LEGAL AFFAIRS
TABLE OF CONTENTS
1. ADULTS ARE FRRE TO CHOOSE THEIR RELIGION
2. ARTICLE 244A OF THE CONSTITUTION
3. CHALLENGES AHEAD OF NEW CJI
4. GNCT OF DELHI AMENDMENT BILL
5. PERSONAL DATA PROTECTION BILL
6. EXTRADITION OF NIRAV MODI
7. KULBHUSHAN JADHAV CASE
#ADULTS ARE FRRE TO CHOOSE THEIR RELIGION: SC
• The Supreme Court recently refused to entertain Public Interest Litigation (PIL) of a BJP leader that sought directions to ban superstition, black magic, and fraudulent religious conversions.
SC Judgement
• The Apex court pronounced that the PIL violates Article 25 of the Constitution. According to the bench headed by Justice R F Nariman, that pronounced the judgement, the word “propagate” in Article 25 of the Constitution guarantees right to religion.
• Constitution on religion: The Right to Freedom is guaranteed to all religious followers under the following articles: Article 25, Article 26, Article 27, Article 28
Article 25
• Article 25 guarantees freedom to propagate, practice and profess religion to all citizens. The article allows the states to make laws: Regulating and restricting economic, financial, political, and secular activities associated with religious practices.
• To provide social welfare and reform or opening Hindu religious institutions to all classes of Hindus.
Article 26
• Article 26 speaks about Freedom to manage religious affairs.
• Every religion has the right to form and maintain institutions for charitable intents.
• Every religion has the right to acquire movable and immovable property.
• Every religion has the right to manage its own affairs in the matter of religion.
• Every religion has the right to administer properties according to law.
Article 27
• The Article 27 of the constitution prevents payment of taxes for promotion of a particular religion. According to the article, there shall be no taxes imposed by any institution or organisation or by the Governments (both state and centre) for the promotion or maintenance of a particular religion.
Article 28
• The Article 28 of the Constitution speaks about freedom to attend any religious instructions or religious worships in educational institutions. No religious instructions shall be issued in state run educational institutions.
#ARTCLE 244A OF THE CONSTITUTION
The demand for an autonomous state within Assam has been raised by some of the sections of the society in Assam under the provisions of Article 244A of the Constitution.
Background:
In the 1950s, a demand for a separate hill state arose around certain sections of the tribal population of undivided Assam.
After prolonged agitations, Meghalaya gained statehood in 1972.
The leaders of the KarbiAnglong and North Cachar Hills were also part of this movement. They were given the option to stay in Assam or join Meghalaya.
They stayed back as the centre promised them more powers, including Article 244 (A).
In the 1980s, the demand for more power/autonomy took the form of a movement with a number of Karbi groups resorting to violence.
It soon became an armed separatist insurgency demanding full statehood.
Sixth Schedule
The Sixth Schedule of the Constitution provides for the administration of tribal areas in Assam, Meghalaya, Tripura and Mizoram to safeguard the rights of the tribal population in these states.
This special provision is provided under Article 244 (2) and Article 275 (1) of the Constitution.
In Assam, the hill districts of Dima Hasao, KarbiAnglong and West Karbi and the Bodo Territorial Region are under this provision.
The Governor is empowered to increase or decrease the areas or change the names of the autonomous districts. While executive powers of the Union extend in Scheduled areas with respect to their administration in fifth schedule, the sixth schedule areas remain within executive authority of the state.
The Fifth Schedule of the Constitution deals with the administration and control of scheduled areas and scheduled tribes in any state except the four states of Assam, Meghalaya, Tripura and Mizoram.
The whole of the normal administrative machinery operating in a state do not extend to the scheduled areas.
At present, 10 States namely Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, Rajasthan and Telangana have Fifth Schedule Area.
Tribal habitations in the states of Kerala, Tamil Nadu, Karnataka, West Bengal, Uttar Pradesh and Jammu & Kashmir have not been brought under the Fifth or Sixth Schedule.
The acts of Parliament or the state legislature do not apply to autonomous districts and autonomous regions or apply with specified modifications and exceptions.
The Councils have also been endowed with wide civil and criminal judicial powers, for example establishing village courts etc. However, the jurisdiction of these councils is subject to the jurisdiction of the concerned High Court.
