SC sets up 5-judge Constitution Bench to hear pleas challenging Centre's move on Article 370 - Pragnya IAS Academy - News Analysis.

SC sets up 5-judge Constitution Bench to hear pleas challenging Centre's move on Article 370.

Justice N.V. Ramana to head the Constitution Bench.

A five-judge Bench led by Justice N.V. Ramana is learnt to have been formed to start hearing from October 1 petitions challenging the Centre's move render Article 370 inoperative that stripped Jammu and Kashmir people of their special privileges, which led to the bifurcation of the State to two union territories of Jammu and Kashmir, and Ladakh.
A Presidential Order on August 5 read down Article 370, through which special rights and privileges were given to the people of Jammu and Kashmir since 1954 in accordance with the Instrument of Accession.

The special status was bestowed on Jammu and Kashmir by incorporating Article 35A in the Constitution by an order of President Rajendra Prasad in 1954 on the advice of the Jawaharlal Nehru Cabinet. Parliament was not consulted.
Chief Justice of India Ranjan Gogoi has also separately given the nod for the setting up of three other Special Benches, one of which will deal with death penalty cases. The composition of the Benches is not yet known.
Justice Ramana is the third senior-most judge of the Supreme Court. Both the CJI and Justice S.A. Bobde, the second senior-most judge of the apex court, are part of the Bench hearing the Ayodhya case, which is expected to continue till October 18 at least.
The various petitions include ones by advocate M.L. Sharma and the National Conference, which had challenged the Centre’s “unilateral” move to impose curfew and unravel the unique federal structure of India by dividing Jammu and Kashmir “without taking consent from the people.”
Restrictions were imposed in the entire Valley on August 4. A new law was also passed, dividing the State into two Union Territories.
The petitions have questioned the Centre’s sudden decision to “unilaterally unravel the unique federal scheme, under cover of President’s Rule, while undermining crucial elements of due process and the rule of law”.
A separate petition by detained politician Shah Faesal and Shehla Rashid Shora, among others, has contended that the August 5 order and the Jammu and Kashmir Reorganisation Act of 2019 were arbitrary. They also challenged the proclamation of President’s Rule in the State in December 2018.
The petitions said what happened to Jammu and Kashmir “goes to the heart of Indian federalism”.
“National integration is best served by a pluralistic federal model. Under this model, one size need not always fit all,” the petition filed by the National Conference said.
The petitions said the Presidential Order of August 5 substituted the concurrence of the Governor for that of the State government to change the very character of a federal unit.
They said the Presidential Order took cover of a temporary situation, meant to hold the field until the return of the elected government, to accomplish a fundamental, permanent and irreversible alteration of the status of the State of Jammu and Kashmir without the concurrence, consultation or recommendation of the people of that State, acting through their elected representatives.
They argued that the August 5 order used Article 370 to demolish Article 370. It amounted to the overnight abrogation of the democratic rights and freedoms guaranteed to the people of Jammu and Kashmir upon its accession.
The basic purpose of Article 370 was to facilitate the extension of constitutional provisions to the State in an incremental and orderly manner, based upon the needs and requirements, without dismantling the State Constitution.
The August 5 order, by replacing the recommendation of the ‘Constituent Assembly’ with that of the ‘Legislative Assembly’ in order to alter the terms of Article 370, assumed that the Legislative Assembly of the State of Jammu and Kashmir had a power that its own Constitution, under Article 147, denied to it. Thus, the August 5 order was ineffective, the petitions alleged. (Source: The Hindu)


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SC sets up 5-judge Constitution Bench to hear pleas challenging Centre's move on Article 370.

Supreme Court's interpretation of Constitution dangerous: Attorney General - Pragnya IAS Academy - News Analysis.

Supreme Court's interpretation of Constitution dangerous: Attorney General.

The use of constitutional morality can be 'very, very dangerous,' says Attorney General K K Venugopal.

The Supreme Court’s interpretation of a constitutional concept “can be very, very dangerous” Attorney General K K Venugopal has said, warning the court was granting itself vast power.

