Polity

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Chhattisgarh High Court extends Marital Rape Extension

Context: The Chhattisgarh High Court in a key ruling extended the marital rape immunity to Section 377 of the Indian Penal Code (IPC), which criminalised “unnatural sex”.

Relevance of the topic:

Prelims: Key facts about IPC Section 377; IPC Section 375.

Mains: Debate over the legal status of Marital Rape.

About Chhattisgarh’s High Court Ruling on Section 377 (2024)

The HC overturned a trial court’s conviction of a man under IPC Sections 375 (rape), 377 (unnatural sex), and 304 (culpable homicide not amounting to murder) for the death of his wife.
The court cited the marital rape exception under IPC Section 375, which protects husbands from prosecution for non-consensual sex with their wives is applicable in the case.
It ruled that forced unnatural sex under Section 377 by a husband on his wife is not an offence by relying on the SC’s 2018 judgment that decriminalised consensual homosexuality.

Issue of omission of IPC Section 377 in Bharatiya Nyaya Sanhita (BNS)

Section 377 was often used by married women to seek legal recourse against non-consensual sex in marriage. In the Navtej Johar case, SC decriminalised consensual sexual activities, but kept other parts of Section 377 intact.
Its omission in the BNS leaves no equivalent provision to address sexual violence against men, LGBTQIA+ individuals, or bestiality.
The Parliamentary Standing Committee (2023) noted that deleting Section 377 removes protection for non-consensual carnal offences against males, trans persons, and animals.
Transgender Persons (Protection of Rights) Act, 2019 provides limited protection (max 2 years imprisonment), making it weaker than other sexual offence laws.
Delhi HC (August 2024) directed the Centre to consider a plea for reviving Section 377 within six months.
SC (October 2024) dismissed a similar plea, ruling that criminalisation falls under Parliament’s domain.

The Issue of Marital Rape

Marital rape refers to sexual intercourse with one's spouse without the spouse's consent.
Marital rape is not explicitly criminalised in Indian Jurisprudence due to exemption in IPC Section 375.
- Exception two of Section 375 (rape) of IPC excludes non-consensual sexual intercourse by a husband with his wife, if the latter is over 15 years of age, from the definition of rape.
- Similar Exception in Section 63 (rape) of BNS rules out forced sexual intercourse by a man with his wife, aged over 18 years, as rape.
However, there has been growing clamour to criminalise Marital rape. According to the NHFS-4 survey, 5.4% of women experienced marital rape in India.
The marital rape exception is currently under challenge before the SC, with the Centre supporting its retention.

Reasons

Economic dependence: Lack of economic independence often deters married women to report Marital rape.
Lack of awareness: Women often do not even realise that they are victims of marital rape, as sex without consent is taken for granted in the marriage.
Patriarchy: Sexual offence is a weapon of male domination, and it is a manifestation of patriarchy.

IPC under Section 375 defines rape as follows: A man is said to commit “rape” who has sexual intercourse with a woman under the following circumstances:

against her will
without her consent
with her consent, but consent has been obtained because of putting her in the fear of death.
when the man knows that he is not her husband, but she believes that he is her husband.
unsound mind or intoxication with or without consent.
when she is under 16 years of age
However, the same section gave an exemption: Sexual intercourse by a man with his wife, wife not being under 15 years of age, is not rape.

Arguments for criminalising Marital Rape

Against individual rights of married women (Articles 14 & 21): A married woman should have the same rights over her body, as much as an unmarried woman does.
Form of domestic violence: Sexual offence against a wife is a form of domestic violence. Victims of marital rape undergo the same trauma as in the case of rape by strangers. Studies show that rape victims, either married or unmarried, undergo PTSD (post-traumatic stress disorder).
Inconsistent with other laws and judgement:
- A husband separated from his wife (though not divorced) can be tried for rape (Section 376B), but a married husband cannot.
- This exemption indirectly admits that the wife is the property of the husband, which conflicts with the opinion of SC in Joseph Shine v. Union of India (2018).
  - In this case the SC struck down Section 497 of IPC, thereby decriminalising adultery.
  - The clause treated women in particular as the property of their husbands.

Arguments against criminalising Marital Rape

Threat to the institution of Marriage: The criminalisation of marital rape is often viewed as a threat to the institution of marriage, in which both spouses have conjugal rights over each other.
- However, marriage as an institution has evolved over a period. The institution of marriage is no more primitive in nature, where conjugal rights took precedence over individual choices.
- New forms of marriage emerged like cohabitation, live-in, same-sex marriages etc. where individual choices are given primacy.
Conjugal rights: The Hindu Marriage Act gives either spouse in marriage the legal right to restitution of conjugal rights.
- But recognition of conjugal rights to have sex with a spouse does not give a license to rape.
Misuse of law: Laws to protect women are often misused just like section 498 A. It is also a challenge to prove the offence.
- However, Misuse of the law is not a defensive argument for not enforcing it.

