LAW OPTIONAL: CURRENT AFFAIRS REVIEW : JANUARY 2017

TABLE OF CONTENTS :

CONSTITUTIONAL LAW : 1. RE-PROMULGATION OF ORDINANCES – A FRAUD ON THE CONSTITUTION. 2. SECULARISING THE ELECTION : INDIAN DEMOCRACY. • NARROW V. BROADER INTERPRETATION ANALYSIS. 3. RE-THINKING THE POLICY OF RESERVATION. 4. DEMONITISATION, RBI AND MY RIGHT TO INFORMATION. 5. GOVERNMENT STALLING JUDICIAL TRANSFERS ?

INTERNATIONAL LAW : WORKING OF U.N. IN ADVERSE ENVIRONMENT.

INDIAN PENAL CODE: 1. RAPE DEFINITION CONFLICT BETWEEN POSCO V. IPC. 2. MASS MOLESTATION . RE-PROMULGATION OF ORDINANCES : Confirming the High Court's view, Justice Chandrachud, supported by Chief Justice Thakur in a separate judgment, held that “repromulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes”.

CASE : KRISHNA KUMAR V. STATE OF BIHAR : FEBRUARY 2017 :

7- CORE PRINCIPLES ON PROMULGATION OF ORDINANCES UNDER ARTICLE 123 AND 213.

1. The power which has been conferred upon the President under Article 123 and the Governor under Article 213 :legislative + conditional + can be exercised only when the legislature is not in session + circumstances exist which render it necessary to take immediate action;

2. ORDINANCE = LAW : An Ordinance which is promulgated under Article 123 or Article 213 has the same force and effect as a law enacted by the legislature but it must (i) be laid before the legislature; and (ii) it will cease to operate six weeks after the legislature has reassembled or, even earlier if a resolution disapproving it is passed. Moreover, an Ordinance may also be withdrawn;

3. NOT A PARALLEL LEGISLATURE : The Ordinance making power does not constitute the President or the Governor into a parallel source of law making or an independent legislative authority;

4. WHY ORDINANCE SHOULD BE LAID DOWN ? The requirement of laying an Ordinance before Parliament or the state legislature is a mandatory constitutional obligation cast upon the government. Laying of the ordinance before the legislature is mandatory because the legislature has to determine: (a) The need for, validity of and expediency to promulgate an ordinance; (b) Whether the Ordinance ought to be approved or disapproved; (c) Whether an Act incorporating the provisions of the ordinance should be enacted (with or without amendments);

5. IF NOT : If ordinance is not laid down, it is

= serious constitutional infraction and abuse of the constitutional process;

= Re-promulgation of ordinances is a fraud on the Constitution and a sub-version of democratic legislative processes, as laid down in the judgment of the Constitution Bench in D C Wadhwa;

6. The question as to whether rights, privileges, obligations and liabilities would survive an Ordinance which has ceased to operate must be determined as a matter of construction. The appropriate test to be applied is the test of public interest and constitutional necessity. This would include the issue as to whether the consequences which have taken place under the Ordinance have assumed an irreversible character. In a suitable case, it would be open to the court to mould the relief; and

7. The satisfaction of the President under Article 123 and of the Governor under Article 213 is not immune from judicial review particularly after the amendment brought about by the forty-fourth amendment to the Constitution by the deletion of clause 4 in both the articles.

ANALYSIS : The judgment will be welcomed by those who believe in constitutional propriety, legislative control over lawmaking and the larger ethical basis for the exercise of power in any circumstance.

WHY ORDINANCE IS ALTERNATIVE>

1. While contending that ordinances should be issued only to meet certain exigencies and under compelling circumstances, it is equally important to understand that disruption as a parliamentary tactic plays a significant role.

2. A dysfunctional House sometimes constitutes a compelling circumstance in itself.

3. Generally, it is the combination of Opposition obstructionism and government obstinacy in not making any concessions to those across the aisle that derails legislative business and leads to ordinances.

