28th November 2019 : The Hindu Editorials Notes: Mains Sure Shot

No. 1. 

Question – In the recent turn of events, does the office of the Governor call for a constitutional restructuring?(250 words)

Context – The dispute over the role of the Governor in the government formation in Maharashtra.

 

The need for constitutional restructuring of the office of the governor:

• From the recent turn of events in Maharashtra and Karnataka earlier this year the office of the actions of the Governor had to undergo judicial scrutiny.
• In both cases the issue was related to the formation of government and there was serious allegations of the governor being biased towards the party that was in power at the Centre. Also in both cases the Supreme Court had ruled against the decision taken by the Governors in both states.
• This has raised questions about whether the office of the Governor poses a threat to the federal character of Indian Union.

Does the office of the Governor pose a threat to the federal character of Indian Union?

• The answer to this can be found in the way the Governor is appointed and removed
• Appointment – the Governor is neither elected by the people nor indirectly elected by a specially constituted electoral college as is the case with the President. He is appointed by the President by warrant under his hand and seal. As we know, the President has limited discretionary powers and he mostly works according to the advice given by the Central government.
• So in a way, he is the nominee of the Central government in the states. (Though the SC in 1979 held that the office of the governor f a state is not an employment under the Central government. It is an independent Constitutional Office and is not under the control of or subordinate to the Central government).
• Removal – a Governor holds office for  a term of five years from the date on which he enters upon his office. However, this term of five years is subject to the pleasure of the President. Indirectly, the Central government. The SC held the pleasure of the pleasure of the President is not justiciable. The Governor has no security of tenure and no fixed term of office. He may be removed by President at any time.
• Practically, this makes the Governor an executive agent of the Centre in the states. 
• the Drafting Committee of the Constitution in April 1948, has held that all discretionary powers of the Governor must be omitted. Following the same tone, on May 31, 1949, B.R. Ambedkar said in unequivocal terms that the Governor “is required to follow the advice of his Ministry in all matters”.
• But it is practical that the Governor is required to exercise discretion in deciding the formation of government when there is no clear post-poll majority.
• However, the cases of S.R. Bommai v. Union of India, Rameshwar Prasad v. Union of India, and Nabam Rebia v. Deputy Speaker provides an unambiguous judicial guidance to how the office of the Governor must encounter tricky post-poll claims to form government and stay immune to political bias.
• But unfortunately, the appointment process of Governors has made the office vulnerable to the influence of the Union government.
• Over the years, occupants of this office have continued to look towards the Centre for guidance. But this practice is dangerous and the dangers of this habit are cautioned by lawyer and constitutional expert A.G. Noorani, who argued that a “state’s autonomy comes to naught if its people’s mandate can be defied or ignored by a central appointee.”
• From the recent examples of Karnataka and Maharashtra create a reasonable apprehension that the office of the Governor is open to be manipulated and misused in furtherance of political partisanship. This strengthens a call to review and restructure the office of the Governor if its constitutional values are to be safeguarded.
• Also the abuse of power under Article 356 by the Central Government is replete in the political history of the country. All this creates dissatisfaction among the states towards the federal character of the Indian polity.

What can be done?

• There is little doubt that the appointment and tenure of Governors need to undergo radical reform. The Justice P.V. Rajamannar Committee, which was tasked by the Tamil Nadu government to look into Centre-State relations in 1969, recommended that State governments be included in the appointment process of Governors to drastically reduce their discretionary powers. The call to rectify the imbalance in Centre-State equations must begin with such a reform.
• Furthermore, for too long, Governors have enjoyed a legal immunity, granted by the Constitution, on account of their sovereign functions. Over the years, the Supreme Court has confirmed its powers to review the actions of the Governors. Any decision of the Governor can be subjected to judicial scrutiny, including the materials placed to arrive at that decision.
• The powers and privileges that are attached to the office of the Governor must be accompanied by answerability, transparency and accountability. Governors and their offices must be scrutinised as much as any other public office. The court must lay down guidelines in this regard.

 

No.2.

Question – Is there any conflict between the right to equality and the right to religion and the right to manage religious affairs. Examine the recent verdict of SC in this context.(250 words)

Context : Sabrimala verdict and the subsequent decision of the apex court concerning review petition. 

SC Judgement:

1. A majority ( 3:2) judgment given by five-judge bench kept the final decision on the Sabrimala review and writ petition in abeyance till the larger bench of seven judges delivers the authoritative pronouncement on the exact role a non-epistolary court can play in deciding whether a particular practice is essential or integral to a religion and other issues. 
2. Other pending petition related to this issue:- Court cited that there are pending petitions concerning the entry of women into a dargah, the entry of Parsi women married to non-Parsis into an agyari, and the practice of female genital mutilation among Dawoodi Bohras. Hence court has decided to do complete and substantial justice. SC is of the considered view that issues arise in these cases may be overlapping and covered by the judgment under review. Apex court clubbed the above mentioned various petitions.  
3. CJI has the administrative power to club similar cases together. It is however rare for the court to pass a judicial order clubbing a case that is not listed with one it is hearing. 
4. Question for larger bench
   1. Who should decide the essentiality of practice – Whether a court can probe if a practice is essential to religion or should be the question be left to the respective religious head.
   2. Should the essential religious practice be afforded constitutional protection u/a 26 – Essential religious practice doctrine evolved in 1950, these are practice and beliefs considered integral by the religious community are to be protected u/a 25.   ( Bench should examine the interplay between the rights of religion and the right to manage religious affairs and the right to equality and other fundamental rights. This test of arriving at the definition of religion was called the essential practices test. But the exercise of determining essential practices of religion took judges into a domain beyond their expertise).
   3. Court wanted to define the exact meaning of reasonable restriction on freedom of religion like public health, morality, and order. 
   4. What is the permissible extent of judicial recognition a court should give to PILs filed by the people who do not belong to the religion of which practice is under the scanner? 
   5. The meaning of the expression of ‘ section of Hindus ‘ in article 25(b) of the constitution and whether the essential religious practice of religious denomination or section thereof is also protected under u/a 26. 
   6. Defining constitutional morality:- Constitution does not define Morality u/a 25 or constitutional morality.

