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1.A gathering crisis (The Hindu)

2.Letting go of instant triple talaq (The Hindu) 

3.Beyond Jamia (The Indian Express)

 

1.A gathering crisis (The Hindu)

Synoptic line: It throws light on the issue of groundwater, and a new regulatory regime for groundwater, that provides for equitable use. (GS paper II)

Overview

  • India’s north-western region is widely considered to be the country’s granary, with states such as Punjab and Haryana accounting for a large share of the country’s agricultural output and farm incomes. But farming in both these regions is increasingly becoming unsustainable, owing to depleting groundwater levels. The situation is equally precarious in the south-eastern parts of the country.
  • The water crisis India faces is of such a magnitude that urgent measures are necessary to address it. Yet, the law and policy measures to address it remain insufficient. There is urgent need tofocus on the primary source of domestic water and irrigation is that is groundwater but the policymakers still focus on surface water.
  • The proposed new regulatory regime for groundwater that provides for equitable use is urgently needed.

Ground water challenges

  • One of the biggest challenges for sustainable management of groundwater comes from overexploitation and overuse, beyond the annual recharge. The other comes from pollution, from natural mineral occurrences such as with fluoride and arsenic and with man-made sources such as industrial effluents, fertilizers and sewage.
  • One of the underlying reasons for excessive use of groundwater is the legal framework governing access to the resource. This was first introduced in the mid-19th century when judges decided that the easiest way to regulate this ‘invisible’ substance was to give landowners what amounts to a right to access groundwater found under their land, even if in the process they also used water found under their neighbours’ land.
  • This led to a framework whereby landowners see groundwater as their own and as a resource they can exploit without considering the need to protect and replenish it since there are no immediate consequences for over-exploiting it.
  • Access to a source of groundwater has progressively become a source of power and economic gain. The latter has become increasingly visible in recent decades with the propagation of mechanical pumps, which allows big landowners to sell water to others.
  • Soon after massive expansion in mechanical pumping led to the realisation that recharge could not keep pace with use, government has decided to modernise the regulatory framework for accessing groundwater.
  • The government has proposed measures were in keeping with the policy paradigm of the early 1970s when a model bill was first introduced; the bill focussed on adding some State-level control over new, additional uses of groundwater but did not address the problem of giving landowners unlimited control over groundwater.
  • The States that now have groundwater legislation based on the model Bill conceptualised in 1970 have on the whole failed to manage to address the problem of falling water tables due to increasing use. Also there is no provision in the existing legal regime to protect and conserve groundwater at the aquifer level.
  • The present legal regime has clearly failed to address the growing multiple crises of groundwater. The quality of the water pumped is increasingly becoming cause for concern; there is worry about accessing a sufficient amount of groundwater that is not harmful to health.

New framework

  • The Groundwater Bill, 2017 proposes a different regulatory framework from the century-old, outdated, inequitable and environmentally unfriendly legal regime in place. The new bill is based on the recognition of the unitary nature of water, the need for decentralised control over groundwater and the necessity to protect it at aquifer level.
  • The Bill is also based on legal developments that have taken place in the past few decades, that includes the recognition that water is a public trust, the recognition of the fundamental right to water and the introduction of protection principles, including the precautionary principle, that are currently absent from water legislation.
  • The Bill also builds on the decentralisation mandate that is already enshrined in general legislation but has not been implemented effectively as far as groundwater is concerned and seeks to give regulatory control over groundwater to local users.

Way ahead

  • The proposed new regime will benefit the resource, for instance through the introduction of groundwater security plans, and will benefit the overwhelming majority of people through local decision-making.
  • The increasing crisis of groundwater and the failure of the existing legal regime make it imperative to entrust people directly dependent on the source of water the mandate to use it wisely and to protect it for their own benefit, as well as for future generations.

Question– What is our country’s future groundwater scenario? Why has the Government not yet been able to control undue groundwater extraction?

 

2.Letting go of instant triple talaq (The Hindu) 

Synoptic line: It throws light on issue of triple talaq and All India Muslim Personal Law Board decision to do reforms. (GS paper II)

Overview

  • India is home to world’s third-largest Muslim population which is governed by the Sharia or Islamic jurisprudence and this has been the case since British colonial rule. But till today, millions of Muslim women face the threat of a sudden, oral, and out-of-court divorce.
  • Shayara Bano vs. Union of India, which has popularly come to be known as the “triple talaq case”. Is the case, in which the constitutional validity of certain practices of Muslim personal law such as triple talaq, polygamy, and nikah halala has been challenged, it has created political controversy across the spectrum.
  • Recently the All India Muslim Personal Law Board (AIMPLB) informed the Supreme Court that it was considering reforms and the gradual giving up of instant talaq but wanted time for it. One of the “reforms” mentioned was a circular from the board asking all qazis to advise the husbands, while finalising the marriage contract, not to resort to instant divorce unless under compelling circumstances. However the “compelling circumstances” were not defined.

What is triple talaq?

