argued that the schools across the country have shifted to online classes in view of the lockdown but lack of the 4G internet puts J&amp;K students at a disadvantage.</li>
<li><strong>Trade and Business :</strong> The lower internet service speed has also affected businesses dependent on the online mode.</li>
</ul>
</li>
<li><strong>National Security Concerns:</strong><br />
<ul style="list-style-type: circle;">
<li>An issue of infiltration of outside sources through the borders and destabilizing the integrity of the nation was raised during the hearing.</li>
<li>Even the J&amp;K administration stated that high-speed internet will enable the spread of fake news/rumours and transfer of heavy data files (audio/video files) will become prevalent and may be utilised by terror outfits for incitement as also in planning attacks.</li>
</ul>
</li>
</ul>
<div class="border-bg">
<p><strong>Anuradha Bhasin vs Union of India (2020)</strong></p>
<ul style="list-style-type: square;">
<li><strong>Fundamental Rights Under Article 19 :</strong><br />
<ul style="list-style-type: circle;">
<li>The judgement declared that the<strong> freedom of speech and expression</strong> and the <strong>freedom to practice any profession</strong> or carry on any trade, business or occupation <strong>over the</strong> <a href="/daily-updates/daily-news-editorials/internet-as-a-medium-of-freedom-of-expression" target="_blank" rel="noopener"><strong>medium of Internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g)</strong></a> respectively.</li>
<li>It also ruled that such freedom is<strong> not absolute,</strong> the restrictions imposed on it should be in consonance with the mandate under <strong>Article 19(2) and Article 19(6) of the Constitution.</strong></li>
</ul>
</li>
<li><strong>Territorial Extent of Internet Suspensions:</strong><br />
<ul style="list-style-type: circle;">
<li>It had also directed authorities to pass internet suspension orders with respect to <strong>only those areas, where there is absolute necessity of such restrictions to be imposed.</strong></li>
</ul>
</li>
<li><strong>Constitution of Review Committee:</strong><br />
<ul style="list-style-type: circle;">
<li>The Court also directed the government <strong>to constitute a review committee</strong> to review orders <strong>leading to suspension and shutting down of Internet, mobile and fixed line telecommunication services.</strong><br />
<ul style="list-style-type: disc;">
<li>All orders leading to suspension and shutting down of Internet, mobile and fixed line telecommunication services are issued under<strong> Rule 2 (2) of the Temporary Suspension of Telecom Services [Public Emergency or Public Service] Rules, 2017.</strong></li>
<li>These are the rules to be followed if the government intends to temporarily suspend telecom services in any part of the country.</li>
<li>These rules have been framed by the government on the basis of the powers conferred by <strong>section 7 of the Indian Telegraph Act, 1885.</strong></li>
</ul>
</li>
<li>The Review Committee shall consist of<strong> State as well as Central level officials</strong> as the issue involved affects not only the UT of Jammu and Kashmir but also the whole country.</li>
</ul>
</li>
</ul>
</div>
<p><a href="https://indianexpress.com/article/india/jammu-kashmir-security-rights-supreme-court-internet-4g-6405517/" target="_blank" rel="noopener"><strong>Source:IE</strong></a></p>',
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	(int) 10 => object(Cake\ORM\Entity) {

		'article_id' => (int) 5112,
		'category_id' => (int) 21,
		'title' => 'Reservation Review: SC',
		'description' => '<h3>Why in News</h3>
<p>Recently, the <a href="/important-institutions/drishti-specials-important-institutions-national-institutions/supreme-court-of-india" target="_blank" rel="noopener"><strong>Supreme Court of India</strong></a> has ruled the<strong> January 2000 order</strong> of the Governor of the erstwhile state of <strong>Andhra Pradesh</strong> which provided <strong>100% <a href="/to-the-points/Paper2/reservation-in-india" target="_blank" rel="noopener">reservation</a> to Scheduled Tribes (ST) candidates</strong> in posts of school <strong>teachers</strong> in<strong> Scheduled Areas, unconstitutional.</strong></p>
<ul style="list-style-type: square;">
<li>It also highlighted that within the <strong>Other Backward Castes</strong> (OBCs) and the <strong>Scheduled Castes</strong> (SCs) and <strong>STs,</strong> reservation benefits are <strong>not reaching the truly deserving.</strong></li>
</ul>
<h3>Key Points</h3>
<ul style="list-style-type: square;">
<li>The apex court said that 100% reservation is <strong>not permissible</strong> under the Constitution as the <strong>outer limit is 50%</strong> as specified in<strong> Indra Sawhney case, 1992.</strong></li>
<li>A 100% reservation would become <strong>discriminatory and impermissible.</strong> The citizens have <strong>equal rights</strong> and the total exclusion of others by creating an opportunity for one class is not contemplated by the Constitution.</li>
<li>It also<strong> deprives SCs and OBCs</strong> of their due representation.</li>
<li>The <strong>opportunity of public employment</strong> cannot be denied unjustly to the incumbents and it is not the prerogative of few.</li>
<li><strong>Equality of opportunity</strong> and <strong>pursuit of choice</strong> under <strong>Article 51&shy;A</strong> cannot be deprived of unjustly and arbitrarily.</li>
<li>It is <strong>arbitrary and violative</strong> of provisions of <strong>Articles 14 (equality before law), 15(1) (discrimination against citizens) and 16 (equal opportunity) of the Constitution.</strong></li>
<li>It also impinges upon the <strong>right of open category</strong> because only STs will fill all the vacant posts leaving SCs and OBCs far behind.<br />
<ul style="list-style-type: circle;">
<li><strong>Open Category:</strong> It means for<strong> all castes.</strong> The<strong> 50% unreserved seats are not entitled to the General category.</strong> They can be<strong> filled by reserved categories</strong> as well <strong>in case all seats are not occupied by the general</strong> category.</li>
</ul>
</li>
<li>The SC has<strong> allowed the request not to quash the appointments already made</strong> under the 2000 order. However, it has <strong>warned Andhra Pradesh and Telangana</strong> against making such provisions in the future.<br />
<ul style="list-style-type: circle;">
<li>In case they do so, exceeding the limit of reservation, the appointments which have not been quashed now, will also be considered null and void.</li>
</ul>
</li>
</ul>
<h3>Background</h3>
<ul style="list-style-type: square;">
<li>The <strong>Andhra Pradesh government</strong> came out with a <a href="/daily-updates/daily-news-analysis/reservation-issue-in-ap" target="_blank" rel="noopener"><strong>similar order in 1986</strong></a> which was quashed by the State Administrative Tribunal and an appeal before the Supreme Court was dismissed in 1998.</li>
<li>However, in <strong>2000,</strong> the State <strong>issued an order providing for 100% reservation to STs candidates</strong> on teacher posts in Schedules areas.</li>
<li>The <strong>State's High Court upheld</strong> the order but its decision was later on <strong>challenged in the Supreme court</strong> leading to this order.</li>
</ul>
<h3>On Reservation</h3>
<ul style="list-style-type: square;">
<li><strong>Failure of trickle down approach:</strong> The SC highlighted the <strong>struggles of people from the OBCs, SCs and STs</strong> who<strong> could not benefit</strong> from the trickle down approach of the reservation.<br />
<ul style="list-style-type: circle;">
<li>By now, there are <strong>affluent and socially and economically advanced classes within the reserved communities</strong> who do not permit benefits to trickle down to the ones who actually need them.</li>
</ul>
</li>
<li><strong>Revision of reservation:</strong> The apex court <strong>suggested the government to revise the lists of those entitled to reservation,</strong> from time to time.<br />
<ul style="list-style-type: circle;">
<li><strong>Suggestion:</strong> It can be <strong>done without disturbing the percentage of reservation</strong> so that the benefits trickle down to the needy and are not hindered by those who have been obtaining benefits for the last 70 years or after their inclusion in the list.</li>
</ul>
</li>
</ul>
<div class="border-bg">
<p><strong>Indra Sawhney &amp; Others vs Union of India, 1992</strong></p>
<ul style="list-style-type: square;">
<li>The Supreme Court while <strong>upholding the 27% quota</strong> for backward classes, struck down the government notification reserving 10% government jobs for economically backward classes among the higher castes.</li>
<li>SC in the same case also upheld the principle that the combined reservation beneficiaries <strong>should not exceed 50%</strong> of India&rsquo;s population.</li>
<li>The concept of<strong> &lsquo;creamy layer&rsquo;</strong> also gained currency through this judgment and provision that <strong>reservation for backward classes</strong> should be <strong>confined to initial appointments only</strong> and<strong> not extend to promotions.</strong></li>
<li>The <strong>Constitutional (103<sup>rd</sup> Amendment) Act of 2019</strong> provided for <strong>10% reservation in government jobs and educational institutions</strong> for the <strong>&ldquo;economically backward&rdquo;</strong> in the unreserved category.<br />
<ul style="list-style-type: circle;">
<li>The Act <strong>amended the Articles 15 and 16</strong> of the Constitution by adding clauses empowering the government to provide reservation on the basis of economic backwardness.</li>
<li>This <strong>10% economic reservation is over and above the 50% reservation cap.</strong></li>
</ul>
</li>
<li>However, it should be noted that a constitution bench of the SC has reserved orders whether a bunch of <strong>writ petitions challenging the economic reservation law should be referred to a Constitution Bench or not.</strong> <br />
