Mitras Analysis of News : 25-7-2017

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1.The boycott ban (The Hindu)

2.A Litmus Test (The Indian Express)

3.A case for larger bench (Live Mint)

 

1.The boycott ban (The Hindu)

 Synoptic line: It throws light on the recently enacted anti-boycott law by Maharashtra. (GS paper II)

Overview

  • Maharashtra has become the first state to make social boycott a crime after President Pranab Mukherjee cleared the legislation.
  • The Maharashtra Prohibition of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016, paves the way for its implementation.
  • The new law disallows social boycott in the name of caste, community, religion, rituals or customs.

 Why such a law

  • The decision was a reaction to pressures from growing incidents of atrocities on individuals by jati panchayats or gavkis wielding extra-judicial powers.
  • The highest number of incidents were reported from the districts of Raigad, Ratnagiri and Nashik; and the largest number of cases of social boycott were provoked by inter-caste marriages.
  • Prevailing laws are frequently challenged in the court, or loopholes are used to escape punishment.

What is a social boycott?

  • If any individual or group tries to prevent or obstruct another member or group from observing any social or religions custom or usage or ceremony, or from taking part in a social, religious or community function, assembly, congregation, meeting or procession, the act amounts to social boycott.
  • So is challenging the freedom of individuals in the name of jati panchayats, religion, customs, or denying them the right to practise a profession of their choice.
  • Freedom in this case includes the freedom to marry outside one’s caste, visit places of worship, wear clothes of one’s choice and use any specific language. Discrimination on the basis of morality, political inclination or sexuality also qualifies as social boycott.
  • As does stopping children from playing in a particular space, or disallowing access to crematoria, burial grounds, community halls or educational institutions with mala fide intentions.

Implications of the law

  • The Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016, may serve as a template for similar legislation in other States. The Act lists over a dozen types of actions that may amount to ‘social boycott’, which has been made a criminal offence punishable with imprisonment up to three years or a fine of Rs. 1 lakh or both.
  • The law recognises the human rights dimension to issues of social boycott, as well as the varied forms in which it occurs in a caste-based society. Its progressive sweep takes into account discrimination on the basis of morality, social acceptance, political inclination, sexuality, which it prohibits.

Way ahead

  • Article 17 of the Constitution and the Protection of Civil Rights Act outlaw untouchability in all its forms, but these are legal protections intended for the Scheduled Castes. In reality, members of various castes and communities also require such protection from informal village councils and gatherings of elders who draw on their own notions of conformity, community discipline, morality and social mores to issue diktats to the village or the community to cut off ties with supposedly offending persons and families.
  • It is not a proud moment for a country when special legislation is required to prohibit social discrimination, ostracism and practices repugnant to human dignity. Yet, given the prevailing circumstances, any legislative assault on abhorrent social practices ought to be welcomed.

Question How a progressive law by one state can become a role model for all other states to follow?

 

2.A Litmus Test (The Indian Express)

 Synoptic line: It throws light on how the right to privacy judgment will be a litmus test for the apex court. (GS paper II)

Overview

  • In India the Constitution does not expressly recognise the right to privacy. But after the case of Kharak Singh v. State of U.P the Supreme Court for the first time recognised the right to privacy which is implicit in the Constitution under Article 21. The Court held that the right to privacy is an integral part of the right to life, but without any clear cut laws, it still remains in the gray area.
  • The Centre maintains that Right to Privacy is not a Fundamental Right but Opposition-ruled state Karnataka is set to enter the ongoing legal debate by telling a Constitution Bench of the Supreme Court that it doesn’t agree with the views of the Centre. Karnataka will be the first state to oppose the Centre on such a key issue.
  • Recently Supreme Court judge mention that the right to privacy is not absolute and cannot be catalogued as it includes everything. While the petitioners who opened arguments had asserted that privacy was a fundamental and absolute right. The decision of the judges is pivotal to petitions that challenge making the Aadhaar scheme mandatory for millions of Indians.

Analysis

  • In India, people have the right to life, but fake encounters and mob lynching happen. In spite of the right to free speech, publications feel compelled to withdraw articles critical of government or corporate. There is a right to equality but discrimination is still rampant. These rights are fundamental right according to the Indian constitution.
  • Even the fundamental rights in the Constitution, is not able to ensure their full implementation on ground, one wonders what will happen if privacy is not recognised as a fundamental right?
  • in 1967, when the democratic state was turning in to totalitarian the Supreme Court act as a protector of civil liberties and applied the brakes. In 1973, through the “basic structure” doctrine which too is not there in the text of the Constitution, brought to control Parliament power to amend the Constitution. The right to privacy judgment will be a litmus test for the apex court. Will the court follow the rich traditions of 1967 and 1973 and rise to the challenges of the information age?
  • The case should not be another ADM Jabalpur (1976) kind of decision where the majority accepted the government’s argument that when the right to life and personal liberty is suspended, citizens have no remedy against illegal detention.