  • ‘Triple Talaq’ is a procedure of divorce under the Sharia Law which is a body of the Islamic law. Under this, a husband can divorce his wife by pronouncing ‘Talaq’ thrice.

Recent scenario

  • Court will have to decide first whether to adjudicate the case in a narrow manner, which stops at assessing the relationship between triple talaq and Muslim personal law, of whether to undertake a broader approach, and ask whether personal law can be subject to the Constitution at all.
  • If the Supreme Court agrees that personal laws are included in the definition of laws under Article 13, the door will be opened wide for an aggrieved person to challenge a particular personal law of a religion as violative of the fundamental rights.
  • AIMPLB held that only those features of a religion are constitutionally protected which are “integral” or “essential” parts of it. There is no evidence to show that talaq-i-bidat constitutes an integral part of the Islamic faith and, consequently, it does not deserve constitutional protection.
  • The rigidity stems from two concepts namely taqleed (uncritical acceptance of a school) and tamazzhub (idealisation of a school) wherein precedence is given to one legal school (mazhab) over the rest.
  • The four major schools of Sunni law are differ from one another on the basis of the interpretive methodology they adopt to derive law from the Koran and the Prophet’s sayings and the belief that only the interpretation of their school is correct makes followers exalt the totality of juristic pronouncements of the school (the doctrine of tamazzhub). In taqleed, the adherents just follow their school uncritically even if they don’t elevate it above others.
  • The arguments that whether or not instant talaq is a part of the Hanafi (one of the school) faith because more than 90% of Indian Muslims are Hanafis. Such an argument is unacceptable as it is based on the presumption that by mere accident of birth, Indian Muslims are forever obliged to follow the Hanafi mazhab.
  • If the AIMPLB is really serious about reforms, there are enough legal devices within the Hanafi denominational faith system to invalidate instant triple talaq.

Way ahead

  • AIMPLB reforms will open up Islam to modern interpretations within the framework of its original sources, and in the long run inculcate a sense of tolerance among Muslims for different points of view and equip them to respond positively to the requirements of a multicultural society like India.

Question– Examine whether Personal laws can be brought under the ambit of Article 13 (laws inconsistent with or in derogation of the fundamental rights) of the Indian Constitution or not? Examine the issue in the context of triple talaq.

3.Beyond Jamia (The Indian Express) 

Synoptic line: It throws light on the conditions on which educational institutions need special protection. (GS paper III)

Overview

  • Recently the central government has decided to withdraw its earlier stand in court on Jamia Millia Islamia (JMI), Delhi‘s minority status. The National Commission for Minority Educational Institutions (NCMEI) on 2011, declared JMI a religious minority institution, which government is now considering was an error in its understanding of the legal position.
  • The government’s change of stance on whether Jamia Millia Islamia is a minority institution reminds us of one of the longest festering disputes in Indian constitutionalism.

Issue

  • Article 30 (1) of Indian constitution gives religious and linguistic minorities the right to establish and administer educational institutions of their choice.
  • The core of the issue is whether this clause is meant as an anti-discriminatory and protective clause, to ensure that minority institutions are not discriminated against; or whether it confers upon minority institutions special privileges and a greater degree of autonomy that non-minority institutions do not enjoy.
  • Education policies, from admissions to recruitment, are now among the most litigated areas in law. This is because education itself is overregulated and the intricate degree of control we seek to exercise over it creates all kinds of anomalies.
  • Under the “special privileges” interpretation of Article 30 (1), minority education institutions were given a degree of autonomy that many non-minority institutions rightly envied. Since education is a high-stakes game, this led to a process of greater minoritisation. More and more groups within states want to come under the ambit of minority institutions to claim these privileges.
  • The differential regulatory burden imposed on minority and non-minority institutions varies from state to state depending on the private universities acts of those states.
  • The financial character (whether an institution is aided or unaided), nor the educational purpose seems to matter with any degree of clarity. The courts held that minority institutions can impart broad secular education.
  • But it does create situations where differential regulation is no longer related to justice, or educational objectives, or protecting rights. It has become, in some instances, about merely giving an identity-based privilege. However it is important to remember this privilege is extended to a range of minorities within states, not just Muslims.
  • According to the National Commission for Minority Educational Institutions Act, only minorities can be appointed to the Commission. There are not too many regulatory and quasi-judicial entities with these kinds of extensive identity-based restrictions on membership.
  • The Right to Education Act accentuated the problem of differential regulation. It exempted minority institutions from 25 per cent reservation for children from economically weaker sections. These issues reinforced the perception that Article 30 (1) was really about giving special privileges, not about protecting minorities.

Way ahead

  • There is a genuine constitutional mess in the way in which the rights and identities of educational institutions have been conceptualised. We need to find a way of returning to first principles that asks under what conditions which kinds of institutions need special protection and for what purposes.
  • Courts have never clearly articulated what a right of non-minorities to set up and administer an educational institution of their choice might look like. The communal character of this debate will not be defused unless the question of the larger freedom to run educational institutions is settled.

Question– What are minority institutions? Examine the Indian constitutional provisions regarding this.