4. The courts can only define the boundaries between the use and abuse of power, but it is up to parties in the legislature to observe the limits of constitutional propriety and show that they have both the time and the will to enact laws.

REPRESENTATION OF PEOPLE ACT ; SECULARISM ; DEMOCRACY ; RIGHT TO RELIGION :

The Supreme Court decision on Hindutva (1995) in the context of electoral appeals : court should not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied”.

Abhiram Singh v. C.D. Commachen has only interpreted Section 123(3) of the Representation of the People Act of 1951, which penalises as a corrupt practice in an election “the appeal… to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language”.

Interpretation of the pronoun “his” :

Does the appeal to “his religion” mean an appeal to the religion of the candidate alone? Or does it qualify appeals made to the religious sentiments of all participants in the electoral battle, including the candidates, voters, election agents and the like?

Section 123(3) of the Representation of the People Act, India’s omnibus election law, defines a corrupt electoral practice as follows: “The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community....”

EXAMPLE :

1. Under the narrower interpretation, a candidate would not be entitled to say, “I am a Hindu, you are Hindus and hence should vote for me.”

2. The broader interpretation, which has been accepted by the majority, would penalise even an appeal which tells the voter, “You, as Hindus, know that I alone can defend your interests.”

The question before the Supreme Court was deceptively simple : did the underlined word “his” qualify only the electoral candidate (and his agent, or persons speaking with his consent)? Or did it also qualify the person to whom the appeal was addressed (the elector)?

MAJORITY : Four out of seven judges held that the law was trying to achieve the purity of elections, and that the purity of elections required that appeals to caste, religion, language, and community be kept out of the electoral process.

Distortion of democracy : Why ?

1. Democracy to survive, there must be agreement on certain basic essentials “which could unite and hold citizens together”. Religion, language, caste, etc were precisely the kind of divisive factors.

2. Democracy depended on voters exercising their franchise on the basis of rational thought and action, appeals to religion, language, and caste were inherently emotive and irrational in nature. Therefore, to restrict Section 123(3)’s prohibition only to electoral candidates would be contrary to public interest. Chief Justice T.S. Thakur: “Religion can have no place in such [secular] activities for religion is a matter personal to the individual with which neither the State nor any other individual has anything to do.”Consequently, according to the majority, the word “his” in Section 123(3) was to be understood broadly, referring to both the speaker as well as the audience. In effect, it prohibited appeals to the prohibited “grounds” (religion, caste etc) during the electoral process.

At the heart of the majority’s vision of the democratic public sphere was the ideal of abstract, universal personhood. In this way, the state prevents the distortion of democracy, and helps us to become true citizens. To some, this might sound like a noble and inspiring vision of democracy, and of the Constitution.

Why narrow interpretation preferable? since severe civil consequences like disqualification from elections flowed from a finding of corrupt practice.Otherwise : broad or purposive interpretation might violate Article 19(1)(a) of the Constitution.

Narrow interpretation as settled law : should not be disturbed unless strong reason to do so.

Justice D.Y. Chandrachud, the author of the dissenting opinion, wrote: “The Constitution... recognises the position of religion, caste, language and gender in the social life of the nation. To hold that a person who seeks to contest an election is prohibited from speaking of the legitimate concerns of citizens that the injustices faced by them on the basis of traits having an origin in religion, race, caste, community or language would be remedied is to reduce democracy to an abstraction.”

Human beings are always situated within their social contexts, and in India, these contexts have been characterised by religion, language, caste, and community.

In the last analysis, the dissent’s crucial insight was this: With the advent of democracy, it was precisely this social salience that allowed the oppressed to organise around the site of their prior oppression, and use that to gain political power. It was that which allowed B.R. Ambedkar to form the All India Scheduled Castes Federation, a political party exclusively devoted to Dalit emancipation.

For this reason, the dissent held that Section 123(3) had to be construed narrowly. The phrase “his religion” referred only to the religion of an electoral candidate, and not the religion of the voter. Section 123(3) prohibited statements like “I am a Hindu, vote for me”, or “My opponent is a Hindu, don’t vote for her”. The same logic could not be extended to citizen-electors, when they participated in the electoral process.

