Indian Polity & Governance - 2 | Current Affairs & Hindu Analysis: Daily, Weekly & Monthly - UPSC PDF Download

National Court of Appeal

• Originally the Supreme Court - comprised eight judges – a Chief Justice and seven puisne judges. 
• Parliament is empowered to increase the strength of the Judges. 
• In 2019, the SC's strength was increased to 34. This increase has been in phases. 
• Presently there are 33 judges including the CJI Strength of Judges vs Pendency of cases 
• Despite an increase in the strength of the Judges, the work of the Supreme Court has expanded exponentially. 
• The number of appeals have increased substantially as compared to the constitutional cases. 
• This has led to an increase in the pendency of cases in the Judiciary. 
• In 2014, various benches of the SC delivered 888 final judgments. Of these, only 64 judgments were those that dealt with a Constitutional matter. 
• Thus, the character of the apex court seems to have transformed from a Constitutional authority to that of an appellate Court. 
• This is because besides the constitutional cases SC is occupied with the cases of appeals from the lower courts. 
• In many countries apex courts restrict their hearings to a limited number of cases. They rarely hear cases related to civil or criminal matters. 
• In India, such a wide jurisdiction has resulted in a significant backlog of cases at the apex court's level.

National Court of Appeal as A Solution

• Act as an intermediary court between the High Courts and the Supreme Court. 
• Relieve the SC of routine or appeal cases. 
• Allow SC to function as a Constitutional court to deal with matters of national importance, fundamental rights and issues involved a substantial question of law.

Concerns Against Such a National Court of Appeal

• More than two crore cases are pending in lower courts compared to fifty thousand cases with the SC. Thus, lower Judiciary needs to be equipped to provide speedy and timely justice. It has been argued that doing this will result in a substantial reduction in the need to approach the SC. 
• Appeals will still continue to SC, as often SC takes issues which are beyond its remit. For ex. Inter-State River Water Disputes. 
• Will require amendments to the Constitution, which itself is difficult. 
• Can lead to regionalism and other fissiparous tendencies. 
• With the number of cases pending in lower Judiciary, it will take several decades to clear the current backlog of cases. 
• The SC will continue being the final Court of appeal, and its role as a Constitutional Court will be further diluted. 
• Dilution of Apex Court's Authority.

Issue With the Argument

• According to Law Commission, if Article 130 is liberally interpreted, no constitutional amendment may be required for the purpose of setting up classification benches in four regions and a Constitution Bench at Delhi. Action by the chief justice of India with the president's approval may be enough. In case this liberal interpretation of Article 130 is not feasible, suitable legislation/constitutional amendment may be enacted to do the needful. 
• If regional benches are indeed set up, they would only have a functional role in as far as appeals from High Courts are concerned. All Constitutional and national importance matters would continue to be dealt with by the bench in Delhi. 
• Article 130 makes it evident that the framers of the Constitution did not restrict the geographical ambit of the SC to Delhi only.

Sub-Categorisation of Scheduled Caste

Sub-Categorisation Provided by Punjab Held Unconstitutional by High Court

• Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006 provides that 50% of the vacancies of the quota reserved for Scheduled Castes in direct recruitment, shall be offered to Balmikis and Mazhbi Sikhs, if available, as a first preference from amongst the Scheduled Castes. 
• This provision was held unconstitutional by Punjab and Haryana High Court as the Court relied on the judgement pronounced in V Chinnaiah vs State of Andhra Pradesh and Others which disallows such sub categorisation in reservation for Scheduled Caste and Scheduled Tribes. 
• E.V. Chinnaiah Judgment held that that all the castes in the Presidential Order under Article 341(1) of the Constitution formed one class of homogeneous group and the same could not be further sub divided.

Judgement Given by Supreme Court

• The Court held that sub-classification made under Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006 was to ensure that the benefit of the reservation percolate down to the deprived section, to provide benefit to all and give them equal treatment. 
• The Court held that such sub-classification would not amount to exclusion from the list as no class (caste) is deprived of reservation in totality. 
• The entire basket of fruits cannot be given to mighty at the cost of others under the guise of forming a homogenous class. The Court said that creamy layer for members of SC/ST who have progressed or advanced in their life can be created as compared to the weakest among the weaker sections of Scheduled Caste and Scheduled Tribe. 
• As per Article 16(4) and Article 342A, it would not be permissible to adopt different criteria for Scheduled Castes, Scheduled Tribes, and socially and educationally backward classes. 
• It is State’s obligation to undertake the emancipation of the deprived section of the community and eradicate inequalities. So to remove inequality even within same community, State can subclassify and adopt distributive justice method so that State benefits does not concentrate in few hands and equal justice to all is provided as per Article 39(b) and 39(c).

