Law optional : Current Affairs Review: December.

CONSTITUTIONAL LAW:

1. EQUALITY:

DECEMBER 17TH : SC upholds decision to sack Muslim airman for sporting beard

DECEMBER 22ND : Pardon, the gender wage gap is showing

2. ART.23-24 :

DECEMBER 22 : OPINION : THE HINDU : Finding the missing children

3. WORKING OF PARLIAMENT AND DEMOCRACY:

DEC: 16TH : OPINION OF THE HINDUSTHAN TIMES : It is the government’s responsibility to find a way to break the House logjam.

DEC : 19TH : THE HINDU : THE LEAD : The unmaking of Parliament

DECEMBER 19TH : EDITORIAL OF THE HINDU : Questions from a washout.

4. ELECTION COMMISSION OF INDIA AND RPA :

DECEMBER 19TH : EC seeks end to nameless donations

5. INTER-STATE WATER DISPUTES:

DECEMBER19TH : Single tribunal to arbitrate inter-State water disputes

DECEMBER 20TH : EDITORIAL OF THE HINDU : Grappling with water disputes

6. SPECIAL STATUS OF J&K- REVIEW : DECEMBED 19TH : J&K has no sovereignty: SC

ENVIRONMENT LAW

7. DECEMBER 17TH : OPINION OF THE INDIAN EXPRESS : The long-term solution

8. DECEMBER 21ST : OPINION OF THE HINDU : Leopards in a spot

9. INDIAN PENAL CODE : SC & ST ACT: DECEMBER 22ND : SC criticises poor implementation of SC/ST Act

DECEMBER 17TH : SC upholds decision to sack Muslim airman for sporting beard

Noting that “every Armed Force raised in a civilised nation has its own ‘Dress and Deportment’ Policy,” the Supreme Court on Thursday upheld the decision of the Air Force to dismiss a Muslim airman for growing beard citing religious grounds.

WHY>

  • The apex court held that under the Armed Forces Regulations of 1964 the “touchstone for being allowed to grow one’s hair or to retain a beard is where there is a religious command which prohibits either the hair being cut or a beard being shaved.”

  • Otherwise, discipline and uniformity have precedence over the fundamental right to religion in the Forces, the court held.

“For the effective and thorough functioning of a large combat force, the members of the Force must bond together by a sense of espirit-de-corps, without distinctions of caste, creed, colour or religion. Uniformity of personal appearance is quintessential to a cohesive, disciplined and coordinated functioning of an Armed Force,” the three-member Bench, comprising Chief Justice T.S. Thakur and Justices D.Y. Chandrachud and L. Nageswara Rao, observed.

Mr. Zubair claimed his fundamental right to freedom of religion. The Air Force countered that keeping a beard was not an essential practice of their faith unlike in the Sikh religion. The court had sought an opinion from senior advocate Salman Khurshid, who said growing a beard was only “desirable” in Islam.

  • The court held that Article 33 of the Constitution has the authority to impose restriction on the fundamental rights of Armed Forces personnel, considering the “overarching necessity of a Force

DECEMBER 22ND : Pardon, the gender wage gap is showing

India had among the worst levels of gender wage disparity — men earning more than women in similar jobs — with the gap exceeding 30 per cent.

Who says that? International Labour Organisation (ILO) revealed in its the Global Wage Report 2016-17.

Singapore had among the lowest, at 3 per cent

global average of 40 per cent

South Korea – 37%

Asia-Pacific average of 38 per cent

  • In India, women formed 60 per cent of the lowest paid wage labour, but only 15 per cent of the highest wage-earners..

  • In other words, not only were women paid less, there were fewer women in highly paid occupations.

  • South Asia (whose dominant economy is India), only 20 per cent of wage earners were women.

  • Higher representation of women in sectors where their work is undervalued results in a gender pay gap.

  • Strong labour market institutions and policies such as collective bargaining and minimum wages lowered the pay gap.

Top 1 per cent : The ILO threw light on high income inequality. In India, the top one per cent earned 33 times what the bottom 10 per cent did. The top 10 per cent also earned 43 per cent of all wages. Since 2006, average wages rose by 60 per cent in India, while they more than doubled in China.

