15/11/2019- The Hindu Editorials Notes : Mains Sure Shot 

No. 1.

Question – Is judicial intervention in matters of religion justified?Discuss ( 250 words)

Context – The increasing number of petitions in the SC about the fundamental rights of women and religious rituals

 The role of courts in religion:

Should courts interfere in matters of religion?

• The Indian Constitution posits a separation between a secular domain regulated by the State, and a religious domain in which it must not interfere. However, courts of law are regularly called upon to resolve various issues related to religion, and their decisions may have a far-reaching impact on religious conceptions and practices.
• Even though a religious domain may be distinguished from a secular one by the constitution, and protected from State intervention, there are litigations concerning civil rights that involve religious issues on which civil courts may therefore have an explicit duty to rule.
• Interventions such as imposing legal definitions or deciding on religious matters on which civil rights depend is an essential part of “modern” law itself.

Why does the court need to interfere?

• The courts need to interfere because recently petitions questioning the validity of religious practices and their restrictions on women has considerably increased.
• Some of these have questioned long-held religious beliefs, including the one against the bar on Muslim women from entering mosques or the practice among Parsis to prohibit women who have married inter-faith from the holy fire place (Agyari) or the challenge against female genital mutilation in the Dawoodi Bohra community.
• Like the Sabarimala issue, these petitions deal with the tug-of-war between women’s fundamental right to equality under Article 14 and the believers’ right to freely practice religion.
• So an authoritative pronouncement from the Supreme Court is necessary.

On what basis do the courts decide?

• The major questions that the courts have to deal with are whether a practice is essential to a religion or should the question be left to the respective religious head; 
• Should “essential religious practices” be afforded constitutional protection under Article 26 (freedom to manage religious affairs); 
• And what is the “permissible extent” of judicial recognition a court should give to PILs filed by people who do not belong to the religion of which practices are under the scanner.

What needs to be done/ way forward:

• For the judges the holy book is the constitution. All decisions that they take should be based on the values and principles enshrined in the constitution. There should be no room for the personal will of anyone.
• It is a right decision of the Chief Justice to form a larger bench to decide the matters of religion because an “authoritative judgement” by a larger bench will instill confidence among the people because it was seen on a number of occasions when the issues of religion comes up, that the people question the credibility of the court in taking such decisions and they do it even more so when the decision is taken by a smaller bench. The most recent example of it being the issue of women’s (10-50 years) entry in the Sabarimala temple.
• Also a larger bench reflecting plurality of opinion, could also consider whether the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 would govern the Sabarimala temple.

 

No.2.

Question – Recent Supreme court judgement on Right to information paves the way for greater transparency in all spectrum of governance Analyze the SC judgement and highlights its significance. (250 words)

Context – The office of CJI under the ambit of RTI Act.

SC judges observation 

1. CJI and Justice Gupta , Justice sanjeev Khanna:- We should not be understood to mean that the independence of the judiciary can be achieved only by denial of access of information .. Judicial independence and accountability go hand in hand. Increased transparency under RTI act is no threat to judicial accountability.  Personal information of judges should only be divulged if such disclosure served larger public interest. 
2. Justice N.V Ramana :-
   1. Judiciary needs to be protected from attempts to breach its independence.  Such interference requires calibration of appropriate amount of transparency in consonance with judicial independence. he cautioned on the need to balance RTI with right to privacy.  RTI should not be allowed to be used as a tool of surveillance.
   2. Purpose of section 8 of RTI is to balance the privacy with public interest. he prescribed two step test – whether there is a reasonable expectation of privacy and whether on ultimate balancing analysis , does privacy give away the freedom of speech and expression. Private information should be protected like sexual preference , age , gender etc.  
   3. Excellency also listed some certain ” non exhaustive factors “for the PIO to consider while deciding whether information sought was private to judges like nature of information and impact of information on private life of judge. 
3. Justice D. Y . chandrachud :-
   1. Judicial independence is not secured by the secrecy of cloistered halls. Collegium for appointment of judges  was a “victim of its own birth pangs”.
   2. Collegium system does indeed suggests the notion that judges are appointing judges. There was a vital element of public interest in knowing about the norms which were taken into consideration for making judicial appointments. It is the time that substantive standard for choosing judges were formulated and placed in the public realm to promote confidence in the appointment process. various standard like the performance of the candidate as a lawyer and domain specialisation to income requirements and commitment to the legal field to social orientation should be made public. judicial appointments should reflect the promotion of the judiciary as an inclusive institution, with diversity in terms of gender, representation to minorities and the marginalised, orientation and other relevant factors.
   3. Judicial independence does not mean insulation of judges from rule of law. Transparency and RTI is crucially linked to rule of law itself. Provision of constitution secure a standard of judicial independence for free and fair adjudication not as mean to insulation from checks and balances. 
   4. The disclosure of information about the conduct of judges and their administration is necessary to ensure the broader societal goals in the administration of justice are achieved.  

SC judgement major assertion 

1. Five judge constitution bench led by chief justice of India Ranjan Gogoi  declared Supreme court a public authority and the office of the CJI is part and parcel of the institution. Hence office of CJI is also a public authority under RTI Act. 
2. The Bench upheld the Delhi High Court judgement of 2010 that CJI does not hold information on the personal asset of fellow judges in a fiduciary capacity. Hence disclosure of such information is not a  violation of the right to privacy.  
3. Bench unanimously held that Right to know is not an absolute right and this should be balanced with the right to privacy of individual judges.  

Significance of Judgement:

1. It is a landmark judgement and will be a milestone in the journey of transparency. 
2. Reduce the corruption in the judiciary and improve the appointment process of judges. 
3. This judgement sets an example for other bodies like Political parties , schools , trusts, Delhi power distribution companies , Dairies. 
4. Enforce the rules of law as even the chief justice of India and supreme court comes under RTI act.