Venugopal, the government’s top legal officer, said on Saturday because of constitutional morality, Prime Minister Jawaharlal Nehru's fear that the Supreme Court will become the third chamber of Parliament might come true.
"The use of constitutional morality can be very, very dangerous and we can't be sure where it will lead us to. I hope Constitutional morality dies," Venugopal said at the second J Dadachanji Memorial Debate.
"As a powerful weapon which surpassed all the powers conferred on the Supreme Court by the Constitution, Article 142 merely permitted the Court to pass such decree or make such order as to do complete justice in any cause or matter pending before the court. But the Article was treated as a Kamadhenu from which unlimited powers flowed to the apex court of the country."
Venugopal, while talking about the history of conflict between the judiciary and the legislature, underscored that in its early days, top court struck down land reform and nationalisation laws as the judges noted that it violates equality. "The laws were struck down on a strict and literal interpretation of the Constitution.
Criticising a recent judgment, he said: "In Sabarimala case, the dissenting judge said we can't interfere with a matter of faith. But other four judges dealt with constitutional morality. It's one thing for Supreme Court to deal with an individual, but here you're dealing with a whole population.
“What is this Constitutional morality? If a bench of the Supreme Court speaks in two different voices, one saying Constitutional morality will permit the entry of women and the other one which says no, it's prohibited because of Constitutional morality, which is a very dangerous weapon. You cannot use it. It can result in grave injury without anyone knowing where it's going to end," he said while referring to the Sabarimala case.
Recalling the statement made by then Chief Justice Hidayatullah on amendments in the Constitution, Venugopal said that the former stated that the only purpose of the amendments was "to neutralise the judgements of the Supreme Court." Venugopal added that given the circumstances it is "very difficult to say whether the court was right."
Expressing dissent over the interference of the top court, Venugopal said, "The Preamble of the Constitution reads, 'we, the people'. We gave to ourselves this Constitution. Are you going to treat the whole of the population as illiterate and not able to think for themselves? I say no. Maybe the illiteracy today is 26 per cent, but even those (people living in the villages and rural areas), they have basic wisdom and they know what is good for them. And therefore, for the court to believe that unless we interfere, the country is doomed, I say no, it can't. (Source: The Business Standard)


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Supreme Court's interpretation of Constitution dangerous: Attorney General.

Constitution Bench to decide an ‘independent mechanism’ to appoint Election Commissioners - Pragnya IAS Academy - News Analysis.

Constitution Bench to decide an ‘independent mechanism’ to appoint Election Commissioners.

The order passed by a Bench of Chief Justice of India Ranjan Gogoi and Justice S.K. Kaul came on a PIL filed by Anoop Baranwal seeking an “independent mechanism for appointment of ECs” outside the exclusive power of the government.

The reference to a Constitution Bench is in tune with the court's observations in the case during a May 2017 hearing.
In a major step months before the General Elections, the Supreme Court on Tuesday found ambiguity in the appointment process of Election Commissioners and referred the question to a Constitution Bench for a “close look.”
The order passed by a Bench of Chief Justice of India Ranjan Gogoi and Justice S.K. Kaul came on a PIL filed by Anoop Baranwal seeking an “independent mechanism for appointment of ECs” outside the exclusive power of the government.
The Bench was not satisfied by the argument made by Attorney-General K.K. Venugopal for the Centre that the appointment of ECs to the top poll body is “consciously and deliberately” a part of the executive function of the State.
Mr. Venugopal said the current appointment process under the aegis of the government has in the past given eminent persons, including T.N. Seshan, who was a byword for independence.
Advocate Prashant Bhushan, for Mr. Baranwal, argued that appointments of ECs should be made under a “collegium system.” The appointment process of ECs should be in tandem with that of other top constitutional functionaries. There is a “gap in the law” as far as appointment of ECs are concerned. It is necessary to “plug the gap to ensure the independence and dignity of the institution.”
Mr. Venugopal contended that at least 15 other top constitutional functionaries, including the Compteoller and Auditor General of India, are appointed by the President acting on the advice of the Union Cabinet.
“If you are going to test one post, you will have to test all these posts,” Mr. Venugopal submitted. To this, Justice Kaul responded that the removal process for these constitutional functionaries differ from that of ECs.
The reference to a Constitution Bench is in tune with the court's observations in the case during a May 2017 hearing.
The Supreme Court had told the government that though so far the election commissioners appointed have been “outstanding people, very fair and politically neutral,” there is still a legitimate expectation that they should be selected through the “most transparent and just process” formalised in a law enacted by the Parliament.
The apex chad even prima facie agreed to a “gap” caused by the lack of a parliamentary law which transparently spells out the process of appointment of an election commissioner.
“Who should be shortlisted? Who shortlists these names? What is the eligibility? There is nothing to show the procedure followed in selecting them,” former Chief Justice Khehar had observed in 2017.
The court had observed that even the selection procedure of the CBI Director is formalised by a written law, but not that of Election Commissioners.
“The Election Commissioners supervise and hold elections in our democracy... such is the significance of their office. Their selection has to be made in the most transparent manner,” the Supreme Court had observed in the 2017 hearing.
The court had indicated to the government that it may intervene in the issue to achieve the constitutional objective under Article 324 (2) of the Constitution.
Mr. Baranwal has contended that successive governments failed in the constitutional obligation to set up a “fair, just and transparent process” for selection of election commissioners since the adoption of the Constitution.
He has argued that the appointments were made by the President solely on the basis of the advice given by the political-executive at the Centre. This situation allegedly gives “ample room for the ruling party to choose someone whose loyalty is ensured and renders the selection process vulnerable to manipulations and partisanship which is violative of Article 14 of the Constitution.”(Source:The Hindu)


