📰 Hearings on Ayodhya title suit to resume, decides SC
Plea to refer issue to larger Bench rejectedNew three-judge Bench to be constitutedHasty decision, says dissenting judgment
•A three-judge Bench of the Supreme Court, in a majority opinion of 3:1 on Thursday, declined to refer the question if a “mosque as a place of prayer is an essential part of Islam” in the Ramjanmabhoomi-Babri Masjid appeals to a seven-judge Bench.
•The majority view by Chief Justice Dipak Misra and Justice Ashok Bhushan ordered that the hearing in the main Ayodhya title suit appeals should resume in the week commencing from October 29. With Chief Justice Misra retiring on October 2, a new three-judge Bench would be constituted.
On 1994 judgment
•The bone of contention here is an observation made by a Constitution Bench of the Supreme Court in the 1994 judgment in the Ismail Faruqui case. It had stated that “a mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in open”.
•Justice S. Abdul Nazeer, in a stinging dissent, observed that the question of what is essential or not in a religion cannot be hastily decided. He held that the question raised on the essentiality of offering prayers in mosques should indeed be examined by a seven-judge Bench before the Ayodhya suit appeals are heard.
•Justice Nazeer said the questions raised during the Ayodhya appeals’ hearing about the comment made in the Ismail Faruqui judgment require a “comprehensive examination” by a seven-judge Bench.
Fundamental rights
•What is essential or not in a religion can be decided only after studying tenets, beliefs, and doctrines. Justice Nazeer held that the comment has to be examined in the background of the fundamental right against discrimination under Article 15 and the protection guaranteed to practice, profess and propagate religion in Articles 25 and 26 under the Constitution.
•As the hearings progressed in the appeals, the Muslim appellants had pressed that the place of a mosque in Islam and the importance of the practice of offering prayers inside a mosque should be first decided by a five-judge Bench.
📰 Adultery no longer a criminal offence as SC scraps Section 497 of IPC
How couples deal with it is a private matter, says CJI; Section 497 treats a woman as her husband’s commodity
•A five-judge Constitution Bench, led by Chief Justice of India Dipak Misra, in four separate but concurring opinions on Thursday held that adultery is not a crime and struck it off the Indian Penal Code.
•Chief Justice Misra, in an opinion for himself and Justice A.M. Khanwilkar, observed that Section 497 (adultery) of the Code “commands” married couples to remain loyal to each other.
A matter of choice
•Two individuals may part if one cheats, but to attach criminality to infidelity is going too far, the Chief Justice observed. Besides, there is no data to back claims that abolition of adultery as a crime would result in “chaos in sexual morality” or an increase of divorce.
•How married couples deal with adultery is “absolutely a matter of privacy at its pinnacle”, the Chief Justice wrote.
•Loss of moral commitment in a marriage creates a dent in the relationship, but it is left to each individual to deal with the problem — some may forgive while others may seek divorce. Punishing each other or the wife’s lover is unlikely to re-kindle commitment, the judgment said.
•Section 497 treats a married woman as the commodity of her husband, the Bench held.
•Adultery is not a crime if the cuckolded husband connives or consents to his wife’s extra-marital affair. Section 497 treats a married woman as her husband’s “chattel”.
•The provision is a reflection of the social dominance of men prevalent 150 years ago, the judgment said.
Section 497 archaic: Justice Nariman
•Justice Rohinton Nariman, in his separate opinion but concurring judgment holding that adultery is not a crime, said Section 497 made a husband the “licensor” of his wife’s sexual choices.
•Justice Nariman listed out countries which had repealed adultery as a crime, starting with the People’s Republic of China. Justice Nariman, member of the five-judge Constitution Bench that delivered the judgment on Thursday striking adultery of the Indian Penal Code, said Section 497 is archaic and based on the chauvinistic reason that the “third-party male” has seduced the woman, and she is his victim. Justice Nariman took the case of a woman who is on the verge of getting a decree of divorce. “If, she has sex with another man, Section 497 still makes the ‘other man’ guilty of adultery.”
