The HINDU Notes – 19th March 2020 - VISION

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Thursday, March 19, 2020

The HINDU Notes – 19th March 2020

πŸ“° SC strips Manipur Minister of his office

Bans him from entering the Assembly

•In an extraordinary display of its constitutional powers, the Supreme Court on Wednesday stripped Manipur Cabinet Minister T. Shyamkumar, who is facing disqualification proceedings for defection, of his office and banned him from entering the Assembly with immediate effect.

•“Given the extraordinary facts in the present case, we are constrained to use our powers under Article 142 of the Constitution. Respondent No. 3 [Mr. Shyamkumar] is restrained from entering the Legislative Assembly till further orders of this Court. Needless to add, he will cease to be a Minister of the Cabinet immediately,” a Bench led by Justice Rohinton Nariman ordered.

•The court agreed to take up the case again on March 30.

•On January 21, the Bench had given the Speaker a month’s time to decide on the disqualification of Mr. Shyamkumar under the anti-defection law for switching sides to the BJP after contesting on Congress ticket.

•However, despite the judgment, the Speaker had returned to the apex court seeking eight weeks to take a decision.

•On March 18, the Speaker asked for 10 days’ time and said the decision on the disqualification would come on March 28. However, the apex court refused the plea and issued the order.

πŸ“° Nation needs NRC, Centre tells SC

‘It is a necessary exercise to identify the citizens from the non-citizens’

•More than a month after the Centre informed the Lok Sabha that no decision had been taken to prepare the National Register of Citizens (NRC), the Union Home Ministry filed an affidavit in the Supreme Court on Tuesday stating that preparation of NRC is a “necessary exercise for any sovereign country for mere identification of citizens from non-citizens.”

•The Ministry submitted before the court that it was the responsibility entrusted with the Central government “to identify/detect illegal migrants and thereafter, follow the due process of law”.

Unfettered discretion

•The affidavit added that the Foreigners Act, 1946, conferred upon the government the power to expel foreigners from India.

•“It vests the Central government with absolute and unfettered discretion, and as there is no provision fettering this discretion in the Constitution, an unrestricted right to expel remains,” the affidavit said.

Vociferous opposition

•More than a dozen States have vociferously opposed the updating of National Population Register (NPR), slated to begin on April 1 along with the house listing phase of the Census. According to Citizenship Rules 2003, NPR is the first step towards the compilation of the NRC.

•The Citizenship (Amendment) Act, 2019 passed by Parliament on December 11, allows citizenship on the basis of religion to six undocumented communities from Pakistan, Afghanistan and Bangladesh, who entered India on or before December 31, 2014.

•The exact number of people the CAA will benefit are not known, but Home Minister Amit Shah had told the Rajya Sabha on December 11 that “lakhs and crores” will benefit. For the first time, the MHA, through the affidavit in Supreme Court, has indicated what these numbers could be like. In the affidavit, the Ministry submitted a report by the then Ministry of Rehabilitation for the year 1964-65 on the “new influx of members of minority communities from East Pakistan (now Bangladesh) into West Bengal, Assam and Tripura which began in January 1964” and “assumed formidable proportions in the months of March, April and May, 1964.”

•The report states that the number of persons who migrated from erstwhile East Pakistan till 31 January, 1965 was 8,94,137. “Out of the said persons, 2,61,899 came with migration certificates, while 1,76,602 came with Pakistani passport and Indian visas. Approximately 4,55,636 persons came without any travel documents,” the affidavit said.

•There are fears that the CAA, followed by a country-wide NRC, will benefit non-Muslims excluded from the citizens’ register, while excluded Muslims will have to prove their citizenship. The government has denied that CAA and NRC are linked.

πŸ“° RBI to infuse Rs. 10,000 crore via OMO

•The Reserve Bank of India (RBI) has decided to infuse Rs. 10,000 crore liquidity in the banking system by buying government securities through open market operations (OMO).

•The central bank will conduct open market operations on March 20, 2020 to purchase Rs. 10,000 crore of government securities through a multi-security auction using the multiple price method.

•“With the heightening of COVID-19 pandemic risks, certain financial market segments have been experiencing a tightening of financial conditions as reflected in the hardening of yields and widening of spreads,” the RBI said.