 Interpretations

  • The right to privacy is not explicitly mentioned in the Constitution. But foe example the right to “due process” too was not there. Yet, the apex court read it into the “right to personal liberty”.
  • In the Indian Constitutional jurisprudence there was extended dimension given to Article 21 by the Supreme Court in post-Maneka era. The Supreme Court has asserted that Art. 21 is the heart of the Fundamental Rights and have proved to be multi-dimensional.
  • The extension in the dimensions of Art.21 has been made possible by giving an extended meaning to the word ‘life’ and ‘liberty’ in Article 21. These two words in Art.21 are not to be read narrowly. These are organic terms which are to be construed meaningfully. Right to privacy is one such right which has come to its existence after widening up the dimensions of Article 21.
  • The court, in fact, silently brought about what may be called a “rights revolution” by judicially creating several fundamental rights. The Court has implied the right of privacy from Art.21 by interpreting it in conformity with Art.12 of the Universal Declaration on Human Rights and Art.17 of the International Covenant on Civil and Political Rights, 1966. Both of these international documents provide for the right of privacy.
  • Right to privacy is not enumerated as a Fundamental Right in the Constitution of India. The scope of this right first came up for consideration in Kharak Singh’s Case which was concerned with the validity of certain regulations that permitted surveillance of suspects.
  • In the case of Kharak Singh v. State of UP where the Supreme Court held that the right to privacy is a part of right to protection of life and personal liberty. Here, the Court had equated privacy to personal liberty. Today, liberty is a part of the basic structure of the Constitution.
  • In Govind v. State of Madhya Pradesh, it was accepted that the right to privacy as an emanation from Art. 19(a), (d) and Art.21, but right to privacy is not absolute right. “Assuming that the fundamental rights explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is itself a fundamental right, the fundamental right must be subject to restriction on the basis of compelling public interest”.
  • In  Maneka Gandhi v. Union of India (1978) case Supreme Court 7-Judge Bench said ‘personal liberty’ in article 21 covers a variety of rights & some have status of fundamental rights and given additional protection under article 19.

Way ahead

  • Right to privacy is an essential component of human’s dignity. Global experience shows that the denial of privacy neither promotes national security nor curbs terrorism; it merely takes away citizen’s freedom to be left alone and curtails his/her choice in personal decisions.
  • Rather in India despite the recognition of privacy as a fundamental right, the government will continue to have powers to impose “reasonable restrictions”.  In the 21st century, there is need to protect its citizens’ right to privacy to credibly maintain a democratic regime of equal treatment under the law.

Question Throw a light on the evolution of right to privacy. What important judgements are there in this regard?

 

3.A case for larger bench (Live Mint)

 Synoptic line: It throws light on the need to constitute larger benches for hearing more important cases. (GS paper II)

Overview

  • When the Supreme Court was born in 1950, there were a total of seven judges and a chief justice. All eight sat in judgement over each case. Progressively, and as the case load increased, the number of judges has gradually increased to a total of 31 today, as amended by Parliament in 2008.
  • However, there is an urgent need to constitute larger benches for resolving the more crucial and far-reaching cases.

 Quantum of cases in Supreme court

  • Between independence and the mid-1970s, the number of admitted cases rose from about 1,000 to about 5,000. During and immediately after the Emergency period, the case load quintupled.
  • However, there was a dramatic drop-off in the number of recorded admission and regular hearing matters pending before the court in the mid-1990s. This arose because the court changed how it accounted for matters by counting each clubbed matter rather than each hyphenated matter relating to the same case separately.

 Scenario in Supreme court

  • One way that the Supreme Court has tried to keep pace with the increasing case load has been to institute small bench hearings. Over the years, with similar matters being heard by different but small benches.
  • This sprawling structure of the Indian Supreme Court, with its many benches hearing hundreds of cases between them on any given day, is a product of the historical prioritization by the Constitution, Parliament, and the judges themselves of wide access to the Supreme Court.
  • This inclusive access to the Supreme Court makes for a large case load and lends a polyvocal character to its decisions.
  • Large benches are not the norm for the Supreme Court these days. According to Article 145(3) of the Constitution, a bench of at least five judges needs to sit in judgement on any case involving a substantial question of law as to the interpretation of the Constitution.
  • During the early decades after independence, constitution benches were created for over 100 cases in a decade. That number has slowed down to about 20 in each decade over the last 30 or so years.
  • As a proportion of disposed cases, constitution benches have dropped to a fraction of 1% from over 5%. The largest bench that has ever adjudicated on a case is 13, in the matter of Kesavananda Bharati v. State of Kerala in 1973.
  • It is a matter of court practice that if past decisions of constitution benches are going to be re-examined, then the later constitution benches have to be of greater size than the earlier ones.

Way ahead

  • It is important to have a large bench decide major cases, particularly one that has a direct bearing on individuals. For a substantial question of law, the polyvocal character of the court creates ambiguity and results in a periodic requirement for review. A larger bench has greater legitimacy and greater value for precedent setting than a small bench.
  • The tendency of the court to choose efficiency versus effectiveness and legitimacy will likely result in a greater case load over time, with the same issues swirling in a different context with each coming decade. Even though the Constitution was always meant to be a living and evolving one, continually re-examining basic issues of the Constitution leaves a rather confused state.
  • Contrary to what the Law Commission recommended in 2009, a separate constitution bench outside the Supreme Court makes little sense. A better way would be to filter out the more mundane cases on the docket, allowing more time for constitutional jurisprudence

Question What are the implications of having larger benches for resolving constitutional cases ?

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