#CHALLENGES AHEAD OF NEW CJI
Justice is the concept of making decisions based on moral rightness, rationality, equity and fairness and the onus of delivering timely justice to the citizens of a country lies majorly on the shoulders of the supreme judge of the country.
In India, this role is played by the Chief Justice of India (CJI); the ‘Paterfamilias’ of the Judiciary and the ‘Master of the Roster’.
Recently, Justice Nuthalapati Venkata Ramana (NV Ramana), the most senior judge of the Supreme Court after former CJI, Justice S A Bobde, took his oath as the 48th CJI.
Designated as CJI at such a time when India is going through a major crisis due to Covid-19 pandemic, a lot of potential challenges stand in the path of fulfilling his oath of delivering timely justice to all.
Current Issues with the Judiciary
Inefficiency of the Supreme Court: The SC has not only stopped being the protector of the fundamental and other constitutional rights, but has also failed to act as the guardian of the rule of law.
In the context of politically sensitive cases involving citizens, opposition parties, and activists, the Court has virtually deferred to the executive instead of stepping in to restore constitutional rights and values in letter and spirit.
The recently retired, 47th CJI was perhaps the only Chief Justice to have not made a single recommendation of a judge to be appointed to the Supreme Court.
Low Judge to Population Ratio: The judge-population ratio in the country which stands at only 20 judges per million people is not very appreciable.
While for the other countries, the ratio is about 50-70 judges per million people.
Pendency and Vacancies in High Courts: The numbers both in respect of pendency of cases and vacancies in the High Courts are quite concerning — a backlog of over 57 lakh cases, and a vacancy level of 40%.
The Madras High Court has 5.8 lakh cases against a relatively low level of vacancy at 7%.
As many as 44% of the posts in the Calcutta High Court are vacant, but the cases in arrears stand at 2.7 lakh.
Recruitment Delays: The posts in the judiciary are not filled up as expeditiously as required. For a country as populous as 135 million, the total strength of judges is only around 25000.
Almost 400 posts are vacant in the high courts.
Around 35% of the posts are lying vacant in the lower judiciary.
Inadequate Representation of Women and Minorities: The apex court currently has only one woman as judge despite the fact that virtually half the population comprise women and gender sensitive cases have also seen a sharp rise.
The Supreme Court has only one Muslim judge and no Sikh, Buddhist, Jain or a person from tribal community as a judge.
Lesser Strict Actions Taken for Judicial Delay: Though there is widespread acknowledgement of the problem of judicial delay, there is only limited effort within the judiciary taken to understand, through research, the nuances of the problems and ways to resolve it.
Challenges for the New CJI
Keeping the court functioning during the present unprecedented crisis due to the Covid-19 Pandemic.
Revamping the administrative machinery of the apex court and streamlining the functioning of the collegium.
Strengthening the judicial infrastructure and clearing the massive backlog of cases.
The Supreme Court will have around 13 vacancies during Justice Ramana’s tenure as many judges are due to retire by the end of 2021.
The biggest challenge will be to streamline the appointment process in the Supreme Court as well as in the High Courts which have been struggling with the pendency of a huge number of cases due to a lack of judges.
The possibility of courts reopening for physical hearing, at such a time, looks bleak now, given the massive spike in Covid-19 infections in the Capital.
The hearings of courts will have to be digitised which is further criticised by lawyers on multiple instances due to technical faults.
Conclusion
Role of the Supreme Court: A country of a billion+ population needs its highest court to stand for the people as the power of the judiciary, just like the legislature and the executive, comes from the people of the country.
The SC is expected to seek strict accountability from the legislature and executive and any infraction of the Constitution and laws must be corrected.
The Supreme Court collegium of the five senior-most judges should act more transparently and be made more accountable in order to inspire confidence and trust in the judiciary.
Role of CJI: The new Chief Justice must stringently introspect and review the actions of his immediate predecessors, free himself of the bias in constituting benches and allocating cases and take concrete steps to revitalise the administration of justice. Only then will the rule of law be restored and the Constitution served.
Streamlining the Appointment System: The vacancies must be filled without any unnecessary delay.
A proper time frame for the appointment of judges must be laid down and the recommendations must be given in advance.
The Constitution of the All India Judicial Services (AIJS) is also an important factor which can definitely help India establish a better judicial system.
