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Daily Category  (Constitution)

When Parliament passed Bills but govt did not give effect to those laws

CONTEXT:

  • Farmers and the Centre: In the ongoing stalemate between protesting farmers and the Centre, the government has repeated its offer of keeping the three contentious farm laws on hold for one to one-and-a-half years, while the farmers have rejected the offer and insisted that the laws be repealed.
  • Precedent: Over the years, Parliament has repealed several laws — and there have also been precedents of the government not bringing a law into force for several years after it has been passed.

BRINGING/REMOVING A LAW:

  • Parliament Power to make Law: Parliament has the power to make a law and to remove it from the statute books (a law can be struck down by the judiciary if it is unconstitutional).
  • Three Steps for Working of Passed Bills: But the passing of a Bill does not mean that it will start working from the next day. There are three more steps for it to become a functioning law.
  1. The first step is the President giving his or her assent to the Bill.
  2. Then the law comes into effect from a particular date.
  3. And finally, the government frames the rules and regulations to make the law operational on the ground.
  • The completion of these steps determines when the law becomes functional.

1. PRESIDENT’S ASSENT TO BILL:

  • FIRST STEP: The first step is the simplest. Article 111 of the Constitution specifies that the President can either sign off on the Bill or withhold his consent.
  • Withholding Power of President: The President rarely withholds their assent to a Bill.
  • Last Incident: In 2006 when President A P J Abdul Kalam refused to sign a Bill protecting MPs from disqualification for holding an office of profit.
  • When Bill sent again to President: If Parliament sends it back to the President, he or he has no choice but to approve it.
  • POCKET VETO: In 1986, President Zail Singh didi not to take any action on the Bill until the end of his term.
    • The Constitution does not specify a time limit for the President to approve a Bill.

2. DATE ON WHICH THE LAW COMES INTO EFFECT:

  • The next step is deciding the date on which the law comes into effect.
  • When power with Government: Parliament delegates to the government the power to determine this date.
  • The Bill states that the law “shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different provisions of this Act”.

GIVING EFFECT TO A LAW

  • When Govt not bring Law into Force: There are also instances when the government does not bring a law into force for many years.
    1. National Environment Tribunal Act
    2. Delhi Rent Control Act
  • Parliament passed during Prime Minister P V Narasimha Rao’s tenure. The government never brought these laws into force, which were passed in 1995 and cleared by the President.
  • The National Green Tribunal Act finally repealed the environmental tribunal law in 2010. And a Bill to repeal the Delhi Rent Control Act introduced in 2013 is still pending in Rajya Sabha.
  • Law come into effect: There are also multiple instances where a law specifies when it will come into effect.
    1. The 2013 land acquisition law put an outer limit of three months for the Centre to bring it into force after the President approved it.
    2. A Bill can also specify the exact date on which it will come into effect. Bills replacing ordinances sometimes do that. 

3. RULES & REGULATIONS

  • Outline of a law: A Bill passed by Parliament is the outline of a law. For the law to start working on the ground, individuals need to be recruited or given the power, to administer it.
  • Government’s responsibility: The implementing ministry also needs to finalise forms to gather information and provide benefits or services. These day-to-day operational details are called rules and regulations.
    • And Parliament gives the government the responsibility of making them.
    • These regulations are critical for the functioning of law.
  • When not make rules: If the government does not make rules and regulations, a law or parts of it will not get implemented.
    • The Benami Transactions Act of 1988 is an example of a complete law remaining unimplemented in the absence of regulations.
    • The law gave the government power to confiscate benami properties.
    • For 25 years, such properties were immune from seizure in the absence of framing relevant government rules.
    • The law was finally repealed in 2016 and replaced with a new one.
  • The government not only has the power to make rules but can also suppress rules made by it earlier. In the case of farm laws, the government has made some rules in October 2020.

Source: Indian Express

Separation of Power: Judiciary v. Executive

Are courts encroaching on the powers of the executive?

Context:

The courts are increasingly intervening in matters without providing sound legal reasoning.

Recently Supreme Court stayed the implementation of three controversial farm laws passed in September 2020 and

Ordered the constitution of a committee of experts to negotiate between the

  • Farmers’ bodies and
  • Government of India.

Issue: Rather than deliberating on the constitutionality of the three laws, the court appears to be trying for a political settlement which is domain of the government.

WHY JUDICIAL INTERVENTION IS JUSTIFIED:

THE ISSUES ARE OF:

  1. Federalism
  2. Agriculture as state subject
  3. Manner in which the voice vote was passed in the rajya sabha, which was controversial.