WORKING OF PARLIAMENT AND DEMOCRACY:

DEC: 16TH : OPINION OF THE HINDUSTHAN TIMES : It is the government’s responsibility to find a way to break the House logjam.

A strange question is being heard in the political corridors these days: Who is responsible for running Parliament?

Parliament not only passes legislation but is also the main platform for political parties to express their views in the public interest. The ruling party can take decisions according to its wishes, and also use the official channels to communicate with political stakeholders. Besides, the media also gives prominence to the government’s side of the story. The Opposition does not have that advantage. In such a situation, they utilise Parliament to express their views.

  • Pandit Jawaharlal Nehru and Indira Gandhi had unprecedented majorities in the House but that did not deter MPs such as Ram Manohar Lohia, Jyotirmoy Basu, Piloo Mody, AB Vajpayee, Mani Ram Bagri, Mahavir Tyagi and Bhupesh Gupta from attacking the government.

  • Personal allegations were also levelled against Pandit Nehru and Indira Gandhi. Yet they attended Parliament and listened to the Opposition.

  • Inside Parliament, Lohia had once called Pandit Nehru a tabla player because of the clothes he was wearing. Indira Gandhi was dubbed as “goongi gudiya” by the Opposition. But they responded to such allegations with smiles and never ran away from Parliament. If they wanted, they could have curtailed the voice of the Opposition as there were only 20-30 MPs but they never resorted to such undemocratic tactics.

DEMOCRACT AND DISSENT:

  • Those who believe in democracy must respect dissent. When Opposition leaders like Hiren Mukerjee spoke, Pandit Nehru used to rush to Parliament from Teen Murti Bhawan to listen to them.

  • When Vajpayee became PM, he made it a point to remain in the House during important discussions and he tackled the Opposition’s allegations with his characteristic smile, without taking them to heart.

The beauty of Parliament lies in its discourse and Opposition is the gem of this august institution. Contrary to those days, political enmity rather than ideological differences is guiding decisions these days. This is not good for democracy.

CONGRESS JUST FOLLOWING BJP LEGACY:

  • The means and expression of agitation, which the Congress leaders are showing in Parliament these days, were learnt from the BJP during the 10 years of the UPA government.

  • BJP leaders may blame the Congress now but if they introspect they will recall that daily adjournments, slogan shouting in the well of the House and wasting sessions after sessions are their legacy.

Then a senior BJP leader who is now a Union minister had said disruption is a right way of opposing in a democracy.

Given the situation, if the government sits with the Opposition and discusses the issues with an open mind and the PM is present in the House and listens to the Opposition like Pandit Nehru, Indira Gandhi and AB Vajpayee, then certainly there will be a way out.

DEC : 19TH : THE HINDU : THE LEAD : The unmaking of Parliament

The Indian Parliament meets, the Indian Parliament ceases to meet, and there is nary an impact of these meetings/non-meetings on the democratic discourse in the country.

CRITICISM : WHO SAYS WHAT:

Newspaper : waste of time and money

Commentators : clamour in Parliament

Analysts : Widening social based not resulted in meaningful legislation or responsible legislators

legal minds : Law by Ordinance rather through Parliament

Most Indians find Parliament irrelevant to the needs of the day.

Why should they not find it so?

  • Opposition finds fault with Government instead of Engaging ;

  • And Government fails to give satisfactory reply with calm, reflective and reasoned debate ;

  • as PM speaks only with Potential voters.

What Jawaharlal Nehru termed the Not just ‘majesty’ of Parliament but also the democracy is subverted in the process?

Loss of confidence in representative institutions has not led to disappointment with democracy. As the Indians STILL value democracy. Why ? Each human being to be treated as an equal, at least during election time.

Elections are marked by high voter turnouts, voters exercise freedom of choice and elect and dismiss governments in often unpredictable ways.