Fair Representation of All: Women and the minority communities deserve a fair representation in the Apex Court.
The collegium is duty-bound to diversify the Bench to give adequate representation to all sections of society so that public trust, which is the greatest strength of the judiciary, could be restored.
The Chief Justice of India on account of the position he holds as the Paterfamilias of the judicial fraternity is bound to deliver undelayed and unbiased justice to its citizens in order to restore and maintain the faith of the people in the judicial system of India.
#GNCT OF DELHI AMENDMENT ACT COMES INTO FORCE
The Government of National Capital Territory (GNCT) of Delhi (Amendment) Act, 2021, which gives primacy to the Lieutenant Governor (L-G) over the elected government in the city, has come into force.
Provisions of the GNCT of Delhi (Amendment) Act 2021:
It amended the Sections 21, 24, 33 and 44 of the 1991 Act. States that the “government” in the National Capital Territory of Delhi meant the Lieutenant-Governor of Delhi.
It gives discretionary powers to the L-G even in matters where the Legislative Assembly of Delhi is empowered to make laws.
It seeks to ensure that the L-G is “necessarily granted an opportunity” to give her or his opinion before any decision taken by the Council of Ministers (or the Delhi Cabinet) is implemented.
It bars the Assembly or its committees from making rules to take up matters concerning day-to-day administration, or to conduct inquiries in relation to administrative decisions.
Criticism:
The latest amendment will greatly reduce the efficiency and timeliness of the Delhi government by making it imperative for it to hold consultations with the L-G even when a situation demands urgent action.
Significantly, the L-G is not obliged to give his opinion to the State government within a time frame. Critics argue that the L-G could politically exploit these unbridled powers to hamper the government’s administrative work and thus turn the political tides against the incumbent if he so desires. It is against the spirit of ‘Federalism.”
Union Government’s Stand:
It is in keeping with the Supreme Court’s July 2018 ruling on the ambit of powers of the L-G and the Delhi government following several headliner controversies between the two.
The purported fair objectives of the Act, include enhancing public accountability and easing out technical ambiguities related to everyday administration.
This will increase administrative efficiency of Delhi and will ensure better relationship between the executive and the legislator.
Background
Enactment of GNCTD Act: The GNCTD Act was enacted in 1991 to “supplement provisions of the Constitution relating to the Legislative Assembly and a Council of Ministers for the National Capital Territory of Delhi”.
It enabled the process of an elected government in Delhi.
The Supreme Court had in the past appreciated the 1991 developments, stating that the real purpose behind the Constitution (69th Amendment) Act, 1991 is to establish a democratic set-up and representative form of government wherein the majority has a right to embody their opinions in laws and policies pertaining to the NCT of Delhi subject to the limitations imposed by the Constitution.
Point of Friction:
However, over the years, there was friction between the Chief Minister and the Lieutenant Governor (L-G) over power-sharing.
The focal point of these conflicts was that in case of a difference between the L-G and the Council of Ministers on any matter,The matter was to be referred to the President by the L-G for his decision,
And pending such a decision the L-G was empowered to take any action on the matter as he deemed right.
Judgement of the Supreme Court:
In the Government of NCT of Delhi vs Union of India and Another in 2018 case, the SC held that:
The government was not under obligation to seek the concurrence of the L-G on its decisions and
That any differences between them should be resolved keeping in view the constitutional primacy of representative government and cooperative federalism.
Essentially, the SC judgment made it extremely difficult for the L-G to refer such matters to the President.
#PERSONAL DATA PROTECTION BILL
• The pandemic has forced more people to participate in the digital economy that has brought focus into the Personal Data Protection Bill drafted by Union Government.
• Unfortunately, the existing data protection regime in India does not meet this standard. Current data protection regime falls short of providing effective protection to users and their personal data.
Data Protection – Issues
• Increasing Breaches: The number of personal data breaches from major digital service providers has increased. Robust data protection regimes are necessary to prevent such events and protect users’ interests.
• Misuse of Terms & Conditions: Entities could override the protections in the regime by taking users’ consent to processing personal data under broad terms and conditions. This is problematic given that users might not understand the terms and conditions or the implications of giving consent.
• Data Privacy: Frameworks emphasise data security but do not place enough emphasis on data privacy.