NSCN (I-M) calls upon Prime Minister to uphold 2015 Framework

Context: National Socialist Council of Nagaland (Isak-Muivah) has called upon the Prime Minister to uphold the 2015 framework agreement. In this context, let us understand the framework agreement, its key features, contentious issues and a way forward.

Relevance of the topic:

Prelims: Key facts about 2015 Framework Agreement Between NSCN (I-M) and Government of India.

Mains: Naga issue: Internal security challenges & way forward.

About 2015 Framework Agreement between NSCN (I-M) and Government of India

The Framework Agreement (FA) was signed in 2015, between the Government of India and the National Socialist Council of Nagalim- Isak-Muivah (NSCN-I/M).
It was a significant step in resolving the decades-old Naga insurgency and moving towards a permanent peace settlement.

Key features of the Agreement:

Recognition of Naga identity: Indian government recognised the "unique history, culture, and position" of the Nagas.
Shared sovereignty: The agreement introduced the idea of shared sovereignty, meaning that Nagas would have a special political and administrative status while remaining within India.
Peaceful resolution through dialogue: The agreement was meant to lay the groundwork for a final peace settlement through further negotiations.
Autonomous Governance: As per the interpretation of NSCN (I-M) the agreement has allowed for a special autonomous arrangement for Nagas, with enhanced legislative, executive, and financial powers.
No immediate territorial change: While NSCN (I-M) sought integration of all Naga-inhabited areas (including parts of Arunachal Pradesh, Assam, and Manipur) into a unified "Nagalim," the agreement did not explicitly promise redrawing of state boundaries.

Contentious Issues

Separate flag and constitution: NSCN (I-M) insists that the agreement included provisions for a Naga flag and constitution, which the Indian government has not accepted.
Framework agreement as a stumbling block: The vague wording of the 2015 Framework Agreement (FA) has led to contrasting interpretations by NSCN (I-M) and the Indian government. NSCN (I-M) interprets "sharing sovereign power" as an acknowledgment of separate sovereignty, which the government does not accept.
Impact of Article 370 Abrogation (2019): Before August 5, 2019, Jammu & Kashmir had a separate constitution and flag, setting a precedent. After Article 370 was revoked, the Indian government hardened its stance, making it politically impossible to accept similar demands from NSCN (I-M).
Poor drafting of agreement: Agreement has been drafted vaguely, allowing both sides to interpret it differently.
Internal divisions among Naga groups: During former interlocutor R.N. Ravi’s tenure, smaller groups like the Naga National Political Groups (NNPGs) gained prominence. This strategy weakened NSCN (I-M) but also stalled the peace process, as NSCN (I-M) saw it as an attempt to divide Nagas.
No clear timeframe for final accord: Despite reinitiating talks, there is no clarity on a final agreement due to the unresolved flag and constitution issue.
Lack of Clarity: The full text of the Framework Agreement has never been made public, leading to differing interpretations.

Current Status

Stalemate: Since 2019, negotiations have been stuck, primarily over the issue of the separate flag and constitution.
NSCN (I-M) has demanded that the government honor the original spirit of the agreement.
No Final Settlement yet: Despite years of talks, a comprehensive peace accord is yet to be signed. There has not been a full-time interlocutor for the negotiations since 2021.

Read More: NAGA Issue

Way Forward

Inclusion of all factions: A comprehensive accord cannot be achieved without the participation of NSCN (I-M) and other armed factions. The government must engage with all stakeholders, including Naga National Political Groups (NNPGs), to ensure inclusivity.
Political & Administrative Autonomy: Establishing a bicameral Assembly for Nagaland, with nominated members representing different Naga tribes. Granting greater legislative and financial autonomy to the Naga Assembly.
Integration of Naga cadres: Absorbing NSCN (I-M) cadres into local armed forces or Indian paramilitary units to prevent the resurgence of insurgency. The government can also provide a structured rehabilitation package to integrate former militants into mainstream society.
Autonomous Councils for Naga areas in neighboring states: Setting up autonomous councils for Naga-dominated regions in Arunachal Pradesh, Assam, and Manipur. These councils should have powers similar to those under the Sixth Schedule of the Constitution.
Cultural & Symbolic Recognition: Promoting Naga identity through cultural institutions, local governance models, and linguistic rights.
Trust-building measures: The government should appoint a dedicated full-time interlocutor to facilitate smooth negotiations. Confidence-building measures, such as greater economic investments, infrastructure development, and cultural exchanges, to reinforce peace efforts.
Timeline for final accord: A clear roadmap with deadlines for the final agreement to ensure transparency and commitment from both sides.