<ul style="list-style-type: circle;">
<li>That is why the court had <strong>refused to pass any interim order to stay or hamper</strong> the implementation of the Constitution (103<sup>rd</sup> Amendment) Act, 2019.</li>
</ul>
</li>
</ul>
</div>
<p><a href="https://indianexpress.com/article/india/affluent-in-obc-sc-st-not-letting-quota-benefits-trickle-down-review-lists-bench-6374908/" target="_blank" rel="noopener"><strong>Source: IE</strong></a></p>',
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	(int) 11 => object(Cake\ORM\Entity) {

		'article_id' => (int) 4254,
		'category_id' => (int) 21,
		'title' => 'Freedom of Speech and Expression on Social Media',
		'description' => '<h3>Why in News</h3>
<p>The <strong>High Court of Tripura</strong> has held that posting on social media was virtually the same as a <strong>fundamental right</strong> applicable to all citizens, including government employees.</p>
<ul style="list-style-type: square;">
<li>It also asserted that government servants are entitled to hold and express their political beliefs, subject to the restrictions laid under <strong>the Tripura Civil Services (Conduct) Rules, 1988.</strong></li>
</ul>
<h3>Key Points</h3>
<ul style="list-style-type: square;">
<li>In another significant judgement, the High Court of Tripura ordered the police to refrain from prosecuting the activist who was arrested over a social media post where he criticised online campaign in support of the <a href="/to-the-points/Paper2/citizenship-amendment-act-2019" target="_blank" rel="noopener"><strong>Citizenship Amendment Act (CAA), 2019</strong></a> and warned people against it.</li>
<li>The HC held that these orders are in line with the very essence of the Indian Constitution.</li>
</ul>
<div class="border-bg">
<p><strong>Other Recent Judgements</strong></p>
<ul style="list-style-type: square;">
<li>The <a href="/important-institutions/drishti-specials-important-institutions-national-institutions/supreme-court-of-india" target="_blank" rel="noopener"><strong>Supreme Court of India</strong></a> also gave judgement on the <a href="/daily-updates/daily-news-editorials/internet-as-a-medium-of-freedom-of-expression" target="_blank" rel="noopener"><strong>internet shutdown and curbing of other civil liberties in the Jammu and Kashmir.</strong></a> It upheld the Right to access the Internet and released guidelines on imposition of <a href="/daily-updates/daily-news-analysis/section-144-of-crpc" target="_blank" rel="noopener"><strong>section 144 of CrPC.</strong></a></li>
<li>Recently, the<strong> Kerala High Court,</strong> in<strong> Faheema Shirin v. the State of Kerala</strong> case, declared the <a href="/daily-updates/daily-news-editorials/right-to-internet-access-and-digital-literacy" target="_blank" rel="noopener"><strong>Right to Internet Access</strong></a> as a fundamental right, forming a part of the right to privacy and the right to education under <strong>Article 21</strong> of the Constitution.</li>
</ul>
</div>
<p><a href="https://www.thehindu.com/news/national/social-media-posting-is-a-fundamental-right-rules-tripura-high-court/article30551332.ece" target="_blank" rel="noopener"><strong>Source: TH</strong></a></p>',
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	(int) 12 => object(Cake\ORM\Entity) {

		'article_id' => (int) 3967,
		'category_id' => (int) 27,
		'title' => 'Public Interest Litigation',
		'description' => '<h3>Introduction</h3>
<ul style="list-style-type: square;">
<li>The expression &lsquo;Public Interest Litigation&rsquo; has been borrowed from American jurisprudence, where it was designed to provide legal representation to previously unrepresented groups like the poor, the racial minorities, unorganised consumers, citizens who were passionate about the environmental issues, etc.</li>
<li><strong>Public interest Litigation (PIL)</strong> means litigation filed in a court of law, for the protection of &ldquo;Public Interest&rdquo;, such as Pollution, Terrorism, Road safety, Constructional hazards etc. Any matter where the interest of public at large is affected can be redressed by filing a Public Interest Litigation in a court of law.</li>
<li><strong>Public interest litigation is not defined in any statute or in any act.</strong> It has been interpreted by judges to consider the intent of public at large.</li>
<li>Public interest litigation is the power given to the public by courts through judicial activism. However, the person filing the petition must prove to the satisfaction of the court that the petition is being filed for a public interest and not just as a frivolous litigation by a busy body.</li>
<li>The court can itself take cognizance of the matter and proceed suo motu or cases can commence on the petition of any public spirited individual.</li>
<li>Some of the matters which are entertained under PIL are: <br />
<ul style="list-style-type: circle;">
<li>Bonded Labour matters</li>
<li>Neglected Children</li>
<li>Non-payment of minimum wages to workers and exploitation of casual workers</li>
<li>Atrocities on women</li>
<li>Environmental pollution and disturbance of ecological balance</li>
<li>Food adulteration</li>
<li>Maintenance of heritage and culture</li>
</ul>
</li>
</ul>
<h3>Genesis and Evolution of PIL in India: Some Landmark Judgements</h3>
<ul style="list-style-type: square;">
<li>The seeds of the concept of public interest litigation were initially sown in India by <strong>Justice Krishna Iyer,</strong> in 1976 in <strong>Mumbai Kamagar Sabha vs. Abdul Thai.</strong></li>
<li>The first reported case of PIL was <strong>Hussainara Khatoon vs. State of Bihar</strong> (1979) that focused on the inhuman conditions of prisons and under trial prisoners that led to the release of more than 40,000 under trial prisoners.<br />
<ul style="list-style-type: circle;">
<li><strong>Right to speedy justice emerged as a basic fundamental right</strong> which had been denied to these prisoners. The same set pattern was adopted in subsequent cases.</li>
</ul>
</li>
<li>A new era of the PIL movement was heralded by <strong>Justice P.N. Bhagawati in the case of S.P. Gupta vs. Union of India.</strong> <br />
<ul style="list-style-type: circle;">
<li>In this case it was held that &ldquo;any member of the public or social action group acting bonafide&rdquo; can invoke the Writ Jurisdiction of the High Courts (under article 226) or the Supreme Court (under Article 32) seeking redressal against violation of legal or constitutional rights of persons who due to social or economic or any other disability cannot approach the Court.</li>
<li>By this judgment PIL became a potent weapon for the enforcement of &ldquo;public duties&rdquo; where executive action or misdeed resulted in public injury. And as a result any citizen of India or any consumer groups or social action groups can now approach the apex court of the country seeking legal remedies in all cases where the interests of general public or a section of the public are at stake.</li>
<li>Justice Bhagwati did a lot to ensure that the concept of PILs was clearly enunciated. He did not insist on the observance of procedural technicalities and even treated ordinary letters from public-minded individuals as writ petitions.</li>
</ul>
</li>
<li>The Supreme Court in <strong>Indian Banks&rsquo; Association, Bombay &amp; Ors. vs. M/s Devkala Consultancy Service and Ors</strong> held :- &ldquo;In an appropriate case, where the petitioner might have moved a court in her private interest and for redressal of the personal grievance, the court in furtherance of Public Interest may treat it a necessity to enquire into the state of affairs of the subject of litigation in the interest of justice.&rdquo; <strong>Thus, a private interest case can also be treated as public interest case.</strong></li>
<li><strong>M.C Mehta vs. Union of India</strong>: In a Public Interest Litigation brought against Ganga water pollution so as to prevent any further pollution of Ganga water. Supreme Court held that petitioner although not a riparian owner is entitled to move the court for the enforcement of statutory provisions, as he is the person interested in protecting the lives of the people who make use of Ganga water.</li>
<li><strong>Vishaka v. State of Rajasthan:</strong> The judgement of the case recognized sexual harassment as a violation of the fundamental constitutional rights of <strong>Article 14, Article 15 and Article 21.</strong> The guidelines also directed for the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.</li>
</ul>
<h3>Factors Responsible for the Growth of PIL in India</h3>
<ul style="list-style-type: square;">
<li><strong>The character of the Indian Constitution.</strong> India has a written constitution which through Part III (Fundamental Rights) and Part IV (Directive Principles of State Policy) provides a framework for regulating relations between the state and its citizens and between citizens inter-se.</li>
<li>India has some of the most <strong>progressive social legislations</strong> to be found anywhere in the world whether it be relating to bonded labor, minimum wages, land ceiling, environmental protection, etc. This has made it easier for the courts to haul up the executive when it is not performing its duties in ensuring the rights of the poor as per the law of the land.</li>
<li>The <strong>liberal interpretation of locus standi</strong> where any person can apply to the court on behalf of those who are economically or physically unable to come before it has helped. Judges themselves have in some cases initiated suo moto action based on newspaper articles or letters received.</li>
<li>Although social and economic rights given in the Indian Constitution under Part IV are not legally enforceable, courts have creatively read these into fundamental rights thereby making them judicially enforceable. For instance the "right to life" in Article 21 has been expanded to include right to free legal aid, right to live with dignity, right to education, right to work, freedom from torture, bar fetters and hand cuffing in prisons, etc.</li>
