20 Sep 2022: UPSC Exam Comprehensive News Analysis

E. Editorials

Category: POLITY AND GOVERNANCE

1. The hijab case and the essential practices doctrine

Syllabus: GS-2, Indian Constitution—Historical Underpinnings, Evolution, Features, Amendments, Significant Provisions and Basic Structure

Prelims: Doctrine of essential practices

Mains: Related Supreme Court Judgment and concerns with the doctrine of essential practices

Context:

• A two-judge Bench of the Supreme Court of India is hearing arguments against the Karnataka High Court judgment that upheld the ban on the use of the hijab by students in Karnataka.

Arguments of the petitioners:

• The petitioners claim that the judgment of the Karnataka High Court is violative of the rights of students to freedom of expression, conscience, and religion and would also adversely impact the right to education of Muslim women.
• The petitioners also claim that the state government law despite its seemingly neutral language, results in singling out of the hijab and hence can be considered as discriminatory against Muslim women.

Karnataka High Court Judgment:

• In March 2022, a three-Judge Bench of the Karnataka High Court upheld the ban on the hijab in the State’s educational institutions. The bench’s judgment was based on the following observations/arguments.
  • The use of a hijab is not essential to the practice of Islam and thus the ban on wearing of hijab does not violate the right to freedom of religion and conscience of the concerned people.
    • The doctrine of essential practice came up in the Shirur Mutt case of 1954.
  • The Court noted that classrooms being qualified public places, there exists no right to freedom of expression or privacy inside a classroom and hence the argument that the ban on wearing hijab goes against the right to freedom of expression and privacy of the concerned students does not hold. The ban on the wearing of hijab seems to be proportionate and legitimate in this regard as in public spaces individual rights must give way to the interests of “general discipline and decorum”.
  • The Court noted that the state government’s order calling for a uniform dress code to be prescribed by the State or school management committees, does not discriminate, either directly or indirectly, against Muslim students and hence cannot be held to be discriminatory against the Muslim students.

Concerns with the doctrine of essential practice:

• While all cases should be decided based on the application of ordinary doctrines of constitutional law, in such cases dealing with the question of religious freedom in India, often the argument goes towards the doctrine of essential practice. This is not good for the justice system as the application of this doctrine requires the judges to engage not merely in legal analysis but also in theological study to determine how indispensable the practice is to faith. Notably, the judiciary has little expertise in this regard.
• This doctrine also amounts to giving the judiciary ecclesiastical power by allowing it to decide which religious practices are deserving of constitutional protection. This has allowed the Court to impinge on the autonomy of groups to decide for themselves what they deem valuable, violating, in the process, their right to ethical independence.
• This doctrine has allowed for the justification of certain practices which can be deemed to be detrimental to the cause of social justice. Based on this doctrine, the judiciary struck down a Bombay law that prohibited excommunications made by the Dai of the Dawoodi Bohra community.

Know more about judicial doctrines in the linked article.

Arguments in favour of the doctrine of essential practice:

• This doctrine would provide the state with an avenue to lawfully interfere in the interests of social welfare and reform in matters that are connected to religion but are not intrinsically religious.

Way forward:

• The essential practices doctrine needs to be relooked by a Bench of more than seven judges. Notably, a nine-judge Bench has been constituted in the review petitions filed against the judgment in the Sabarimala case and this bench should look into this doctrine.
• The principle of anti-exclusion proposed by Justice D.Y. Chandrachud in the Sabarimala temple entry case should be used to overcome any adverse impact of the essential practices test. This principle of anti-exclusion would require the judiciary to presume that a practice asserted by a religious group is an essential religious practice. But regardless of this, the Constitution will not offer protection to the practice under consideration if it excludes people on grounds of caste, gender, or other discriminatory criteria.

Nut Graf: The doctrine of essential practice given its limitations needs to be relooked at by a nine-judge Bench of the Supreme Court and until that happens alternatives like the principle of anti-exclusion should be used to overcome the adverse impact of the essential practices test.