• Checks on Government Collection of Data: The data protection provisions under the existing IT Act also do not apply to government agencies. This creates a large vacuum for data protection when governments are collecting and processing large amounts of personal data.
• The regime seems to have become antiquated and inadequate in addressing risks emerging from new developments in data processing technology.
How does the Personal Data Protection Bill, 2019 address above issues?
It could play a big role in providing robust protections to users and their personal data.
• Applicable to all: The Bill seeks to apply the data protection regime to both government and private entities across all sectors.
• Covers Data Privacy: The Bill seeks to emphasise data security and data privacy. While entities will have to maintain security safeguards to protect personal data, they will also have to fulfill a set of data protection obligations and transparency and accountability measures that govern how entities can process personal data to uphold users’ privacy and interests.
• Autonomy to Users: The Bill seeks to give users a set of rights over their personal data and means to exercise those rights.
• Independent Regulator: The Bill seeks to create an independent and powerful regulator known as the Data Protection Authority (DPA). The DPA will monitor and regulate data processing activities to ensure their compliance with the regime. More importantly, the DPA will give users a channel to seek redress when entities do not comply with their obligations under the regime.
Concerns with the Bill
• Several provisions in the Bill create cause for concern about the regime’s effectiveness. These provisions could contradict the objectives of the Bill by giving wide exemptions to government agencies and diluting user protection safeguards.
• Central government can exempt any government agency from complying with the Bill. Government agencies will then be able to process personal data without following any safeguard under the Bill. This could create severe privacy risks for users.
• Users could find it difficult to enforce various user protection safeguards (such as rights and remedies) in the Bill. The Bill threatens legal consequences for users who withdraw their consent for a data processing activity.
• This could discourage users from withdrawing consent for processing activities they want to opt out of. Additional concerns also emerge for the DPA as an independent effective regulator that can uphold users’ interests.
#UK’S NOD FOR EXTRADITION OF NIRAV MODI
Recently, the UK’s Home Department has approved the extradition of Nirav Modi, a diamond merchant to India in connection with the Rs. 13,758-crore Punjab National Bank (PNB) fraud.
India and the UK entered into an extradition treaty in 1992.
Extradition is the process by which one state, upon the request of another, affects the return of a person for trial for a crime punishable by the laws of the requesting state and committed outside the state of refuge.
The Supreme Court defined extradition as the delivery on the part of one State to another of those whom it is desired to deal with for crimes of which they have been accused or convicted and are justifiable in the Courts of the other State.
Extraditable persons include those charged with a crime but not yet tried, those tried and convicted who have escaped custody, and those convicted in absentia.
Extradition Law in India:
In India, the extradition of a fugitive criminal is governed under the Indian Extradition Act, 1962.
This is for both extraditing persons to India and from India to foreign countries.The basis of the extradition could be a treaty between India and another country.
At present India has an Extradition treaty with more than 40 countries and Extradition agreement with 11 countries.
Extradition Treaty:
About:Section 2(d) of The Indian Extradition Act 1962 defines an ‘Extradition Treaty’ as a Treaty, Agreement or Arrangement made by India with a Foreign State, relating to the extradition of fugitive criminals which extends to and is binding on India. Extradition treaties are traditionally bilateral in character.
Principles Followed:
The extradition applies only to such offences which are mentioned in the treaty.It applies the principle of dual criminality which means that the offence sought to be an offence in the national laws of requesting as well as requested country.
The requested country must be satisfied that there is a prima facie case made against the offender.
The extradition should be made only for the offence for which extradition was requested.The accused must be provided with a fair trial.
Nodal Authority:Consular, Passport and Visa Division of the Ministry of External Affairs, administers the Extradition Act and it processes incoming and outgoing Extradition Requests.
Implementation:Extradition can be initiated in the case of under-investigation, under-trial and convicted criminals.
In cases under investigation, abundant precautions have to be exercised by the law enforcement agency to ensure that it is in possession of prima facie evidence to sustain the allegation before the Courts of Law in the Foreign State.
Fraud oversight wing of RBI
The Reserve Bank of India (RBI) is in the process of putting together an exclusive wing for banking fraud oversight.
This wing will have teams for meta-data processing and analysis, artificial intelligence analysis units, as well as proactive risk assessment cells.
