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Daily Category  (Constitution)

How judges recuse from cases, and why

Context:

  • In the last week, two Supreme Court judges — Justice Indira Banerjee and Justice Aniruddha Bose — have recused themselves from hearing cases relating to West Bengal.

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Reasons for Judges recuse:

  1. Conflict of interest: When there is a conflict of interest, a judge can withdraw from hearing a case to prevent creating a perception that she carried a bias while deciding the case.

  2. Types of COI: The conflict of interest can be in many ways — from holding shares in a company that is a litigant to having a prior or personal association with a party involved in the case.

  3. Due process of law: The practice stems from the cardinal principle of due process of law that nobody can be a judge in her own case.

  4. Duty to act fair: Any interest or conflict of interest would be a ground to withdraw from a case since a judge has a duty to act fair.

  5. Appeal against HC judgement in SC: Another instance for recusal is when an appeal is filed in the Supreme Court against a judgement of a High Court that may have been delivered by the SC judge when she was in the HC.

Process for recusal:

  • Conscience and discretion of the judge: The decision to recuse generally comes from the judge herself as it rests on the conscience and discretion of the judge to disclose any potential conflict of interest.

  • Appeal by lawyers or parties: In some circumstances, lawyers or parties in the case bring it up before the judge.

    • If a judge recuses, the case is listed before the Chief Justice for allotment to a fresh Bench.

Rules of Recusal:

  • Formal rules: There are no formal rules governing recusals, although several Supreme Court judgments have dealt with the issue.

  • Ranjit Thakur Case (1987):

    • Supreme Court held that the tests of the likelihood of bias is the reasonableness of the apprehension in the mind of the party.

    • “The proper approach for the Judge is not to look at his own mind and ask himself, however honestly, “Am I biased?” but to look at the mind of the party before him,” the court had held.

  • Code of ethics by SC: A Judge shall not hear and decide a matter in a company in which he holds shares…

    • Unless he has disclosed his interest and no objection to his hearing and deciding the matter is raised. states the 1999 charter ‘Restatement of Values in Judicial Life’, a code of ethics adopted by the Supreme Court.

Can a judge refuse to recuse?

  • Decision Authority: Once a request is made for recusal, the decision to recuse or not rests with the judge.

  • Apprehension: While there are some instances where judges have recused even if they do not see a conflict but only because such an apprehension was cast.

  • Not recused: There have also been several cases where judges have refused to withdraw from a case.

  • For instance, in 2019, Justice Arun Mishra had controversially refused to recuse himself from a Constitution Bench set up to re-examine a judgement he had delivered previously, despite several requests from the parties.

  • In the Ayodhya-Ramjanmabhoomi case, Justice U U Lalit recused himself from the Constitution Bench after parties brought to his attention that he had appeared as a lawyer in a criminal case relating to the case.

Recording reasons for recusal:

  • Since there are no formal rules governing the process, it is often left to individual judges to record reasons for recusal.

  • Some judges disclose the reasons in open court; in some cases, the reasons are apparent.

  • The two Supreme Court judges who have recused from cases relating to West Bengal had been Calcutta High Court judges.

Way Forward:

  • NJAC Case 2015: Justice Kurian Joseph and Justice Madan Lokur had referred to the need for judges to give reasons for recusal to build transparency and help frame rules to govern the process.

Source: Indian Express

A case to decriminalise suicide

Context:

  • India has the highest suicide rate in the Southeast Asian region, according to the World Health Organization.

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Key Details:

  • Reasons for Suicide: Depression, chronic ill health, guilt, trauma, substance abuse, failure in exams, and loss of loved ones are some of the reasons which influence a person’s decision to take his or her life.

  • A total of 1,34,516 cases of suicide were reported in 2018 in India, according to the National Crime Records Bureau.

  • While the rate of suicide was 9.9 in 2017, it increased to 10.2 in 2018.

Crime and punishment:

  • Section 309 of IPC dictates the penal provision for attempting suicide.

  • Reformative v. Punitive treatment: If a person is suffering from any mental trauma or illness, he or she should be given reformative treatment rather than a deterrent punishment (imprisonment).

  • Colonial legal legacy: India has retained much of the colonial legal legacy in its penal jurisprudence.

  • But the fact is that the British Parliament decriminalised attempts to suicide in 1961 through the Suicide Act.

  • In India, a Bill to repeal Section 309 was first introduced in the Rajya Sabha in 1972 but it failed to pass in the Lok Sabha because the House was dissolved.

Arguments and judgements for Penal provision Vs. suicide be decriminalised:

  • Country have witnessed a century-long tussle between two camps in which one advocates for penal provision and the other continuously demands that attempts to suicide be decriminalised.