  • The Motilal Nehru Constitutional Draft (1928) + Constituent Assembly : recommended adult suffrage(Right to vote) for ordinary women and men irrespective of the their level of literacy

Direct democracy, as propounded by Rousseau, cannot be practised in large, complex socities as citizens have only time and energy for earning their daily bread, and they cannot participate whole-time in an activity called politics.

  • Besides modern citizens, unlike ancient Athenians, value and guard their personal spaces, their vocation, their interests, their social life, and their privacy.

For these reasons and more, democracy requires a third set of political agents to mediate between the first two sets: the citizen and the state. This is the representative.

To stand in

  • Voters authorise, as primary unit, representatives to speak and act on their behalf.

DUTIES OF REPRESENTATIVES :

  • to ensure that the opinions, interests and needs of constituents are adequately, competently and effectively represented in forums of decision-making

  • to assist in the production of appropriate policies.

  • is accountable to her constituency for all acts of omission and commission.

In theory, citizens have command over who they want to be represented by, and what issues representatives, normally members of political parties, should represent.

WHO ARE THEY REPRESENTING? Civil society[1] .Each of them claims to represent the interests of their members.

ADVANTAGES:

  1. They represent all the members of a territorially delimited constituency, Not just trade unions.

  2. Accountability to their constituents via the route of election.

  3. They acquire legitimacy by the fact that she has been elected by the people whose interests she is charged with representing and furthering.

NOT PERFECT, BUT STILL HOLDS GOOD : Representative democracy is not perfect, it is flawed, but it is the only form of democracy that enables a relationship between the citizen and the state, provided our representatives do what they are supposed to be doing in Parliament.

ROLE OF PARLIAMENT:

  • It makes laws,

  • ensures accountability of the government, and

  • considers and scrutinises legislation through the committee system.

  • provides a forum and establishes procedures for reflection on, and critical engagement with, what has been done, and what needs to be done in the light of popular expectations.

JOB OF REPRESENTATIVE : to promote the public good, and not for advancing petty, grasping projects. This is the reason for which they have been elected, the source of their power and privilege, the rationale for their very existence.

Deliberation, by way of representation of different points of view, is an indispensable component of how we, as a collective, should live.

A sharp decline

  • The failure of the body to deliberate on the public good is condemnable.

  • Telecasts showed empty benches in the Rajya Sabha on the opening day of the winter session of Parliament.

  • Parliamentarians simply could not be bothered to listen to or participate in a debate.

The sharp decline in the effectiveness of Parliament,

  • its failure to monitor the executive,

  • delegation of power to non-representative regulatory institutions,

  • the substitution of deal-making for informed arguments,

  • the rushing through of legislation without discussion, and

  • the increasing concentration of power in the hands of the executive.

CONCLUSION :

  • If India wishes to hold on to her democratic credentials, parliamentarians must recognise that the task of representing the opinions, interests and needs of citizens is their paramount responsibility.

Nehru, in a famous speech he made in the Lok Sabha on March 28, 1957, had said that historians will not pay much attention to the time expended on speeches, or the number of questions asked and answered in Parliament. They will be interested in the deeper things that go into the making of a nation. There is no higher responsibility than to be a member of this sovereign body responsible for the fate of vast numbers of human beings. “Whether we are worthy of it or not is another matter.” Our Parliamentarians have proved unworthy of the great responsibility bestowed on them. This is the political tragedy of our democracy

DECEMBER 19TH : EDITORIAL OF THE HINDU : Questions from a washout

  1. At the winter session of Parliament : washed out. Opposition parties adopted disruptive tactics on demonetisation issues.

  • Prime Minister in Gujarat called for : “jan sabha” (people’s meet) as the Opposition wouldn’t let him do so in Parliament; and

  • Rahul Gandhi, vice-president of the Congress party, complaining that he was not allowed to make disclosures on the floor of the House, but then keeping them close to his chest outside.

  • The Opposition (Congress ) has clearly taken its cue from the BJP’s playbook.

  1. What did either side gain by bringing Indian parliamentary democracy’s most deliberative process to a grinding halt? Just two bills were passed, one of them a money bill that did not need the Rajya Sabha’s nod.

