Blog

Daily Current Affairs 07.02.2022 (Nation mourns its ‘nightingale’,The interpretative answer to the hijab row,India’s ‘return’ to Central Asia,A new form of untouchability,SC to weigh between ‘national security’, judicial scrutiny,China, Pakistan hit out at ‘unilateral’ Kashmir moves,Redrawing the electoral map of the Union Territory of J&K)

Daily Current Affairs 07.02.2022 (Nation mourns its ‘nightingale’,The interpretative answer to the hijab row,India’s ‘return’ to Central Asia,A new form of untouchability,SC to weigh between ‘national security’, judicial scrutiny,China, Pakistan hit out at ‘unilateral’ Kashmir moves,Redrawing the electoral map of the Union Territory of J&K)

image-46

1. Nation mourns its ‘nightingale’

Lata Mangeshkar passes away at 92; Centre announces 2-day national mourning

Lata Mangeshkar, affectionately called a “Nightingale of India”, who died on Sunday after a brief illness, was cremated with state honours in Shivaji Park here. She was 92.

The legendary singer, whose voice enthralled millions for nearly eight decades, died of multiple-organ failure at Mumbai’s Breach Candy Hospital, where she was admitted in early January after testing positive for COVID-19.

As a mark of respect, the Union government announced a two-day national mourning, while the Maharashtra government has declared a public holiday on Monday. The Rajya Sabha will be adjourned for an hour on Monday morning in honour of the singer who was a member of the House from 1999 to 2005.

Prime Minister Narendra Modi, Maharashtra Chief Minister Uddhav Thackeray, cricketing legend Sachin Tendulkar, actors Shah Rukh Khan and Aamir Khan were among the thousands of luminaries and fans who joined family members to bid adieu to the melody queen.

A veritable music institution, Lata sang thousands of songs in several Indian languages in a record-breaking career which began at the age of 13 in the 1942 Marathi film Kiti Hasaal. The much-loved playback singer was awarded the nation’s highest honour, Bharat Ratna, in 2001, having earlier been awarded the Padma Bhushan in 1969, and the Padma Vibhushan in 1999. She was also given France’s highest civilian award, Officier de la Legion d’Honneur, in 2009.

Heartbreaking: Kovind

President Ram Nath Kovind said her death was heartbreaking for him. “…In her vast range of songs, rendering the essence and beauty of India, generations found expression of their inner-most emotions. A Bharat Ratna, Lataji’s accomplishments will remain incomparable,” he said.

Mr. Modi tweeted, “I am anguished beyond words. The kind and caring Lata didi has left us. She leaves a void in our nation that cannot be filled. The coming generations will remember her as a stalwart of Indian culture, whose melodious voice had an unparalleled ability to mesmerise people.” Mr. Modi cancelled his election engagements in Goa and Uttar Pradesh to attend the last rites.

Former Prime Minister Manmohan Singh said India had lost a great daughter, who “through her songs, made an immense contribution to the cultural integration of the country”.

Congress president Sonia Gandhi said: “An era has ended… Lata didi’s soul-touching voice, songs of patriotism will always be an inspiration.”

2. The interpretative answer to the hijab row

The courts will be called upon to protect an essential religious practice

A number of Muslim girl students in my home town of Udupi, Karnataka, have been refused entry into their college. The administration objects to them covering their heads with a hijab. The girls invoke the protection of the Indian Constitution, whose preceptor Dr. B.R. Ambedkar once wrote, “the world owes much to rebels who would dare to argue in the face of the pontiff and insist that he is not infallible”.

Udupi has a proud tradition of having rebels who have challenged established norms that have not stood the test of reason. In the 16th century, priests at the Krishna temple in Udupi prevented a lower caste devotee, Kanakadasa, from entering it. He refused to go away and began composing and singing kirtans from the courtyard outside, while waiting to secure a sight of the deity. Even after many days, the priests did not relent but a miracle intervened. The idol of the deity which until then faced eastwards, miraculously turned 180 degrees to face west, and then broke open a rear wall to create a window through which Kanakadasa could have his darshan. Even today all devotees have their first sight of the lord through Kanakadasa’s window.