Article 371 A of the Indian Constitution:

It is to be noted that Article 371 A of the Constitution of India makes some special provisions for the State of Nagaland:

The Acts of Parliament relating to the following matters would not apply to Nagaland unless the State Legislative Assembly so decides:

Religious or social practices of the Nagas.
Naga customary law and procedure.
Administration of civil and criminal justice involving decisions according to Naga customary law; and
Ownership and transfer of land and its resources.

The Governor of Nagaland shall have special responsibility for law and order in the state so long as internal disturbances caused by the hostile Nagas continue. In the discharge of this responsibility, the Governor, after consulting the Council of Ministers, exercises his individual judgement and his decision is final. This special responsibility of the Governor shall cease when the President so directs.
The Governor has to ensure that the money provided by the Central Government for any specific purpose is included in the demand for a grant relating to that purpose, and not in any other demand moved in the State Legislative Assembly.
A regional council consisting of 35 members should be established for the Tuensang district of the state. The Governor should make rules for the composition of the council, manner of choosing its members, their qualifications, term, salaries, and allowances; the procedure and conduct of business of the council; the appointment of officers and staff of the council and their ser- vice conditions; and any other matter relating to the constitution and proper functioning of the council.

Should convicted candidates contest Elections?

Context: The Supreme Court of India is currently hearing petitions seeking a lifetime ban on convicted individuals from contesting elections.

Relevance of the Topic:Mains: Electoral Reforms: Can convicted candidates contest elections?

Legal Provisions in this regard

Section 8(3) of the Representation of the People Act, 1951 (RP Act, 1951): Disqualifies individuals convicted of criminal offences and sentenced to imprisonment for two years or more. Such individuals remain disqualified for six years post-release.
Section 8(1) of RP Act, 1951: It further disqualifies individuals convicted under specific laws. The disqualification lasts during the sentence and 6 years post the release. The offences include:
- Heinous crimes like Rape.
- Protection of Civil Rights (PCR) Act, Preaching or practicing Untouchability.
- Unlawful Activities (Prevention) Act (UAPA) for unlawful associations.
- Prevention of Corruption Act.
Section 11 of RP Act, 1951: It empowers the Election Commission (EC) to remove or reduce the disqualification period of a convicted person.

Present Trends

A report by ADR states that:

251 (46%) of the 543 elected MPs in 2024, have criminal cases against them.
171 (31%) face serious criminal charges including rape, murder, attempt to murder and kidnapping.
Candidates with criminal records have a 15.4% chance of winning, compared to 4.4% for candidates with a clean record.

Supreme Court decisions in the past:

Association for Democratic Reforms (2002): This mandated disclosure of criminal records of candidates contesting elections.
CEC vs Jan Chaukidar (2013): Patna High Court interpreted that under-trial prisoners, as non-electors under Section 62(5) of RP Act, 1951, are ineligible to contest elections. However, Parliament amended the law to allow them to contest elections.
Lily Thomas Case (2013): Struck down Section 8(4) of RP Act, 1951, which allowed convicted legislators to continue in office if they filed an appeal. Post-judgment, disqualification is immediate upon conviction.

Current Petition:

The petition seeks a lifetime ban on convicted individuals from contesting elections, arguing that convicted persons are ineligible for even junior government jobs, so they should not be lawmakers.

Central Government’s stance (2020 affidavit):

MPs and MLAs are not subject to ‘service conditions’ like government employees. The existing six-year disqualification post-release is deemed sufficient.
The Supreme Court has sought fresh responses from the Central Government and the EC on the issue.

Arguments for and against a permanent ban on convicted candidates from contesting elections:

Arguments in favor

Arguments against

- Integrity of Legislative bodies: A permanent ban is seen as a necessary measure to maintain the integrity of legislative bodies. The current temporary bans are considered inadequate.

- Criminalisation in politics It would address the broader issue of criminalization in politics.

- Conflict of interest Convicted politicians returning to Parliament and State Legislatures face a conflict of interest when vetting laws.

- Democratic integrity Allowing those convicted of heinous crimes to return after a short sentence defeats democratic integrity.

- Banning candidates with criminal records may impact parties expected winning probabilities, benefiting third-party candidates.

-Case to case basis Each case should be decided on its own merit, considering the gravity of offenses and criminal history.

Way forward

Law Commission and EC Recommendations:
- In 1999 and 2014, it has been suggested barring candidates from contesting if charged with offences carrying over five years of imprisonment.
- However, political consensus on this has been lacking due to likely misuse.
- Permanent disqualification may be disproportionate for minor convictions without moral turpitude.
- Matters related to heinous crimes and corruption-related convictions may warrant lifetime disqualification.
- The EC’s power to alter disqualification periods should be reviewed for constitutional validity.

While a complete lifetime ban on convicted politicians is under consideration, stricter measures for serious crimes and a review of the EC’s discretionary powers could be viable steps toward reducing the criminalization of politics.