<li><strong>Judicial innovations to help the poor and marginalised:</strong> For instance, in the <strong>Bandhua Mukti Morcha,</strong> the Supreme Court put the burden of proof on the respondent stating it would treat every case of forced labor as a case of bonded labor unless proven otherwise by the employer. Similarly in the <strong>Asiad Workers judgment case,</strong> Justice P.N. Bhagwati held that anyone getting less than the minimum wage can approach the Supreme Court directly without going through the labor commissioner and lower courts.</li>
<li>In PIL cases where the petitioner is not in a position to provide all the necessary evidence, either because it is voluminous or because the parties are weak socially or economically, courts have appointed commissions to collect information on facts and present it before the bench.</li>
</ul>
<h3>Who Can File a PIL and Against Whom?</h3>
<ul style="list-style-type: square;">
<li>Any citizen can file a public case by filing a petition:<br />
<ul style="list-style-type: circle;">
<li>Under Art 32 of the Indian Constitution, in the Supreme Court.</li>
<li>Under Art 226 of the Indian Constitution, in the High Court.</li>
<li>Under sec. 133 of the Criminal Procedure Code, in the Court of Magistrate.</li>
</ul>
</li>
<li>However, the court must be satisfied that the Writ petition fulfils some basic needs for PIL as the letter is addressed by the aggrieved person, public spirited individual and a social action group for the enforcement of legal or Constitutional rights to any person who are not able to approach the court for redress.</li>
<li>A Public Interest Litigation can be filed <strong>against a State/ Central Govt., Municipal Authorities, and not any private party.</strong> The definition of State is the same as given under Article 12 of the Constitution and this includes the Governmental and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.</li>
</ul>
<h3>Significance of PIL</h3>
<ul style="list-style-type: square;">
<li>The aim of PIL is to give to the common people access to the courts to obtain legal redress.</li>
<li>PIL is an important <strong>instrument of social change</strong> and for maintaining the Rule of law and accelerating the balance between law and justice.</li>
<li>The original purpose of PILs have been<strong> to make justice accessible to the poor and the marginalised.</strong></li>
<li>It is an important tool to make human rights reach those who have been denied rights.</li>
<li>It <strong>democratises the access of justice</strong> to all. Any citizen or organisation who is capable can file petitions on behalf of those who cannot or do not have the means to do so.</li>
<li>It helps in judicial monitoring of state institutions like prisons, asylums, protective homes, etc.</li>
<li>It is an important tool for implementing the concept of judicial review.</li>
<li>Enhanced public participation in judicial review of administrative action is assured by the inception of PILs.</li>
</ul>
<h3>Certain Weaknesses of PIL</h3>
<ul style="list-style-type: square;">
<li>PIL actions may sometimes give rise to the <strong>problem of competing rights.</strong> For instance, when a court orders the closure of a polluting industry, the interests of the workmen and their families who are deprived of their livelihood may not be taken into account by the court.</li>
<li>It could lead to overburdening of courts with <strong>frivolous PILs by parties with vested interests.</strong> PILs today has been appropriated for corporate, political and personal gains. Today the PIL is no more limited to problems of the poor and the oppressed.</li>
<li>Cases of <strong>Judicial Overreach</strong> by the Judiciary in the process of solving socio-economic or environmental problems can take place through the PILs.</li>
<li>PIL matters concerning the exploited and disadvantaged groups are pending for many years.<strong> Inordinate delays in the disposal of PIL cases</strong> may render many leading judgments merely of academic value.</li>
</ul>
<h3>Conclusion</h3>
<ul style="list-style-type: square;">
<li>Public Interest Litigation has produced astonishing results which were unthinkable three decades ago. Degraded bonded labourers, tortured under trials and women prisoners, humiliated inmates of protective women&rsquo;s home, blinded prisoners, exploited children, beggars, and many others have been given relief through judicial intervention.</li>
<li>The greatest contribution of PIL has been to enhance the accountability of the governments towards the human rights of the poor.</li>
<li>The PIL develops a new jurisprudence of the accountability of the state for constitutional and legal violations adversely affecting the interests of the weaker elements in the community.</li>
<li>However, the Judiciary should be cautious enough in the application of PILs to avoid Judicial Overreach that are violative of the principle of Separation of Power.</li>
<li>Besides, the frivolous PILs with vested interests must be discouraged to keep its workload manageable.</li>
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	(int) 13 => object(Cake\ORM\Entity) {

		'article_id' => (int) 3503,
		'category_id' => (int) 21,
		'title' => 'Mercy Petition',
		'description' => '<h3>Why in News</h3>
<p>The Tihar Jail administration had asked the convicts in the <strong>Nirbhaya case, 2012</strong>&nbsp;to apply for mercy petition before the President within seven days. The order has come after all other legal options have been exhausted by the convicts.</p>
<ul style="list-style-type: square;">
<li>Even if one of the convicts applies for the mercy plea, it becomes applicable to all.</li>
<li>For seeking <strong>mercy petition,</strong> the death sentence by a sessions (trial) court must be confirmed by the High Court.<br />
<ul style="list-style-type: circle;">
<li>The death sentence convict has an option to appeal to the Supreme Court. If the Supreme Court either refuses to hear the appeal or upholds the death sentence, then the convict or his relative can submit a mercy petition to the <strong>President of India (Articles 72) or the Governor of the State (161).</strong></li>
</ul>
</li>
</ul>
<div class="border-bg">
<p><strong>Session Court: </strong>District court is referred to as sessions court when it exercises its jurisdiction on criminal matters under the Code of Criminal procedure (CrPc).</p>
</div>
<h3>Grounds of Appeal</h3>
<ul style="list-style-type: square;">
<li>In his/her mercy petition, the person concerned is <strong>required to state the grounds</strong> upon which he/she requests for the grant of pardon.</li>
<li>These grounds may not have any value in the eyes of law for exonerating the accused person from the offence, but they may play an important role in the release of the person by the President. <br />
<ul style="list-style-type: circle;">
<li>The grounds, such as the convicted person is the only <strong>bread earner </strong>of the<strong> family or the physical fitness of the convict, his age</strong> or<strong> even the law was quite harsh or the court by chance committed any mistake or error</strong> inadvertently, may be taken into consideration at the time of disposal of the mercy petition.</li>
</ul>
</li>
<li>Supreme Court in <strong>Kehar Singh v Union of India, 1988</strong> case reiterated its stand and held that the grant of pardon by the President is an act of grace and, therefore, cannot be claimed as a matter of right.</li>
</ul>
<h3>Need for the Pardoning Power</h3>
<ul style="list-style-type: square;">
<li>The <strong>philosophy</strong> underlying the pardon power is that &ldquo;every civilized country recognizes and provides for the pardoning power as an act of grace and humanity in course of law&rdquo;.</li>
<li>The pardoning power is founded on the consideration of<strong> public good</strong> and is to be exercised on the grounds of <strong>public welfare,</strong> which is the legitimate objective of all punishments.</li>
</ul>
<h3>Constitutional Provision</h3>
<ul style="list-style-type: square;">
<li><strong>Article 72</strong> provides the pardoning power to the President of India, it says:<br />
<ul style="list-style-type: circle;">
<li>The President shall have the power to <strong>grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute</strong> the sentence of any person convicted of any offence-<br />
<ul style="list-style-type: disc;">
<li>in all cases where the punishment or sentence is by a Court-martial;</li>
<li>in all cases where the punishment or sentence for an offence against any law relating to a matter to which the executive power of the Union extends;</li>
<li>in all cases where the sentence is a sentence of death.</li>
</ul>
</li>
</ul>
</li>
<li><strong>Article 161</strong> provides that the Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the <strong>executive power of the State extends.</strong></li>
<li>In <strong>Dhananjoy Chatterjee alias Dhana v State of West Bengal, 1994&nbsp;</strong>case the Supreme Court has said that &ldquo;The power under Articles 72 and 161 of the Constitution can be exercised by the Central and State Governments, not by the President or Governor on their own&rdquo;. <br />
<ul style="list-style-type: circle;">
<li>The advice of the appropriate Government binds the Head of the state.</li>
</ul>
</li>
</ul>
<div class="border-bg">
<p><strong>Pardon:</strong> The president can totally absolve/acquit the person for the offence and let him go free like a normal citizen.</p>
<p><strong>Commute:</strong> To reduce the type of punishment into a less harsh one. For example Rigorous imprisonment to simple imprisonment.</p>
<p><strong>Remission:</strong> To reduce the punishment without changing the nature of the punishment. For example 20 years rigorous imprisonment to 10 years rigorous imprisonment.</p>