Penal provision:

Suicide be decriminalised:

  • Gian Kaur V. State of Punjab 1996: Court held that the “right to life is a natural right embodied in Article 21” of the Constitution but “suicide is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of right to life”.

  • In Aruna Shanbaug Case – 2011, the Supreme Court endorsed the earlier judgment.

  • Maruti Dubal v. State of Maharashtra (1986): Bombay High Court declared Section 309 unconstitutional. It said: “For example, the freedom of speech and expression includes freedom not to speak and to remain silent.

    • The freedom of association and movement likewise includes the freedom not to join any association or to move anywhere...

    • If this is so, logically it must follow that right to live... will include also a right not to live or not to be forced to live.”

    • Psychiatric treatment: Those who make the suicide attempt on account of the mental disorders require psychiatric treatment and not confinement in prison cells.”

  • P. Rathinam v. Union of India (1994) where the court held that Section 309 of the Indian Penal Code is a violation of Articles 14 and 21 and is void and unconstitutional.

A solution:

  • Mental Healthcare Act: It was passed in 2017 by Parliament passed the. It provides, “Notwithstanding anything contained in section 309 of the Indian Penal Code, any person who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the said Code.”

  • However, this law applies only to those suffering from mental illness. There is presumption of severe stress in case of an attempt to die by suicide.

  • But what if severe stress is not proved? We have to shift from penalising attempts to suicide to making such cases medico-legal ones and provide psychological or mental treatment and support to the persons affected.

  • As the issue demands a reformative stance, we need a permanent solution like repealing Section 309 of the Indian Penal Code or striking it down.

Source: The Hindu

Fiscal Federalism

Context:

  • If States directly collect more tax, they will become less dependent on the Central government.

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Centralized Federalism:

  • Preserving the unity of India was a great concern at the time of independence.

  • The rulers of Hyderabad, Jodhpur, Bhopal and Junagadh wanted their own separate countries. In October 1947, Kashmir was invaded with the backing of a very young Pakistan government.

  • Goa was liberated from the Portuguese only in 1961.

  • Hence It was natural that India opted to be a Union unlike the U.S. and many other countries which have federal governments.

  • The essential difference is that the Central government has more authority and power in a Union government.

Issues in Revenue distribution/ Fiscal Federalism:

  1. Collection of Direct taxes: These are income tax and corporate tax. In the U.S., both the federal and State governments collect such taxes from individuals and corporations. This is true in Switzerland and some other countries as well.

    • However, in India, direct taxes go entirely to the Central government.

  2. State’s revenue: State governments also raise their own funds largely through taxes on liquor, property, road and vehicles.

    • At an all-India level, the States get 26% of their total revenue from the Central government.

  3. Share of Gross tax revenues: The Central government is supposed to distribute 41% of its gross tax revenues to the State governments.

    • In the U.S., the federal government distributes about 15% of its revenues.

  4. FC as Sharing Mechanism: State governments get funds from the Central government according to the Finance Commission’s recommendations.

    • Though this is based on some formula, often politics intervenes and some States get less and some more.

  5. Not share 41%: Usually the Central government does not meet the 41% target. We see various States either petitioning or coming into conflict with the Central government on this issue.

  6. Cess: Meanwhile, the Central government has added cess on various items which adds up to over ?3.5 lakh crore.

    • This is not shared with the State governments.

  7. Dependent on Centre: Some of the so-called poorer States get up to 50% of their total revenue from the Central government, making them even more dependent.

    • This gives more economic power to the Central government and allows ruling parties at the Centre to use these funds to their advantage.

  8. Regional disparity in Tax contribution: Another issue is regional disparity. Maharashtra, Delhi and Karnataka contribute the lion’s share of taxes to the government.

    • These three regions along with Tamil Nadu and Gujarat contribute 72% of the tax revenue.

    • Uttar Pradesh, which has the largest population in India, contributes only 3.12% but gets over 17% of the revenue distributed by the Central government.

  9. Revenue distribution: It is based on complex considerations including population and poverty levels.

    • For every ?100 contributed, southern States get about 51% from the Central government, whereas Bihar gets about 200%.

  10. Population Factor and cross subsidy: The population growth rates in the south have come down to near zero, whereas the population in central and north India continues to grow.

    • The cross subsidy from the south to the north will therefore grow.

    • Meanwhile, job seekers and those looking for higher quality education are flocking to the south.

  11. Political power division: On the other hand, political power is concentrated in the north because there are more Lok Sabha seats.

    • The number of seats in each State will be revised in 2026 perhaps based on population and other factors.

  12. Politically marginalisation: This has already created apprehension in the southern States that they will be further politically marginalised.