A focal point

Thus, it was only historically apt that one of the first great religious cases interpreted by the new Supreme Court, under the new Constitution, came from Udupi. In the Commissioner, Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt case, or Shirur Mutt, of 1954, the Court ruled, “….what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.” Ever thereafter, the judgment in Shirur Mutt has remained the focal point of constitutional discussion on religious freedoms. The “essential religious practices” test appeased traditionalists by ‘assuring them that the Court would be sympathetic to their respective religious faiths. It also supported state-sponsored reform by leaving one agency of the state — the judiciary — with the power to determine and pronounce upon (perhaps, transform) religious practice and belief’.

‘Religious practice’

Since it was first propounded, the “essential religious practice” test has been problematic. How is the Court to determine what an ‘essential practice’ is? Should it ‘rely on religious leaders’? Should it ‘call for evidence’? Should judges ‘pursue these questions on the basis of their own research’? Justice D.Y. Chandrachud in the Sabarimala case, bemoaned, “… compulsions nonetheless have led the court to don a theological mantle. The enquiry has moved from deciding what is essentially religious to what is an essential religious practice. Donning such a role is not an easy task when the Court is called upon to decide whether a practice does nor does not form an essential part of a religious belief. Scriptures and customs merge with bewildering complexity into superstition and dogma. Separating the grain from the chaff involves a complex adjudicatory function. Decisions of the Court have attempted to bring in a measure of objectivity by holding that the Court has been called upon to decide on the basis of the tenets of the religion itself. But even that is not a consistent norm.”

In the case of the hijab, there is no doubt that an observant Muslim woman might insist that the following verses from the Koran mandate her to keep her head covered. Chapter 33, Verse 59 says “ O Prophet! Enjoin your wives, your daughters, and the wives of true believers that they should cast their outer garments over their persons (when abroad): That is most convenient, that they may be distinguished and not be harassed.” Chapter 24, verse 31 is more explicit in decreeing, “And say to the believing women that they should lower their gaze…; that they should not display their beauty and ornaments except what (must ordinarily) appear thereof; that they should draw their khimār … and not display their beauty except to their husband, their fathers, their husband’s fathers, their sons, their husbands’ sons, their brothers or their brothers’ sons, or their sisters’ sons, or their women….”

A possible fallout

Questions of uniforms never troubled my five years of college in Udupi in the early 1980s. There was no requirement of uniforms. Subsequent administrators, in the 1990s, may have decreed uniforms to prevent competition amongst fashion-conscious teenagers. Today, there is no one uniform code which is mandated throughout the State. Individual colleges do decree uniforms, but not necessarily the manner of wearing them. An unfortunate side-effect of the current controversy may well be a State administrative order decreeing uniforms for all college students throughout the State of Karnataka. That to my mind would be a killjoy response of an administration that prioritises uniformity over diversity.

In the absence of a statutory uniform code, a court may well ask whether a head covering mandated by some religions, when worn in addition to the uniform, violates any legal tenet. Would the same standards that banish a female hijab apply to a turban worn by a male Sikh student? Can government colleges deny education to students who are seen to be violating a uniform code? Is the hijab or even a full covering in any manner violative of the process of imparting education? Can a government committed to female education deny education to those it deems improperly dressed? Should implementation of a dress code be prioritised over imparting education to all that seek it? These and other like questions will probably soon engage the attention of a constitutional court. That court may do well to heed Justice R.F. Nariman’s dictum in the Sabarimala review which says, “… After all, in India’s tryst with destiny, we have chosen to be wedded to the rule of law as laid down by the Constitution of India. Let every person remember that the “holy book” is the Constitution of India,… ”