Protests as Citizen’s F.R.:  Judiciary viewed the protests as completely legal and part of the exercise of citizens’ rights under Article 19 of the Constitution.

Precedent of the Maratha reservation: The court gave the precedent of the Maratha reservation case in which it had issued a stay, but in that instance, the stay was given on constitutional grounds (Indra Sawhney Case- 505 Quota Ceiling).

Legislative competence of Parliament: The petition filed by the Bharatiya Kisan Party argues that under our constitutional scheme, agriculture and farm produce are matters reserved under entries 14, 18, 30, 46, 47 and 48 of List II (State List) of the Seventh Schedule to the Constitution.

  • The argument is that the Centre simply could not pass the farm bills as it did not have legislative competence.

Court’s competence to stay Laws: Courts are, of course, competent to issue stay orders on parliamentary laws, but they need to set out legal reasons.

JUDICIAL ENCROACHMENT AND GROWING TREND:

No body asked Court: What’s really striking here is that nobody asked the court to intervene in this particular manner, to break the deadlock.

Petitions to Court: One is challenging the constitutionality of the laws and the others are with regard to the protests. None of them ask the court to negotiate between the two parties.

Precedent of the Maratha reservation: The court gave the precedent of the Maratha reservation case in which it had issued a stay, but in that instance, the stay was given on constitutional grounds (Indra Sawhney Case- 505 Quota Ceiling).

  • Here it does not take up any such constitutional issues though these issues have been pleaded before the court by the farmers associations.

Legal grounds of challenge: The court does not even set out clearly what the legal grounds of challenge are.

To Assuage Hurt Feelings of Farmers: Court is also of the view that a stay of implementation of all the three farm laws for the present may assuage the hurt feelings of the farmers and encourage them to come to the negotiating table with confidence and good faith.”

  • Now, this is a strange reason and arguably not a sound legal reason.

Tractor Rally as ‘law and order’ issue: In a different but related case, the Supreme Court told the Delhi Police that the question of whether the tractor protests should be allowed or not is a ‘law and order’ question and that it is for the police to deal with.

CHALLENGES AND CONCERNS:

Different Approach in CAA, NRC, A-370: There are issues central to Indian politics which are extremely politically controversial such as

  1. Change to Article 370,
  2. Citizenship (Amendment) Act,
  3. Reservation quotas for economically weaker sections,
  4. Electoral bonds, and,
  5. ‘love jihad’ laws

What is striking is that the court has shown no urgency in hearing any of them and has refused to pass a stay order in all of these cases.

Intervention in sensitive issues: On the other hand, the court has very much intervened in matters that are extremely controversial, such as Ayodhya case, if it is determined to do so.

Abdicating its constitutional responsibility: So, what we see is that the court is actually abdicating its constitutional responsibility of judicial review. At the same time, it’s acting in usurpation of executive and legislative powers, going beyond the standard areas of judicial behaviour.

Judicial overreach: It is a phenomenon that has been observed in multiple contexts in various countries. Historically speaking, the idea that judges can exercise review powers to overturn laws enacted by democratically elected governments and Parliaments is of fairly recent origin.

  • It is only in the post-World War II era that this idea has become dominant around the world.

Constitutional issues in Cold Storage: In all the recent cases, where legal and constitutional questions were raised, the court simply has not taken on those questions, and has put them in cold storage, often for years at a time.

Legitimacy of Court’s intervention: Rather than choosing legal and constitutional issues, court is intervening in less relevant cases, leading to questions about the legitimacy of its intervention.  

SC from Conservative to Radical Phase: In the initial period it was a more conservative court and then it became more radical over time.

  • But even In conservative period and the big-ticket political issues that came its way such as land reforms, reservations, the use of Article 356, bank nationalisation, privy purses etc., It adjudicated pretty promptly.  

WAY FORWARD:

Legal vacuum case in South Africa: In South Africa, there is an interesting provision in their Constitution that enables courts to enter into a dialogue with legislators to prevent a situation of a legal vacuum.

No parliamentary sovereignty In India: Framers of our Constitution gave courts the important power to strike down parliamentary laws.

  • Over time, courts have used this power to check the power of the executive, while also extending their own authority.
  • Example: Taking down the power of imposition of President’s rule under Article 356 (S.R. Bommai v. Union of India).

World’s most powerful court: So, these are some of the trends that led to the Indian Supreme Court being described routinely as the world’s most powerful court, from about the 1980s till about 2015.

Source: The Hindu

Death Penalty and Mercy petitions

BALWANT SINGH RAJOANA CASE:

Balwant Singh Rajoana, former Punjab Chief Minister Beant Singh’s assassin, was sentenced to death in 2007 by a special CBI court.

