The Hindu Editorials Notes (07th Aug 2019) Mains Sure Shot
GS-1 & 2 Mains
Question- Analyse Article 370 and the recent developments from a historical perspective.(250 words)
Context- The Presidential Order- declaration that all provisions of the Indian Constitution will now apply to the Jammu and Kashmir.
Note: If you combine this with yesterday’s notes you are done with any question related to Article 370
Understanding the present situation:
•Under Article 370 of the Indian Constitution, the state of Jammu and Kashmir had its own constitution and its own laws, with the President of India empowered to decide which provision of the Constitution would be applicable within the state, but only with the accent of the state.
•So, we can clearly see that it said that the President of India can decide which provision of the Constitution of India would be applicable to the state. But the clause is that such decision would be with the accent of the state.
•Yesterday we had said that the manner in which it was done can be seen as ‘hop-step-and -jump’ process because – it ‘hopped’ over the requirement of the State government’s consent because at the time of the declaration the President’s rule was going on in the state and the state’s constituent assembly was dissolved. So since the governor was heading the state, it said that it had taken the accent of the Governor. But the thing to be kept in mind is that the Governor is not an elected representative of the people. He is a non-elected member, acting as an agent of the Center.
•It ‘steps’ over the need for aid and advice by the ministerial council by saying the Governor’s opinion is enough.
•And it ‘jumps’ over the fact that there is no constituent assembly now by merely reading the term as ‘legislative assembly’, and letting Parliament perform the role of the State legislature.
•The Jammu and Kashmir Bifurcation Bill, 2019, further bifurcates the state of Jammu and Kashmir into two UTs namely UT of J&K with legislature and UT of Ladakh.
•Speaking from a historical viewpoint we have to keep in mind that the Kashmir freedom movement during the time of our national movement was primarily a movement to rid Kashmir of despotism, not a part of our national movement.
•Despite Maharaja Hari Singh’s to maintain independence, they stood united in their demand for an end to monarchy.
•Viceroy Lord Mountbatten urged Hari Singh not to make a declaration of independence. But Hari Singh was adamant.
•It was only when there was an uprising by Poonch troops (of the British Indian Army’s decommissioned Sixth Punjab Regiment) and then a military attack by the invading frontier tribesmen in the State’s border town of Domel on october 22,1947, that Hari Singh turned to India for help.
•Article 370 has governed the accession and relationship of the princely state of J&K and India under the Indian Constitution.
What is the legality of Pakistan’s claim over Kashmir?
•If Pakistan lays its claim based on the 1941 Census, that at the time of partition 77.11% of the population of Jammu and Kashmir was Muslim, 20.12% Hindu and 1.64% Sikh and so by the logic of partition it had to be a part of Pakistan, then it is absolutely dismissed by the fact that the Kashmiris chose to be with India than Pakistan.
•It is reflected in the speech given by Sheikh Abdullah, the then unchallenged Kashmiri leader, in the UN in February 1948 that “We shall prefer death rather than join Pakistan. We shall have nothing to do with such a country.” it was under assurance of freedom under Article 370. But times have changed and Article 370 was never meant to be permanent because under sub-section 3 of the same article it was said that the President of India can revoke Article 370 only on advice from the Constituent Assembly of Jammu and Kashmir.
•Many are questioning the legality of the amendments but it is for the Supreme Court to decide.
•But one thing is clear that it did not ascertain Kashmiri public opinion and especially at a time when it is already beset with widespread disaffection. It has led to a feeling of betrayal among the people.
•But we also have to keep this question in mind that was it ever possible to do it any other way?
•The best we can do in the present situation is to try to not make them feel alienated. Military presence must be kept but what’s needs to be presented is an assurance of peace.
The Hindu Editorial (07th August 2019) Mains Sure Shot
Question – In context of the fast-track courts in India, analyse the various aspects related to them.Critical Analysis ( 250 words)
Context- The government has proposed to set up 1,023 fast-track courts to clear cases under the Protection of Children from Sexual Offences (POCSO) Act.
Why in news?
•The Supreme Court in a Suo moto petition had issued directions, stating that districts with more than 100 cases pending under the POCSO Act need to set up special courts that can deal specifically with these cases.
•Upon which the government has proposed to set up 1,023 fast-track courts to clear the cases under the Protection of Children from Sexual Offences (POCSO) Act.
What are fast-track courts?
•The FTCs are established to expeditiously dispose of long pending cases in the Sessions Courts and long pending cases of undertrial prisoners.
•Setting up of subordinate courts including the fast track courts (FTCs) comes under the domain of the respective state governments. The state sets up such courts in consultation with the respective High Court.
•The fast track courts are special courts, tasked with ensuring speedy trial and reduce net pendency of cases.
•As on June 1, 2019, more than 43 lakh cases are pending in the 25 high courts in the country and over 8 lakhs of these are over a decade old.
•To add to this. According to the Ministry of Law and Justice, there is a shortage of judges with only 20 judges per 10 lakh people in the country as compared to 17 in 2014.
•It was to get rid of this kind of a situation that the fast-track courts were established and they have been functional since the year 2000.
•To quote the Ministry of Law and Justice, at the end of March, there were 581 FTCs operational in the country. Of these U.P. has the highest number of cases pending, followed my Maharashtra. While 56% of the States and Union Territories, including Karnataka, Madhya Pradesh and Gujarat, had no FTCs.
1.In terms of money, nearly ₹870 crore was released by the Centre between 2000-2001 and 2010-2011 towards these FTCs.
2.But despite this there has been a decline in the number of fast-track courts across the country and some states have none.
3. According to a survey of FTCs conducted by National Law University Delhi, there is a huge variation in the kinds of cases handled by these courts across States, with certain States primarily allocating rape and sexual offence cases to them and other States allocate all types matters to these courts.
4.Also, several FTCs lacked technological resources to conduct audio and video recordings of the victims and many of them did not have regular staff.
1.It is welcomed that the government is planning to set up more fast-track courts for speedy disposal of pending cases related to POCSO and other sexual offences, but there are other things to be kept in mind like the shortage in the number of judges.
2.Also, the past experience has shown that just an increase in the number of judges does not ensure direct reduction in the number of pending cases. For example, in Karnataka, the number of working judges increased between 2012 and 2017 but pendency did not reduce. Similarly, in other States such as Maharashtra, Kerala, Delhi and West Bengal, increase or decrease in the number of judges did not affect pendency of cases. Solutions to deal with have to be thought too.
3.Further critical issues such as inadequate staff and IT infrastructure, for example in forensic science laboratories, which cause unnecessary delay in getting reports must be addressed.
4.It is also seen that states often do not hire additional judges but appoint the judges from the existing pool of judges to the fast track courts. This increases the burden on them.
5.The proper functioning of the FTCs rests on the states and they need to analyse the issues at the ground level and not make policies from above.
6.Equal attention needs to be paid to the courts at the metropolitan and far-flung non-metropolitan areas.
7.Overall for everything to work co-ordinately it is important to see that any kind of unnecessary administrative hindrance(interference) is kept to the minimal.