2. Knowing the killer

Syllabus: GS-2, Important Supreme Court Judgments

Mains: Reforming the criminal justice system in India

Context:

• A three-judge Bench of the Supreme Court has referred to a Constitution Bench the issue of granting a meaningful opportunity to convicts on the question of sentencing after conviction relating to capital offences.

Background:

Process in awarding capital punishment:

• While deciding on the type of punishment, on whether only a death sentence will meet the ends of justice, or a life term will be sufficient, the judges are expected to follow the Supreme Court guideline with respect to awarding the death penalty only in the “rarest of rare” cases.
  • ‘Rarest of Rare Case’ doctrine is used by the judiciary as a measuring tool to award the Death Penalty to the accused criminals if proven guilty of committing the heinous crime. The Doctrine of Rarest of Rare was established in the case of Bacchan v. State of Punjab
• Also, just the gruesome nature of the offence must not be the sole criterion to award the death penalty. The offender’s socio-economic background and his state of mind also need to be considered as mitigating factors in regard to awarding the death penalty.

Significance of the observation made by the bench:

• In practice, the sentencing part of the trial takes place after the court records a conviction. Generally, it happens on the same day as the verdict, which leaves the convict and his/her counsel with very limited time to make arguments on ‘mitigating circumstances’ as against the prosecution which receives much more time to argue the “aggravating factors”.
• Hence the issue raised by the bench in granting a meaningful opportunity to convicts on the question of sentence is a big stride in humanizing the sentencing process.

Recommendations:

• The Constitution Bench should come up with new guidelines for the trial courts under which the concerned trial courts should be empowered to undertake a comprehensive investigation into mitigation factors related to the upbringing, education and socio-economic conditions of an offender before deciding upon the punishment. Related mitigating factors should be adequately considered in favour of not imposing the death penalty.
• Also, a relook on the validity of the death penalty should be considered by the Supreme Court.

Nut Graf: The recommendation made by the Bench of granting a meaningful opportunity to convicts on the question of sentencing after conviction relating to capital offences is a big stride in humanizing the sentencing process.

Category: INTERNATIONAL RELATIONS

1. It is the people of Pakistan who are suffering

Syllabus: GS-2, India and its Neighbourhood – Relations.

Mains: Disaster diplomacy between India and Pakistan – Scope and significance

Context:

• The unprecedented flooding in Pakistan has resulted in large-scale damage to life and property.
  • Almost one-third of Pakistani territory is under water and over 33 million people are suffering from the disruption caused by the flood.
  • Two million acres of farmland have been submerged, a large number of livestock have died and transportation networks have been damaged.
  • Food insecurity and the threat of water-borne diseases pose serious concerns for the Pakistani population, especially its children.
• The Pakistan government has estimated that $30 billion is needed for relief and rehabilitation. Pakistan has been seeking aid from other countries as well as international organizations to overcome the catastrophe.

India’s response:

• The Indian Prime Minister has expressed condolences to the families of the victims and wished for an early restoration of normalcy.
• There have been reports in the media of India sending aid to Pakistan.

Pakistan’s stand:

• Notably, Pakistan has not asked for help so far.
• The Finance Minister of Pakistan has expressed government consideration of re-opening road traffic with India to ease the food insecurity situation in Pakistan.

Recommendation:

• India should not wait for Pakistan to make a request. India should do what is right and offer all aid and support to Pakistan in this time of crisis. India can help in the supply of vegetables, foodgrains and essential medicines.

Arguments in this direction:

• India should make a distinction between the government and the people of Pakistan and offer all help to the citizens of Pakistan who are suffering.
• India being the major regional power in South Asia should act as one, able and willing to discharge its responsibilities as promptly as humanly possible in this time of crisis for Pakistan.
• A humanitarian act can be part of smart diplomacy on the part of India. This offers an opportunity for India to set right its strained bilateral relationship with Pakistan.

Nut Graf: India should help Pakistan which happens to be devastated by the unprecedented floods. This would be the most humane thing to do and would also be smart diplomacy on the part of India.