Private Property and the State’s Right to Acquire

Context: There has been a debate around the laws regarding acquisition of private property by the state. In this context, let us see the evolution of land acquisition laws in the world and India.

Relevance of the Topic: Prelims: Evolution of Property Rights in India.

Private Property and the State's Right to Acquire

The state’s power to acquire private property for public purposes is rooted in the legal doctrine of eminent domain, which has evolved across different legal systems, including those of the United States, South Africa, and India.
This principle is needed to balance public interest with private property rights, ensuring due process and compensation for landowners.

Concept of Eminent Domain:

The term eminent domain originates from Hugo Grotius' 1625 treatise De jure belli ac pacis (On the Law of War and Peace).
Grotius stated that the state has supreme authority over private property and may acquire it for public utility or extreme necessity, provided compensation is given.
This concept spread through European colonial rule, leading to laws like:
- Land Acquisition Act, 1894 (India)
- Expropriation Act, 1975 (South Africa)

Land Acquisition Laws in the US & India:

United States

India

- Over time, land acquisition in the US has shifted towards private investment to boost economic growth.

- Kelo v. City of New London (2005):

* The US Supreme Court ruled that land could be acquired for private economic development, fulfilling the "public use" requirement.

* This has sparked controversy, leading several states (e.g., Alabama, Texas) to restrict eminent domain for private projects.

- For over a century, land acquisition was governed by the Land Acquisition Act, 1894, which allowed the state to acquire land for "public purpose" with compensation.

- However, this act had flaws:
* It only compensated landowners, ignoring the impact on tenants, laborers, and other affected communities.

- In 2013, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement (LARR) Act was enacted:

* Social Impact Assessment (SIA): Ensures all affected people are considered.

* Fair compensation: Landowners must be adequately compensated.

*Rehabilitation and resettlement: Provisions for those displaced by land acquisition.

Conclusion

The US, South Africa, and India recognise the state's right to acquire private property for public purposes. All three countries ensure due process and compensation for landowners.
While the US and South Africa still emphasise constitutional property rights, India has now positioned property rights to a legal right under Article 300A.
However, India's 2013 Land Acquisition, Rehabilitation, and Resettlement (LARR Act) has introduced a more humanitarian approach, ensuring compensation, rehabilitation, and transparency in land acquisition.

Article 371 to 371J: Special Provisions for Certain States

Context: A regional party in poll-bound Meghalaya has indicated that bringing the State under the purview of Article 371-371J, which could help resume rat-hole coal mining, that is banned in the state since April 2014.

Relevance of the Topic: Prelims: Key facts about Article 371 to 371J.

Background:

Rat hole mining has been banned in Meghalaya by the National Green Tribunal (NGT) since 2014.
It is still ongoing in various parts of Nagaland because of the protection provided under Article 371A.
- The Article bars any Act of Parliament related to their customary law and procedure (including civil and criminal justice matters, and ownership or transfer of land and resources), to prevail unless the state legislative assembly passes the resolution to do so.

About Article 371 to 371J:

Article 371 to 371J (Part XXI) of the Constitution of India, grants some temporary, transitional, and special powers for 12 States, viz, Maharashtra, Gujarat, Nagaland, Assam, Manipur, Andhra Pradesh, Telangana, Sikkim, Mizoram, Arunachal Pradesh, Goa, and Karnataka.
- Article 371 has been part of the Constitution since 26 January 1950.
- Articles 371(A-J) have been brought in via amendments through Article 368.
Originally, the constitution did not make any special provisions for these states. They have been incorporated by the various subsequent amendments made in the context of reorganisation of the states or conferment of statehood on the Union Territories.

Intention behind Article 371 to 371J

Meet the aspirations of the people of backward regions of the states
To protect the cultural and economic interests of the tribal people of the states
To deal with the disturbed law and order condition in some parts of the states
To protect the interests of the local people of the states.

Article 371 A of Indian Constitution

Article 371-A makes the following special provisions for Nagaland:

The Acts of Parliament relating to the following matters would not apply to Nagaland unless the State Legislative Assembly so decides:
- Religious or social practices of the Nagas.
- Naga customary law and procedure.
- Administration of civil and criminal justice involving decisions according to Naga customary law; and
- Ownership and transfer of land and its resources.

The Governor of Nagaland shall have special responsibility for law and order in the state so long as internal disturbances caused by the hostile Nagas continue. In the discharge of this responsibility, the Governor, after consulting the Council of Ministers, exercises his individual judgement and his decision is final. This special responsibility of the Governor shall cease when the President so directs.
The Governor has to ensure that the money provided by the Central Government for any specific purpose is included in the demand for a grant relating to that purpose and not in any other demand moved in the State Legislative Assembly.
A regional council consisting of 35 members should be established for the Tuensang district of the state. The Governor should make rules for the composition of the council, manner of choosing its members, their qualifications, term, salaries, and allowances; the procedure and conduct of business of the council; the appointment of officers and staff of the council and their service conditions; and any other matter relating to the constitution and proper functioning of the council.

