2nd APRIL 2016
Answer questions in NOT MORE than 200 words each. Content of the answer is more important than its length.
Links are provided for reference. You can also use the Internet fruitfully to further enhance and strengthen your answers.
GS II: SOCIAL – WOMEN – TEMPLE ENTRY
1. Will the knock of gender justice on the doors of religious institutions and judicial landscape be heard and responded to? Discuss.
(Repeat Question from 15th Jan 2016 Question Bank)
Shani Shingnapur, Maharashtra temple entry issue:
· The temple management of Shani Shingnapur and radical Hindu outfits such as Sanathan Sanstha have in the recent past threatened and physically stopped women from entering the temple.
· Not just the Shani temple, there are other temples like the Trimbakeshwar Temple in Nashik which doesn't allow women inside.
· What's worse, there's a divide within the state BJP on the issue. While Maharashtra chief minister Devendra Fadnavis is in favour of allowing women inside temples, his own minister for rural development Pankaja Munde had supported the ban, saying, this cannot be considered as an "insult to the female fraternity".
· Interestingly, the Bombay HC is also dealing with a similar case involving Muslim women who want the judiciary to allow women to be allowed within the sanctum sanctorum of the Haji Ali dargah at Worli.
Views of Bombay High Court:
· The Bombay High Court heard a bunch of PIL's by women's rights groups, seeking the court's intervention as they were not allowed inside temples such as the Shani Shingnapur in Shirdi. The petition seeks the entry of women not just into the temple but also into the sanctum sanctorum.
· The Bombay High Court said Maharashtra State was duty-bound to prevent gender discrimination on entry to temples.
· A Division Bench of Chief Justice D.H. Waghela and Justice M.S. Sonak told the State that it was its fundamental duty to ensure the fundamental right of women was protected.
· Keeping in view Article 14, 15 and 25 of the Constitution of India, the government can take pro-active steps to ensure that the fundamental rights of a citizen are fully realised and not allowed to be encroached upon by any authority," the HC said.
· The court said the State must enforce the law and if the government was not sincerely doing it, “we will take some action.”
· The court ordered the State, the Home Minister and the Secretary, Home, to implement the provisions of the Maharashtra Hindu Places of Public Worship (Entry Authorisation) Act, 1956, and direct the Superintendents of Police and the Collectors to ensure compliance.
· The court also said the government should give wide publicity to the Act.
· The court had earlier stated that any temple or person imposing restrictions could face a six-month jail term under a law.
· The bench, after accepting the government's statement, disposed of the petition and said, "This court can only pass a general direction. We cannot go into individual or specific cases. If any person has grievance that the Act is not being implemented, then he or she can approach local authority with their complaint."
Maharashtra Government’s Stand:
· Acting Advocate-General Rohit Deo said: “The State is against gender discrimination. The State will ensure due compliance with and enforcement of the Act…”
· The Acting AG, however, clarified that if a temple did not allow any person, irrespective of their gender, inside the sanctum sanctorum, this Act and its provisions would not be of any help. “However, if a temple allows men in the sanctum sanctorum but prohibits women, this Act and its provisions can be used.”
· The Maharashtra government gave an undertaking to the Bombay High Court that it would ensure that women are allowed to enter all temples in the state.