Competing rights

The interpretative answer to the hijab row, from the “holy book”, might lie in another case from Udupi district. Three years after Shirur Math, in 1957, the Supreme Court, in Sri Venkataramana Devaru vs State of Mysore, had to examine whether the exclusion of a person from entering into a temple for worship is a matter of religion according to Hindu ceremonial law. The Court held “… that the right of a denomination to wholly exclude members of the public from worshipping in the temple, though comprised in Art. 26(b), must yield to the overriding right declared by Art. 25(2)(b) in favour of the public to enter into a temple for worship. But where the right claimed is not one of general and total exclusion of the public from worship in the temple at all times but of exclusion from certain religious services, they being limited by the rules of the foundation to the members of the denomination, then the question is not whether Art. 25(2)(b) overrides that right so as to extinguish it, but whether it is possible-so to regulate the rights of the persons protected by Art. 25(2)(b) as to give effect to both the rights” Venkataramana Devaru points to the Court’s endeavour to harmonise competing rights in a way that both were given effect to. In the hijab case, the courts will be called upon to protect an essential religious practice, in a manner consistent with imparting education in an orderly fashion.

It is not the domain of this article to prophesy the ultimate outcome of the ensuing legal battle. The protesting girls may, however, take heart from another Kanakadasa-like episode from the late 1970s. Jon Higgins, an American scholar of music, was so proficient in Carnatic music that he was called Higgins Bhagvathar. When he visited the Udupi Shri Krishna temple, he was denied entry because of his white skin. He stood at the gate and sang in chaste Kannada the Vyasatirtha composition, ‘Krishna nee begane baro’. He was permitted entry immediately, possibly to avert another intervention from the deity. The moral I take from this episode is that unthinking enforcers of any kind of dogma will have to ultimately yield to a harmonious faith in a “holy book”.

Freedom of Religion – Concept

Our constitution gives religious freedom to all the people of India. This freedom has been considered as the necessary factor for the success of democracy in any country. People would meaningfully participate in a country’s polity, only if they are free to follow their religious beliefs.

  1. Freedom of conscience and free profession, practice, and propagation of religion
  2. Freedom to manage religious affairs
  3. Freedom to payment of taxes for promotion of any particular religion
  4. Freedom to attend religious instructions or religious worship in certain educational institutions.

Freedom of conscience and free profession, practice, and propagation of religion (Article 25):

  • The provisions of this article are not absolute. State can take appropriate measures when it comes to public order, health, and morality;
  • The State has the authority to regulate any economic, political, financial, or any secular affair related to any particular religion.
  • This enables the state to take measures regarding welfare and social reforms associated with religious practices.
  • For example; the state can take measures to open Hindu religious places for all sections of the Hindu society. (The intervention done by the state in recent matters like the ‘triple talaq’ and ‘Sabarimala temple entry’ are associated with these provisions)

Religious Affairs

Freedom To Manage Religious Affairs (Article 26)

As per the provisions of this article all religious communities have the following rights (subject to morality, health, and public order);

  • They have the right to form and maintain religious and charitable institutions.
  • They have the right to manage their own religious affairs.
  • They have the right to acquire property of both immovable and movable kind.
  • They have the right to administer these properties subjected to the provisions of law.

Freedom to payment of taxes for promotion of any particular religion (Article 27)

  • As per the provisions of this article people are free to give taxes for the religious promotion of any religion they want.
  • However, the State can not force the people to pay taxes for the promotion and maintenance of any religion or religious institution.

Freedom to attend religious instructions or religious worship in certain educational institutions (Article 28)

  • According to this article the institutions which are runned by particular religious groups have the right to give religious instructions.
  • The educational institutions that are receiving the state funding are not allowed to practice religious instructions.
  • If an institution has been run by the state but established as an endowment or trust which required religious instructions to be given there, are exempted from this restriction, and allowed to give such instructions.
  • The person belonging to the state-run institution or the one which is funded by the state’s aid, can not be compelled to join religious instructions or worship etc. without his/her consent.

Important Laws, Amendments And Judgements Related To The Matter Of Freedom Of Religion

Amendment in Preamble – In 1976, the parliament of India included the word “ secular” into the Preamble of constitution. The supreme court of India said that this explicit commitment of India towards secularism, for what has been already implicitly provided in the article 25 – 28.