The original intent :A.K. Sen, who was the Law Minister in 1961, explained the reason for the introduction of the word ‘his’ in a speech in the Lok Sabha: “propagate his own language, his own particular culture – his right , but this right cannot extend to create enmity between communities”The minority judgment : “the speech of the Law Minister, who moved the Bill, leaves no manner of doubt that the expression ‘his’ referred to the religion of the candidate (or his caste, community, race or language) The majority judgment : adopting the principle of purposive construction of statutes : “the Representation of the People Act, 1951 is a statute that enables us to cherish and strengthen our democratic ideals.

To interpret it in a manner that assists candidates to an election rather than the elector or the electorate in a vast democracy like ours would really be going against public interest.”. Applying that principle to the case at hand, “an interpretation that will have the effect of removing the religion or religious considerations from the secular character of the State or state activity ought to be preferred over an interpretation which may allow such considerations to enter, effect or influence such activities.

Electoral processes are doubtless secular activities of the State. Religion can have no place in such activities for religion is a matter personal to the individual with which neither the State nor any other individual has anything to do…

QUESTIONS TO PONDER UPON:

1. Do fair elections require that certain kinds of statements — such as appeals to religion, caste, and language — be taken off the campaigning table altogether?

2. Can the state prevent adult citizens from being exposed to certain ideas before they vote?

3. Can a court decide that only certain kinds of interests count in a democracy?

4. Does secularism mandate the complete exclusion of religion from the public sphere?

5. And must identities based upon religion, caste, and language always be treated as evils to be fought and eradicated?

6. Or can they sometimes become sites of emancipation, markers around which citizens organise themselves and seek liberation through the attainment of political power?

RE-THINKING THE POLICY OF RESERVATION : ARTICLE 15 OF CONSTITUTION OF INDIA :

1. 15(1) : The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. (R2CSPA)

2. Art.15(4) : State can make any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

Reservation is a policy tool that is used not only in India. In many countries, reservation or other types of affirmative action are used ;

WHY? To try to overcome human prejudice based on race, gender, ethnicity, religion, caste or any other group identity, and to encourage representation of and participation by groups traditionally excluded and discriminated against.

TO BE MORE SPECIFIC : Dalits, backward Muslims, and Adivasis face more social discrimination and poorer than general castes. We examine the top three reasons for opposition to reservation one by one.

1. When people say that jobs and seats in schools should be allocated on the basis of “merit,” they are referring to the fact that people from reserved categories are often given a concession of a few points on exams and in interviews. This view overlooks the important disadvantages that people from reserved categories face in going to school or getting a job today.

2. Reservation is a useful tool to level the playing field: we cannot expect groups who have been historically deprived of education, skills, and access to other means of economic mobility to suddenly start competing with those from groups who have had access to these means for centuries. Yet, the ability to decipher test answers or speak confidently in an interview is often the result of being nurtured in an environment that is a result of accumulated economic, social and cultural capital. It is also important to reconsider what is meant by “merit”. The ability to answer test questions correctly is certainly not the only, or even the best, predictor of how well someone will perform in school or on the job. It is worth noting that many reserved candidates have reached schools and jobs in spite of economic and social disadvantage as well as overt exclusion and discrimination.

3. Some of the respondents said that they opposed reservation because they believe in equality. However, reservation is a policy tool that promotes equality rather than undermines it. When people from all social groups are represented in government, higher education, and in business, it is less likely that traditionally marginalised groups will continue to be denied fundamental rights and access to their fair share of society’s resources

.4. Finally, some people say that they oppose today’s reservations because they believe reservation should be made on the basis of income rather than social background. However, reservation is intended not to be an anti-poverty programme. One way to make these measures more acceptable and help people better understand the historic, social and cultural background behind reservation would be to educate children in schools about caste, ethnic, gender and regional diversities and the need for public policy interventions to make society more equal and fair.

