by admin | May 25, 2021 | Opinions
By Amulya Ganguli,
When the Supreme Court excluded the “creamy layer”, or the well-off sections, among the backward castes from the benefits of reservations in its 1991 judgement, it had taken a logical step to ensure that the advantages of the quota system in the matter of social advancement were not enjoyed in perpetuity by the identified communities.
What the judicial pronouncement entailed was that once those who had suffered for centuries from the inequities of the caste system had been able to overcome much of their social disabilities via the officially sponsored affirmative action, they would lose their right for preferential treatment. The criterion for those who would be excluded from the benefits of the quota system was an annual income of Rs 100,000.
However, while deciding on the concept of the “creamy layer”, the judiciary does not seem to have taken into account the possibility of the intervention of the political class to circumvent the legal objective.
Over the years, the politicians across the board have succeeded in dodging the income limit by periodically increasing the quantum of the annual earnings of the backward castes from Rs 100,000 in 1993 to Rs 250,000 in 2004 to Rs 450,000 in 2008 to Rs 600,000 in 2013.
Clearly, to the political class, the creamy layer is an elastic concept which can keep on expanding with the express purpose of retaining within its fold even the affluent among the backward castes in order to make them eligible for reservations in employment and education.
Considering that the reservations were meant to be in force for only the first 10 years after Independence, there is little doubt that the present practice is a travesty of the original intent. As much is evident from the contention of the now-defunct National Commission for Backward Castes that the annual income should be Rs 15 lakh.
It not surprising, therefore, that the Narendra Modi government has decided to increase the annual income from the present Rs 600,000 to Rs 800,000. There will be no prizes for guessing that the amount will keep on increasing year after year and that being a part of the creamy layer will be an ever-receding goal for the backward castes.
By this token, no matter how high is the income of a backward caste person, he will always be poor in the government’s eyes — though not to his neighbours — and in need of clutches for securing jobs and education.
The reason for this oddity is the political need to secure votes even if the grant of such largesse means ignoring the concept of merit. However, it also boosts the caste system which is often deemed to be the bane of the Hindu social order.
The belief among the idealists at the dawn of Independence that the caste system will gradually wither away with the nation’s progress has proved to be a chimera.
As if to confirm this regressive trend, the Modi government is now contemplating identifying various sub-castes among the backwards for extending the benefits of reservations on the ground that the quotas have mostly been grabbed by the more dominant castes, such as the Yadavs in Uttar Pradesh and Bihar.
This slicing of the cake is an extension of the electoral policy which the Bharatiya Janata Party (BJP) successfully pursued in Uttar Pradesh by courting the non-Yadav backward castes and the non-Jatav Dalits to wean them away from the Yadav-dominated Samajwadi Party and the Jatav-dominated Bahujan Samaj Party.
Ironically, it was to counter the caste card played by the Janata Dal leader and Prime Minister V.P. Singh in 1990 that BJP leader L.K. Advani embarked on his Somnath-to-Ayodhya rath yatra to keep the party’s Hindu flock together.
Today, however, the BJP is playing the caste card with a vengeance to boost its political position. Its motivation is possibly all the stronger because of the knowledge that it will not get the Muslim vote. So, it has to try all the more to rope in the backward castes and add them to its tally of upper caste votes which the party believes are already in its bag.
In the process of wooing the backward castes, not only the age-old “varna vyavastha” or the caste system but also the concept of reservations is strengthened.
To make matters worse, since the number of government jobs is dwindling in a time of the free market, voices are bound to be raised for extending the quota system to the private sector, thereby ringing its death-knell where efficiency is concerned.
As these retrogressive steps are advocated and implemented, the “sabka vikas” or the agenda of development for all is bound to be hit.
Moreover, the calls that are sometimes given for dispensing with quotas, as by the Rashtriya Swayamsevak Sangh chief, Mohan Bhagwat, are likely to be ignored. For those who see Hindu society through the lens of caste, all will be well in the foreseeable future.
(Amulya Ganguli is a political analyst. The views expressed are personal. He can be reached at amulyaganguli@gmail.com)
—IANS
by admin | May 25, 2021 | News, Politics
New Delhi : The Supreme Court on Friday said that its holding of the right to privacy to be a fundamental right could have some bearing on the hearing of a batch of petitions including by Maharashtra government challenging the Bombay High Court verdict permitting the possession and eating of beef brought from outside the state.
“Yes, that judgement may have some bearing in these matters,” the bench of Justice A.K. Sikri and Justice Ashok Bhushan said as senior counsel Chander Uday Singh urged the bench to give them time to study the judgment by the nine judge bench which may have bearing on their matter.
The judgment pronounced by a nine-judge bench on Thursday has held that the right to privacy was a fundamental right.