Sabarimala shrine, Kerala temple entry issue:
“Unless you [i.e. the governing board of the shrine] have a constitutional right to prohibit women entry, you cannot prevent them from worshipping at the shrine”
Case: Whether women can be barred entry to the Sabarimala shrine in Kerala
Relationship between freedom of religion, equality, individual rights, and the extent to which the court can interfere in the management of religious institutions
Let us examine them one by one:
Religious freedom clauses: Articles 25 and 26
- Article 25(1) guarantees to all persons the right to freely profess, practise, and propagate their religion
- Right to worship does not extend to worshipping in any and every place
- Access to places having a “particular significance for [a particular] religion” is constitutionally protected
- Enforceable against the state, and not against other individuals, or corporate bodies
- Article 26(b) grants to religious denominations the right to manage their own affairs in the matter of religion
- Article 25(2) allows state intervention in religious practice, if it is for the purpose of “social welfare or reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus”
A scene in the Constituent Assembly:
B.R. Ambedkar– supported, among others, by RajkumariAmritKaur: Expressed specific concerns about the plight of women under religious law— and endorsed giving wide, interventionist powers to the state on the ground of the deep and pervasive role that religion played in the lives of Indians
- Has attempted to restrict the scope of the religious protection clause to “essential practices of a religion”
- Holds the view that the state cannot use the reform clause to “reform a religion out of existence”, it has nonetheless held that aspects beyond essential practices have no protection from state intervention
Sabarimala governing board’s Argument—
Prohibition of women is justified by “custom” and cites Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, which permit prohibiting women from accessing places of worship where “custom” or “usage” requires it
And the Court replies—
Burden upon the board will not merely be to establish the existence of a custom, but also that the custom is “essential” to the practice of the religion
The State and the Shrine
- Since the right to freedom of religion under Article 25(1) is enforceable against the state, and not against other individuals, or corporate bodies the question that the court must answer therefore is whether the Travancore Devaswom Board, which controls access to the shrine, can be equated to the “state”
- Earlier, the Kerala High Court already appears to have held that it can and previously, the Supreme Court has held that corporate bodies that are “functionally, financially and administratively” under the control of the state can be equated to the state for the purposes of fundamental rights.
- Travancore Devaswom Board is an autonomous body and while its members are appointed by the State legislature, it derives its main income from the administration of the temple
- Therefore, it might be difficult to argue that the board is functionally or financially under the control of the state
- And if the board cannot be equated with the state, then the constitutional right under Article 25(1) is not enforceable against it
If it cannot show that prohibiting women from entry is an essential religious practice, then it can no longer claim absolute immunity under Article 26(b)
- The women worshippers can argue that prohibiting them from access violates their constitutional right to freedom of religion and right to worship under Article 25(1)
- Can attempt to demonstrate that the Sabarimala shrine has special and unique religious significance and thus, their Article 25(1) right to worship would stand established
- Supreme Court: If one private party obstructs another private party from exercising her constitutional right, then it is the duty of the state to effectuate her right by restraining the former from continuing with its obstruction
- Therefore, the women worshippers may ask the court to direct the state to take all necessary steps to guarantee that they are allowed to access and worship at the Sabarimala shrine.
Re-course by the SC—
- Kerala Hindu Places of Worship Rules speaks about “customs” and “usages”
- The Supreme Court has held that while personal law is exempt from the application of the Constitution, mere ‘custom’ is not.
- It might therefore simply strike down the offending rule on the ground that it discriminates on grounds of gender, and therefore violates the Constitution.
Thus, there is a need for the courts to craft a solution that advances the constitutional guarantee of equality, non-discrimination and freedom of religion, while remaining cognisant of the fact that the Constitution also guarantees the right of religious sects and denominations to self-governance.
Note that another issue is of Dalit entry to all temples.
GS II: POLITY – PRESIDENT’s RULE
2. Resorting to imposing President’s rule in a state has always raised concerns on violation of the essentials of federalism. While noting down the rationales justifying the power to impose President’s rule, analyze it in light of recommendations of various committees as well as apex court rulings.
(Repeat Question from 28 March 2016 Question Bank)
· Article 356 has always been the focal point of a wider debate of the federal structure of government in Indian polity.
· Article 356 empowers the president to issue a proclamation of emergency (President's rule) in a state on grounds of 'failure of constitutional machinery' in the state.
· Subsequently, executive authority is exercised through the centrally appointed Governor, who has the authority to appoint retired civil servants or other administrators, to assist him.
· During President's rule, the Council of Ministers stands dissolved, the office of Chief Minister becomes vacant and the Vidhan Sabha is either put in suspended animation or dissolved (necessitating a fresh election).
· In the state of Jammu and Kashmir, failure of constitutional machinery results in Governor's rule, imposed by invoking Section 92 of Constitution of Jammu and Kashmir. The proclamation is issued by the state's Governor after obtaining the consent of the President of India. If it is not possible to revoke Governor's rule before within six months of imposition, President's Rule under Article 356 of the Indian Constitution is imposed. There is little practical difference between the two provisions.