DEMONITISATION, RBI AND MY RIGHT TO INFORMATION :

Responding to a right to information query, the Reserve Bank of India (RBI) has refused to give information about whether the finance minister and chief economic advisor were consulted before the demonetisation decision was taken.

The RTI Act has ten exemptions for information which can be refused. However, the law requires that reasons must be given when denying a citizen her fundamental right. The Reserve Bank’s PIO has not given any reasoning behind how the interests of India would be affected if the names of officers who were consulted were revealed. It is also very fanciful to claim that revealing the names of officers would endanger their physical safety. This is a blatant subversion of the law and a display of arrogance.

The Supreme Court in a judgment ordering release of information by RBI in RTI on 16 December 2015 had stated, “RBI’s argument that if people, who are sovereign, are made aware of the irregularities being committed by the banks then the country’s economic security would be endangered, is not only absurd but is equally misconceived and baseless. …...” In this judgment nine orders of the Central Information Commission were upheld and information was ordered to be disclosed. In this judgment the Supreme Court had also said: “The baseless and unsubstantiated argument of the RBI that the disclosure would hurt the economic interest of the country is totally misconceived.” Despite these stinging observations by the apex court, RBI continues to believe that it is above the Right to Information guaranteed to citizens under Article 19 (1) (a).

It is again trying to subvert the sovereignty and rights of the citizens by flouting the law.Revealing the truth as it exists on record will lead to a greater faith in the institution and better governance. Even information which the Supreme Court had specifically ordered to be disclosed has been included in this and two contempt petitions have been filed against RBI.

Citizens must wake up and realize that if our right to information is allowed to be subverted our freedom of expression which is covered under the same provision of our constitution could be next.[1]

Centre stalling judicial transfers: SC:

The Supreme Court on Monday accused the Centre of allowing transfers of Chief Justices and judges of various High Courts to “languish on somebody’s desk” for months together, even as senior advocates, including Ram Jethmalani, told the apex court that it is “time the judiciary taught the government a lesson.”

In an intervention, counsel from Karnataka stood up to say that the State High Court was functioning with only about a half of its sanctioned strength of 62 judges.Chief Justice Thakur then addressed Mr. Rohatgi. “What is happening?

The recommendations of the Collegium cannot be allowed to languish on somebody’s desk. If you do not agree with a name, send the file back to us.”Status report sought : Chief Justice Thakur wanted to know why the government had stalled the transfers of High Court Chief Justices and judges. “How will a litigant view a judge who is continuing his judicial work when he is already under transfer to another High Court? The litigant will think somebody wants him to do so.”

Mr. Rohatgi said there were no files pending with the government. The judiciary of the State High Courts was largely to blame for the delay in filling up the vacancies. The State High Courts tended to start the process of judicial appointments late, sometimes sitting on vacancies for years, he said.

INDIAN PENAL CODE : SC asked to resolve conflict over ‘rape’ definition in two laws:

A chink in the colonial-era Indian Penal Code (IPC) condoning sexual intercourse and exploitation of a 15-year-old child ‘wife’ has been brought to the Supreme Court’s attention.

An exception to Section 375 (rape) in the IPC allows a man to go scot-free despite having sex with his 15-year-old ‘wife’. This exception ensures that he will not be charged with rape even though child marriage is a crime.

Estimated 47 per cent of children in India were married off before they turned 18, according to the United Nations.

The illegal practice was a serious deterrence to the physical, social, psychological and moral well-being of children.

POCSO has specific penal provisions against ‘penetrative sexual assault’ and ‘aggressive penetrative sexual assault’ on children below 18.

The IPC terms children as those aged under 15 years while POCSO terms children as those aged under 18. The apex court directed the government to address the issue within four months. The Bench asked Mr. Satyarthi to approach the court on the same grounds for immediate resolution if he is not satisfied with the government’s response.

"Bengaluru’s night of horror“mass molestation” :

A large number of women were sexually assaulted around midnight of New-year festive. Did anyone complain?

While no complaint had been filed, Bengaluru police have taken up an investigation based on the reports of women being groped and physically attacked.