  2. Bills critical to the April 1, 2017, deadline for the rollout of the Goods and Services Tax. It also failed to end the session on a note of federal cooperation to set up the shift to Budget day to February 1 from next year.

  3. To re-establish itself as a viable option for voters, the Congress needs to share its vision and road map in the Rahul Gandhi era.

CONCLUSION :

  • The floor of the House, with a tempered debate and questioning as a constructive party of opposition, is a key venue for that.

  • Basic self-interest demands that government and opposition avert the possibility of the Budget session meeting the same fate as this one.

DECEMBER 19TH : EC seeks end to nameless donations

Seeking to stop financing of election campaigns using black money, the Election Commission has urged the government to amend laws to ban anonymous contributions of Rs. 2,000 and above made to political parties. Why?

  • There is no constitutional or statutory prohibition on receipt of anonymous donations by political parties.

  • Section 29C of the Representation of the People Act, 1951. But, such declarations are mandated only for contributions above Rs. 20,000.

Now: Any amount 2,000 should be prohibited : EC recommends.

DECEMBER19TH : Single tribunal to arbitrate inter-State water disputes

The Centre has decided to set up a single, permanent Tribunal to adjudicate all inter-State river water disputes. Why ?

  • Aimed at resolving grievances of States in a speedy manner within 3 years.

  • This body will subsume existing tribunals.

NOT JUST TRIBUNAL BUT TEMPORARY BENCHES TO ADJUDICATE THE DISPUTES: Besides the tribunal, the government has also proposed to float some Benches by amending the Inter-State Water Disputes Act, 1956 to look into disputes as and when required. Unlike the tribunal, the Benches will cease to exist once the disputes are resolved.

  • Setting up of Dispute Resolution Committee (DRC). The DRC, comprising experts and policy-makers, is proposed to handle disputes prior to the tribunal. “...whenever a State will request, the Centre will set up a DRC. We expect, most disputes will get resolved at the DRC’s level itself. But if a State is not satisfied, it can approach the tribunal.” — PTI

DECEMBER 20TH : EDITORIAL OF THE HINDU : Grappling with water disputes

NEWS : Permanent tribunal , subsuming the existing tribunals, to adjudicate river water disputes between States will good improvement from ad hoc tribunals = to provide for speedier adjudication.

ISSUES :

  • But will it resolve the disputes within 3 years ? Because Expecting a Single Institution to give its verdict = Doubtful.

  • Its interlocutory orders as well as final award are likely to be challenged under Article 136 of the Constitution in the Supreme Court. Thus, finality and enforcement of a tribunal’s award may remain elusive.

  • The idea of a Dispute Resolution Committee, an expert body that will seek to resolve inter-State differences before a tribunal is approached = disincentive for needless litigation.

Good thing: expert agency to collect data on rainfall, irrigation and surface water flows. A permanent forum having reliable data in its hands sounds like an ideal mechanism to apportion water.

  • BENCHES ARE NOT ANEW: It is not clear in what way these temporary benches would be different from the present tribunals.

  • What if there is any Refusal or reluctance of parties to follow the orders this tribunal? . Having an institutional mechanism is one thing, but infusing a sense of responsibility to abide by judicial orders is another.

CONCLUSION :

  • What is at stake

  • Not just riparian rights because Water disputes have humanitarian dimensions, including agrarian problems worsened by drought and monsoon failures.

  • Adjudication, by whatever mechanism, should not be at the mercy of partisan leaders who turn claims into dangerously emotive issues.

  • Institutional mechanisms should be backed by the political will to make them work.

DECEMBED 19TH : J&K has no sovereignty: SC

Jammu and Kashmir has “no vestige” of sovereignty outside the Indian Constitution, and citizens of the State are “first and foremost” citizens of India, the Supreme Court has held.

  • The court made this observation while describing as “wholly incorrect” the conclusion arrived at by the Jammu and Kashmir High Court that the State has “absolute sovereign power” to legislate laws touching the rights of its permanent residents regarding their immovable properties.

The Supreme Court said this while holding that provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002, are within the legislative competence of Parliament and can be enforced in J&K.

