As the year begins, it brings with itself promise of change through a host of legal and statutory developments. For the ruling NDA government to take on any big economic reform or development affecting the country, it has to pass through the houses of Parliament first. If such change is found to be in the teeth of law, it may also face a legal hurdle at the courts. Separately, the country can expect landmark decisions from the Supreme Court that will govern certain aspects of their personal life and play a huge role in shaping the political battle that lies ahead of the 2019 general elections to the Lok Sabha.
With few months left for the general elections for constituting the 17th Lok Sabha, the ruling government can be seen to be making rampant changes by passage of several bills in the winter session of the Parliament that took place from 11 December to 8 January. The session was conducted over 17 sittings of the Lok Sabha and 18 sittings of the Rajya Sabha and saw the passage of 16 bills by the lower house and 5 bills at the upper house.
This becomes important because these bills are spread over a range of issues affecting the public and corporate such as health, civil rights, reservation/quotas, privacy, religious rights, identification rights, consumer rights, and company rights. The bills passed by the Rajya Sabha will take effect immediately while the ones passed by the Lok Sabha will have to wait until the budget session of the Parliament to be passed by both the houses to attain finality.
With such hyperactivity in the winter session of the Parliament, there is a lot left to deliberate over including the effect these bills will have on the lives of people and the progress of the country. Whether they
will have a positive contribution towards the future of the country or are mere gimmicks by the ruling party to secure votes in the 2019 general elections. It’s also important to know the likely effect of the bills that are at the stage where they’ve been passed by the Lok Sabha (to be introduced in Rajya Sabha) because legislative backing to them is a possibility in the next Parliament session. Apart from this, there are a number of cases on key issues in the top court that will be decided in due course and play a major role in shaping the legal framework of the country in 2019.
One might say that the Constitution (one hundred and third amendment) Act, 2019 granting 10% reservation in jobs and educational institutions for economically weaker sections of the general category has attained finality with the President, Ramnath Kovind’s having given his assent on 12 January but that is not the case. The issue of its alignment with the constitutional position still stands to be judicially scrutinized in the Supreme Court.
Termed to be a pre-poll stunt by the BJP government, the move aims at creating a new category of economically backward class and shelf them under a 10% quota. At present and under landmark judicial precedents, there is a ceiling of 50% reservation in the country. The bill that was hurriedly passed in the Rajya Sabha by extending a day of the winter session is now legislation, which means that it is the law of the land and is to be complied with but it still presents problems galore.
The policy set the threshold for economically weak to include people earning less than Rs. 8 lakhs annually; owning less than five hectares of agricultural land, the residential property of less than 1,000 sq. ft and a residential plot less than 109 square yards in a notified municipality, or 209 square yards in a non-notified municipality.
A similar attempt made by the Congress under the rule of Narasimha Rao was struck down by the nine-judge bench of the Supreme Court in 1992 under the case of Indra Sawhney vs Union of India. The apex court had held that the quota for backward classes, scheduled castes, scheduled tribes, and backward classes should not exceed the 50% ceiling.
By pushing for the additional 10% quota, the Modi govt will take this up to 60%. Another question the Modi govt would need to answer is- Where are the jobs that have been promised to the economically weaker?
Another worthy issue under this is the judiciary’s categorical stand that reservations granted solely on the basis of economic conditions could not be justified under the Constitution. Economic backwardness had to be on account of social backwardness according to under the Supreme Court’s 1992 ruling; otherwise, it would lead to the virtual deletion of Article 16(4) which is an enabling provision for the state to provide reservation to a backward class of citizens. This would be tough for the govt to justify in court.
Deepening the problem, the expression “economically weaker sections” remains undefined under the law. It has been left to be notified by the state which seems rather absurd on the government’s part since it is the foundation of bringing in the quota. The law also introduces Articles 15(6) and 16(6) which may fail to pass the “test of constitutional equality” and the “basic structure test of the Constitution.”