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Constitution Bench to decide an ‘independent mechanism’ to appoint Election Commissioners.

Lok Sabha passes amendment bill to give OBC commission Constitution status - Pragnya IAS Academy - News Analysis.

Lok Sabha passes amendment bill to give OBC commission Constitution status.

The Constitution (123rd Amendment) Bill, 2017 passed in Lok Sabha. The bill grants National Commission on Backward Classes (NCBC) constitutional status, par with National Commission for Scheduled Castes and Scheduled Tribes (NCSC and NCST).

The Lok Sabha on Thursday passed an amendment bill to give constitutional status to the OBC Commission. The Constitution (123rd Amendment) bill, passed by the Lower House, grants National Commission on Backward Classes (NCBC) constitutional status, par with National Commission for Scheduled Castes and Scheduled Tribes (NCSC and NCST).
Social Justice and Empowerment Minister Thaawarchand Gehlot moved for passage of an amendment to the bill that was returned to the Lower house by the Rajya Sabha last year with some changes.
The official amendment moved by Gehlot sought to negate the amendments made by the Upper House when it passed the bill on July 31, 2017. The bill was passed by the Lok Sabha on April 10, 2017.
Opposition members in the Rajya Sabha had moved an amendment to clause 3 of the bill seeking to provide for appointment of all the five members of the Commission from the OBC community, including a woman and a person from the minority community.


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Lok Sabha passes amendment bill to give OBC commission Constitution status.

SC/ST Act may go to Schedule IX of Constitution - Pragnya IAS Academy - News Analysis

SC/ST Act may go to Schedule IX of Constitution.

The “dilution” triggered massive protests by various Dalit and political outfits, during which nearly a dozen people were killed.

The government is planning to bring an ordinance to overturn the Supreme Court verdict putting safeguards on arrests under the SC/ST (Prevention of Atrocities) Act and subsequently introduce a bill to insulate it from further judicial scrutiny.

The government is likely to introduce the bill in monsoon session of Parliament to incorporate the legislation in the Ninth Schedule of the Constitution, laws under which cannot be challenged in courts.
Through the ordinance, the government will reintroduce provisions of the act which it feels were diluted by the Supreme Court verdict in March this year.
The “dilution” triggered massive protests by various Dalit and political outfits, during which nearly a dozen people were killed.
‘Interim arrangement’
“While the bill is a permanent arrangement to ensure that the SC/ST Act’s provisions are not diluted again, the ordinance is an interim arrangement to overturn the ruling,” a senior government functionary explained.
The proposed ordinance would make it clear that notwithstanding any judgement or any other law in force, the provisions of the act shall remain valid.
“Once promulgated, this would mean the ordinance would overturn the SC order,” a Law Ministry official said.
“The next hearing is on May 16 and much would depend on that,” said a senior official in the Social Justice and Empowerment Ministry.
Referring to the proposed bill, an official said, “Once included in the Ninth Schedule, the legislation gets protection under Article 31-B (validation of certain Acts and Regulations) and is not subject to judicial scrutiny.”
Recently, the Supreme Court refused to stay its March 20 order diluting certain provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.
Review petition by centre
While hearing observations by attorney general K K Venugopal on a review petition filed by the Centre, the apex court had said that it was not against the Act but the innocent should not be punished.
Dalit groups had organised protests across the country on April 2 against the “dilution” of the act through the Supreme Court’s March 20 verdict.
The protests had turned violent at several places which left nearly a dozen people killed. Opposition parties also accused the government of failing to protect Dalit rights.
Prime Minister Narendra Modi had last month asserted that his government would not let any dilution in the law aimed at preventing atrocities against SCs and STs.
In its March 20 order, the apex court had laid down new guidelines for police officers on how to ensure that innocent people, especially public officials, are protected from false complaints under the act. (Source: The Hindu)


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SC/ST Act may go to Schedule IX of Constitution.