SC: Failure to inform grounds of Arrest will make it illegal

Context: The Supreme Court has recently (Vihaan Kumar Versus State of Haryana) said that if the grounds of arrest are not informed as soon as may be after the arrest, it would amount to a violation of the fundamental right of the arrestee guaranteed under Article 22(1). It will also amount to depriving the arrestee of his liberty.

Relevance of the Topic:Prelims: Key facts about Article 22.

Article 22 of Indian Constitution

It provides protection against arrest and detention in certain cases.
Article 22(1) states that: No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.

Key points from the Judgement

The Supreme Court has ruled that failure to inform an arrested person of the grounds of arrest violates Article 22(1) of the Constitution, and will render the arrest illegal.

The safeguard provided under Article 22(1) ensures the right to liberty under Article 21 as no person can be deprived of liberty except through due process, which involves:

Mandatory communication of grounds of arrest:
- Grounds of arrest must be clearly communicated in a language the accused understands.
- A written communication is recommended (as per the Pankaj Bansal case) to avoid legal disputes.
- Informing only in the remand report does not satisfy constitutional requirements.
Informing relatives/nominated persons:
- As per Section 50A of CrPC, the accused’s relatives or nominated persons must also be informed promptly.
- This ensures timely legal assistance to secure bail or legal representation.
Judicial scrutiny of arrests:
- When presented before a Judicial Magistrate for remand, the magistrate must ensure compliance with Article 22(1).
- Failure to do so invalidates the remand and continued custody of the accused.
Burden of proof on Police:
- If non-compliance is alleged, the Investigating Officer/Agency must prove adherence to Article 22(1).
- Filing a charge sheet or order of cognizance cannot validate an unconstitutional arrest.
Bail and immediate release:
- Courts must order the release of an accused if a violation of Article 22(1) is established.
- Even if statutory restrictions on bail exist, Article 21 takes precedence in such cases.

The above ruling reinforces that Article 22(1) is a fundamental right, not a mere procedural requirement. The judgment upholds the right to liberty and dignity, emphasising the constitutional obligation of law enforcement and the judiciary to protect individual freedoms.

National Commission of Safai Karmcharis

Context: The Union Cabinet approved the extension of the tenure of the National Commission for Safai Karamcharis (NCSK) for a period of three years up to March 2028. This is to facilitate socio-economic upliftment of sanitation workers, improving the working conditions in the sanitation sector, and aiming to achieve zero fatalities while performing hazardous cleaning.

Relevance of the Topic:Prelims: Key facts about the National Commission of Safai Karmcharis.

About the National Commission of Safai Karmcharis

The Commission was set up as a statutory body in 1994 under the National Commission for Safai Karamcharis Act, 1993. After the lapsing of the Act in 2004, the Commission became a non-statutory body.
However, its scope has been expanded after the enactment of The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013.

Organisation: The National Commission for Safai Karamcharis is a non-statutory body under the Ministry of Social Justice and Empowerment, it comprises of-

Chairperson (in the rank and status of the Union Minister of State).
Vice-Chairperson (in the rank and status of the Secretary to the Government of India).
Five members, including a lady member (in the rank and status of the Secretary to the Government of India)
Secretary (in the rank of Joint Secretary to the Govt. of India) along with other supporting staff.

Mandate

Recommending to Central government specific programmes of action towards elimination of inequities in status, facilities, and opportunities for safai karamcharis.
To study and evaluate implementation of programmes and schemes relating to social and economic rehabilitation of safai karamcharis and scavengers.
To investigate the non-implementation programmes and schemes for safai karamcharis, and provisions of any laws in its application to safai karamcharis and take up such matters with the relevant authorities.
To study and monitor the working conditions relating to health safety and wages of Safai Karmacharis.
To make reports to the Central or State Government on any matter, difficulties or disabilities being encountered by Safai Karmacharis.
To ensure that compensation is paid in case of sewer deaths by the concerned agency.

Furthermore, under the provisions of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 (MS Act 2013), NCSK has the following mandate:

(i) to monitor the implementation of the Act.

(ii) to enquire into complaints regarding contravention of the provisions of this Act and to convey its findings to concerned authorities with recommendations requiring further action.

(iii) to advise the Central and State Govt for effective implementation of the provisions of this Act.

(iv) to take suo-motu notice of matters relating to non-implementation of this Act.

Appointment of Ad-hoc Judges in High Court

Context: To address the growing backlog of criminal cases, the Supreme Court has allowed High Courts to appoint retired judges on an ad-hoc basis. SC relaxed a rule set in Lok Prahari which had limited such appointments to High Courts where judicial vacancies exceeded 20% of the sanctioned strength.