•“It is important to ensure that all market segments remain liquid and stable, and function normally,” the Reserve Bank said, amid heightened volatility in the financial markets due to the spread of the COVID-19.

πŸ“° An SC verdict violative of minority rights

The recent decision by a two-judge bench takes away autonomy ofmadrasas in W. Bengal

•Protection of minorities is the hallmark of a civilisation. Lord Acton added another dimension to this when he said: “The most certain test by which we judge whether a country is really free is the amount of security enjoyed by minorities.” The minorities in general, and Muslims in particular, accepted the pledge of Sardar Vallabhbhai Patel that “our mission is to satisfy every interest and safeguard the interests of all the minorities to their satisfaction”. Accordingly, special safeguards were guaranteed to the minorities and incorporated under Article 30 with a view to instil in them a sense of confidence and security. However, due to recent developments in Delhi and elsewhere, this confidence stands eroded even though, in the Kesavananda Bharati case (1973), minority rights were held to be the part of basic structure of the Constitution.

•In the last one year, a new trend has emerged in the Supreme Court. Smaller benches now do not hesitate to overrule larger benches’ decisions. Increasingly, judicial discipline is losing its charm. In the latest judgment on minority rights, a two-judge bench of Justice U.U. Lalit and Justice Arun Mishra upheld the West Bengal Board of Madrasah Education Act, 1994, and the West Bengal Madrasah Service Commission Act, 2008, both of which take away the autonomy of madrasa s in the State. The appointment of teachers in these theological institutions shall now be made by a board nominated by the government.

Rights under Article 30

•What is the importance of minority rights? Why is the judgment per incuriam , i.e. contrary to law?

•As per Section 10 of the West Bengal Madrasah Service Commission Act, 2008, all appointments of teachers to the religious schools are to be recommended by the commission and the management committee shall be bound by such recommendations. Section 11 says that anyone appointed in contravention of this Act shall not be considered a teacher and such an appointment shall be invalid. Section 12 empowers the government to deny grants to the schools that refuse to make appointments in accordance with such recommendations. Further, government recognition and affiliation of such schools can be withdrawn.

•A single judge of Calcutta High Court in March 2014 struck down the above provisions as violative of Article 30 that guarantees religious and linguistic minorities the right to establish and administer educational institutions of their choice. In December 2015, a Division Bench of the High Court upheld that decision.

•Interestingly, the latest judgment notes that in Chandana Das (2019), a three-judge bench gave the Sikh minority institutions of West Bengal the right to appoint teachers. In less than four months, a right given to Sikh minority institutions by the apex court has been denied to Muslim minority religious institutions.

•Framers of the Constitution in their wisdom did not include any restrictions under Article 30 (unlike in the case of other fundamental rights). Hence, the Article 30 right is absolute though minority institutions are very much subject to health, sanitary and municipal regulations.

•The expression ‘administer’ in Article 30 has been interpreted by the larger benches of the court such as those of judges in Ahmedabad St. Xaviers College (1974) and 11 judges in T.M.A. Pai Foundation (2003). The apex court has been consistent in holding that the term includes rights of minority institutions to select their governing bodies, teachers and staff and exercise disciplinary control over them and a right to fix reasonable fees and admit students in a fair and transparent manner.

The dual test criterion

•In Rev. Sidharjbhai (1963), a six-judge bench of the Supreme Court observed that every government regulation in respect of a minority institution shall be valid only when it satisfies the dual test, i.e., it is regulative and not destructive of the organisation’s minority character and it makes the minority institution an effective vehicle of minority education.

•Justice Lalit, who authored the latest judgment, did refer to the Kerala Education Bill case (1957) of the Supreme Court but he overlooked the fact that a seven-judge bench headed by Chief Justice S.R. Das had held that “the dominant word in Article 30 is ‘choice’ and the content of the right under that Article is as wide as the choice of a particular minority community will make it.” Every minority community can thus make a choice in respect of its relationship with the government, the courses taught and the day today administration, including the right to select its teachers. The government, under reasonable restrictions, can certainly prescribe the minimum qualifications. Thus UGC regulations prescribing qualifications and experience are very much applicable. But the government cannot impose its own selection of teachers on the minority institutions.