Chander Uday singh who appeared for a Mumbai-based lawyer Haresh Jagtiani referred to Justice J.Chelameswar’s judgment on privacy which said: “I do not think that anybody would like to be told by the State as to what they should eat or how they should dress …”
Appearing for some other petitioners, senior counsel Indira Jaising told the court that 2005 majority judgment (6-1) by a seven judge bench had wrongly decided in favour of complete prohibition on the slaughter of cows and calves including other milch and draught cattle.
She said that Mirzapur judgment as 2005 judgment is commonly known in legal circles needs to be relooked and urged the court to pass necessary orders.
At this, the bench said that it would consider whether this should be sent to a larger bench.
While permitting the possession and eating of beef brought from outside Maharashtra, the Bombay High Court had by its May 6, 2016, judgment had uphold the ban imposed by the state government on the slaughtering and sale of beef within the state.
The Maharashtra government had moved the top court on August 10 challenging this verdict.
The top court is hearing a batch of cross petitions including one by Akhil Bharat Krishi Go Sewa Sangh, which questioned the high court judgment holding that the right to eat was a fundamental right forming a part of right to privacy.
—IANS
by admin | May 25, 2021 | News, Politics
New Delhi : Hailing the Supreme Court verdict on triple talaq, the CPI-M has alleged that the BJP was trying to impose a uniform civil code on people.
“The BJP is trying to utilise the arguments against triple talaq as grounds for imposing a uniform civil code,” an editorial in the CPI-M journal People’s Democracy said. “This is a deliberate misreading of the verdict.
“The majority judgment was clear that it is only addressing talaq-e-bidat and not all forms of talaq under Muslim personal law.
“The court did not accept the arguments of the Attorney General representing the central government to widen the scope of the court intervention to other aspects of divorce under Muslim personal law.”
A five-member Constitution Bench of the Supreme Court on Tuesday struck down instant triple talaq as illegal and violative of the rights of Muslim women.
“This majority verdict by 3 to 2 is a victory for Muslim women who have suffered under the arbitrary use of talaq-e-bidat which is instant talaq,” the Communist Party of India-Marxist said.
Amongst the majority of three, two of the judges argued that instant triple talaq violated the fundamental right to equality enshrined in Article 14 of the Constitution.
The third judge has said it was illegal as it was not sanctioned by the Quran and Islamic religious practice.
“The stance of the two judges in the minority that personal law is protected under the Constitution and therefore immune to the equality test is regressive and contrary to the secular principle,” the editorial said.
“What is required is to work for equal rights for women within each religious community and to get reforms undertaken in this direction. Uniformity is not equality.
“And a uniform civil code is no guarantee for justice.
“The BJP government is not willing to have a law against honour killings. On the contrary under this government even secular laws applicable to all women are being sought to be diluted such as Section 498 A of the IPC.
“The Supreme Court judgment will strengthen the resolve of women to continue to struggle for reform within their personal laws. This applies not only to Muslim women but to all women belonging to Hindu and other religious communities.”
—IANS
by admin | May 25, 2021 | News, Politics
New Delhi : In a major boost to individual freedom, the Supreme Court on Friday declared that right to privacy was a fundamental right and protected as an intrinsic part of life and personal liberty and freedoms guaranteed by Constitution.
Rejecting the government’s contention that privacy was not a fundamental right, a nine-judge Constitution bench unanimously overturned two earlier rulings in the M.P. Sharma and Kharak Singh cases that held that the right to privacy was not protected by the Constitution.
“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. Decisions subsequent to Kharak Singh which enunciated the above (line) lay down the correct position in law,” the bench headed by Chief Justice J.S. Khehar said.
There were six judgements written by the nine judges but all of them were unanimous in asserting that right to privacy was a fundamental right.
The other judges in the bench were Justices J. Chelameswar, S.A. Bobde, R.K. Agrawal, Rohinton F. Nariman, A.M. Sapre, D.Y. Chandrachud, S.K. Kaul and S. Abdul Nazeer. They were ruling on petitions filed by retired Karnataka High Court judge Justice K.S. Puttaswamy and others against the union government on the issue.
In his ruling, Justice Kaul said: “Let the right of privacy, an inherent right, be unequivocally a fundamental right embedded in part III of the Constitution but subject to the restrictions specified, relatable to that part. This is the call of today. The old order changeth yielding place to new.”
Writing for four judges, including the Chief Justice, Justice Chandrachud observed that the contention by the union government and the states supporting it that it was not necessary to read a constitutional right to privacy into the fundamental rights as betraying lack of understanding of the reason why rights were protected in the first place in the Indian Constitution as part of fundamental rights.