Usage of Article 356:
· The article was used for the first time in up 1954.
· It has also been used to dismiss the democratically elected Communist state government of Kerala on 31 July 1959.
· In the 1970s and 1980s it almost became common practice for the central government to dismiss state governments led by opposition parties.
· The Indira Gandhi regime and post-emergency Janata Party were noted for this practice.
· Indira Gandhi's government between 1966 and 1977 is known to have imposed President' rule in 39 times in different states.
· Similarly Janta Party which came to power after the emergency had issued President's rule in 9 states which were ruled by Congress.
Sarkaria Commission on Centre–State Relations, 1988:
· It recommended that Article 356 must be used "very sparingly, in extreme cases, as a measure of last resort, when all the other alternatives fail to prevent or rectify a breakdown of constitutional machinery in the state"
S. R. Bommai judgment of 1994:
· It is only after the landmark judgement in 1994 in the S. R. Bommai v. Union of India case that the misuse of Article 356 was curtailed.
· In this case, the Supreme Court established strict guidelines for imposing President's rule.
· Subsequent pronouncements by the Supreme Court in Jharkhand and other states have further whetted down the scope for misuse of Article 356.
· Hence since the early 2000, the number of cases of imposition of President's rule has come down drastically.
· The SC laid down certain guidelines so as to prevent the misuse of Article 356 of the Constitution. They are:
1. The majority enjoyed by the Council of Ministers shall be tested on the floor of the House.
2. Centre should give a warning to the state and a time period of one week to reply.
3. The court cannot question the advice tendered by the CoMs to the President but it can question the material behind the satisfaction of the President. Hence, Judicial Review will involve three questions only:
a. Is there any material behind the proclamation
b. Is the material relevant.
c. Was there any mala fide use of power.
4. If there is improper use of Article 356 then the court will provide remedy.
5. Article 356(3) is the limitation on the powers of the President. Hence, the president shall not take any irreversible action until the proclamation is approved by the Parliament i.e. he shall not dissolve the assembly.
6. Article 356 is justified only when there is a breakdown of constitutional machinery and not administrative machinery.
· Also, S. R. Bommai Case listed out situations wherein exercise of power under Article 356 is PROPER. They are:
1. Elections cannot be held as scheduled for any reason
2. Elections were held but the assembly is hung, no party secures clear majority
3. Party that secured a majority is unwilling to form ministry and a coalition cannot be formed
4. Ministry resigned after suffering a vote of no confidence and no clear political successor emerges
5. Internal subversion where govt. is deliberately not doing its duty
6. Failure to comply with centre's constitutional directives
7. Wilful refusal to discharge constitutional duty.
Punchhi Commission on Centre–State Relations, 2010:
· It recommended that to prevent misuse of Article 356, suitable amendments be made incorporating the guidelines put forth in the landmark judgment in the S. R. Bommai v. Union of India case, 1994.
· It also proposed "localising emergency provisions" under Articles 355 and 356, contending that localised areas-either a district or parts of a district - be brought under Governor's rule instead of the whole state. Such an emergency provision should however not be of duration of more than three months.
Each time a State is brought under President’s Rule without sufficient cause, the political class heaps infamy on itself. If the action is not outright illegal, it is likely to be an egregious sign of degenerating political morality.
Case of Arunachal Pradesh: President’s Rule imposed 26th Jan 2016 to 19th Feb 2016
· President Pranab Mukherjee gave his assent to the Union Cabinet’s recommendation to impose President’s Rule in Arunachal Pradesh on 25th Jan 2016.
· Arunachal Pradesh was under Congress rule which had 47 MLAs in a 60-member House, and the BJP 11.
· The sequence of events:
1) An October 4, 2015, report, published in a national daily, claimed that 37 Congress legislators, including six ministers, had joined hands to try and topple then Chief Minister Nabam Tuki. According to the report, the dissident group was believed to be headed by the state’s former finance minister Kalikho Pul, who was dropped as the state’s health minister and expelled from the Congress for six years in April last year amid allegations of financial mismanagement.