•“Husband is not the master... Obituaries should be written of these historic perceptions,” Chief Justice Dipak Misra observed.
‘Codified patriarchy’
•Justice D.Y. Chandrachud, in his separate view, termed Section 497 as a “codified rule of patriarchy”.
•Marriage does not mean ceding autonomy of one to the other. Ability to make sexual choices is essential to human liberty. Even within private zones, an individual should be allowed her choice, he observed.
•Society imposes impossible virtues on a woman. Raises her to a pedestal. Confines her to spaces. Objectifies her and says she should be pure. But society has no qualms to commit rape, honour killings, sex-determination and infanticide, Justice Chandrachud admonished.
•ustice Chandrachud’s opinion transcended from a mere quashing of Section 497 to a judicial document on the centuries-old struggle of women against patriarchy. One of the headings in the judgment is titled ‘The Good Wife’ — a woman who should not complain even if her husband has a relationship with another woman.
•Though adultery is considered to be an offence relating to marriage, the wife of an adulterer has no voice of her own, no agency to complain. If the woman involved in the extra-marital affair happens to be single and has no husband who is wronged, the law treats the situation with total unconcern, Justice Chandrachud pointed out.
•The Bench also held Section 198 (2) of the CrPC, which gives the cuckolded husband the exclusive right to prosecute his wife’s lover, manifestly arbitrary.
•Justice Indu Malhotra, reading her opinion the last on the Bench, held that Section 497 is based on the Doctrine of Coverture. This doctrine, not recognised by the Constitution, holds that a woman loses her identity and legal right with marriage, is violative of her fundamental rights.
📰 Finding an equilibrium
The Supreme Court’s verdict in the Aadhaar case is best read in light of the dissenting opinion
•A thicket of Aadhaar litigation has now ended with the decision of a five-judge Supreme Court Benchcomprising the Chief Justice of India Dipak Misra and Justices A.K. Sikri, A.M. Khanwilkar, D.Y. Chandrachud and Ashok Bhushan, which had reserved its order on May 10, after a marathon 38-day hearing. The right to privacy was won in K.S. Puttaswamy v. Union of India (2017), but that nine-judge Bench had left open the question of Aadhaar: whether the “national security” perspective (the vital role of surveillance to curb terror and prevent money laundering and crime financing) and “social welfare state” perspective (Aadhaar ensured that subsidies went to the right people) provided constitutional grounds for “reasonable restrictions” (reasonable because non-arbitrary).
•Although conceived and executively implemented during the UPA-2 regime, the project got coercive statutory backing only during the NDA regime, in 2016. The Aadhaar Act has now been upheld, and Aadhaar is mandatory for all government benefits, as somewhat narrowly re-crafted by the majority. “[A]nnoyance, despair, ecstasy, euphoria, coupled with rhetoric, [were] exhibited by both sides”, but Justice Sikri rightly stressed the “posture of calmness”; the political fallouts of a decision, even in an election year, cannot be a matter for judicial concern.
•The court examined only whether the entire scheme was constitutionally valid under the nine-judge Bench enunciation of the right to privacy and whether the decision of the Speaker of the Lok Sabha to pass the Aadhaar Act as a Money Bill was declared so “final” by the Constitution as to exclude even the jurisdiction of the apex court.
The Money Bill question
•Whether this decision disappoints those who had high expectations or remains enigmatic on key aspects is a question which will be debated for long. But clearly the majority disappoints with the lack of constitutional scrutiny on the finality of the Speaker’s decision on what amounts to a Money Bill under Article 110(3) of the Constitution.