Is it overarching morality in reference to preamble or limited to religious beliefs or faith? 

• There is a need to delineate the contours of this expression. CJI Mishra in Sabrimala defined morality as constitutional morality. CJI in 2018 in the verdict of decriminalizing homosexuality defined the constitutional morality is not confined to the provisions and literal text which constitution contains, rather it embraces within itself virtues of a wide magnitude such as ushering a  pluralistic and inclusive society while adhering to other constitutional principles. 
• As per Justice Indu Malhotra, constitutional morality implies harmonization of all fundamental rights, which include the right of every individual or religious denomination to practice faith or religion irrespective of whether a practice is rational or logical.

Dissenting opinion:

1. Justice Nariman and supported by  Justice Chandrachud gave dissenting judgment. and said that the five-judge constitutional bench was the last word on the interpretation of the constitution related to Sabrimala verdict.  The findings of the court are entirely beyond the remit of the court’s authority in determining a plea for review. “What a future constitution bench or larger bench… may or may not do when considering the other issues pending before this court,” he writes, “is, strictly speaking, not before this court at all.”
2. Both the judges differed with the majority opinion that certain legal issues needed to be considered by a larger bench. There is no occasion for the court to recalibrate judicial decisions on legal issues such as essential religious practice tests. 
3. Union of India vs Sandur Magnese & Iron ores Ltd. – Quoting a previous ruling the minority judges said that A review is entertained on narrow grounds when there is discovery of new and important matter or evidence which after the due diligence was not within the knowledge of the petitioner or could not be produced by him ; mistake or error apparent on the face of the records and any other sufficient reason.  A review is not an appeal in disguise whereby an erroneous judgment is reheard and corrected but lies only for patent error. The mere possibility of two views on the subject can not be a ground for review. The apparent error should not be required to be searched out. 
4. Thus they differed on clubbing of various issues by CJI with Sabrimala verdict as the review was limited to only this case. 

Constitutional provisions  

1. Article 137 of the Constitution confers an express power on the Supreme Court to review its own decisions. But this authority is subject to both parliamentary laws and to the rules of procedure framed by the court. These rules, as the court’s own prior judgments make plain, allows a bench the power of judicial review. But this authority is subject to both parliamentary law and to the rules of procedure framed by the court. These rules, as the court’s own prior judgments make plain, allows a bench the power of judicial review.

Issues related to essential practice test:

1. Inconsistency:- over the years there has been inconsistency in the application of essential religious practice tests. Using empirical evidence vs religious text. The decision in Anand marg faith suggests that the essential religious practice should be frozen over the times and should not be evolved over the period.  
2. Individual conscience vs court decision:- The Supreme Court has itself acknowledged that “every person has a fundamental right to entertain such religious beliefs as may be approved by his judgment or conscience”. Thus, it is an individual right, not a group right. The essential practices test is antithetical to the individualistic conception of rights. Under the test, the court privileges certain religious practices over others, when it does not have the expertise to decide which practice/ritual of religion is essential/non-essential. These are purely theological questions.
3. The cases above suggest that the judiciary has styled itself as a reformer of religions with its own idea of rationality and morality. The Supreme Court’s insistence on applying the essential practices test strikes at the very foundation of religious freedom in India. Practices of Hinduism (and its denominations) have been targeted by reformist judges who consider them to be based on superstition, while practices central to Islam have been targeted either because of the sentiments of the majority community or due to misplaced understanding of Islamic practices.
4. The concept of providing constitutional protection only to those elements of religion, which courts consider “essential” is problematic. Such an approach assumes that one element or practice of religion is independent of the others; also that while some practices are central to religion, others are merely incidental. 

Other case laws:

1. Shirur Mutt case 1954:- The court held that “religion” in Article 25 covers all rituals and practices that are “integral” to a religion. It thus took upon itself the responsibility to determine what is integral or essential; What are the essential religious practice of particular religious denomination should be determined by the denomination itself. 
2. The essentiality test was crystallized in the temple entry case (1958). The court dealt with the question of whether untouchability, manifested in restrictions on temple entry, was an essential part of the Hindu religion. The court after examining select Hindu texts came to the conclusion that untouchability was not an essential Hindu practice.
3. Durgah Committee , Ajmer vs Syed Hussain Ali & Ors – carved out a role for the court in this regard to exclude what court determines to be the secular practice of superstitious belief. 
4. Ismali Faruqui vs Union of India:- The court determined that offering prayers in Mosque is not the essential religious practice of Islam. 

Significance of verdict: 

1. This verdict is significant as the lone dissenting voice of Justice Indu Malhotra in Sabrimala echoes in this judgment. Thus promotes dissent in judgment. 
2. Reduce the inconsistency in the application of essential religious practice. 
3. Defining the contours of constitutional morality.

Issues in Judgement:

1. As per Faizan Mustafa, There is an inconsistency between the Babri Masjid verdict and the Sabrimala verdict.
2. Experts views that Court has not given its judgment for clubbing various other petitions on the basis of facts but seems to be mere conjecture.