2) In December 2015, Governor Jyoti Prasad Rajkhowa advanced the Assembly session from January 14, 2016, to December 16, 2015. Rajkhowa took the decision without consulting Tuki. The governor had also directed the House to consider a motion to replace the Speaker.
3) On December 16, 20 dissident MLAs from the Congress, along with 11 from the BJP and two Independents, impeached Speaker, Nabam Rebia.
4) On December 17, a no-confidence motion was brought by BJP legislators against the Tuki-led government and the motion was adopted. Kalikho Pul was elected the leader of the legislative party. The impeachment of the Speaker and the no-confidence motion took place on makeshift premises after the government, sensing trouble, had locked the gates of the Assembly.
5) The Gauhati High Court provided the government a breather and stayed all actions of the Assembly till February 2, 2016, and passed strictures against the governor.
6) The Gauhati High Court upheld the directives of Governor Rajkhowa on January 13, 2016. Justice B K Sharma observed, “If in the kind of situation that was prevailing in the Arunachal Pradesh, as highlighted in the petition, the governor took the impugned action, it cannot be said to be unconstitutional so as to warrant interference by the existing power of judicial review under Article 226 of the Constitution of India.”
7) The Gauhati High Court has categorically ruled in favour of the Governor’s decisions in the present crisis. It has upheld his power to summon or prorogue the Assembly under Article 174(1) and his power to send messages, even fixing a specific item on the agenda of the legislature, under Article 175(2). The court saw nothing wrong in the Governor advancing a sitting of the House from January 14, 2016 to December 16, 2015. Nor did it find anything illegal in his specifying that a motion to remove the Speaker should be taken up immediately after the House convenes. In effect, a controversial ‘sitting’ of 33 members of the Assembly in a makeshift venue has been upheld by the high court.
8) Interestingly, the Gauhati High Court extensively quotes from a Madras High Court Full Bench verdict of 1973 favouring the Governor’s action in somewhat similar circumstances in the Tamil Nadu Assembly. There, too, the ruling party had split, the Speaker and the Deputy Speaker were in different factions, and the dissidents wanted to remove the Chief Minister through a censure motion. However, in the Tamil Nadu precedent — where also there was a parallel ‘Assembly session’ — the Governor was acting on the advice of the ministry of M. Karunanidhi while sending a message to the House that it should first take up a motion to remove the Speaker, whose loyalty lay with the dissidents.
9) On the crucial question of the Governor’s discretion, the high courts have gone by the principle in Article 163: that the question whether any advice, and if so what advice, had been given to the Governor shall not be gone into by any court; and when a question arises whether the matter on which the Governor had acted was actually one on which he can use his discretion, the decision made by the Governor in his discretion will be final.
10) The Supreme Court, on January 14, referred to a constitution Bench a number of petitions arising out of certain orders passed by the Gauhati High Court in the matter.
11) Apart from the constitutional provision under which an Assembly has to meet every six months, the deadline for which expired in Arunachal Pradesh on January 21, there were other compelling reasons to impose President’s rule, according to the centre. “The Governor [Jyoti Prasad Rajkhowa] has been sending multiple reports that even the Raj Bhavan was not safe and had been seized by Congress MLAs and there was no law and order in the State.”
12) President Pranab Mukherjee on 26th January 2016, approved the Union Cabinet’s recommendation for the imposition of President’s rule on Arunachal Pradesh. A proclamation of President's Rule needs to be ratified in both Houses of Parliament within two months of notification or whenever the next session of Parliament is held.
13) The Governor issued an office memorandum on January 26, dismissing the State government and directing the seizure of official documents, office equipment and files and sealing of the offices of the deposed Chief Minister and Ministers.
14) On 27 January 2016, Supreme Court ordered Arunachal Pradesh Governor J.P. Rajkhowa to respond why he recommended President’s rule in the sensitive border State.
15) Attorney-General Mukul Rohatgi, for the Centre, drew the Bench’s attention to Article 361 (1) of the Constitution which gives the President and the Governor protection from legal action. Under the Article, both the President and the Governor of a State “shall not be answerable to any court” for acts done in performance of their powers and duties.