•Justice Lalit himself noted several judgments on the right to choose teachers such as Rev. Father W. Proost (1969), where a five-judge bench had struck down Section 48-A of Bihar State Universities Act, 1960 that had provided that no appointment, dismissal or reduction in the rank of any teacher could be made by any governing body of a minority institution without the recommendation of University Service Commission. Similarly, in Very Rev. Mother Provincial (1969), appointment of a principal was held to be a component of a minority group’s right to administer the institution.

•In Ahmedabad St. Xaviers (1974), Section 33A(1) (b) of Gujarat University Act, 1949 that required that a nominee of the affiliating university must be part of the selection committee of principal and teachers was also struck down. A nine-judge bench of the Supreme Court explicitly held that minority institutions have the right to choose their teachers. In T.M.A. Pai (2003), an 11-judge bench reiterated that the management of minority institutions should have freedom in day-to-day affairs of the institutions, for example, in appointment of teaching and non-teaching staff and administrative control. However, minimum qualifications, experience and other conditions may be fixed by the government.

•Justice Lalit overlooked the striking down of provisions where State governments had tried to take over or interfere with the selection of teachers and based his judgment on the broad and general observations in the earlier verdicts where the court had said government regulations are permissible. It would have been much better if the learned judge had relied on Bihar State Madrasa Education Board (1990), which he did cite, and where the court had observed that “under the guise of regulating educational standards to secure efficiency in institution, the state is not entitled to frame rules or regulations compelling the management to surrender its right to administration”.

•The Chief Justice of India has now referred this judgment to a larger bench and one hopes that the apex court will restore the confidence of the minorities.

πŸ“° In Upper House nomination, a fall for ‘aloofness’

The nomination of a former Chief Justice of India to the Rajya Sabha is a blow against the judiciary’s independence

•Within five months of his retirement as Chief Justice of India, Justice Ranjan Gogoi has been nominated to the Rajya Sabha by the government. Shortly before his retirement from the Supreme Court of India, he delivered several important verdicts with far-reaching political consequences that left the government pleased, including the Ayodhya judgment. Before that, Justice Gogoi dismissed a review of the Rafale fighter aircraft deal without substantially dealing with the grounds on which the original judgment, negating an independent investigation, had been challenged. The original judgment relied upon several pieces of false and misleading information, conveyed to the Supreme Court by the government, in an unsigned note and handed over in a sealed cover.

Key judgments handled

•During his tenure, Justice Gogoi also presided over and pushed through the National Register of Citizens (NRC) in Assam, an exercise that has excluded more than 19 lakh people from the final version of the citizenship register, and which has been widely criticised on several grounds. In short, the exercise presided over by him led to a huge humanitarian crisis, but fed into the government’s narrative and methods by which it now seeks to undertake a nation-wide NRC exercise, and further a divisive politics.

•Then there was the Sabarimala temple review. A Constitution Bench judgment of the Supreme Court held that excluding menstruating women from entering the temple was discriminatory, and therefore against “constitutional morality”. A Bench headed by Justice Gogoi gratuitously referred these issues to a larger Bench, much to the delight of the government.

•One could multiply the cases which Justice Gogoi decided during his tenure as the Chief Justice of India or in the run-up to it, and it would be safe to say that his judgments left the government pleased, with scarcely any politically-sensitive case being decided against the government’s wishes. His tenure, especially as the Chief Justice of India, only left many observers puzzled about him — he was a judge who had participated in a press conference held on January 2018, criticising the then Chief Justice of India (and his predecessor), Dipak Misra, and accusing him of abusing his powers as master of roster to fix politically-sensitive cases before convenient benches.

•There was also the occasion when he delivered the Ramnath Goenka lecture, in 2018, just before his elevation as the Chief Justice of India, where he eloquently declared that the country needs not only noisy journalists and independent judges but even independent journalists and noisy judges. One expected thus as the Chief Justice of India, that he would be robustly independent in the interests of justice and equity and uphold the rule of law.