  • Considering the issues of forced conversions, various state governments have passed laws to prevent such incidents and to “protect” the SC/ST community from further “exploitation” . Following laws have passed so far;
    • Madhya Pradesh Freedom of Religion Act of 1968
    • Orissa Freedom of Religions Act of 1967
    • Arunachal Pradesh Freedom of Religion Act of 1978
    • Tamil Nadu Prohibition of Forcible Conversion of Religion Bill 2002
    • Gujarat Freedom of Religion Act 2003
    • Himachal Pradesh Freedom of Religion Act 2006
    • Uttar Pradesh Unlawful Conversion Prohibition Ordinance, 2020

Recent Controversy

Right To Freedom of Religion – Recent controversy

The Supreme Court on religious freedom: Religious conversion has remained a matter of great controversy. In this light supreme court recently has made some observations as follows:

The summary of SCs Observations on Mr. Upadhyay’s petition:

  • The people have the freedom to choose the religion, even on the backdrop of so-called mass conversions (still it is a fundamental right)
  • “Every person is the final judge of their own choice of religion or who their life partner should be. Courts cannot sit in judgment of a person’s choice of religion or a life partner.”
  • Religious faith is a part of the fundamental right to privacy, Which inviolable and is an aspect of the right to life and dignity.
Secularism Secularism – Concept Secularism is defined as a dissociation from religion. It means separating religion from government, as well as social, economic, and cultural components of life. Religion is a deeply personal topic in this country. India is a secular country that does not have a national religion. However, in India, this also means that all sects and faiths are treated equally. The term is also used in the Constitution’s Basic Structure. The 42nd Amendment to the Constitution added it. In Indian democracy, this principle is held in high regard. As evidenced by the diversity of faiths that have coexisted in India for centuries, secularism has also been an inherent element of Indian culture. In India, all religious groups have equal influence without prejudice. Models Models of Secularism in India and the West In the Indian and Western polities, this term has slightly different connotations – Secularism in the Western model refers to the complete separation of the state and the church. This can be traced back to the French Revolution, which aimed to establish a “secular” government free of influence from the church and clergy. Both the church and the government would avoid interfering in each other’s spheres. However, in India, the state and religion do not exist in separate compartments. Despite the fact that the state must maintain an equal distance from all religions, the government does have some influence over religious matters, albeit in a restricted way. In contrast to the western approach, in which the state does not provide financial support to religious institutions, India has chosen a positive engagement strategy. Religious minorities have the right to establish their own educational institutions, and in some situations, the state assists them in doing so. Many Hindu temples are governed directly by the government. The state has established boards for the administration of significant temples, as well as the Waqf Board and others. When discussing society and community in India, the term pluralism is preferable to the term secularism. Until recently, Western nations were mostly homogeneous, with only a few religious (and other) minorities. For ages in India, many religious sects have coexisted and prospered in the same space.

3. India’s ‘return’ to Central Asia

While the gains from engaging Central Asia may be minimal, non-engagement could be costly

The inaugural India-Central Asia Summit, the India-Central Asia Dialogue, and the Regional Security Dialogue on Afghanistan in New Delhi — all held over the past four months — collectively indicate a renewed enthusiasm in New Delhi to engage the Central Asian region. India has limited economic and other stakes in the region, primarily due to lack of physical access. And yet, the region appears to have gained a great deal of significance in India’s strategic thinking over the years, particularly in the recent past. India’s mission Central Asia today reflects, and is responsive to, the new geopolitical, if not the geo-economic, realities in the region. More so, India’s renewed engagement of Central Asia is in the right direction for the simple reason that while the gains from an engagement of Central Asia may be minimal, the disadvantages of non-engagement could be costly in the longer run.

Great power dynamics

One of the factors driving this engagement and shaping it is the great power dynamics there. The decline of American presence and power in the broader region (due primarily to the U.S. withdrawal from Afghanistan) has led to a reassertion by China and Russia seeking to fill the power vacuum. While China dominates the geo-economic landscape, Russia is the dominant politico-military power in the region. But in the end, geo-economics might gain more traction. A somewhat anxious Moscow considers India to be a useful partner in the region: it helps it to not only win back New Delhi, which is moving towards the U.S., but also to subtly checkmate the rising Chinese influence in its backyard.