The Case of The Arunthathiyar

• An example of state legislations earmarking quotas for certain communities within the Scheduled Castes is the 2009 Tamil Nadu law that reserves 3% of the total seats in educational institutions and state services for the Arunthathiyar community. 
• While the Arunthathiyars constitute nearly 16% of the total Scheduled Caste population in the state, a report of the Justice Janarthanam Commission observed that their representation in most government departments, corporations and education institutions was anywhere between 5% to 0% within the Scheduled Caste communities. 
• For this reason, the Tamil Nadu government found it necessary for the state to ensure that the Arunthathiyars obtain representation corresponding to their proportion in the total population of the state.

To Not Sub-Classify Schedules Caste Based on Economic Conditions

• Inter-se classification is wrought with danger if it is done with the assumption that “affluent and socially and economically advanced”, no more deserve reservations and that reservations need to be rethought and provided on the basis of economic conditions so that benefits can “trickle down to the needy”. 
• Reservations is not a mean for poverty alleviation or to substitute for quality public education, which has its subscribers inside and outside the court, and which was given a parliamentary stamp of approval with the passing of the 103rd Constitutional Amendment reserving 10% seats for “economically weaker” savarna candidates. 
• To argue that reservations should trickle down to the ‘needy’ within the Scheduled Castes, ‘needy’ being defined based on economic conditions, refuses to accept caste as a social problem, one which does not go away with some degree of educational or economic mobility. 
• In a 1976 case, State of Kerala v N M Thomas, the Supreme Court laid down that “Scheduled Castes are not castes, they are class.” 
• The decision to change the proportion of reservation may be based on the perception that such decisions will be made to appease one vote-bank or the other. A watertight President’s list was envisaged to protect from such potential arbitrary change.

Legal Course is Moving in The Direction of Making Socio-Political Status as The Basis Reservation

• Tiny elite gobbling up the benefits of reservations. 
• Certain caste groups or subgroups have “come out of untouchability or backwardness by virtue of belonging to the creamy layer”. 
• Constitution 103rd Amendment reserve 10% seats for “economically weaker” savarna candidates reinforces the idea that reservation is the tool for economic development. 
• It is unfair for some castes within the Scheduled Castes to ‘usurp’ all the benefits of reservation.

Conclusion
This assumption will be denial of the atrocities, humiliation and violence faced by members of the Scheduled Castes across classes, in rural as well as urban spaces. Therefore, the court ought to steer clear from allowing inter-se classification among Scheduled Castes on the flawed ground that some Scheduled Castes who have gained representation through reservation have “usurped” or “gobbled up” the benefits and therefore, potentially, now should be excluded. The rationale for inter-se classification is simply that it is imperative and a fundamental requirement for our democracy that all communities within the Scheduled Castes are adequately represented in society, polity and government. The Supreme Court has observed that “the constitutional goal of social transformation cannot be achieved without taking into account changing social realities”.