A turning point

•So what led to the virtual collapse of his independence after becoming the Chief Justice of India? Allegations of sexual harassment against him give us a good insight into this. A female staffer who was asked by him to work at his residence, accused him in an affidavit of detail, of harassment soon after he became the Chief Justice of India. The action taken against her was astounding. Not only was she dismissed from service in an ex-parte hearing on frivolous grounds, but her brother-in-law, who was inducted to the Supreme Court staff under Justice Gogoi’s discretionary quota, was also terminated without assigning any reasons. Soon after, the Delhi Police suspended her husband and his brother — again on baseless charges. A fabricated case was registered against the staffer by a complainant who was thereafter untraceable; she was harassed by the police on the basis of this. She was then taken by the station house officer of the Tilak Marg police station to the Gogoi residence and made to apologise; she submitted herself to this only because of the terror of her harrowing experience at the hands of the Delhi police.

•Immediately after her ordeal (that was detailed in the affidavit to the judges) was published by news portals, Justice Gogoi called for an extraordinary hearing, on Saturday (along with Justice Arun Mishra), where he accused the woman staffer of being a criminal. Justice Gogoi sat as a judge in his own cause in a case he titled “In Re: A Matter of Great Public Importance Touching Upon the Independence of the Judiciary”. However, the disrepute that this brought upon India’s highest judiciary and the furore caused by the hearing, forced him to appoint an in-house committee headed by the present Chief Justice of India, which quickly absolved Justice Gogoi in extraordinary ex-parte hearings. In these hearings, the woman’s request for being allowed a lawyer, cross-examination of witnesses and recording of proceedings were all refused, forcing her to walk out.

•The report absolving Justice Gogoi, was put out by the Supreme Court registry as a press release, but a copy of and substance of the report has not been made available even to the complainant.

•It is not possible for the Delhi police to have embarked upon acts of malafide harassment of the woman staffer and her family, without the influence of Justice Gogoi himself. In fact, one of the complaints on the basis on which her husband was suspended and disciplinary proceedings initiated against him was a complaint by Justice Gogoi’s Secretary.

•I am privy to the fact that just before his retirement, Justice Gogoi used several channels to get the woman to withdraw her complaint against him. These channels included staffers of the Supreme Court registry as well as senior government officials. In the end, the staffer’s termination was withdrawn by the Supreme Court on the orders of the present Chief Justice of India with retrospective effect and with payment of full back wages, after Justice Gogoi retired. She was also given her due of maternity leave for six months. This is truly extraordinary given that Justice Gogoi had accused her of being a criminal in open court and the present Chief Justice of India who restored her job and benefits, had disbelieved her complaint in the in-house committee.

•It is against this background that we need to look at Justice Gogoi’s nomination to the Upper House, on Monday.

A forgotten code

•The 16-point code of conduct for judges or as it was called the “Restatement of Values of Judicial Life” (adopted at a Chief Justices Conference in May 1997) states: “6. A judge should practice a degree of aloofness consistent with the dignity of his office”; 7. A judge shall not hear and decide a matter in which a member of his family, a close relation or a friend is concerned”.

•Obviously this “aloofness” is a most essential trait needed from politicians or functionaries of the government. Unfortunately these values seem to have been forgotten by judges who invite politicians to their personal functions, eulogise them in public or call them for personal favours. One can understand that there could be some in the political class who may be long-standing personal friends of judges, but then it is incumbent on such judges not to hear and decide cases of those politicians who are their personal friends. Judges can also interact with functionaries of the government in their official capacity for official work. But we now see the repeated spectre of judges hearing and deciding cases of politicians with whom they have a personal camaraderie.

•This code of conduct also lays the basis of how post-retirement conduct ought to be. For example if a judge after deciding politically sensitive cases involving particular political parties or politicians, soon after retirement seeks and gets a plum post such as a Rajya Sabha nomination by those very politicians or parties, it would obviously raise serious questions about his or her independence as a judge when he or she had decided those cases.

•Justice Gogoi and the government’s actions in the sexual harassment case and the offer of a Rajya Sabha seat by the government, raise serious doubts about the fairness of many critical judgments, including the ones mentioned above that were under Justice Gogoi’s watch. The precedent that he has set strikes a blow against the independence of the judiciary. I hope that this shameful act will lead to public opprobrium which will deter other judges from emulating such conduct.