•No one doubts the high constitutional status of the Speaker, but a very expansive view suggests that any bill which involves recourse to Consolidated Fund of India is a Money Bill and the finality of the Speaker’s decision is virtually unchallengeable. The other view is that the Speaker, like all constitutional functionaries, is bound to exercise the discretion reasonably; purposive as well as strict pragmatic scrutiny carrying “lethal emanations” from Article 14 and 21 must ensue when a large number of bills are tagged with Money Bills. This is dangerous because it removes the rationale for bicameral legislatures, because the Constitution does not foreclose the Rajya Sabha’s collective right to meaningfully deliberate legislative change. The Constitution is not a political tactic, it is not a mere ‘play thing’ of a special majority as Justice M. Hidayatullah said in Sajjan Singh v. State of Rajasthan (1965), laying the foundations of what became the doctrine of basic structure and essential features. Perhaps, T.S. Eliot’s words regarding Shakespeare remain apt for constitutional interpretation: “…if we can never be right, it is better that we should, from time to time, change our way of being wrong”.
•But the majority led by Justice Sikri gives a short shrift to the finality argument. Both Justice Chandrachud and Justice Bhushan refer to a set of decisions which subject ‘finality’ to judicial review and even the basic structure but Justice Bhushan while ruling that the decision of the Speaker is not “immuned [sic] from Judicial Review” still takes the view that the Speaker’s decision “does not violate any constitutional provision, hence does not call for any interference in this proceeding”.
•Justice Chandrachud fully dissents and holds the law invalid as a “fraud on the Constitution”, that is a colourable exercise of constitutional power. He maintains that the “notion of absolute power” is anathema to the Constitution and that there is need to “liberate its founding principles from its colonial past”. Its purpose cannot be to shield an excess of power from being questioned before the court, nor to clothe a high functionary with utter impunity.
The ‘ultimate test’
•Memorably, he says that the “ultimate test” is whether the ouster of “judicial review is designed to achieve a constitutional purpose” that “meets the test of functionality, assessed in terms of a constitutional necessity”. Pointedly, Justice Chandrachud says: “In the seventh decade of the republic, our interpretation of the Constitution must subserve the need to liberate it from its colonial detritus.” Accordingly, he holds that the decision to give the Aadhaar Bill the status of a Money Bill violates the principle of bicameralism, declared as a part of basic structure, and an aspect of federalism and entails a “debasement of a democratic institution” which “cannot be allowed to pass. Institutions are crucial to democracy. Debasing them can only cause a peril to democratic structures”. Why was the majority not persuaded by the Chandrachud dissent is a question that will for long haunt those who prize democracy and rule of law values as essential for the future of putting the Constitution to work.
The proportionality test
•Perhaps, a salient reason for the majority decision is to be found in ‘balancing’ interests under the ‘proportionality test’: simply put, any conflict of interest requires balancing, keeping in view constitutional first principles and its vision, values, and the mission. In Justice Sikri’s dexterous judicial hands, this leads to many welcome invalidations and dilutions of some important sections of the Act (like non-application of the Act to situations where no direct benefits are claimed by beneficiaries, minimal data sharing, prohibitions on corporates from acquiring metadata, of opting out of children when they attain majority, and equality of esteem for other means of identification when Aadhaar is not available). But on the main aspect whether the right to privacy is violated, there is now posited a conflict with privacy and dignity, which only ‘harmonious construction’ may reconcile. Their Lordships also felt that some loss of privacy is constitutionally permissible to achieve the public good to the “marginalised sections of society” and there was a collective right to privacy which may override the individual right.
•Apart from the fact that the right to privacy decision foregrounds privacy and regards dignity as an integral aspect of privacy, the majority opinions ignore the message of the great sociological jurist Roscoe Pound, who developed the theory of law as an ad hoc balancing of the interests — sacrificing some, and supporting others for the time being — justified only when interests in conflict are put on the same plane (inter-translatability); the tasks of balancing begin only when all interests are translated as individual, social, or public. True, the “sanctity of privacy lies in its functional relationship with dignity”. But this relationship is “functional” only when “undue intrusion” into the “autonomy on the pretext of conferment of economic benefits” is avoided. Surely, there are other ways to achieve privacy and autonomy save the mandatory and ubiquitous Aadhaar number?