<p><strong>Reprieve:</strong> A delay is allowed in the execution of a sentence, usually a death sentence for a guilty person to prove his innocence.</p>
<p><strong>Respite:</strong> Reduce the degree of punishment looking at specific grounds like pregnancy, old age etc.</p>
<p><strong>Note:</strong> A Court-martial is a trial in a military court of a member of the armed forces who are charged with breaking military law.</p>
</div>
<h3>Difference between the pardoning power of President and Governor</h3>
<ul style="list-style-type: square;">
<li><strong>Death sentence:</strong> President can pardon the death sentence but the Governor has no power to pardon the death sentence.</li>
<li><strong>Court-martial:</strong> The President can pardon in case of Court-martial. But the Governor cannot pardon in the court-martial.</li>
<li><strong>Jurisdiction:</strong> President exercises his judicial powers for the punishment which is given under the law made by the Union. Whereas the Governor exercises his judicial powers for the punishment which is given under the law made by the State.</li>
</ul>
<h3>Procedure Involved</h3>
<ul style="list-style-type: square;">
<li>A convict under the sentence of death is allowed to file a mercy petition within a period of seven days after the date on which the Superintendent of Jail informs him about the dismissal of the appeal or special leave to appeal by the Supreme Court.</li>
<li>The petitions are to be presented to the President of India. The President office seeks the cabinet advice. <br />
<ul style="list-style-type: circle;">
<li>The appeal is examined by the <strong>Ministry of Home Affairs</strong> and the Ministry before giving recommendations to the President, takes the view of State concerned.</li>
<li>There is no written procedure to deal with mercy petition.</li>
</ul>
</li>
<li><strong>Judicial review:</strong> President&rsquo;s pardon/rejection/delay is also subjected to judicial review.<br />
<ul style="list-style-type: circle;">
<li>However, if a court finds that the process of the decision taken by the President under Article 72 was not arbitrary or unreasonable, the decision then cannot be interfered with.</li>
<li>A <strong>curative petition</strong> is the last judicial corrective measure which can be pleaded in any judgment or decision passed by the Supreme Court which is normally decided by Judges in-chamber.</li>
</ul>
</li>
</ul>
<div class="border-bg">
<p><strong>Curative petition:</strong> The concept of the curative petition was first evolved by the Supreme Court of India in the matter of <strong>Rupa Ashok Hurra vs. Ashok Hurra and Anr. (2002)</strong> where the question was whether an aggrieved person is entitled to any relief against the final judgement/order of the Supreme Court, after the dismissal of a review petition.</p>
<p><strong>Article 137:</strong> It provides that in the matter of <strong>laws and rules made under Article 145,</strong> the Supreme Court has the power to review any judgement pronounced (or order made) by it. Such a petition needs to be filed within 30 days from the date of judgement or order.</p>
</div>
<p><a href="https://www.thehindu.com/news/national/nirbhaya-case-convicts-given-deadline-for-mercy-plea/article29847335.ece" target="_blank" rel="noopener"><strong>Source: TH</strong></a></p>',
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	(int) 14 => object(Cake\ORM\Entity) {

		'article_id' => (int) 3283,
		'category_id' => (int) 15,
		'title' => 'The Big Picture: UK’s Constitutional Crisis',
		'description' => '<p style="text-align: center;"><iframe width="560" height="315" src="https://www.youtube.com/embed/Ulv6wnKdMrg" frameborder="0" allow="accelerometer; autoplay; encrypted-media; gyroscope; picture-in-picture" allowfullscreen="allowfullscreen"></iframe></p>
<ul style="list-style-type: square;">
<li>A defiant <strong>Boris Johnson (United Kingdom&rsquo;s Prime Minister)</strong> has vowed to take the country out of the <a href="/important-institutions/drishti-specials-important-institutions-international-institution/european-union" target="_blank" rel="noopener"><strong>European Union</strong></a> next month, despite suffering an unprecedented legal defeat over his <a href="/loksabha-rajyasabha-discussions/brexit-deal-what-lies-ahead" target="_blank" rel="noopener"><strong>Brexit</strong></a> strategy in the Supreme Court.</li>
<li>In a sweeping rebuke to the Prime Minister, Britain&rsquo;s Supreme Court ruled that Johnson broke the law when he decided to suspend Parliament for five weeks in the run-up to the <strong>October 31<sup>st</sup> deadline for leaving the EU.</strong></li>
<li>He <strong>gave Queen Elizabeth II &ldquo;unlawful" advice</strong> to pause the legislature and his decision wrecked the ability of Britain&rsquo;s elected politicians to fulfill their crucial democratic role overseeing his government&rsquo;s actions, the court found.</li>
</ul>
<h3>Why the UK Prime Minister&rsquo;s actions have been termed unlawful instead of unconstitutional by the Supreme Court?</h3>
<ul style="list-style-type: square;">
<li>UK does <strong>not have a written constitution</strong> like India and most of the work is done on the basis of the conventions so there is no violation of the Constitution.</li>
<li>In terms of written or unwritten law, such decisions are considered as <strong>transgression of Parliament&rsquo;s powers and functions</strong> and hence, <strong>unlawful.</strong></li>
</ul>
<h3>Major Highlights</h3>
<ul style="list-style-type: square;">
<li>Referendum held in 2016 started a<strong> tussle</strong> between the <strong>direct democracy</strong> and <strong>representative democracy</strong> where both have different opinions on Brexit.</li>
<li>In the <strong>absence of the constitution and the limits</strong> set by it, the UK PM suspended the Parliament for 5 weeks to suppress all the debates against his idea of exiting European Union by 31<sup>st</sup> October 2019, which started a <strong>tussle between the executive and the legislature.</strong></li>
<li>If the UK remains a part of the Custom Union nothing changes. So the battle is now between the leavers and the remainers where the PM seems stuck between multiple different ways leading to confusion.</li>
<li>All problems which exist in a <strong>no deal situation</strong> tend to remain the same. Nothing has happened on the contentious issues like <strong>Irish backstop and <a href="/daily-updates/daily-news-analysis/new-approach-to-immigration-in-uk" target="_blank" rel="noopener">Immigrant issues</a></strong> which the UK has to overcome.</li>
</ul>
<div class="border-bg">
<p><strong>Key Terms</strong></p>
<p><strong>Referendum:</strong></p>
<ul style="list-style-type: square;">
<li>A <strong>public vote (referendum) was held in 2016,</strong> to decide whether the UK should leave or remain in the European Union.</li>
<li><strong>Leave won by 52% to 48%.</strong> The referendum turnout was very high at 72%, with more than 30 million people voting.</li>
</ul>
<p><strong>No Deal Brexit:</strong></p>
<ul style="list-style-type: square;">
<li>In a no deal situation, UK would immediately leave the EU <strong>with no agreement about the divorce process.</strong></li>
<li>UK will leave the single market and customs union arrangements overnight.</li>
<li>UK will have to immediately leave EU institutes and other bodies like <strong>European Court of Justice and Europole,</strong> its law enforcement body.</li>
<li>UK will no longer contribute to the EU budget.</li>
</ul>
<p><strong>Divorce Bill:</strong></p>
<ul style="list-style-type: square;">
<li>The <strong>Brexit Financial Settlement (Divorce Bill)</strong> is a sum of money UK needs to pay to the EU for settling all shares of the financial obligations undertaken while being a member of the EU.</li>
</ul>
<p><strong>Irish Backstop:</strong></p>
<ul style="list-style-type: square;">
<li>The <strong>draft agreement</strong> between the UK and the EU that aims to prevent a <strong>hard border</strong> (limited number of authorised crossing points staffed by customs officers and police) in Ireland after the UK leaves the EU.</li>
<li>It was earlier known as <strong>Northern Ireland Protocol.</strong></li>
</ul>
</div>
<h3>Boris Johnson at the Centre of the Chaos</h3>
<ul style="list-style-type: square;">
<li>Boris Johnson expects that <strong>if he will take the No Deal position,</strong> it is more likely that the <strong>&ldquo;leavers&rdquo; will</strong> gravitate towards the Conservative Party and will <strong>bring him back to power.</strong></li>
<li>For that, he needs a majority in the Parliament but people need more time to negotiate deals with the EU during the transition period which they are not getting in the October 31<sup>st</sup> deadline.</li>
<li><strong>Calling for a No Confidence Motion is also a problematic</strong> option because it will give a two week gap to other political parties allowing them to join in and maybe form government or make other proposals to the Queen.</li>
</ul>
<h3>What makes the process so complicated?</h3>
<ul style="list-style-type: square;">
<li>The main issue is the <strong>ambiguity of the term &lsquo;leave&rsquo;</strong> in the referendum without any clarifications or guidelines for the aftermath of Brexit.</li>
<li>Many people from the leave side have <strong>threatened for direct action</strong> and there are threats, in general, to the people involved in the litigation as well.</li>
<li>In theory, there is <strong>no clear cut delegation of duties, responsibilities and limitations</strong> which leads to chaotic situations like British Parliament&rsquo;s.</li>
<li>The confusion has further increased with the <strong>courts jumping</strong> in and <strong>absence of a written constitution</strong> makes it far more difficult.</li>
<li>Since Boris Johnson is trying to <strong>garner his vote on the basis of the emotional sentiments</strong> of the people, it further complicates the situation.</li>
<li>It is not only the question of brexit in its own rights but <strong>how it is going to play out within the unfolding electoral politics</strong> expected in the near future.</li>