The Centre and some states had argued that there was a statutory regime by virtue of which the right to privacy was adequately protected. It was also sought to be fortified by contending that privacy was merely a common law right and the statutory protection reflected that.
“Elevating a right to the position of a constitutionally protected right places it beyond the pale of legislative majorities. When a constitutional right such as the right to equality or right to life assumes the character of being a part of the basic structure of the Constitution, it assumes inviolable status: inviolability even in the face of the power of amendment. Ordinary legislation is not beyond the pale of legislative modification.
“A statutory right can be modified, curtailed or annulled by a simple enactment of the legislature. In other words, statutory rights are subject to the compulsion of legislative majorities. The purpose of infusing a right with a constitutional element is precisely to provide it a sense of immunity from popular opinion and, as its reflection, from legislative annulment.”
The four judges also rejected the government’s argument placed by the then Attorney General Mukul Rohatgi that the right to privacy was an elitist construct.
“The Attorney General argued before us that the right to privacy must be forsaken in the interest of welfare entitlements provided by the State. In our view, the submission that the right to privacy is an elitist construct which stands apart from the needs and aspirations of the large majority constituting the rest of society, is unsustainable.
“This submission betrays a misunderstanding of the constitutional position. Our Constitution places the individual at the forefront of its focus, guaranteeing civil and political rights in Part III and embodying an aspiration for achieving socio-economic rights in Part IV. The refrain that the poor need no civil and political rights and are concerned only with economic well-being has been utilised though history to wreak the most egregious violations of human rights.”
They held that the right to question, the right to scrutinize and the right to dissent enabled an informed citizenry to scrutinize the actions of the government.
“Those who are governed are entitled to question those who govern, about the discharge of their constitutional duties including in the provision of socio-economic welfare benefits. The theory that civil and political rights are subservient to socio-economic rights has been urged in the past and has been categorically rejected … by this court.”
The judges said civil and political rights and socio-economic rights do not exist in a state of antagonism as they they “are complementary and not mutually exclusive”.
Dealing with the essential nature of privacy, the judges held that privacy represents the core of human personality and recognizes the ability of each individual to make choices and take decisions governing matters intimate and personal.
About informational privacy, the judges observed that apart from national security, the State may have justifiable reasons for collection and storage of data.
“But the data has to be utilised for legitimate purposes and not unauthorisedly for extraneous purposes. This will ensure legitimate concerns of the State are duly safeguarded while, at the same time, protecting privacy concerns.
“Prevention and investigation of crime and protection of the revenue are among the legitimate aims of the State.”
They held informational privacy a facet of the right to privacy and said there were dangers to it in an age of information “not only from the State but from non-State actors as well”.
“We commend to the Union Government the need to examine and put into place a robust regime for data protection.”
In his judgement, Justice Chelameswar said all liberal democracies believe that the State should not have unqualified authority to intrude into certain aspects of human life.
“Fundamental rights are the only constitutional firewall to prevent State’s interference with those core freedoms constituting liberty of a human being.”
—IANS
by admin | May 25, 2021 | News
New Delhi : The Holy Prophet Mohammad (SAW) had declared divorce to be the most disliked among the lawful things in the eyes of God as it broke the marital tie which is fundamental to family life in Islam, the Supreme Court yesterday said.
Justice R F Nariman, who wrote one of the two separate majority judgements, said divorce not only disrupted the marital tie between man and woman, but had severe psychological and other repercussions on the children from such marriage.
Justice Nariman, whose views were concurred with by Justice U U Lalit, noted that marriage in Islam was a contract, and like other contracts, it could be terminated under certain circumstances.
“There is something astonishingly modern about this no public declaration is a condition precedent to the validity of a Muslim marriage, nor is any religious ceremony deemed absolutely essential though they are usually carried out,” he said.
“Apparently, before the time of Prophet Mohammad (SAW), the pagan Arab was absolutely free to repudiate his wife on a mere whim, but after the advent of Islam, divorce was permitted to a man if his wife by her indocility or bad character rendered marital life impossible,” Justice Nariman said.
In the absence of good reason, no man can justify a divorce “for he then draws upon himself the curse of God.
“Indeed, Prophet Mohammad (SAW) had declared divorce to be the most disliked of lawful things in the sight of God. The reason for this is not far to seek. Divorce breaks the marital tie which is fundamental to family life in Islam,” Justice Nariman said.
The five-judge Constitution bench, by a majority of 3:2 in which Chief Justice J S Khehar was in minority, said the practice of “‘talaq-e-biddat’ triple talaq is set aside“.
The two separate judgements, written for majority by Justices Kurian Joseph and R F Nariman, did not concur with the CJI and Justice S Abdul Nazeer that ‘triple talaq’ was a part of religious practice and the government should step and come out with a law.
—NNN-PTI