Relevance of the Topic:Prelims: Key facts about Ad-hoc judges in High Court.

Appointment of Ad Hoc Judges

Article 224A: The Chief Justice of a High Court for any State may at any time with the previous consent of the President, request any person who has held the office of a Judge of that Court or of any other High Court to sit and act as a Judge of the High Court for that State.
Entitlements:
- They are entitled to allowances as determined by the President’s order.
- They have all the jurisdiction, powers, and privileges of a Judge of a sitting High Court; but are not “deemed” as such.
Both the retired judge and the President of India are required to consent to the appointment.

Why is there a need to appoint Ad-hoc Judges?

Pendency of criminal cases: Huge pendency in several high courts, in Allahabad High Court there are 63,000 criminal appeals pending. Similarly, 20,000, 21,000, 8,000 and 21,000 criminal cases are pending in high courts at Karnataka, Patna, Rajasthan and the Punjab and Haryana respectively.
Pendency of posts: Nearly 40% vacancies across all High Courts.
Delay in appointment Delay in appointment of High Court judges even after the recommendation of collegium.
Law Commission recommendation: Law Commission reports published in 1979, 1988, and 2003 have suggested that temporarily appointing retired judges who already have decades of experience is a viable solution to tackle the mounting backlog of cases.

Advantages of appointing Ad-hoc judges

Experienced judges: Retired judges are experienced judges with proven track records.
Speedier appointment: As there is no need for the Intelligence Bureau and other agencies to check in appointments because the person has been a judge before.
Reduce pendency: The ad-hoc judges can be assigned more than five-year-old cases.

Issues and concerns:

Inaction in regular appointment: Appointments under Article 224A could encourage “inaction in making recommendations” for regular judge appointments.
Administrative Challenges: Coordinating between sitting and ad-hoc judges and ensuring seamless integration into the operations of the High Court.
Rare usage: It is as such a dormant provision of the Constitution and has only been used thrice in the past, with no recorded usage since 2021.

Procedure for the appointment of Ad hoc Judges

Initiation:
- The Chief Justice of a High Court will (after the consent of the person concerned) communicate to the Chief Minister of the State the name of the retired Judge and the period for which he will be required to sit and act as Judge of the High Court.
State government recommendation:
- The Chief Minister will, after consultation with the Governor, forward his recommendation to the Union Minister of Law, Justice, and Company Affairs.
Consultation with CJI:
- The Union Minister of Law, Justice and Company Affairs would then consult the Chief Justice of India.
Final Approval: On receipt of CJI’s advice, the same would be put up to the Prime Minister, who will then advise the President as to the person to be appointed.
- In the Lok Prahari v. Union of India case (2021), the Supreme Court held that this recommendation “has to be routed through the collegium of the Supreme Court”. This collegium includes the CJI and the two senior most judges of the Supreme Court.
As soon as the President gives his consent to the appointment, the Department of Justice will issue the necessary notification in the Gazette of India.

Guidelines given in Lok Prahri v Union of India to trigger appointment Under Article 224A:

If the vacancies are more than 20% of the sanctioned strength.
The cases in a particular category are pending for over five years.
More than 10% of the backlog of pending cases are over five years old.
The percentage of the rate of disposal is lower than the institution of the cases either in a particular subject matter or generally in the Court.
Depending on the jurisdiction, a situation of mounting arrears is likely to arise if the rate of disposal is consistently lower than the rate of filing over a period of a year or more.

What does the latest SC order say?

The SC has set aside the condition laid down in Lok Prahari, which permitted the appointment of ad-hoc judges only when judicial vacancies exceeded 20% of the sanctioned strength.
It further ruled that ad-hoc judges can only hear criminal appeals.
The number of ad-hoc judges cannot exceed 10% of a High Court’s sanctioned judicial strength, meaning each High Court can have only 2 to 5 such appointments.

Governor’s power over State Bills: Article 200 & 201

Context: The Supreme Court has enquired from Tamil Nadu Governor about the 12 bills pending before him for over three years. In this context, let us understand the Governor’s power over State Bills.

Relevance of the Topic:Prelims: Article 200; Article 201 of Indian Constitution.

Background:

The Tamil Nadu Governor has kept 12 Bills (mostly about higher education and the appointment process of Vice-Chancellors in State universities) pending.
These Bills were sent by the State Legislature for consent to the Governor under Article 200 of the Constitution between January 2020 and April 2023.
The Governor sat on them indefinitely. When the State government approached the court against the Governor’s perceived inaction in November 2023, the latter had quickly referred two of the Bills to the President and proceeded to withhold consent on the remaining 10.

Article 200: Assent to Bill

When a bill is sent to the governor after it is passed by state legislature, he/ she can:
1. Give his/ her assent to the bill
2. Withhold his/ her assent to the bill
3. Return the bill (if it is not a money bill) for reconsideration of the state legislature. However, if the bill is passed again by the state legislature with or without amendments, the governor has to give his/ her assent to the bill
4. Reserve the bill for the President.