</ul>
<h3>Judiciary&rsquo;s Role</h3>
<ul style="list-style-type: square;">
<li>Judiciary is expected to deliver justice when there is a tussle between the executive and the legislative in a parliamentary democracies like the UK and India.</li>
<li>Prime Minister and the other ministers <strong>(executive)</strong> are also members of Parliament only, but problem arises when they<strong> stress their executive authority over the legislature and judiciary has to mediate.</strong></li>
<li>In Britain&rsquo;s case,<strong> judiciary only pointed out</strong> the question whether the advice by the PM was reasonable or not and based on some logical justification and the Supreme Court ruled out that it was unjustified.</li>
<li>Supreme Court stated that <strong>the Act of Suspension</strong> was not actually a part of the proceedings of the Parliament therefore Supreme Court has all the rights (given <strong>the English Bill of Rights</strong>) to come out on a ruling on that.</li>
<li>Supreme Court has made it clear now that it has <strong>powers to rule over the fringe areas of doubt</strong> whether it was an act of proceeding of parliament or basically a very executive proceeding.</li>
<li>It is exemplary that the <strong>judiciary has taken a very legalistic and a strongly apolitical stand</strong> which can be compared to ours and many other nations.</li>
</ul>
<div class="border-bg">
<p><strong>The English Bill of Rights, 1689</strong></p>
<ul style="list-style-type: square;">
<li>It <strong>outlined specific constitutional civil rights, limited the power of the monarchy, elevated the status of Parliament</strong> and ultimately gave Parliament power over the monarchy.</li>
<li>Many experts regard the English Bill of Rights as the primary law that set the stage for a constitutional monarchy in England.</li>
<li>It is also credited as being an <strong>inspiration for the U.S. Bill of Rights.</strong></li>
</ul>
</div>
<h3>Impact of the Crisis</h3>
<ul style="list-style-type: square;">
<li><strong>EU representatives</strong> have seen <strong>little or no movement from the UK&rsquo;s side.</strong> There are some intractable issues, like the Irish Backstop and also the idea that the UK can retain some benefits of EU while not taking the responsibility for free movement of labour, which need to be addressed.</li>
<li>It takes a toll on various political parties in terms of the fact that <strong>no parties,</strong> except for the liberal democrats, <strong>are united</strong> behind either a leave option or a remain option.</li>
<li><strong>Conservative Party has split</strong> in itself with Boris Johnson for a No Deal Policy and others against it. <strong>Labour Party</strong> says it will try to work for a deal and then again take it to the referendum.<strong> Liberal Democrats</strong> have taken a strong position and they look for revoking the referendum altogether.</li>
<li>Brexit itself has brought out a <strong>massive demand in the population for the constitution to have a written form</strong> to tackle the confusion which prevails right now.</li>
<li>A mood is building among the <strong>extreme leavers</strong> who would like to leave on <strong>World Trade Organisation&rsquo;s rules</strong> in order to get done with brexit by the end of October.</li>
</ul>
<h3>What is the best way forward?</h3>
<ul style="list-style-type: square;">
<li>A <strong>clearer view and explanation is needed on the yes or no referendum</strong> and to enable the elected representatives to form a workable treaty.</li>
<li>Now when the parliament is in session and No Deal has been taken off the table, one option is to <strong>ask the EU for a further extension.</strong> One way to do that is <strong>look for a workable deal or at least work towards a deal</strong> in order to convince the EU's 27 members that the UK deserves to have some aid and extension.</li>
<li>Only real solution for parties is <strong>to offer new choices to the electorate</strong> either via another referendum or in an election to be held in the coming months keeping in mind that now the people know what brexit involves and its negative impacts and the different political stands on the issue.</li>
<li>There is a soft brexit and there is a hard brexit but UK needs to <strong>find a way for a semi-soft Brexit</strong> so that people do not bear the sudden shock of leaving the EU at once.</li>
</ul>
<h3>Relevance of the case for Judicial Review in India</h3>
<ul style="list-style-type: square;">
<li>Two notable executive actions have undermined parliamentary processes in india this year.
<ul style="list-style-type: circle;">
<li><strong>Reservation for Economically Weaker Sections-</strong> <strong>The Constitutional (One Hundred and Third) Amendment Act 2019</strong> which provides reservation for the Economically Weaker Sections was brought for consideration of Parliament in less than 48 hours from the time the decision was taken by the Centre.</li>
<li><strong>The Bills passed around Jammu and Kashmir (J&amp;K)&nbsp;</strong>The Monsoon Session of Parliament was originally scheduled to end on July 26 but was extended to August 7 and on August 5,<strong> the Jammu and Kashmir Reservation (Second Amendment) Bill, 2019</strong> was suddenly introduced and the copies of the Bill and the Resolution were provided after the Statutory Resolution was moved in the Upper House.</li>
</ul>
</li>
<li>In the whole process, Parliament got insufficient time for scrutiny. The <strong>conventional practice</strong> is that legislative documents are provided few days before so that the <strong>MPs can understand the legislation, seek views and formulate their positions better.</strong></li>
<li>Both Bills were in direct violation of <strong>the Rules of Procedure and Conduct of Business.</strong> In <strong>Rajya Sabha, Rule 69</strong> talks about<strong> &lsquo;Motions after Introduction of Bills&rsquo; and &lsquo;Scope of Debate&rsquo;.</strong> The Chairman is given discretion in exceptional situations but there is no cogent explanation provided by those presiding the Houses of Parliament.</li>
<li>Such actions of government <strong>reveal a complete disregard for established Parliamentary processes</strong> and weaken the democratic institutions.</li>
<li>While the UK&rsquo;s Supreme Court has played its role in determining the issue, <a href="/important-institutions/drishti-specials-important-institutions-national-institutions/supreme-court-of-india" target="_blank" rel="noopener"><strong>Supreme Court of India</strong></a> has sufficient materials to assess the executive&rsquo;s role in undermining the parliamentary processes.</li>
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	(int) 15 => object(Cake\ORM\Entity) {

		'article_id' => (int) 1720,
		'category_id' => (int) 22,
		'title' => 'Constitutional Rights, Judicial Review and Parliamentary Democracy',
		'description' => '<div class="border">
<p>(This editorial is based on the article <a href="https://www.epw.in/journal/2019/15/perspectives/constitutional-rights-judicial-review-and.html" target="_blank" rel="noopener">'Constitutional Rights, Judicial Review and Parliamentary Democracy'</a> which appeared in 'The EPW' on 13th April, 2019. The article talks about constitutionality of judicial review, its underlying philosophy and issues related to judicial overreach.)</p>
</div>
<p>While the contribution of the Supreme Court towards asserting the supremacy of constitutional rights is undeniable, the rightful limits of judicial intervention in the executive and legislative domains has been questioned in recent times.</p>
<p>The heightened debate surrounding the morality and legality of court&rsquo;s intervention in public policies every now and then often challenges the constitutionally mandated jurisdictional equilibrium between the legislative, executive and judicial branches of the Indian state.</p>
<p>Therefore, to further the cause of parliamentary democracy that we have in our nation, it becomes relevant to analyse and understand the issue of judicial overreach.</p>
<h3>Judicial Review</h3>
<p>Judicial Review in its most widely accepted meaning is the power of the courts to consider the constitutionality of acts of organs of Government (the executive and legislature) and declare it unconstitutional if it violates or is inconsistent with the basic principles of <strong>Grundnorm* i.e. Constitution</strong>.</p>
<p><em>[*Grundnorm is a German word meaning "fundamental norm." The jurist and legal philosopher Hans Kelsen coined the term to refer to the fundamental norm, order, or rule that forms an underlying basis for a legal system.]</em></p>
<p>In post-independence India, the inclusion of explicit provisions for &lsquo;judicial review&rsquo; were considered necessary in order to give effect to the individual and group rights guaranteed in the text of the Constitution.</p>
<p><strong>Article 13(2) of the Constitution of India prescribes that the Union or the States shall not make any law that takes away or abridges any of the fundamental rights, and any law made in contravention of the aforementioned mandate shall, to the extent of the contravention, be void.</strong></p>
<p>While <strong>judicial review over administrative action</strong> has evolved on the lines of common law doctrines such as &lsquo;proportionality&rsquo;, &lsquo;legitimate expectation&rsquo;, &lsquo;reasonableness&rsquo; and principles of natural justice, the Supreme Court of India and the various High Courts were given the power to rule on the <strong>constitutionality of legislative as well as administrative actions</strong> to protect and enforce the fundamental rights guaranteed in Part III of the Constitution.</p>
<p>The higher courts are also approached to rule on questions of legislative competence, mostly in the context of Centre-State relations since <strong>Article 246</strong> of the Constitution read with the <strong>VII<sup>th</sup> schedule,</strong> contemplates a clear demarcation as well as a zone of intersection between the law-making powers of the Union Parliament and the various State Legislatures.</p>