A petition challenging the bill that has now become law has been filed in the Supreme Court by Youth for Equality, an organization working against caste-based reservations. Advocate Indra Sawhney, whose case led to the landmark judgment prescribing the 50% ceiling rule for reservations may join the challenge as she has expressed that the quota law is discriminatory and in conflict with Articles 14 and 15 of the Constitution. It would be premature to say whether the law will pass judicial scrutiny or not but it is clear that only an 11-judge bench can overturn the judicial position on this and until then one can expect it to be stayed until its constitutionality is decided. In effect, this may be decided at a time beyond the general elections defeating the Modi government’s ploy to use it for votes. If however, it somehow passes the legal hurdle, we can expect a change in status quo in the way reservations are granted in the country. How it would operate in each state, only time will be able to tell.
The BJP government has been bullish towards passing the bill to criminalize the practice of divorce among certain Muslim sections where a man can divorce his wife by uttering the words talaq, talaq, talaq instantly and consecutively. The Muslim Women (Protection of Rights on Marriage) Bill, 2018, which was passed by Lok Sabha on 27 December reached the Rajya Sabha but could not be passed in the winter session. Since the bill could not get Parliamentary approval, the government has re-promulgated the ordinance banning the practice of triple talaq. Under the Muslim Women (Protection of Rights on Marriage) Ordinance, 2019, divorcing through instant triple talaq would be void and attract imprisonment for 3 years for the husband.
Following the Supreme Court’s striking down of the Muslim practice in August 2017, it was found to still be practiced. To eliminate the practice altogether, the BJP govt has been trying to push the bill and ensure that it’s stopped at the grass root level by making it a penal offense. If the Parliament passes suitable legislation within six weeks of reassembling, one can expect to bid a final goodbye to the draconian practice and furthermore expect criminalization towards those found to be continuing to practice it.
Parliament approval to a bill to streamline the appointment and resignation of members of a trust that helps people with Autism to live independently will come to the aid of several people with the condition by facilitating their protection and creating equal opportunity in society. According to PRS Legislative Research, an independent body, the law will allow setting up of a national trust to promote measures for protection of people with the condition in case of death of their parents, allowing them to live an independent and respectful life.
Adoption may see a boost in the years to come as the bill banning commercial surrogacy and allowing only altruistic surrogacy- Surrogacy (Regulation) Bill, 2016 has been passed in the Lok Sabha and now awaits its fate in the Rajya Sabha in the budget session of the Parliament.
As it stands under the bill, only legally married Indian couples who otherwise would not be able to conceive will be able to opt for surrogacy. Surrogacy would be allowed only through a close female relative of either of the two partners where they have been “medically proven infertile” and the surrogate would not be able to receive any payment for her services. It also bars foreign nationals from paying for surrogacy services from an Indian woman.
At the core of its passage lies the prevention of exploitation of poor women and promotion of adoption. Experts welcome the move as it may put the adoption option at the forefront for couples who were relying on surrogacy until now. The fact that it places stringent rules and regulation for the ban, couples looking to have a baby may fulfil their need through adoption thereby boosting the dismal adoption figures in India.
Despite its benefits, the bill has been met with protests highlighting its flaws and a need to review the provisions under the bill. For starters, at a time when the Supreme Court has decriminalized homosexuality by scrapping Section 377 of the IPC, it restricts surrogacy privileges to only heterosexual couples who have been married for at least five years and are medically unable to have a child. Lawyers, activists and experts from the health industry agree that there is a potential for exploitation if commercial surrogacy is allowed to continue but this must be met by placing it under a strong legal and regulatory framework and not banning it. Promotion of altruistic surrogacy has also attracted criticism for a woman to be expected to endure hardships of the surrogacy procedure without getting compensation for it would be akin to exploitation.
Among prioritized cases in the Supreme Court lies a challenge to the constitutional validity of Article 370 that grants special status to the state of Jammu and Kashmir. It is likely that the sensitive issue will be heard by a constitution bench and decided in the year, which may change India’s relationship with Kashmir and its people forever.
The Supreme Court is also expected to decide on the review petition against its decision that allowed women of all ages to enter the Sabarimala temple in Kerala. This would be significant as the courts’ verdict was met with widespread criticism and protests through the state and the review ruling would be crucial in laying down the final judicial stand on the conflict between a person’s fundamental right to equality versus the fundamental right to religion.
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