For the U.S., while growing India-Russia relations is not a welcome development, it recognises the utility of Moscow-New Delhi relations in Central Asia to offset Beijing’s ever-growing influence there.

As for China, India’s engagement of the region and the growing warmth in India-Russia relations are not a cause for concern yet, but they could be eventually.

For New Delhi, it’s about breaking out of a continental nutcracker situation it finds itself in. In the wake of the U.S. withdrawal from Afghanistan, New Delhi faces a major dilemma in the wider region, not just in the pre-existing theatres like the Line of Control and the Line of Actual Control. There are growing and legitimate concerns within the Indian strategic community that India in the region might get further hemmed in due to the combined efforts by China, Pakistan and Taliban-led Afghanistan. If so, it must ensure that there is no China-led strategic gang up with Pakistan and the Taliban against India in the region, which, if it becomes a reality, would severely damage Indian interests.

Focus on Afghanistan

India’s engagement of Central Asia would also help it to consolidate its post-American Afghan policy. U.S. withdrawal from Afghanistan has landed India in a major dilemma – it has very limited space to engage Taliban 2.0 despite the current relationship whose future depends on a number of variables. During the Hamid Karzai and Ashraf Ghani governments, given their proximity to India and the presence of the U.S. forces in Afghanistan, India was able to engage Kabul without too much hardship, despite Pakistani resistance. Now that the Taliban have returned to Kabul, New Delhi is forced to devise new ways of engaging Afghanistan. That’s where the Central Asian Republics (CARs) and Russia could be helpful. For instance, given its location bordering Afghanistan as well as its close geographical proximity to Pakistan-occupied Kashmir, Tajikistan holds immense geopolitical significance for India (incidentally, India helps maintain an airbase in the country). One has to wait and see how far India will innovate to engage CARs in pursuit of its interests in Afghanistan. The announcement of a Joint Working Group on Afghanistan during the summit between India and the CARs is surely indicative of such interest.

In India’s current vision for a regional security architecture, Russia appears prominent. President Vladimir Putin’s meeting with Prime Minister Narendra Modi and the earlier meeting between Russian National Security Adviser General Nikolai Patrushev and Mr. Modi are indications of the growing relationship. A cursory glance at the various issues being discussed between the two sides also indicates a new joint thinking on regional security. Of course, New Delhi expects the U.S. to understand that in the wake of the latter’s withdrawal from the region leaving India in the lurch, New Delhi has no choice but to work with the Russians.

By courting Russia — its traditional partner, also close to China and getting closer to Pakistan — to help it re-establish its presence in the Central Asian region, India is seeking to work with one of the region’s strongest powers and also potentially create a rift between China and Russia, to the extent possible. The two countries recently exchanged a ‘non-paper’ on how to increase their joint engagement in Central Asia. Both India and the CARs use Russian defence equipment, and the non-paper has reportedly explored the possibility of joint Indo-Russian defence production in some of the existing Soviet-era defence facilities in the CARs to meet local and Indian demands. The non-paper also reportedly discusses potential trilateral defence exercises among India, Russia and the CARs. In any case, joint defence production by India and Russia has been on the rise and the CARs could play a key role in it. This growing India-Russia partnership also explains India’s non-critical stance on the developments in Ukraine and Kazakhstan.

Challenges

That said, India’s ‘return’ to Central Asia is not going to be easy. For one, China, which shares a land border with the region, is already a major investor there. China is the region’s most important economic partner, a reality that worries Russia and sharpens India’s relative irrelevance in the region.

An even bigger challenge for India may be Iran. India’s best shot at reaching the CARs is by using a hybrid model – via sea to Chabahar and then by road/rail through Iran (and Afghanistan) to the CARs. So, for New Delhi, the ongoing re-negotiations on the Joint Comprehensive Plan of Action (or the Iran nuclear deal) are of crucial importance. If there is a deal, it would bring Tehran back into the Western fold and away from China (and Russia), which will be favourable to India. While Iran getting close to the West is not preferred by Russia (but preferred by India), if and when it becomes a reality, India would be able to use it to its advantage and join Russia in engaging the CARs. India’s ongoing outreach to Iran and the now-postponed visit of the Iranian foreign minister to New Delhi help repair some of the damage done to the relationship over the years.