16) Supreme Court recalled the order on 1st February 2016, saying it made a “mistake” by not realising that Governors have “complete immunity” and are not answerable to courts for acts done in their official capacity.
17) On February 11, the Congress sought the Supreme Court’s intervention to “restrain” Mr. Pul from being sworn in as Chief Minister. But the court rejected the plea.
18) Supreme Court rejected deposed Chief Minister and Congress leader Nabam Tuki’s plea seeking an interim direction that his party be allowed to go for a floor test.
19) The Supreme Court, on February 18, lifted its order to maintain status quo in Arunachal Pradesh till it examined judicial and Assembly records on disqualification of 14 rebel Congress MLAs by former Speaker Nabam Rebia.
20) The Bench said the High Court should hear the cases on the legality of their disqualification expeditiously. The MLAs, it said, would be bound by whatever decision the HC takes.
21) The Centre had said that a constitutional vacuum and a state of “dormancy” cannot prevail in Arunachal Pradesh because the Supreme Court is testing the legality of the proclamation of emergency.
22) Attorney-General Mukul Rohatgi had assured the Bench that even if a new government was formed, the Supreme Court could later on “annul everything” if it struck down the proclamation of emergency as unconstitutional.
23) President’s rule in Arunachal Pradesh revoked on February 19, which could usher in a new dispensation headed by dissident Congress leader Kalikho Pul.
Case of Uttarakhand: President’s Rule imposed on 27th March 2016
The question whether the Appropriation Bill can be passed by voice vote is obviously barred from judicial scrutiny by Article 212 of the Constitution (which disallows courts from inquiring into internal matters of the legislature).
The BJP’s objection to the Appropriation Bill being passed by voice vote is somewhat ironical because its own party’s Chief Minister in Maharashtra, Devendra Fadnavis, won a confidence vote in the State Assembly in 2014 through a voice vote!)
The Proclamation of President’s Rule as a pre-emptive measure against a possibly manipulated vote is impermissible, according to the Supreme Court, which has made it clear that unless there is an extraordinary situation — such as all-pervasive violence — the Governor cannot come to a conclusion that there will be no free vote.
In 1998, President K.R. Narayanan sent a minute to the Vajpayee government urging a reconsideration of the recommendation to dismiss the Rabri Devi government. The President advised the Vajpayee government that a case of breakdown of constitutional machinery would not be made out unless the Centre had elicited explanations and sent out directives and warnings to the State government concerned. The Vajpayee government saw the wisdom in the argument and did not reiterate its advice.
In 1999, the same President did sign a proclamation under Article 356 after a Dalit massacre in Bihar, but the government revoked Central rule within three weeks after realising that it may not receive the Rajya Sabha’s approval.
The defector’s privilege
There is another dimension to such manipulative politics: the hurdle posed by the anti-defection law. Thanks to a 2003 amendment, now a legislature party can’t even split into two. Legislators dissatisfied with their party can only merge with another, but such members will have to constitute two-thirds of the original strength for it to be a valid merger. So has defection been finally eliminated? Not at all. Here comes ‘the defector’s privilege’. As only a formal act of voluntarily giving up membership of the party that set one up as a candidate or voting in the House in violation of a whip will attract defection, rebel MLAs now feel free to voice their criticism of their Chief Minister and join hands with the Opposition in political activities. If the Speaker takes note of their activities and disqualifies them, the plea that they had been arbitrarily disqualified without adequate opportunity to explain their position is often invoked to challenge the action. It is equally true that partisan Speakers use the disqualification provision to sustain a regime’s lost majority or gloss over the support bought over from Opposition members or independents.
The question that arises is whether the Speaker is the right authority to adjudicate matters of defection. In the judgment that upheld the validity of the Tenth Schedule (the anti-defection law), a dissenting judge had pointed out that the Speaker’s “tenure being dependent on the will of majority therein, likelihood of suspicion of bias could not be ruled out.” Changing the adjudicating authority in matters of disqualifying defectors is a key reform that is required in law.