•The majority decision offers a harmonious construction, but the dissenting opinion shows why this is not the only or necessarily the best way. Do the ways of upholding the Aadhaar also open the floodgates of being constitutionally nir-aadhaar?
📰 A fraught timeline: on Ayodhya title suit
The stage is set for a final hearing on the title suit to the disputed site in Ayodhya
•The Supreme Court’s refusal to refer some questions of law in the Ram Janmabhoomi-Babri Masjid dispute to a seven-judge Bench has one immediate consequence: it could expedite the final hearing in the appeals against the Allahabad High Court’s compromise judgment of 2010 in the main title suit. The two-judge majority opinion has fixed the date for the hearing as October 29, a development that may mean that a final verdict is not far off and it could have a bearing on political events in the run-up to the general election due next summer. The final hearing ought to have begun a year ago, but was delayed because some parties wanted the reference to a larger Bench so that certain observations in a Constitution Bench decision in Ismail Faruqui (1994) could be reconsidered. The apprehension was that remarks to the effect that “a mosque is not an essential part of the practice of Islam” and that namaz can be offered anywhere, even in the open, would influence the outcome of the appeal. Justice Ashok Bhushan’s main opinion has sought to give a quietus to the controversy by declaring that “the questionable observations” were to be treated only as observations made in the context of whether land on which a mosque stood can be acquired by the government. It should not be taken into account while deciding suits and appeals. It is difficult to fault this approach, as it is a fact that the respective claims of the U.P. Sunni Central Wakf Board, Nirmohi Akhara and Ram Lalla, the deity, can only be tested against evidence adduced during trial and not by pronouncements on the significance of places of worship or practices in a particular religion.
•At the same time, can one brush aside the possibility that observations on a sensitive religious issue would be exploited by one side to gain legal advantage? In his dissenting opinion favouring a reconsideration of Ismail Faruqui, Justice Abdul Nazeer notes that its observations have permeated the High Court judgment. Ismail Faruqui was a ruling on petitions challenging the validity of a Central law that acquired the land on which the Babri Masjid stood before it was razed by a frenzied and fanatical mob on December 6, 1992. The judgment was notable for upholding the rule of law by restoring the title suits that had been declared as having “abated” in the Act. It also declined to answer a Presidential reference on whether a Hindu temple stood on the disputed site before the mosque was built. Any observation made in the course of such a decision is bound to have a profound impact on the courts below. It is easy to contend that courts should work to their own timelines and not be influenced by such things as election season. But in the life of this nation, the Ayodhya dispute has gone through dark political phases and been more than a mere legal issue. The onus is on the apex court to dispose of the appeals at its convenience without giving any scope for the exploitation of religious sentiments.
📰 Oil-slicked debt trap
Venezuelan President Maduro must first restore confidence in democratic institutions and the rule of law
•Nothing can be more counterproductive than military intervention in Venezuelato tackle the humanitarian crisis. Improbable as the idea sounds, the U.S.’s attempt should be to help Caracas overcome the disruption to its oil exports. Revenue losses at the state-owned oil firm, PDVSA, have also been spiralling downwards, after crude output dipped to its lowest in 30 years.
•Last November, Venezuela’s beleaguered President, Nicolas Maduro, asked creditors to renegotiate the country’s sovereign debt, estimated at over $100 billion. The cash-strapped economy has been unable to sustain imports of basic necessities, even as the socialist government has unleashed a crackdown on an angry opposition and activists. The mass exodus of millions of Venezuelans into neighbouring states has led to occasional comparisons with the Syrian refugee crisis. The currency was devalued by 95%, and the minimum wage was raised in August, but these will have little impact unless the fundamentals are addressed. The wider significance of the situation in Venezuela was underscored recently by the International Energy Agency. It predicted that crude prices will touch $85 a barrel following a squeeze in global supplies, resulting from lower Iranian exports in the wake of U.S. sanctions. For his part, Mr. Maduro must restore confidence in democratic institutions and the rule of law.