    • The periodic attempts to declare Hindi a national language fuels widespread resentment.

Beyond the current framework/ Way Forward:

  • Some experts support cross subsidy and others oppose it. Suggestions usually work within the current framework.

  • Making the fund allocation fairer is almost impossible because of politics. We need to look beyond this framework.

  • Greater economic power to states: One step could be to provide greater economic power to the States so that they can directly collect more taxes.

    • It will make them less dependent on the Central government.

    • This would improve Centre-State relations.

  • Period of transition: For poorer States, a period of transition is perhaps required.

  • Focus on external threats: A transition to a more federal structure will allow the Centre to focus on external threats instead of internal dissensions.

    • Today there are threats from China. There may be threats from Afghanistan after the U.S. withdraws its troops.

    • Our internal divisions helped invaders from West Asia and the British. Hopefully, we will learn from our history.

Conclusion:

  • Political and Language Division: Unfortunately, politics does not depend on expert opinion.

    • Why we should subsidise those people who disrespect our language and do not give us political power.

  • Regional differences led to violence in Yugoslavia, Sri Lanka and between East and West Pakistan. Hopefully, we may not see that kind of violence.

  • India’s hard-won independence and unity needs to be preserved.

Source: The Hindu

Why democracy needs social media

Introduction:

  • Media constitutes the 4th pillar of democracy. It plays an important role in keeping democracy alive and thriving. The role of the media is vital as a watchdog for uncovering errors and wrongdoings in the democracy.

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Need of social media for democracy:

  1. Pandemic and Digital Connector: It connected broken healthcare, breaking news, kind volunteers and depressed loved ones through a digital string in a way a lot of heads of states failed to do.

  2. Digital democracy can only evolve through platforms of freedom.

  3. Accountability: For the first time in history, we have an instrument that can question the seemingly invincible governments, make them accountable and bring sustained change driven by people beyond one vote in years.

  4. Propaganda v. News: For, when Government take complete control of the media and want your personal rules to govern them, you unabashedly allow propaganda to take precedence over news.

    • Which political party in the world will say, “Oh yes, sorry we went too far with that post, please delete it or term it as manipulated media lest the layman misunderstands.

  5. Government v. Nation: And for the millionth time, no matter where you’re from, government is not synonymous with the nation.

  6. Garb of Sovereignty v. Free Media: This is precisely why we will always need some media that the government has no control over, else in the garb of “the nation’s sovereignty will be undermined” they will keep undermining the truth, for almost always it hurts those in power the most.

See the source image

Disadvantages of Social Media for Democracy:

  1. US Capitol riot: When Donald Trump tweeted “Big protest in DC on January 6th. Be there, will be wild!” and thousands of rioters crashed the Capitol complex on exactly January 6th.

  2. The elephant in the room: “If not kept under government control these multi-billion dollar giants will become too powerful.”

  3. Misuse: Corporations that sell data to make money and Political parties not only buy it during elections but also treat it like one post winning.

  4. Political Manipulation: According to Google Transparency Report, political parties mostly in the last two years have spent around $800 million (Rs 5,900 crore) on election ads. Just on Facebook India, political ads of Rs 107 crore were run in the last two years.

Challenges to Social Media to safeguard Democracies:

  1. Nigeria v. Twitter Issue:  What made Nigeria come to the conclusion that Twitter is “undermining Nigeria’s corporate existence”.

    • President in response to the nationwide protests tweeted that “will treat them in the language they understand” in context of Civil War.

    • He openly threatening to take the lives of those who fail to agree with him.

    • Twitter deleted the tweet.

  2. Authoritarian Regime v. Social media: Besides Nigeria, Turkey, Iran, Egypt, Turkmenistan, Uganda and North Korea have either temporarily or indefinitely banned Twitter in the past.

  3. Compulsory veto on Social Media: Complete level of control every government (authoritarian or democratic) will have if they start asking for a compulsory veto on what’s appropriate and what’s not on social media.

    • China, this March, banned the words “stock market” from all homegrown social media as their stocks majorly plunged.

    • Last week, to censor conversations around the Tiananmen Square massacre, China blocked all “candle and cake” emojis from Weibo.

Way Forward:

  • We need these mediums for even more important reasons — to amplify the crying rallies of the weak and curtail the trampling arrogance of the strong.

Conclusion:

  • The dark parody is that the political parties need social media to survive far more than the reverse to stay afloat.

Source: Indian Express

Election Petition

Context:

  • West Bengal Chief Minister Mamata Banerjee has filed an election petition in the Calcutta High Court. She has sought that Suvendhu Adhikari’s election be declared void on grounds of corrupt practice and discrepancies in the counting procedure conducted by the Returning Officer.