HC verdict set aside : The Bench set aside the verdict of the High Court that held that any law made by Parliament which affects the laws made by a State legislature cannot be extended to Jammu & Kashmir.

Concern in J&K : The National Conference, which stands for complete restoration of Article 370, fears “violation of State Subject laws”.

  • “It remains a fact that in certain aspects of Centre-State laws, State laws run supreme. Earlier, the Centre’s rights were limited to defence, foreign affairs, communication and currency. J&K is a case of sub-sovereignty,” said NC spokesman Junaid Azim Mattu.

  • Calling for a more nuanced understanding of Article 370, Mr. Mattu said, “The State Bank of India (SBI) per se is not a State subject. However, it has come into being [in J&K] because of the State legislature. It can’t have mortgage rights and violates State Subject laws.”

  • The J&K government was of the opinion that the SARFAESI Act “encroached upon the property rights of permanent residents of the State” and “would need concurrence of the J&K government under Article 370”.

ENVIRONMENT :

DECEMBER 17TH : OPINION OF THE INDIAN EXPRESS : The long-term solution

All of us self-styled and other-styled experts should be gasping for ideas. Consider the following.

  • In 1996, the Supreme Court ordered the closure of hazardous industries in Delhi to reduce pollution instead of forcing them to clean up their act. This led to the unemployment of over a million people directly or indirectly.

  • In 2002, the Supreme Court ordered that all buses, taxis and three-wheelers in Delhi should convert their engines to CNG to ensure a clean atmosphere.

However, we have to pause and reflect why the air gets worse every year. Forcing disruptive policies on citizens that affect livelihoods but don’t ensure progressive improvements is bad for governance and makes people more cynical.

The first fact we have to recognise is that this is not a Delhi problem. Hundreds of cities in the country are as badly or worse polluted than Delhi.

Therefore, we have to approach the problem in a more comprehensive manner and set in motion procedures and methods that ensure sensible policymaking over the next five to 10 years for all the cities in the country.

  1. First of all, we have to ensure that four or five multidisciplinary centres for data gathering, research and policymaking are set up in academic institutions in the NCR with assured funding for the next five years. This should not cost more than Rs 15-20 crore a year. Their job would be to get reliable information about the sources of pollutants and their amounts in the air on a continuing basis, the interaction of various pollutants in the atmosphere, an evaluation of technologies needed that will work to reduce pollution from different sources, regulations and taxation/fiscal policies to achieve our aims, and governance systems that can make all this possible.

  • What is known is that diesel engines produce more PM2.5 and less CO2 than petrol or CNG engines. On the other hand, both diesel and CNG engines produce more NOx than petrol engines. It is possible that higher densities of smog are also the result of greater amounts of NOx in the air.

  • But no one has measured the amount of NOx that CNG engines are emitting while in operation. All this has to be carefully measured and then policies made to set emission norms for new vehicles and testing norms for existing vehicles. Arbitrary bans on vehicles that have passed mandated fitness tests and quarterly pollution tests are not only unfair, but give us a bad reputation internationally.

The only way to control emissions is to set emission standards that debar unwanted vehicles automatically irrespective of the fuel used. The good news on this front is that the Government of India has mandated Euro 6 norms for vehicle emissions starting in 2020.

  • Everyone is asking the government to reduce car use by promoting walking, cycling and public transport use. The fact is, people do not change their travelling patterns easily just because of the provision of more buses and metros. Just buying more buses will not ensure their greater use.

  • We could start with an annual pollution tax of Rs 10 per cc of engine size for all vehicles, a parking fee of Rs 100 per day in all offices and banning free parking on government property.

  • In the long term, we will have to think of the role of shopping malls versus neighbourhood shops as the former encourage car use, resulting in more pollution and accidents.

  • It is assumed that just the provision of good footpaths and bicycle lanes will encourage people to walk and bicycle. This is a necessary condition, but not a sufficient one.

Fairly good footpaths are available in Lutyen’s Delhi and Chandigarh, but you hardly see them crowded with pedestrians.