<p>Hence, the <strong>scope of judicial review</strong> before Indian courts has evolved in three dimensions &ndash; firstly, to <strong>ensure fairness in administrative action,</strong> secondly, to <strong>protect the constitutionally guaranteed fundamental rights of citizens,</strong> and thirdly, <strong>to rule on questions of legislative competence between the centre and the states</strong>.</p>
<p>The power of the Supreme Court of India to enforce these fundamental rights is derived from <strong>Article 32</strong> of the Constitution. It gives citizens the right to directly approach the Supreme Court for seeking remedies against the violation of these fundamental rights.</p>
<div class="border-bg">
<p>This entitlement to constitutional remedies is itself a fundamental right and can be enforced in the form of writs evolved in common law &ndash;</p>
<ul style="list-style-type: square;">
<li><strong>Habeas Corpus -</strong> to direct the release of a person detained unlawfully.</li>
<li><strong>Mandamus -</strong> to direct a public authority to do its duty.</li>
<li><strong>Quo Warranto -</strong> to direct a person to vacate an office assumed wrongfully.</li>
<li><strong>Prohibition -</strong> to prohibit a lower court from proceeding on a case.</li>
<li><strong>Certiorari -</strong> power of the higher court to remove a proceeding from a lower court and bring it before itself.</li>
</ul>
</div>
<p>With the advent of <strong>Public Interest Litigation (PIL)</strong> and dilution of the concept of <strong>locus standi</strong> [<em>the right or capacity to bring an action or to appear in a court</em>] in recent decades, Article 32 has been creatively interpreted to shape innovative remedies such as a <strong>&lsquo;continuing mandamus&rsquo;</strong> for ensuring that executive agencies comply with judicial directions.</p>
<h3>Expanding Judicial Review</h3>
<p><strong>It was through the expansive interpretation of Article 21 of the Constitution in Maneka Gandhi v Union of India (1978), the Court held that the &ldquo;procedure established by law&rdquo; envisaged in the said article had to be just, reasonable and fair to pass the test of constitutionality.</strong></p>
<p><strong>In M Nagaraj v Union of India, the Court declared that fundamental right in Articles 14, 19 and 21 &ldquo;stands atop in constitutional value&rdquo; in a fulsome recognition that &ldquo;human dignity, equality and freedom were conjoined, reciprocal and similar values&rdquo;.</strong></p>
<p>Instances of the Court&rsquo;s intervention to expand the frontiers of these rights to include redressal for the killing of innocent people in false encounters and relief to the victims of custodial violence etc, has multiplied in recent times.</p>
<p><strong>The Court therefore has established the foundational principles for the exercise of its judicial review jurisdiction traceable to Articles 13, 32, 136, 142 and 147 of the Constitution.</strong> (The high court&rsquo;s judicial review jurisdiction is anchored in <strong>Article 226</strong> of the Constitution.)</p>
<h3>Challenges of Judicial overreach</h3>
<p>The court however in recent times has moved beyond from ensuring basic rights for citizens and has extended its review jurisdiction to what are clearly functions assigned originally and exclusively to the executive branch under the constitutional scheme.</p>
<p>Petitions to the Court have invoked <strong>judicial review in "public interest"</strong> to question major policy decisions of the government concerning policy choices, for example, in what are now known as the <strong>2G spectrum and coal mines allocation cases</strong>.</p>
<p>Challenge to proceedings of legislative assemblies and decisions of the speaker have also been entertained by the Court. Decisions of the Court voiding a constitutional amendment approved by Parliament to alter the procedure for appointment of judges, exercising review powers in what is popularly known as the <strong>Armed Forces (Special Powers) Act (AFSPA) case</strong> following the constitution bench decision in the <strong>Naga People&rsquo;s Movement of Human Rights v Union of India (1982)</strong> etc has extended the Courts&rsquo; review jurisdiction to cover not only administrative decisions but to domains hitherto regarded as the exclusive preserve of legislatures.</p>
<h3>Judicial Review or Judicial Overreach</h3>
<p><strong>Supporters</strong></p>
<p><strong>Those supporters of wider judicial review often consider that it furthers the rule of law. They don&rsquo;t see it as being anti-democratic by emphasising that it rises from the Constitution itself&mdash;the social contract that reflects the will of the people.</strong></p>
<p>Another justification for an expansive judicial review jurisdiction is that it advances the cause of justice, human rights, reasonableness, tolerance and the basic principles of morality and good faith, all of which constitute the real meaning of democracy and rules out only those choices that are ex-facie* unreasonable and inconsistent with democracy.</p>
<p>[<em>Ex facie*,</em> Latin for "on the face (of it)," is a legal term typically used to note that a document's explicit terms are defective without further investigation.]</p>
<p>Human rights are seen as an ethical force to provide &ldquo;inspiration for legislation&rdquo; and are strong ethical guidelines as to what should be done. Hence, the rise of the judiciary and overseeing the right and just implementations of such rights can best be called the need of the hour.</p>
<p><strong>Those Against</strong></p>
<p><strong>Those who favour judicial restraint, argue that in a democracy, people exercise their sovereignty through elected representatives and not through the unelected judges who must defer to the wisdom of parliamentary majorities.</strong></p>
<p>Questions are raised not so much about the advisability of review jurisdiction itself but with its perceived overreach to encompass areas of governance considered outside its purview and about the finality of judicial wisdom.</p>
<p><strong>It is argued that the failings of democracy and inadequacies of the democratic process cannot be invoked to negate the core of the democratic principle, namely that ultimate sovereignty vests in the people.</strong></p>
<p>Thus, arrangements of governance embodied in the Constitution resulting from the exercise of their free will cannot be used to deprive the political masters of the right of final decision over policy making.</p>
<h3>Conclusions</h3>
<p><strong>While the Court&rsquo;s jurisdiction as a soldier to protect and advance fundamental rights merits loud affirmation, the Court however should not to be seen as dismissive or disdainful of the processes of democratic governance.</strong></p>
<p>The presumption that the legislature understands the needs of its people and that even its discrimination and classifications are based on adequate grounds has also been acknowledged by the Supreme Court itself.</p>
<p>The challenge, therefore, is to find the delicate balance between the three organs which nurtures and invigorates institutions designed to serve the ideals of a true republic.</p>
<ul style="list-style-type: square;">
<li><em>The Court can thus serve as a guiding light unto the nations even if it cannot become a sheriff unto the nations.</em></li>
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		'article_id' => (int) 1606,
		'category_id' => (int) 22,
		'title' => 'PILs: From Public Interest to 'Publicity Interest' Litigations',
		'description' => '<div class="border">
<p>(This editorial is based on the article <a href="https://www.outlookindia.com/magazine/story/india-news-gavel-on-the-duds/301330" target="_blank" rel="noopener">&lsquo;PILs: From Public Interest to 'Publicity Interest</a>' Litigations&rsquo; which appeared in &lsquo;The Outlook&rsquo; on 19th <g class="gr_ gr_91 gr-alert gr_gramm gr_inline_cards gr_run_anim Punctuation only-del replaceWithoutSep" id="91" data-gr-id="91">March,</g> 2019. The article talks about the nature of PILs and the change it has undergone over a period of time.)</p>
</div>
<p><em>Almost exactly 40 years ago, in <g class="gr_ gr_93 gr-alert gr_gramm gr_inline_cards gr_run_anim Punctuation only-del replaceWithoutSep" id="93" data-gr-id="93">March,</g> 1979, Kapila Hingorani made history by filing and securing the release of nearly 40,000 <g class="gr_ gr_92 gr-alert gr_spell gr_inline_cards gr_run_anim ContextualSpelling ins-del" id="92" data-gr-id="92">under trials</g> languishing in the jails of Bihar&rsquo;s Patna and Muzzafarpur, in the &lsquo;Hussainara Khatoon&rsquo; case.</em></p>
<p><em>The &lsquo;Hussainara Khatoon&rsquo; case established a new paradigm in the Indian justice system, which until 1979 was accessible to only those personally affected by the law or <g class="gr_ gr_88 gr-alert gr_gramm gr_inline_cards gr_run_anim Grammar multiReplace" id="88" data-gr-id="88">facing</g> penal action.</em></p>
<p><em>The court allowed Hingorani to pursue a case in which she had no personal locus <g class="gr_ gr_86 gr-alert gr_spell gr_inline_cards gr_run_anim ContextualSpelling" id="86" data-gr-id="86">standi</g> making Public Interest Litigations (PILs) a permanent fixture in Indian jurisprudence. Ever <g class="gr_ gr_85 gr-alert gr_gramm gr_inline_cards gr_run_anim Punctuation only-del replaceWithoutSep" id="85" data-gr-id="85">since,</g> PILs has become the champion of the underprivileged and those wronged by the system. </em></p>
<h3>Public Interest Litigation</h3>
<p>Public interest litigation uses the law to advance human rights and equality, or raise issues of broad public concern. It helps advance the cause of minority or disadvantaged groups or individuals.</p>