But finally, perhaps most importantly, will India walk the talk on its commitments to Central Asia? Does it have the political will, material capability and diplomatic wherewithal to stay the course in the region?

4. A new form of untouchability

India lacks a robust politico-legal framework to address the open calls to economically boycott Muslims

Recently, a video, purportedly showing villagers from Surguja district of Chhattisgarh taking an oath to implement an economic boycott of Muslims, went viral on social media. This was not a spontaneous reaction of the villagers to a brawl in the village but allegedly orchestrated by a Hindutva outfit.

The Vishva Hindu Parishad (VHP) is known to distribute pamphlets calling for the economic boycott of those it labels “anti-national, anti-Hindu, love jihadists” — all convenient epithets to convey a communal message. These acts are not merely ‘expressions of hate’; they can be characterised as the emergence of a new form of untouchability guided by the political imperatives of Hindutva rather than the religious dictates of Hinduism. A progressive re-articulation of the concept of untouchability or a re-reading of the anti-discrimination legislation is required to end this abomination.

The hierarchical caste-based Hindu social order was governed by the ideology of purity and pollution. The primary function of the ideology was to maintain ritual hierarchy. Untouchability was a mechanism through which power was exercised over the Dalits and the hierarchy reinforced. One of the most common forms of untouchability was the imposition of social and economic boycott of Dalits if they dared to transgress social norms or exercise their rights. In Ambedkar’s opinion, the method of boycott was more effective than even open violence. Collective discrimination, marginalisation and disempowerment was justified as the right of the individual to choose freely in a marketplace. He argued that the boycott was effective for two reasons – one, the Dalits constituted a minority within the village; and two, they were economically weaker and hence, dependent on the ‘upper’ castes. Therefore, it was of paramount importance to outlaw this ‘tyranny of the majority’ for their uplift.

Limits of anti-boycott laws

During the freedom struggle, the struggle to eradicate untouchability gained momentum. This struggle found its highest expression in the fundamental rights enshrined in the Constitution under Articles 14, 15 and 17.

However, although untouchability was abolished, its definition remained vague. Even during the Constituent Assembly debates, it was argued that the scope of untouchability should be restricted to practices related to religion and caste, lest it be left open to unwarranted tinkering; however, the Assembly voted against such a circumscribed definition. Therefore, the limits of untouchability under Article 17 have been contested. While the conservatives restrict it to caste-based discrimination, the progressives argue that it includes other forms of untouchability as well. However, there is a consensus that only those acts which are motivated by the ideology of purity and pollution are considered within the ambit of untouchability. These include social and economic boycotts.

In India, mere provision of rights has proved to be insufficient to prevent marginalisation owing to the practice of untouchability and hence, the legislature and the judiciary have had to make and interpret special laws to that effect. Two laws which explicitly make social and economic boycotts punishable are The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, and Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016. However, the scope of both is restricted to criminalising caste-based discrimination and boycotts.

An ineffective approach

The tethering of anti-boycott or untouchability laws to the tenets of purity and pollution and restricting their scope to caste-centric boycotts makes them ineffective to counter the calls of economic boycott of Muslims. Hindutva is using pre-constitutional methods to disempower a community. It is not driven by the motive of maintaining ritual hierarchy but by the political imperatives of exclusion. Its ultimate objective is to ethnicise the Hindu identity. Such public calls for boycotts are means of constructing such an identity. The act of collectively resolving to boycott Muslims reinforces their ‘othering’ and re-emphasises the VHP’s idea of ‘Hinduness’; reconstituting Hinduism, based on caste hierarchy, into a unified, ethnic whole, where the figure of the Dalit is replaced by the Muslim as the significant ‘other’.

These grave new developments need to be taken into cognisance and an urgent politico-legal response to such public calls for Muslim economic boycott is required as they militate against the principle of fraternity enshrined in the Constitution. This can be done by a progressive redefinition of untouchability or by expanding the scope of the anti-boycott laws to include discrimination against religious communities.