PROBLEM : One of the reasons is that pedestrians probably find them to be very sterile environments. All they can see are high boundary walls and barbed wire fences. The architecture of buildings is not visible; there are no shops, restaurants, kiosks, offices or human activity to make their walk pleasant and interesting. There are no places to sit or loiter with friends or socialise with acquaintances.

SOLUTION : Unless we allow a great deal of social activity along our urban streets, walking will not be a preferred option.

OPINION OF THE HINDU : Leopards in a spot

In a landmark decision in 2014 prohibiting the bull-taming sport, Jallikattu, the Supreme Court held that “animal has also honour and dignity which cannot be arbitrarily deprived of and its rights and privacy have to be respected and protected from unlawful attacks” (Animal Welfare Board of India v. A. Nagaraja).

Same rights were not accorded to leopard.

CASE 1: Mandawar village near Gurugram, it was clubbed to death

CASE 2 : Young leopard caught on the fringes of the Yamuna Biodiversity Park. They will most probably send it to Saharanpur.

  • Tragically, while the first leopard was beaten to death, the second leopard was chased like a ‘wanted’ criminal who has just escaped from prison (in this case, a national park or a sanctuary) and has to be sent back, in this case, to the forests.

Legal and ethical issues arose in which we deal with wild animals that venture into human-dominated landscapes.

  1. Just like Article 21 of the Constitution, A wild animal can also be deprived of its life and personal liberty only after following due process, namely, what is mentioned in the Wildlife (Protection) Act, 1972.

Unfortunately, in a country where due process is often not followed even for human beings, it is difficult to imagine that it would be followed with respect to wild animals.

  1. And just like ‘encounter killings’ of suspected terrorists, wild animals, especially leopards, are being eliminated across the country through state-sanctioned and public-supported encounter killings.

We are pushing an entire species closer to extinction.

'Natural' homes

  1. if a wild animal is found outside the protected area, it must be “rescued” and sent back to the protected area.

  2. The law governing the subject of wildlife, the Wildlife (Protection) Act, 1972, does not discriminate between animals found in protected areas and outside. It provides for equal protection for wild animals irrespective of where they are found.

  3. As per the law, wild animals are not the property of the government, and an animal which is wild in nature and free cannot be in the ownership of either the government or a private party.

  4. Only if the wild animal becomes a danger to human life or is diseased or disabled beyond recovery can it be allowed to be captured or killed by the competent authority, the Chief Wildlife Warden of the State. This provision is applicable to wild animals listed in Schedule I of the Wildlife (Protection) Act, 1972, which includes leopards.

  5. Mere apprehension or fear that a wild animal could endanger human life is not a ground for capture or killing.

AUDACITY OF LEOPARDS : These leopards displayed amazing adaptability and resilience in the face of massive habitat loss. They have had the audacity to survive in situations where other wild animals have given up.

  • State-sanctioned killing, capture and “rescue” of leopards violates every statutory, constitutional and ethical standard.

  • We must recognise and accept that wild animals are not just born free, they have the right to remain free, the right to move freely, and the right of equal protection of the law irrespective of whether they are in a protected area or outside.

This is the minimum that is required if India is serious about protecting its wildlife and biodiversity.

DECEMBER 22ND : SC criticises poor implementation of SC/ST Act

  1. Criticising the government for its “indifferent attitude” towards the implementation of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, the Supreme Court has directed the National Legal Services Authority to frame schemes for spreading legal awareness and free consultations to members of the SC/ST communities nationwide.

  2. Equality for all

  • A Bench, headed by Chief Justice of India T.S. Thakur, asked the authorities to discharge their duties to protect the SCs/STs to attain the constitutional goal of equality for all citizens.

  • “The constitutional goal of equality for all the citizens can be achieved only when the rights of the Scheduled Castes and Scheduled Tribes are protected. The abundant material on record proves that the authorities are guilty of not enforcing the provisions of the Act,” the Bench, also comprising Justices D.Y. Chandrachud and L. Nageshwara Rao, observed in a recent judgment.

  • It asked the National Legal Services Authority to formulate appropriate schemes to spread awareness and provide free legal aid to SCs and STs.

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