Article 201: Bill reserved for the consideration of the President

When a Bill is reserved for the consideration of the President, The President shall declare either that he assents to the Bill, or he withholds assent from the Bill.
The President may also direct the Governor to return the Bill to the House of the Legislature of the State for reconsideration.
Options available with the Governor:
- He may give assent, or he can send it back to the Assembly requesting it to reconsider some provisions of the Bill, or the Bill itself.

In addition, as identified by Soli Sorabjee, the governor can also reserve the bill if it is of the following nature:
1. Ultra-vires, that is, against the provisions of the Constitution.
2. Opposed to the Directive Principles of State Policy.
3. Against the larger interest of the country.
4. Of grave national importance.
5. Dealing with compulsory acquisition of property under Article 31A of the Constitution.
In one particular case such reservation is obligatory, that is, where the bill passed by the state legislature endangers the position of the state high court.

Supreme Court Observation in this context

In 2024, the Supreme court in the State of Punjab vs. Principal Secretary to Governor of Punjab has held that the Governor can not veto the legislature by indefinitely withholding assent to the bill. In case the bill is re-enacted, the Governor does not exercise discretion to withhold the reenacted bill.

Intellectual Property Theft comes under SC/ST Act

Context: Recently, the Supreme Court has held that intellectual property theft comes under the ambit of SC/ST Act.

Relevance of the Topic: Prelims: Definition of property under the SC/ST Act; Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989.

Key points:

A Dalit researcher from Maharashtra sought relief for intellectual property damage, under Section 15A(11)(d) of the SC/ST Act.
- This provision charges the state with the duty to provide relief in respect of death or injury or “damage to property”.

Observations of Court

The SC observed that "property" under the SC/ST Act, include both tangible and as well as intangible assets, such as:
- intellectual property (patents, copyright)
- digital data
- electronic material

Impact of the Judgment:

Intellectual property is now recognised as "property" under the SC/ST Act for compensation purposes, thus making such property eligible for protection and compensation under the Act.
It will also strengthen legal protections for researchers, scholars, and marginalised groups against intellectual property theft.

Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989:

The SC/ST (Prevention of Atrocities) Act, 1989 aims to prevent atrocities and hate crimes against the scheduled castes and scheduled tribes.
The SC/ST (PoA) Rules, 1995 are framed to effectively implement the provisions of the Act.

Key Provisions of the SC/ST Act:

It defines specific crimes against SC/ST as atrocities, including physical violence, harassment, social discrimination, bonded labour, arson, denial of land rights, intentional casteist slurs in public view, forcible removal of clothes etc.
It specifies delineation of Identified Areas (Atrocity Prone Areas) SC/ST are vulnerable to being subjected to atrocities, and adoption of necessary measures to ensure their safety.
It prohibits the commission of offences against SC/ST and establishes special courts (in each district) for speedy trial of such offences and the rehabilitation of victims.
It does not allow anticipatory bail, unless a prima facie case is made against the accused.
The offences under the Act must be investigated by an officer of the rank of DSP (Deputy Superintendent of Police) or above. The investigation must be completed within 30 days, and the report should be sent directly to the DSP.
This Act does not apply to crimes committed between SCs and STs or between STs and SCs.
The minimum imprisonment shall not be less than six months, and the maximum punishment varies from case to case, could be fine, life imprisonment and even death.

Key facts:

The primary responsibility for implementation of the SC/ST Act rests with the State Governments/UT Administrations. States/UTs are provided due central assistance for effective implementation of the provisions of the Act.
SC/ST (PoA) Rules, 1995 require the State Government to set up a SC/ST Protection Cell, at the State headquarters, under the charge of a DGP, ADGP/IGP.
National Helpline against Atrocities (NHAA) on SC/ST is launched by the Department of Social Justice & Empowerment to generate awareness about the provisions of the Law.
As per Article 17 of the Indian Constitution, untouchability and all similar practices are forbidden.

Foreigners Tribunals in Assam

Context: Recently, the Supreme Court has ordered the Assam Government to deport the foreigners lodged in detention centres. Some of them have been in detention for 10 years after being declared as foreigners by the Foreigners Tribunal.

Relevance of the Topic:Prelims: Key facts about Foreigners Tribunals in Assam.

About Foreigners Tribunals in Assam

Foreigners Tribunals (FTs) are quasi-judicial bodies established in Assam to adjudicate cases concerning individuals suspected of being illegal immigrants.
They were created under the Foreigners (Tribunals) Order, 1964, which derives its authority from the Foreigners Act of 1946.
The tribunals primarily handle cases related to individuals left out of the National Register of Citizens (NRC), with a significant number of cases involving approximately 19.06 lakh people.