His mercy petition was filed by the Shiromani Gurudwara Prabhandhak Committee in 2014.

Humanitarian gesture by MOHA: In 2019, the Ministry of Home Affairs sent a letter to the Punjab government to commute Rajoana’s death sentence. It said it had taken an “in principle” decision to commute the death sentence as a “humanitarian gesture” ahead of the 550th birth anniversary celebrations of Guru Nanak Dev.

But its decision could not be implemented because the Cabinet did not send the file to the President.

Rajoana has been incarcerated for over 25 years. The Supreme Court pulled up the government for its laxity and fixed the next hearing for sometime in January 2021.

                                      Quotes about Death penalty support (28 quotes)

CAPITAL PUNISHMENT IN WORLD:

India in World: India figures among the 56 nations in the world that have retained the death penalty.

  • While 142 have abolished it either by practice or by law.

Amnesty International: According to Amnesty International,

  • China- 1000+
  • Iran- 253
  • Saudi Arabia- 149
  • Total In World: 2018-993, 2019-690, decreasing trend world wise

MERCY PETITION/PARDONING POWER:

President of India (Articles 72) or the Governor of the State (161) deals with mercy petition.

Article 72(1): The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence where the sentence is a sentence of death.

JUDGEMENTS RELATED TO DEATH PENALTY/ MERCY PETITIONS

1. Shatrughan Chauhan vs Union of India case: Delay in deciding mercy plea is a relevant ground for commuting the death sentence to life imprisonment.

2. Kehar Singh v Union of India, 1988: SC held that the grant of pardon by the President is

  • An act of grace and, therefore,
  • Cannot be claimed as a matter of right

3. Bachan Singh (1980): Death penalty should be awarded only in the rarest of rare cases.

4. Maru Ram v Union of India: All public power, including constitutional power, should not be exercised arbitrarily or mala fide.

5. Dhananjoy Chatterjee case 1994: Supreme Court has said that “The power under Articles 72 and 161 of the Constitution can be exercised by the Central and State Governments, not by the President or Governor on their own.”

6. Epuru Sudhakar case 2006: Supreme Court held that clemency is subject to judicial review and that it cannot be dispensed as a privilege or act of grace.

CONCERNS/ ISSUES IN DEATH PENALTY AND DELAY IN MERCY PETITIONS:

1. Against the canons of justice: The prolonged detention of death row convicts in prison is not just inhuman but also against the canons of justice.

  • Delay coupled with long years prison confinement leads to psychological trauma.

2. Delay by System: Delays in investigations, court hearings and administrative steps to be taken after the final verdict need to be inquired into, and responsibility fixed.

3. No. in India: In India, 102 convicts were awarded the death sentence in 2019, raising the total number of death row prisoners to 378.

  • Death row convicts have suffered imprisonment up to 25 years.

4. Revival of Death Penalty: In 2019, the Sri Lankan government put an end to its four-decades-long moratorium on capital punishment.

  • President Maithripala Sirisena ordered the execution of four drug offenders. He claimed that the move would end the addiction problem in the country.

5. Debate in Rajya Sabha: A few years ago, the issue of abolishing capital punishment was raised in the Rajya Sabha but was rejected by a voice vote.

6. Government’s Stand: Then Minister of State for Home Affairs, Kiren Rijiju, stated that the government was not contemplating abolition of the death penalty.

WAY FORWARD:

1. Humanitarian gesture by MOHA: In 2019, the Ministry of Home Affairs sent a letter to the Punjab government to commute Rajoana’s death sentence. It said it had taken an “in principle” decision to commute the death sentence as a “humanitarian gesture” ahead of the 550th birth anniversary celebrations of Guru Nanak Dev. We need to continue such gesture.

2. India need to review its stand: The delay in carrying out the death penalty is one of the reasons to review India’s position on capital punishment. The debate on the efficacy of the death penalty in reducing crime has been going on for several decades.

3. President Pranab Mukherjee’s swift action: He dealt with the petitions swiftly. It goes to the credit of former President Pranab Mukherjee that during his term, he

  • Disposed of 34 mercy petitions,
  • While 30 were rejected,
  • Four were given reprieves.

4. Time frame needs: A time frame needs to be fixed for the President to dispose of mercy petitions.

5. Lack of accountability: The lack of accountability of government and the courts have adversely affected our criminal justice system.

6. Law Commission, 2015: Through its report in 2015, the Law Commission of India proposed abolishing the death penalty.

  • Just 14 States responded by 2018. Of these, 12 States rejected the proposal.

7. UNGA-2007-Resolution: -Adopted Resolution for abolition of capital punishment- It endorsed worldwide moratorium on death penalty.