Right to Privacy

Key Points

• Underlying Values: This right to privacy is seen as possessing: Inherent value: It is important for every person’s basic dignity. Instrumental value: It furthers a person’s ability to live life free of interference. 
• Forms of Right to Privacy: The privacy as guaranteed in Article 21 takes several different forms. It includes: A right to bodily autonomy, A right to informational privacy, A right to a privacy of choice. 
• Right to Relax: Suspicion that immoral activities are taking place in spas cannot be a reason enough to intrude into an individual’s right to relax, for it intrinsically is part and parcel of his fundamental right to privacy. Thus, the installation of CCTV equipment inside premises such as a spa would unquestionably go against a person’s bodily autonomy These are inviolable spaces where the prying eye of the State cannot be allowed to enter. 
• Doctrine of Separation of Powers: The reach of the fundamental rights cannot be curtailed by any judicial measure. It held that, though no right can be absolute, restrictions can be put in place only by the legislature or the executive. Apart from it, the Supreme Court alone can do so in exercise of its power under Article 142 Right to Privacy.
• Generally understood that privacy is synonymous with the right to be let alone. 
• The Supreme Court described privacy and its importance in the landmark decision of K.S. Puttaswamy v. Union of India in 2017. 
• The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution. 
• The Puttaswamy judgement holds that the right to privacy is protected as a fundamental constitutional right under Articles 14, 19 and 21 of the Constitution of India.
• Restrictions (as stated in the Judgement): The right may be restricted only by state action that passes each of the three tests: 
  • First, such state action must have a legislative mandate; 
  • Second, it must be pursuing a legitimate state purpose; and 
  • Third, it must be proportionate i.e., such state action- both in its nature and extent, must be necessary in a democratic society and the action ought to be the least intrusive of the available alternatives to accomplish the ends. 
• Step taken by Government: Acknowledging the importance of privacy, the Government has presented the personal Data Protection Bill 2019 in the Parliament.

Unemployment in India

This could adversely affect economic recovery further going ahead.

Key Points

• Unemployment occurs when a person who is actively searching for employment is unable to find work. Unemployment is often used as a measure of the health of the economy. 
• The most frequent measure of unemployment is the unemployment rate, which is the number of unemployed people divided by the number of people in the labour force. 
• National Sample Survey Organisation (NSSO) defines employment and unemployment on the following activity statuses of an individual: Working (engaged in an economic activity) i.e. ‘Employed’. Seeking or available for work i.e. ‘Unemployed’. Neither seeking nor available for work. The first two constitute the labour force and unemployment rate is the percent of the labour force that is without work.
  Unemployment rate = (Unemployed Workers/ Total labour force) × 100 Types of Unemployment in India: 
• Disguised Unemployment: It is a phenomenon wherein more people are employed than actually needed. It is primarily traced in the agricultural and the unorganised sectors of India. 
• Seasonal Unemployment: It is an unemployment that occurs during certain seasons of the year.  Agricultural labourers in India rarely have work throughout the year. 
• Structural Unemployment: It is a category of unemployment arising from the mismatch between the jobs available in the market and the skills of the available workers in the market. Many people in India do not get jobs due to lack of requisite skills and due to poor education level, it becomes difficult to train them.
• Cyclical Unemployment: It is a result of the business cycle, where unemployment rises during recessions and declines with economic growth. Cyclical unemployment figures in India are negligible. It is a phenomenon that is mostly found in capitalist economies. 
• Technological Unemployment: It is the loss of jobs due to changes in technology. In 2016, World Bank data predicted that the proportion of jobs threatened by automation in India is 69% year-on-year. 
• Frictional Unemployment: The Frictional Unemployment also called as Search Unemployment, refers to the time lag between the jobs when an individual is searching for a new job or is switching between the jobs. In other words, an employee requires time for searching a new job or shifting from the existing to a new job, this inevitable time delay causes frictional unemployment. It is often considered as voluntary unemployment because it is not caused due to the shortage of job, but in fact, the workers themselves quit their jobs in search of better opportunities.
• Vulnerable Employment: This means, people working informally, without proper job contracts and thus sans any legal protection. These persons are deemed ‘unemployed’ since records of their work are never maintained. It is one of the main types of unemployment in India. 

Causes of Unemployment in India

• Social Factors: In India the caste system is prevalent. The work is prohibited for specific castes in some areas. In big joint families having big business, many such persons will be available who do not do any work and depend on the joint income of the family. 
• Rapid Growth of Population: Constant increase in population has been a big problem in India. It is one of the main causes of unemployment. 
• Dominance of Agriculture: Still in India nearly half of the workforce is dependent on Agriculture. However, Agriculture is underdeveloped in India. Also, it provides seasonal employment. 
• Fall of Cottage and Small industries: The industrial development had adverse effects on cottage and small industries. The production of cottage industries began to fall and many artisans became unemployed. 
• Immobility of Labour: Mobility of labour in India is low. Due to attachment to the family, people do not go to far off areas for jobs. Factors like language, religion, and climate are also responsible for low mobility. 
• Defects in Education System: Jobs in the capitalist world have become highly specialised but India’s education system does not provide the right training and specialisation needed for these jobs. Thus many people who are willing to work become unemployed due to lack of skills. 
• Recent Initiatives by Government Support for Marginalized Individuals for Livelihood and Enterprise (SMILE) 
• PM-DAKSH (Pradhan Mantri Dakshta Aur Kushalta Sampann Hitgrahi) 
• Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) 
• Pradhan Mantri Kaushal Vikas Yojana (PMKVY) 
• Start Up India Scheme