<p>Public interest cases can arise from both public and private law matters concerning various rules and regulations that govern the exercise of power by public bodies and even when a public body is not involved such as employment law or family law.</p>
<p>It has most ideally and commonly been used to challenge the decisions of public authorities by judicial review to review the lawfulness of a decision or action, or a failure to act, by a public body.</p>
<p>PILs have been responsible for landmark verdicts that have outlawed instant triple talaq, identified privacy as a fundamental right, opened the doors of the Sabarimala temple in Kerala and Mumbai&rsquo;s Haji Ali shrine to women, <g class="gr_ gr_71 gr-alert gr_spell gr_inline_cards gr_run_anim ContextualSpelling multiReplace" id="71" data-gr-id="71">legalised</g> consensual homosexual relations and made passive euthanasia permissible etc.</p>
<div class="border-bg">
<h3>Procedures to File A PIL In The Court</h3>
<p>Any citizen of India can approach the court for public case (upon the interest of public) by filing a petition:</p>
<ul style="list-style-type: square;">
<li>Under the Supreme Court, under Article 32 of the Constitution</li>
<li>Under the High Court, under Article 226 of the Constitution</li>
<li>Under Court of Magistrate under Section 133 of CrPC</li>
</ul>
<p>At present, a court can treat a letter as a writ petition and take action upon it. In such cases, the court has to be satisfied that the writ petition complies with the following;</p>
<ul style="list-style-type: square;">
<li>Where the letter is addressed by the aggrieved person</li>
<li>A public-spirited individual</li>
<li>A social action group for the enforcement of legal or constitutional rights to any person who, upon poverty or disability, are not able to approach the court for redress.</li>
</ul>
</div>
<h3>From Public to Publicity</h3>
<ul style="list-style-type: square;">
<li>PIL was introduced in Indian jurisprudence to help raise the cause of social justice. Unfortunately, it has instead become a tool for people to use these as either to gain publicity or for political agenda.</li>
<li>PILs these days are being used as a means to further bigotry and communal hate in the name of public interest. Filling of flippant cases has resulted in the erosion of the sanctity of the PIL system, which has been responsible for some of the most progressive verdicts delivered by various courts.</li>
<li>In the absence of any robust mechanism to filter genuine pleas from frivolous pleas known as &ldquo;<g class="gr_ gr_75 gr-alert gr_spell gr_inline_cards gr_run_anim ContextualSpelling" id="75" data-gr-id="75">publicity</g> interest&rdquo; or &ldquo;political interest&rdquo; litigations, irrational petitions have soared in great numbers. The courts place the onus of curbing the menace on litigants&rsquo; moral conscience.</li>
<li>Frivolous filing of PILs has not only resulted in <g class="gr_ gr_100 gr-alert gr_gramm gr_inline_cards gr_run_anim Grammar only-ins replaceWithoutSep" id="100" data-gr-id="100">added</g> burden on judiciary but has significantly led to trust erosion in the entire exercise, even if a frivolous plea is eventually dismissed, the judges have to spend a lot of time in going through the prayer and, on most occasions, hearing the petitioner.</li>
</ul>
<h3>Present System of Checks</h3>
<ul style="list-style-type: square;">
<li>Under the present system, only judges have the power to decide if a petition should be admitted or dismissed while the job of the Registry (of the SC or of any high court) is to ensure that technical requirements of filing a petition have been fulfilled by the litigant.</li>
<li>Petition gets listed for admission irrespective of its merit, eating away the court&rsquo;s time that could otherwise be <g class="gr_ gr_68 gr-alert gr_spell gr_inline_cards gr_run_anim ContextualSpelling multiReplace" id="68" data-gr-id="68">utilised</g> to hear the massive backlog of cases.</li>
<li><g class="gr_ gr_70 gr-alert gr_gramm gr_inline_cards gr_run_anim Grammar only-ins doubleReplace replaceWithoutSep" id="70" data-gr-id="70">Total</g> number of cases pending before the SC, as on December 1 last year, stood at 56,994. The National Judicial Data Grid puts the total number of cases pending before various high courts, as on March 17, at a whopping 42.89 lakh.</li>
</ul>
<h3>The Desired Steps</h3>
<ul style="list-style-type: square;">
<li>There is a need for an effective deterrent to prevent such frivolous cases, especially those that blatantly violate the Constitution, from being filed. Judiciary needs to be more proactive in dealing with those who file cases purely to gain publicity.</li>
<li>A litigant who takes liberties with the truth or with the procedures of the court should be left in no doubt about the consequences to follow. All the courts should impose exemplary cost against petitioners who try to choke the judicial system with absurd PILs mocking both the basic law of justice as well as the secular fabric of the nation.</li>
<li>The court cannot abdicate its responsibility (of deciding whether a case deserves to be heard) in <g class="gr_ gr_87 gr-alert gr_spell gr_inline_cards gr_run_anim ContextualSpelling multiReplace" id="87" data-gr-id="87">favour</g> of the Registry as it is within the powers of the court, and <g class="gr_ gr_84 gr-alert gr_spell gr_inline_cards gr_run_anim ContextualSpelling multiReplace" id="84" data-gr-id="84">its</g> Chief Justice, to lay down broad guidelines for the Registry to follow while deciding what kind of cases deserve to be listed</li>
<li>The Registry should be empowered to at least check the credentials of the person filing a PIL and those who have a prior record of filing such cases should be warned of the consequences.</li>
</ul>
<h3>Way Forward</h3>
<ul style="list-style-type: square;">
<li>In the 40 years since its inception as a course for judicial remedy, the PIL system has emerged as a potent tool for ensuring transparency in governance and enabler of social justice.</li>
<li>Litigations such as those demanding deportation of Indian Muslims to Pakistan strikes at the very core of the purpose that a PIL is supposed to serve&mdash;public interest, necessitating timely and stern actions against the &lsquo;Lousy Litigants&rsquo; to make evident the deterrent cost of publicity.</li>
<li>Public Interest Litigation is a weapon which should be used with great care and circumspection and the Judiciary needs to be extremely careful so that ugly private malice, vested interest is not seen lurking behind the beautiful veil of public interest.</li>
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		'article_id' => (int) 1520,
		'category_id' => (int) 22,
		'title' => 'Is Judiciary Supporting Centralising Tendencies of the Government?',
		'description' => '<p>(The editorial is based on the article &ldquo;The imperial cabinet and an acquiescent court&rdquo; which appeared in The Hindu for 8th March 2019. In this article, we will discuss two major judgments of the Supreme Court.)</p>
<p><strong>In the last six months, the Supreme Court has frequently been seen in the headlines.</strong> In September, it handed down four landmark judgments on fundamental rights: decriminalizing same-sex relations and adultery, opening up Sabarimala to women of all ages, and (partially) upholding Aadhaar.</p>
<p>Recent two decisions have attracted less attention. <strong>These are the court&rsquo;s findings on</strong></p>
<ul style="list-style-type: square;">
<li>the legal status of &ldquo;money bills&rdquo; (a part of its Aadhaar judgment), and</li>
<li>its judgment on the distribution of power between the Central government and the government of Delhi.</li>
</ul>
<h3>Importance of These Two Judgements</h3>
<ul style="list-style-type: square;">
<li>People always think that their rights and freedoms depend upon the Constitution&rsquo;s fundamental rights chapter, and the judiciary&rsquo;s willingness to enforce it against the state. There are other important ways as well, in which a Constitution guarantees freedom.</li>
<li>It does by dividing and distributing political power between state organs in order to avoid concentration of authority and to ensure that these different organs act as checks and balances upon each other.</li>
<li>The check against totalitarianism is to guarantee that no one stream of authority becomes powerful enough to sweep away everything else in the time of a flood.</li>
<li>These two decisions were about constitutional structure: about the balance of power between the different organs of the state, the federal character of the Republic, and fundamental questions of democratic accountability.</li>
</ul>
<h3>Legal status of &ldquo;money bills&rdquo; (a part of its Aadhaar judgment)</h3>
<ul style="list-style-type: square;">
<li>Despite strong protests, the Aadhaar Act was passed as a money bill. This affected a crucial element of our constitutional structure: bicameralism.</li>
<li>Bicameralism, in our parliamentary democracy, requires that a bill must be scrutinized and passed by both Houses of Parliament before it becomes law.</li>
<li>A money bill takes the Rajya Sabha out of the equation: it only needs Lok Sabha approval. In combination with the anti-defection law, this places absolute power in the hands of the executive and skews the democratic process. Hence, its use must be restricted to the most limited of circumstances.</li>
<li>This was what was argued in the Aadhaar case: that the terms of the Constitution (Article 110) mandated that money bills be narrowly limited to those that fell exclusively within the categories set out in Article 110.</li>
<li>The Lok Sabha represents the voice of the democratic majority. The Rajya Sabha represents the interests of the States, as well as perspectives free of immediate, electoral interests. The basic idea is that law-making is a balanced and deliberative process, not an exercise in pure majoritarianism. <strong>The crucial purpose of the Rajya Sabha is to act as a check and a balance upon the Lok Sabha, by scrutinizing bills in a more deliberative and reflective manner, and raising concerns that may have been glossed over or evaded in the Lower House.</strong></li>