8. Justice Verma Committee: Recommended No death Penalty for Rapists.

Source: The Hindu

Supreme Court dismisses Aadhaar review petitions

CONTEXT:

The Supreme Court, in a majority view, dismissed a series of petitions seeking a review of its 2018 judgment upholding the Lok Sabha Speaker’s certification of Aadhaar law as a Money Bill and its subsequent passage in Parliament.

However, Justice D.Y. Chandrachud dissented with the majority, saying the Aadhaar review petitions should be kept pending.

                                          Did Aadhaar CEO mislead the Supreme Court? - The Week

NEWS IN DETAILS:

Two questions for review: Two questions had come up for review regarding the five-judge Aadhaar Bench’s judgment in 2018.

1. Whether the Speaker’s decision to declare a proposed law as Money Bill was “final” and cannot be challenged in court.

  • The majority judgment in 2018 said the Speaker’s decision could be challenged in court only under “certain circumstances”.

2. Whether the Aadhaar Act, 2016 was correctly certified as a ‘Money Bill’ under Article 110(1) of the Constitution.

  • SC concluded that the Aadhaar Act was rightly called a Money Bill. Justice Chandrachud, who was on the Bench, had dissented on the second conclusion in 2018.

VIEWS OF JUSTICE CHANDRACHUD

Rojer Mathew vs South Indian Bank Ltd: In November 2019, Bench had questioned the conclusions arrived at by the Aadhaar Bench and referred the issues to a seven-judge Bench for an authoritative take.

Justice Chandrachud wrote: “The larger Bench’s determination would have an undeniable impact on

  • Validity of the reasons expressed in Puttaswamy [Aadhaar case], and
  • Constitutional issues of the certification by the Speaker of the House of People.”

He said the Review Bench should hence wait for the seven-judge Bench, which has not yet been constituted, to take a call. The review petitions should be kept pending for the time being.

VIEWS OF MAJORITY JUDGES IN THE CASE:

Dismissing the review pleas, the majority of four judges on the Bench held that following cannot be regarded as a ground for review”.

  • Change in the law or
  • Subsequent decision/judgment of a coordinate or larger Bench by itself

CONCERNS:

Fraud on the Constitution: Primarily by Rajya Sabha member Jairam Ramesh, had highlighted how the Aadhaar Act was passed as a Money Bill by superseding the Rajya Sabha. He had called it a “fraud on the Constitution”.

Not Under Article 110 (1): The review petition had argued that the Aadhaar Act clearly did not fall within the ambit of Article 110 (1) of the Constitution, which restricted Money Bills to certain specific fields only.

Judicial indiscipline: Dismissing the Aadhaar review even before the seven-judge Bench got a chance to apply its mind and arrive at a verdict would amount to “judicial indiscipline” and have “adverse consequences.”

Constitutional principles of consistency: The constitutional principles of consistency and the rule of law would require that a decision on the Review Petitions should await the reference to the Larger Bench.”

MONEY BILL:

Money bills: Article 110- It includes: 

  • Imposition, abolition, remission, alteration or regulation of any tax. 
  • Borrowing(obligation) of money by the union government 
  • Custody of the consolidated or contingency fund of India. 
  • Expenditure charged on the consolidated fund of India (CFI) 
  • Receipt of money on account of consolidated fund of India or the public accounts of India. 
  • Appropriation of money out of cfi 

Not part of money bill: Fines &penalties, taxes of local government, service fees. 

Article 117- Financial bill: 

  • It is similar to money bill, except that it can’t be passed unless President has recommended. 

REVIEW PETITION:

Under Article 137, the Supreme Court has the power to review any of its judgments or orders.

The court has the power to review its rulings to correct a “patent error” and not “minor mistakes of inconsequential import”.

Three grounds for seeking a review of a verdict:

  1. The discovery of new and important matter or evidence 
  2. Mistake or error apparent on the face of the record.
  3. Any other sufficient reason. 

Who can file a review petition: Any person aggrieved by a ruling can seek a review.

Time- period: Within 30 days, In certain circumstances- Delay than 30 days also allowed

CURATIVE PETITION: If a review petition fails.

  • Roopa Hurra v Ashok Hurra (2002), the court itself evolved the concept of a curative petition, which can be heard after a review is dismissed to prevent abuse of its process.

Source: The Hindu

Bombay HC relief for inter-faith couple-‘Woman free to move as per wish’

CONTEXT:

The Bombay High Court on Tuesday directed the police to escort a woman, who appeared before it, to the destination of her choice, observing that

  • She was a “major”,
  • “Free to move as per her own wish” and that
  • Her parents could not curtail her freedom.