Criminalising Marital Rape

• In response to it the Union government has replied that it is considering a “constructive approach” towards criminalising it and had sought suggestions from various stakeholders
• The petition seeks to amend the criminal law, which includes Section 375 (rape) of the Indian Penal Code (IPC).

Key Points

• The grounds for “marital immunity” for rape prosecution have emerged from the patriarchal discourse in society. According to which, a husband cannot be guilty of a rape committed upon his lawful wife because she has given up herself in this kind to her husband by their mutual matrimonial consent and contract, which she cannot retract. 
• Under the impact of the second wave of feminism in the seventies, Australia became the first common law country to pass reforms in 1976 and after it, many Scandinavian and European countries made rape in marriage a criminal offence. 
• Legal Provision Regarding Marital Rape: Marital Rape Exception: Section 375 of the Indian Penal Code, which exempts forceful sexual intercourse by a man with his own wife from the offence of rape, provided the wife is above 15 years of age, also known as the “marital rape exception”. Issues With Marital Rape Exception. 
• Against Basic Rights of Women: This exception clause violates the women’s fundamental right to equality, freedom of speech and expression, and most of all the right to life and personal liberty. It also denies the agency over their own bodies to women. 
• Dismal State of Judicial System: Some of the reasons for low rates of prosecution in the cases of marital rape in India include: Low reporting of crimes due to societal conditioning and low legal awareness. Inaccurate method of collection of National Crime Records Bureau (NCRB) data. Out of court settlements due to the lengthy process of justice/lack of admissible proof. 
• Justice J. S. Verma Committee Recommendation: The Justice J. S. Verma Committee, constituted in the aftermath of the horrific Nirbhaya gang rape in 2012. While some of its recommendations helped shape the Criminal Law (Amendment) Act, 2013, its most radical suggestions, including on marital rape, were swept under the carpet. 
• Government’s Stand: Distablisng Effect on Institution of Marriage: Uptil now, the government has said on multiple occasions that criminalising marital rape will threaten the institution of marriage and will also impinge the right to privacy.
• Misuse of Legal Provisions: There is a growing misuse of Section 498A (harassment caused to a married woman by her husband and in-laws) of IPC and the Protection of Women from Domestic Violence Act, 2005. Criminalising marital rape could become an easy tool for harassing husbands.

Assam-Meghalaya Border Dispute

Key Points

• About: Assam and Meghalaya share an 885-km-long border. As of now, there are 12 points of dispute along their borders. 
• The Assam-Meghalaya border dispute are the areas of Upper Tarabari, Gazang reserve forest, Hahim, Langpih, Borduar, Boklapara, Nongwah, Matamur, Khanapara-Pilangkata, Deshdemoreah Block I and Block II, Khanduli and Retacherra.

• Meghalaya was carved out of Assam under the Assam Reorganisation Act, 1971, a law that it challenged, leading to disputes. 
• Major Point of Contention: A major point of contention between Assam and Meghalaya is the district of Langpih in West Garo Hills bordering the Kamrup district of Assam. 
• Langpih was part of the Kamrup district during the British colonial period but post-Independence, it became part of the Garo Hills and Meghalaya. Assam considers it to be part of the Mikir Hills in Assam. Meghalaya has questioned Blocks I and II of the Mikir Hills -now Karbi Anglong region - being part of Assam. Meghalaya says these were parts of erstwhile United Khasi and Jaintia Hills districts. 
• Efforts to Resolve Disputes: Both Assam and Meghalaya have constituted border dispute settlement committees. 
• It has been decided to set up two regional committees to resolve the border disputes in a phased manner and five aspects will be considered while resolving the border dispute. They are historical facts, ethnicity, administrative convenience, mood and sentiments of the people concerned and the contiguity of the land. 
• Six sites are in consideration in the first phase. These are Tarabari, Gijang, Hahim, Baklapara, Khanapara-Pilingkata and Ratacherra. 
• These disputed areas are part of Cachar, Kamrup Metro and Kamrup Rural on Assam’s side and West Khasi Hills, Ri Bhoi district and East Jaintia Hills on Meghalaya’s side. 
• Assam and Border Issues: The states of the Northeast were largely carved out of Assam, which has border disputes with several states. 
• Assam’s border disputes with Arunachal Pradesh and Nagaland are pending in the Supreme Court. 
• Assam’s border disputes with Mizoram are currently in the phase of resolution through negotiations. 
• Other Border Disputes between Different States: Belagavi Border Dispute (between Karnataka and Maharashtra) Odisha’s Border Disputes.