Unconnected incidence: Woman was attacked even on her way to residence. = “mass molestation”, but reinforces the horror of the night in Bengaluru.

Karnataka Home Minister G. Parameshwara’s effort to blame the violence on “western culture” , instead to focus upon how state and society fail to ensure the safety of women. It explains the reluctance of women to register offences.

PROCEDURAL EFFICACY : The Criminal Law (Amendment) Act, 2013, passed after national outrage over the Delhi gang rape of December 16, 2012, had sought to bring clarity to the continuum of sexual offences and to simplify procedures for women to bring them to the attention of the police.

Every crime against a woman must be regarded as a horror without flipping an accusation on a woman and instead asserts a woman’s right to bodily integrity no matter where she is and what she is doing ! This is the challenge before the Bengaluru police as they look for women to come forward and assist in the investigation.

SECTION 354: ASSAULT OR CRIMINAL FORCE TO WOMAN WITH INTENT TO OUTRAGE HER MODESTY: Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

The essence of a woman’s modesty is her sex. The culpable intention or knowledge of the accused is the crux of matter. The reaction of the woman is very relevant, but its absence is not always decisive, as for example, when the accused with the corrupt mind stealthily touches the flesh of a sleeping woman. She may be an idiot, or under the spell of anaesthesia or sleeping, or unable to appreciate the significance of the act; nevertheless, the offender is punishable under this section. Where the accused dragged a woman in, made her naked forcibly and committed some acts, but there was no proof of rape, he was held guilty under section 354 # Basudeo Naik v. State.

Under The Criminal Law (Amendment) Act, 2013 : After section 354 of the Penal Code, the following sections have been inserted, namely:––

1. Section 354-A : Sexual Harassment

2. Section 354-B : Assault or use of criminal force to woman with intent to disrobe.

3. Section 354-C :Voyeurism

4. Section 354-D : Stalking

WORKING OF U.N. IN ADVERSE ENVIRONMENT.

Soon after Portugal’s António Guterres was picked to succeed Ban Ki-moon as the United Nations Secretary-General : major challenges awaiting him is Syrian conflict. There was also mention of climate change, North Korea’s nukes, Africa’s wars and the refugee crisis engulfing Europe.

New challenge of a different kind: Donald Trump.

Last week, reacting to the decision by the Obama administration not to veto the resolution condemning Israeli settlements in occupied Palestinian territory, : Mr. Trump trashed the UN as “just a club for people to get together, talk and have a good time.”

Anti-UN stance. : Mr. Trump drew applause for his anti-UN rhetoric. “The United Nations is not a friend of democracy, it’s not a friend of freedom,” he said. “It’s not even a friend to the United States of America where, as you know, it has its home. And it is surely not a friend to Israel.”

U.S. contributes the biggest share (22 per cent) of the UN’s regular budget.

In his ‘100-day action plan to Make America Great Again’, he vowed to cancel billions in payments to the UN climate change programme. This will be a significant blow to the world body, Many of Mr. Trump’s campaign pronouncements were at odds with the UN, including climate change, human rights, the Iran deal, the refugee crisis, and the West Asia peace process.

The nomination of Rex Tillerson, a corporate mogul lacking substantial international political experience, as Secretary of State has already raised the hackles of environmentalists and human rights activists.

Reforming the world body:

UN’s peacekeeping, which has been severely tainted by allegations of sexual abuse and exploitation by peacekeepers in various countries. spectacular failure of the UN civilian leadership in South Sudan In Liberia, where the peacekeeping operation has been gradually downsizing for some years now, not a single senior civilian official has lost their job.

Mr. Guterres will need to demand greater accountability and integrity from his special representatives and deputies in the field.

The overall picture, however, is challenging. With unprecedented gloom enveloping the planet, the job of the UN Secretary-General has today become even more difficult than ever before. Whether Mr. Trump could make it an impossible job is anybody’s guess.

[1] OPINION OF HINDUSTHAN TIMES: RBI’s refusal to reveal info on demonetisation is ‘blatant subversion of the law’.

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