•But Venezuela has in recent months been consumed by efforts to forestall the seizure of PDVSA assets by investors. Legal disputes following the frenetic nationalisation drive under Hugo Chavez a decade earlier have reached culmination point. Recently, PDVSA agreed to compensate the U.S. exploration group, ConocoPhillips, to the tune of $2 billion — a sizeable chunk of Venezuelan foreign reserves — following an International Chamber of Commerce (ICC) ruling in April. ConocoPhillips is also pursuing a separate litigation against Caracas at the World Bank dispute redress body, which commentators say could cost around $6 billion.
•The ICC decision was followed in May by a law suit in New York to recover a $25 million promissory note guaranteed by a PDVSA subsidiary, raising the prospects of more action to redeem other pledges. In August, a U.S. judge authorised the seizure of a PDVSA subsidiary’s assets to compensate $1.4 billion for the nationalisation of a gold mine owned by Canada’s Crystallex. Many of PDVSA’s oil tankers have since been anchored in Venezuelan waters for fear of seizure by its creditors.
•Meanwhile, as Venezuela hurtles towards a complex process of debt restructuring, the scope for such a settlement appears limited. Current U.S. sanctions forbid bondholders from negotiating fresh debt instruments with Caracas as well as PDVSA, except those with a maturity of a few months. Sanctions also have targeted top government officials. Both time and options are running out for Caracas.
📰 Uzbek President to invite India to join Afghan rail project
•India will be invited to help with a key rail link in Afghanistan, during the visit of Uzbekistan’s President Shavkat Mirziyoyev early next week, a presidential aide told The Hindu.
•The rail link of approximately 650 km, connecting the Afghan cities of Mazaar-e-Sharif and Herat, which may later be extended to Kabul, is a major project agreed to by President Ashraf Ghani and President Mirziyoyev last year, and many of the preliminary surveys for the project have already been completed.
•“We support a greater presence of India in Central Asia, and hope for some benefits of that for Afghanistan. I hope that negotiations with PM Modi will open a new page in our bilateral relations,” Special Assistant for Foreign Affairs Ilhom Nematov told The Hindu during a visit to Delhi ahead of the President’s visit beginning on Sunday.
•“If India would be involved in [the railway line] construction, we would welcome them because of India’s proven record and experience, and because of its contribution to bringing peace to Afghanistan,” he added, saying that Uzbekistan has an interest in open trade and connectivity routes “all the way to the Indian Ocean.”
•The project, for which Uzbekistan has already committed $500 million, could become another major regional connectivity project for India, after its construction of the Zaranj-Delaram Highway in Afghanistan and the Shahid Beheshti port in Chabahar, Iran.
•India is also committed to building another rail route, from Chabahar to Zahedan on the Iran-Afghan border, and President Mirziyoyev is keen to join the transit trade agreement signed by India, Afghanistan and Iran.
•The rail route to Herat, if extended to Kabul, would also link to India’s “air corridor”, allowing trade, especially dry fruits and agricultural produce to travel along the routes from India to Central Asia and back in much shorter time.
•Uzbekistan has held talks with Iran, the Asian Infrastructure Investment Bank (AIIB) and China, which is already running a rail route into Uzbekistan under the Belt and Road Initiative, for the same project in the past few months.
•Making a pitch for talks between India and Pakistan, Mr. Nematov said Uzbekistan’s role in regional security is likely to grow as it will take over the Secretary Generalship of the Shanghai Cooperation Organisation (SCO) in January 2019.
•“I think that SCO is a good platform for India and Pakistan to talk at and to maybe work with other countries on how to bring peace,” he told The Hindu.
•President Mirziyoyev may also discuss peace efforts in Afghanistan and his offer of mediating talks between the Ghani government and the Taliban, during his visit to India.
•In August, a Taliban delegation had also visited Tashkent and held talks with the President’s representative.
•President Mirziyoyev is scheduled to arrive in Delhi on Sunday, and will meet Prime Minister Narendra Modi for bilateral talks on Monday.