Expansion Of The Ambit Of National Commission Of Women 

Key Point of PM’s Speech 

• Women participation in growth cycle of India is on rise. 
• Strength of self-help group has increased by three times in the past six or seven years. 
• Women commissions must ensure the increase women’s role in entrepreneurship. National Commission of Women (NCW) 
• The Committee On Status Of Women In India recommended the establishment of NCW. 
• Formed under the National Commission of women Act 1990, it is a statutory body of Government of India, which advices the government on all policy matters affecting women. 
• The commission provides financial assistance to NGOs and educational institutions that conduct legal awareness programs to help women become more aware of their rights. 
• The commission constitute Chairperson designated by Central Government and five nominated members by Central Government. 
• At least one member from SC and ST shall be nominated by the Central Government. 
• The Chairperson and every member shall hold office for such a period, not exceeding three years, as may be specified by the Central Government. The maximum age till Chairperson can remain in office is 65 Years. 
• The NCW submits its report to Central Government. 

Dilution Of Lokayukta Power in Kerala 

• Kerala Cabinet has recommended to the Governor to promulgate an ordinance amending Kerala Lok Ayukta Act, 1999. 
• The amendment aims at giving powers to the government to either accept or reject the verdict of the Lokayukta, after giving an opportunity of being heard. Concerns Regarding Proposed Amendment 
• By this ordinance, the quasi-judicial institution will become toothless. 
• It will reduce the power of the institution to only recommendations or sending reports. Lokayukta 
• Section 3 of the Lokayuktas Act 2013 states that “Every state shall establish a body to be known as the Lokayukta for the State, if not so established, constituted or appointed by a law made by the State Legislature. 
• Given that states have autonomy to frame their own laws, the Lokayukta’s powers vary from state to state on various aspects, such as tenure, and need of sanction to prosecute officials. 
• It is statutory body and performs function of an ombudsman. The Lokpal and Lokayuktas Act, 2013 
• It provides for establishing a Lokpal headed by a Chairperson, who is or has been a Chief Justice of India, or is or has been a judge of Supreme Court, or an eminent person who fulfills eligibility criteria as specified. 
• Of its other members, not exceeding eight, 50% are to be judicial members, provided that not less than 50% belong to the SCs, STs, OBCs, minorities, or are women. 
• The term of office for Lokpal Chairman and Members is 5 years or till the age of 70 years. 
• The members are appointed by the President on the recommendation of a Selection Committee, which comprises Prime Minister as its Chairperson; Speaker of Lok Sabha, Leader of Opposition in Lok Sabha, Chief Justice of India or a Judge nominated by him/her and One eminent jurist. 
• Lokpal jurisdiction: To inquire into allegations of corruption against anyone who is or has been Prime Minister, or a Minister in the Union government, or a Member of Parliament, as well as officials of the Union government under Groups A, B, C and D.
  • Covers chairpersons, members, officers and directors of any board, corporation, society, trust or autonomous body either established by an Act of Parliament or wholly or partly funded by Centre.
  • Covers any society or trust or body that receives foreign contributions above Rs10 lakh. 
• The Lokpal was appointed in March 2019 and it started functioning since March 2020 when its rules were framed. 
• The Lokpal is at present headed by former Supreme Court Justice Pinaki Chandra Ghose In order to tackle corruption, the institution of the ombudsman should be strengthened both in terms of functional autonomy and availability. Lokayuktas should set up on the line of the Lokpal.