<li><strong>The Aadhaar Act, which established a biometric database and set up an authority (the UIDAI) to administer it, could not in any sense be called a &ldquo;money bill&rdquo; simply because the funds for the Authority came from the Consolidated Fund of India.</strong></li>
<li><strong>The majority judgment in the Aadhaar case, however, allowed the Act to stand as a money bill (after taking out a provision allowing private party use), and thus, effectively, gutted the Rajya Sabha&rsquo;s role in the democratic process.</strong></li>
<li><strong>After the court&rsquo;s judgment, governments wanting to bypass Rajya Sabha scrutiny on a range of important issues can simply insert a provision specifying that money for a project is to come from the Consolidated Fund.</strong></li>
</ul>
<h3>Federalism</h3>
<ul style="list-style-type: square;">
<li>The Supreme Court has also considered another issue of democratic structure: the dispute between the central government (acting through the Lt Governor) and the government of Delhi.</li>
<li>This dispute effectively turned upon the text of Article 239AA of the Constitution.</li>
<li><strong>In July 2018, while considering the overall constitutional position, a five-judge bench of the Supreme Court made it clear that, wherever the constitutional text was capable of more than one interpretation, the court would favor a reading that increased democratic accountability: that is, in case of doubt, power would lie with the government that had been directly elected by the people (in this case, the Delhi government).</strong></li>
<li>When it came to applying this principle to the specific disputes between the two entities, however, a two-judge bench of the Supreme Court seemed to resile from this fundamental democratic principle.</li>
<li>Recent judgment on February 2019 judgment bears very little evidence of democratic concerns: the heart of the dispute was about control over the civil services, which directly impacted day-to-day governance.</li>
<li>While the constitutional provisions themselves were ambiguous, one judge held that the Delhi government had no control over civil servants above a certain rank, while another judge held that the Delhi government had no control over civil servants at all.</li>
<li>The Supreme Court ruled that the control of the anti-corruption branch (ACB) will rest with the Central government.<br />On land, the court said that matter comes under the purview of the Delhi government but Lieutenant Governor can refer the matter to President.</li>
</ul>
<h3>Way Forward</h3>
<ul style="list-style-type: square;">
<li><strong>Over the last few decades, many scholars have noticed this drift towards the increased powers of the political executive, across liberal democracies.</strong><br /><strong>The Supreme Court&rsquo;s decisions on Articles 110 (money bills) and 239AA (status of the federal unit of Delhi) have concentrated greater power in the hands of the executive.</strong></li>
<li><strong>By expanding the scope of what counts as money bills, the court has set the cabinet down the road of transforming itself into a Roman-style imperator.</strong></li>
<li>And by privileging the centralizing tendencies of the Constitution over its federalizing ones, the court has squandered the chance to develop a strong jurisprudence on the federal structure, that could have been of use in future disputes between the Central government and various federal units.</li>
<li><strong>The impact of these decisions will not be felt immediately, but in the long run, unless set right, one enduring legacy of the recent court might be the judicial facilitation of an imperial executive.</strong></li>
</ul>',
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		'article_id' => (int) 203,
		'category_id' => (int) 21,
		'title' => 'Government’s Stand on Lokpal Appointment is Unsatisfactory: SC',
		'description' => '<p>The Supreme Court has stated that the government&rsquo;s stand on not being able to complete the appointment of a Lokpal has been unsatisfactory. The court has been constantly urging the government for the past several months to complete the Lokpal appointment.</p>
<h3>Background</h3>
<ul style="list-style-type: square;">
<li>The court was responding to a contempt petition against the government for not appointing a Lokpal despite an April 2017 judgment by the court.</li>
<li>The Lokpal and Lokayukta Act of 2013 had not been implemented all these years because of the absence of the Leader of Opposition (LoP) in the current Lok Sabha.</li>
<li>The 2013 legislation includes the LoP as a member of the selection committee for appointment of Lokpal which comprises of the Prime Minister, the Chief Justice of India and the Speaker, along with an eminent jurist appointed by them among their ranks.</li>
<li>In April, 2017, the Supreme Court clarified that the Lokpal appointment process need not be stalled merely due to the absence of the Leader of Opposition.</li>
<li>The judgment dismissed the government&rsquo;s reasoning that the Lokpal appointment process should wait till the 2013 Act was amended to replace the LoP with the single largest Opposition party leader in the selection committee.</li>
</ul>
<h3>Lokpal and Lokayukta</h3>
<ul style="list-style-type: square;">
<li>The Administrative Reforms Commission (ARC) of India (1966&ndash; 1970) recommended the setting up of two special authorities designated as &lsquo;Lokpal&rsquo; and &lsquo;Lokayukta&rsquo; for the redressal of citizens&rsquo; grievances. The concept of an ombudsman was borrowed from Sweden.</li>
<li>A Lokpal is an anti-corruption authority or ombudsman who represents the public interest.</li>
<li>The Lokpal has jurisdiction over all Members of Parliament and central government employees in cases of corruption.</li>
<li>The Lokpal is responsible for enquiring into corruption charges at the national level while the Lokayukta performs the same function at the state level.</li>
</ul>
<h3>Leader of Opposition (LoP)</h3>
<ul style="list-style-type: square;">
<li>According to the rules, the LoP post is given only to a party which has at least 10% of strength of the House. Considering the strength of 542, a party must have at least 55 members to get the LoP post.</li>
<li>Since the Congress, despite being the single largest opposition party in the House, falls short of the required numbers, the government had denied it the LoP post.</li>
</ul>
<div class="border-bg">
<p><strong>Key Points from the Lokpal and Lokayuktas Act, 2013</strong></p>
<ul style="list-style-type: square;">
<li>To provide for the establishment of a body of Lokpal for the Union and Lokayukta for States to inquire into allegations of corruption against certain public functionaries and for matters connected therewith or incidental thereto.</li>
<li>It extends to the whole of India; It shall apply to public servants in and outside India.</li>
<li>The Lokpal shall inquire or cause an inquiry to be conducted into any matter involved in, or arising from, or connected with, any allegation of corruption made in a complaint in respect of the following, namely:&mdash; <br />
<ul style="list-style-type: circle;">
<li>any person who is or has been a Prime Minister (except for certain exceptions with respect to matters related to security, international relations etc.).</li>
<li>any person who is or has been a Minister of the Union or an MP.</li>
<li>Group A to D officers as defined in Prevention of Corruption Act, 1988.</li>
</ul>
</li>
<li>It shall be the duty of the Lokpal to present annually to the President a report to be laid before each House of Parliament.</li>
<li>Every State shall establish a body to be known as the Lokayukta for the State, if not so established, constituted or appointed, by a law made by the State Legislature.</li>
</ul>
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		'posturl' => 'judicial-review',
		'status' => (int) 1,
		'sort_order' => (int) 5,
		'type' => (int) 0,
		'relivant' => (float) 1,
		'metatitle' => 'Judicial Review',
		'metakeyword' => 'Judicial Review',
		'metadescription' => 'Judicial Review',
		'addedby' => (int) 9,
		'updatedby' => (int) 9,
		'added' => object(Cake\I18n\FrozenTime) {},
		'modified' => object(Cake\I18n\FrozenTime) {},
		'[new]' => false,
		'[accessible]' => [
			[maximum depth reached]
		],
		'[dirty]' => [[maximum depth reached]],
		'[original]' => [[maximum depth reached]],
		'[virtual]' => [[maximum depth reached]],
		'[errors]' => [[maximum depth reached]],
		'[invalid]' => [[maximum depth reached]],
		'[repository]' => 'tags'
	
	}
]
$title = 'Article Tags'
$lastyear = (int) 2018
$year = '2021'
$i = (int) 2017
$selected = ''
$m = (int) 13
$month = 'December'

include - ROOT/plugins/Drishti/src/Template/Element/rightsection.ctp, line 100
Cake\View\View::_evaluate() - CORE/src/View/View.php, line 1196
Cake\View\View::_render() - CORE/src/View/View.php, line 1157
Cake\View\View::_renderElement() - CORE/src/View/View.php, line 1554
Cake\View\View::element() - CORE/src/View/View.php, line 668
include - ROOT/plugins/Drishti/src/Template/Element/articlebox.ctp, line 5
Cake\View\View::_evaluate() - CORE/src/View/View.php, line 1196
Cake\View\View::_render() - CORE/src/View/View.php, line 1157
Cake\View\View::_renderElement() - CORE/src/View/View.php, line 1554
Cake\View\View::element() - CORE/src/View/View.php, line 668
include - ROOT/plugins/Drishti/src/Template/Articles/tags.ctp, line 61
Cake\View\View::_evaluate() - CORE/src/View/View.php, line 1196
Cake\View\View::_render() - CORE/src/View/View.php, line 1157
Cake\View\View::render() - CORE/src/View/View.php, line 765
Cake\Controller\Controller::render() - CORE/src/Controller/Controller.php, line 623
Cake\Http\ActionDispatcher::_invoke() - CORE/src/Http/ActionDispatcher.php, line 125
Cake\Http\ActionDispatcher::dispatch() - CORE/src/Http/ActionDispatcher.php, line 93

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