Structure of Foreigners Tribunals

Number of Tribunals: Currently, there are around 100 Foreigners Tribunals operating in Assam.
Composition: Each tribunal is headed by a member with legal or judicial experience, including judges and advocates. The members are appointed under the guidelines provided by the government.
Referral Process: Cases can be referred to FTs by District Magistrates or through notices served to individuals marked as "doubtful voters" on electoral rolls. The tribunals also handle references made by border police regarding suspected illegal immigrants.

Functioning of Foreigners Tribunals

According to the 1964 order, an FT has the powers of a Civil Court in matters such as summoning and enforcing the attendance and examining on oath and requiring the production of any document.
A tribunal is required to serve a notice in English or the official language of the State to a person alleged to be a foreigner within 10 days of receiving the reference from the authority concerned.
Such a person has 10 days to reply to the notice and another 10 days to produce evidence in support of his or her case. An FT has to dispose of a case within 60 days of reference.
If the person fails to provide any proof of citizenship, the FT can send him or her to a detention centre (now called transit camp) for deportation later.
- The burden of proof under the Foreigners Act is on the person accused as a foreigner.
- Failure on his part to appear before the Tribunal, will result in him being declared a foreigner without the state having to prove its case.

Appeal against the order of a FT

Individuals declared as foreigners by the FT can challenge the decision of the tribunal by filing a writ petition in the High Court of Assam, under Article 226 of Indian Constitution.
If unsatisfied by the decision of the High Court, they can appeal to the Supreme Court of India under Article 136 (Special Leave Petition).

Background: The legal foundation for the FTs was laid down in 1964, but significant amendments have been made in 2019, which refined the procedures for handling appeals related to NRC claims and objections. Notably, this amendment allows individuals to approach the tribunals directly, shifting some responsibility from state authorities to the tribunals themselves.

Concept of Citizenship in India

Context: The U.S. President Donald Trump issued an executive order stating that U.S. citizenship will be granted in the future only to children with parents holding U.S. citizenship or a U.S. green card. In this context, let us understand the concept of citizenship, the legal system surrounding it in the USA and India.

Relevance of the Topic: Prelims: Key facts about Citizenship.

Concept of Citizenship:

Citizenship refers to full and equal membership of a nation and owe allegiance to it. It grants individuals civil rights, political rights, fundamental rights, and responsibilities. Hannah Arendt described it as the "right to have rights." For example:

The Constitution confers the following rights and privileges on the citizens of India:

Right against discrimination on grounds of religion, race, caste, sex, or place of birth (Article 15).
Right to equality of opportunity in the matter of public employment (Article 16).
Right to freedom of speech and expression, assembly, association, movement, residence, and profession (Article 19).
Cultural and educational rights (Articles 29 and 30).
Right to vote in elections to the Lok Sabha and state legislative assembly.
Right to contest for the membership of the Parliament and the state legislature.
Eligibility to hold certain public offices, that is, President of India, Vice-President of India, judges of the Supreme Court and the High Courts, Governor of states, Attorney General of India, and Advocate General of states.

Along with the above rights, the citizens also owe certain duties towards the Indian State, as for example, paying taxes, respecting the national flag and national anthem, defending the country and so on.

Principles of Citizenship

Jus Soli ("Right of Soil")
- Citizenship is granted based on place of birth, regardless of parents' nationality.
- Followed by North & Latin American countries (e.g., U.S., Canada, Mexico, Brazil).
Jus Sanguinis ("Right of Blood")
- Citizenship is determined by the nationality of parents rather than place of birth.
- Followed by many African, European, and Asian nations (e.g., Germany, India, Egypt).

Citizenship Laws in the U.S.

The 14th Amendment (1868) guarantees citizenship to all persons born or naturalized in the U.S.
The U.S. Supreme Court (1898) reaffirmed this right, regardless of parents' citizenship.
The Trump administration's executive order (2024) sought to restrict birthright citizenship to children of U.S. citizens or Green Card holders.
A federal court stayed the order, calling it "blatantly unconstitutional."

Note:

In India, both citizens by birth as well as naturalised citizens are eligible for the office of President while in the USA, only a citizen by birth and not a naturalised citizen is eligible for the office of President.

Evolution of Citizenship rules in India

Citizenship in India is governed by the Citizenship Act, 1955.
Before 1987: India followed jus soli – anyone born in India was granted citizenship.
1987–2004: At least one parent had to be an Indian citizen for the child to get Indian citizenship.
Since 2004: Both parents must be Indian citizens, or one parent should be a citizen while the other not an illegal immigrant (to prevent illegal migration, particularly from Bangladesh).
Citizenship Amendment Act (CAA), 2019: It grants accelerated citizenship to Hindus, Christians, Sikhs, Jains, Buddhists, and Parsis from Pakistan, Afghanistan, and Bangladesh if they entered India before December 31, 2014.