•Officials said more than 30 documents and agreements are expected to be signed during the visit, including trade agreements, media and educational partnerships, and MoUs linking Andijan-Gujarat states, Samarkand-Agra and Bukhara-Hyderabad.
📰 Railways to roll out smart coaches
Coaches with ‘Black box’ will provide information on real-time basis
•The Indian Railways are set to launch their ‘Make in India’ smart coaches with new features like black box and artificial intelligence (AI)-powered CCTVs, matching international standards.
•Named ‘Smart Trains’, the coaches have been equipped with sensors that can detect defects on bearings, wheels, and the railway track, giving constant inputs to those in the control room to avoid accidents, carry out maintenance, and to improve efficiency of operations.
•The maiden smart coach was unveiled at the Modern Coach Factory in Rae Bareli on Tuesday as part of launching 100 such trains in a pilot project to improve the safety and security of commuters, and to boost efficiency.
•The black box, being introduced for the first time by Indian Railways, has a powerful multi-dimensional communication interface to provide information on passengers and coach condition on real-time basis.
•The black box will act as a coach control unit with communication interfaces for passenger announcements, GPS-based announcement triggers, emergency intercom for commuters, digital destination boards, train reservation display modules, and CCTVs with remote monitoring.
•The modern infotainment system has been installed to locate the train in real time. AI-powered CCTVs will help those in the control room to keep a tab on untoward incidents and on the behaviour of on-board staff. Commuters will also be able to communicate with Railways officials.
•For wheel, coach and track monitoring, Railways have come up with Internet of things-based system. The vibrating-energy-based sensors will monitor the wheels, bearing and hard spots on the track, and will provide data through GPS/GPRS to the remote server for diagnosis and remedial measures.
•The Passenger Information and Coach Computing Unit (PICCU), an industrial grade computer, will monitor the coach maintenance and passenger interface.
CCTV recording
•Six cameras installed in the coach will provide live recording. The footage can be accessed from the control room, which will be advantageous for law enforcers.
•An emergency talk-back system will enable communication between passengers and the guard during a crisis. A Wi-Fi hotspot information system is another innovative feature.
•Smart coaches are also laden with water-level indicator technology to know whether the water in the coach is sufficient and when it needs to be filled. An SMS will be sent to the next watering station when the water level falls below half the coach capacity.
•Rajesh Agarwal, General Manager, Modern Coach Factory, says the coach has been made ‘intelligent’ to sense the requirements of the commuters and to react accordingly.
•In the version 2.0 of these coaches, the Railways are planning to introduce a host of new features, such as video analytics with face detection feature; unusual occurrence feature; fire-and-smoke detection unit; and an energy-metering module to measure the energy consumption of the coach.
📰 ‘MDR reimbursement pending from banks’
Fears over banks retaining a bulk: PCI
•The Payments Council of India (PCI) has said that payment service providers and merchant aggregators are yet to received reimbursement for merchant discount rates from banks even after nine months.
•MDR is the fee that a merchant has to pay to a bank for every transaction that is split between the bank which issued the card, the payment service providers, and payment gateways.
•In December 2017, the Ministry of Electronics and Information Technology, had said that MDRs would be reimbursed by the government on transactions up to ₹2,000. This was applicable on all transactions below ₹2,000 made through debit cards, BHIM UPI or Aadhaar enabled payments systems.
•“Payments Council of India (PCI), the representative body of non-bankingmerchant aggregators and acquirers, have raised serious concerns over non-receipt of reimbursements of MDR by merchant aggregators, from the related acquiring banks since January 2018,” PCI said in a statement.
•PCI said there was still ambiguity on the extent of MDR reimbursements that would be passed on to the aggregators and the industry feared that banks would only pass on a small proportion to merchant aggregators and acquirers, while retaining the bulk “This is likely to seriously impact the operating ability of merchant aggregators and dent the efforts to promote digital payments,” PCI said.