Strength and Participation: The banking fraud oversight wing may comprise up to 600 officers along with experts from the private sector.
The RBI would hire fresh people, including industry veterans to lead the teams.
Training:Experts from the private sector working in all these domains will be brought in to train the new members in the fraud oversight wing.
These training sessions will be repeated every year in the initial years.
These new teams will also be given training in the latest technologies, so that they can also prevent another Yes Bank kind of event.
Background
The RBI had been mulling ways to proactively detect such frauds after the loan fiasco at Punjab National Bank.
The bank fraud to the tune of Rs 11,450 crore involving diamond merchant Nirav Modi. It came to light that the company, in connivance with retired employees of PNB, got at least 150 LoUs, allowing Nirav Modi Group to defraud the bank and many other banks who gave loans to him.
As part of that plan, the banking regulator in 2019 had moved to create a separate cadre of its own employees who would work in regulation and oversight sections.
However, the working conditions were very strict and anyone opting for that cadre would not be allowed to leave for three years. To overcome this problem, the RBI sought to create a fraud oversight wing.
#KULBHUSAN JADHAV CASE: ICJ
Pakistan has urged India to appoint a lawyer to represent death row convict Kulbhushan Jadhav to implement the verdict of the International Court of Justice (ICJ).
About the Kulbhushan Jadhav Case:
KulbhushanJadhavwas sentenced to death by a Pakistani military court on charges of espionage and terrorism in April 2017.
India approached the ICJ against Pakistan for denial of consular access (Vienna Convention) to Jadhav and challenging the death sentence.
ICJ ruled in July 2019 that Pakistan must undertake an “effective review and reconsideration” of the conviction and sentence of Jadhav, and also grant consular access to India without further delay.
It had asked Pakistan to provide a proper forum for appeal against the sentence given to Jadhav by the military court.
Implications of 'Effective Review and Reconsideration' for India:
Effective review and reconsideration is a phrase which is different from ‘review’ as one understands in a domestic course.It includes giving consular access and helping Jadav in preparing his defence.
It means that Pakistan has to disclose the charges and also the evidence which it has been absolutely opaque about uptill now.
Pakistan would also have to disclose the circumstances in which Jadhav’s confession was extracted by the military.
It implies that Jadhav will have a right to defend whichever forum or court hears his case.
Vienna Convention:
The Vienna Convention on Consular Relations is an international treaty that defines consular relations between independent states.
A consul (who is not a diplomat), is a representative of a foreign state in a host country, who works for the interests of his countrymen.
Article 36 of the Vienna Convention states that foreign nationals who are arrested or detained in the host country must be given notice without delay of their right to have their embassy or consulate notified of that arrest.
If the detained foreign national so requests, the police must fax that notice to the embassy or consulate, which can then verify the detained person.
The notice to the consulate can be as simple as a fax, giving the person's name, the place of arrest, and, if possible, something about the reason for the arrest or detention.
International Court of Justice: ICJ
ICJ was established in 1945 by the United Nations charter and started working in April 1946.
It is the principal judicial organ of the United Nations, situated at the Peace Palace in The Hague (Netherlands).
Unlike the six principal organs of the United Nations, it is the only one not located in New York (USA).
It settles legal disputes between States and gives advisory opinions in accordance with international law, on legal questions referred to it by authorized United Nations organs and specialized agencies.
It has 193 state parties and current President is Ronny Abraham.
Background
Article 33 of the United Nations Charter lists the negotiation, enquiry, mediation etc. methods for the pacific settlement of disputes between States. Some of these methods involve the services of third parties.
Historically, mediation and arbitration preceded judicial settlement. The former was known in ancient India and the Islamic world, whilst numerous examples of the latter can be found in ancient Greece, in China, among the Arabian tribes, in maritime customary law in medieval Europe, and in Papal practice.
The modern history of international arbitration:
The first phase is generally recognized as dating back from the so-called Jay Treaty of 1794 between the United States of America and Great Britain.
The Alabama Claims arbitration in 1872 between the United Kingdom and the United States marked the start of a second, even more decisive, phase.
The Hague Peace Conference of 1899, convened on the initiative of the Russian Czar Nicholas II, marked the beginning of a third phase in the modern history of international arbitration.