5. SC to weigh between ‘national security’, judicial scrutiny

The court will take a call on whether the Centre can expect a free pass on matters pertaining to national security

The question whether the state can use ‘national security’ as a ground to limit judicial scrutiny has come up for scrutiny again in the MediaOne TV channel case barely weeks after the Supreme Court, in its Pegasus case order, observed that the Centre cannot expect a ‘free pass’ from the courts as soon as it raises the ‘spectre of national security’.

The government has cited national security reasons in the Kerala High Court for cancelling telecast permission to the Malayalam news channel.

“It is a settled position of law that in matters pertaining to national security, the scope of judicial review is limited. However, this does not mean that the state gets a free pass every time the spectre of ‘national security’ is raised. National security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning. Although this court should be circumspect in encroaching upon the domain of national security, no omnibus prohibition can be called for against judicial review… The mere invocation of national security by the state does not render the court a mute spectator,” a three-judge Bench led by Chief Justice of India N.V. Ramana observed in the Pegasus case order in October 2021.

The order is a significant one considering the oft-repeated refrain of the government, while banning or curtailing rights of citizens, that it is being done for the sake of ‘national security’.

One of the major concerns raised by citizens recently is the “chilling effect” such state actions endure to have on free speech, especially in the media. The principle of ‘chilling effect’ is based on comparative harm.

“One possible test of chilling effect is comparative harm. In this framework, the court is required to see whether the restrictions, due to their broad based nature, have had a restrictive effect on similarly placed individuals during the period,” the Supreme Court explained in the Anuradha Bhasin case, which concerned Internet restrictions in Jammu and Kashmir in the backdrop of the abrogation of Article 370. In short, the test is whether action of the state on one entity freezes others in their footsteps or deters them from following the same course.

Order backed by reasons

Any order of the state which restricts the fundamental rights of speech or expression should be backed by reasons. The courts should be convinced that the state acted in a responsible manner and did not take away rights in an “implied fashion or a casual or cavalier manner”, the Supreme Court has said in its 130-page judgment in the Anuradha Bhasin case.

“Democracy entails free flow of information,” the Supreme Court had declared.

“There is no dispute that freedom of speech and expression includes the right to disseminate information to as wide a section of the population as is possible. The wider range of circulation of information or its greater impact cannot restrict the content of the right nor can it justify its denial,” the Supreme Court has observed in judgments like Secretary, Ministry of Information & Broadcasting Government of India v. Cricket Association of Bengal and Shreya Singhal v. Union of India.

6. China, Pakistan hit out at ‘unilateral’ Kashmir moves

Both sides reaffirm support for each other’s ‘core interests’

China and Pakistan on Sunday said they opposed “unilateral actions that complicate” the Kashmir issue, as they pledged closer ties following a meeting between Chinese President Xi Jinping and Pakistan Prime Minister Imran Khan.

A joint statement released following their meeting in Beijing said “both sides reiterated their support on issues concerning each other’s core interests” and “underscored that stronger defence and security cooperation between Pakistan and China was an important factor of peace and stability in the region.”

Mr. Khan attended the opening of the Winter Olympics on Friday, which India has boycotted following the use of a PLA commander in the torch relay, and also held talks with Premier and second-ranked leader Li Keqiang prior to his meeting with Mr. Xi.

The joint statement following Sunday’s talks said Pakistan was committed to a “One-China Policy and support for China on Taiwan, South China Sea, Hong Kong, Xinjiang and Tibet.” China, for its part, “reaffirmed its support for Pakistan in safeguarding its sovereignty, independence and security, as well as promoting its socio-economic development and prosperity.”

“Both sides reiterated that a peaceful and prosperous South Asia is in the common interest of all parties,” the statement said, adding that “they emphasised the importance of pursuit of dialogue and resolution of all outstanding disputes to promote regional cooperation and advance the goals of lasting peace, stability and shared prosperity in the region.”

On Kashmir, the statement said Mr. Khan “briefed the Chinese side on the latest developments on the situation in Jammu & Kashmir, including its concerns, position and pressing issues at the moment.”

China repeated its official stance that the issue “should be properly and peacefully resolved based on the UN Charter, relevant Security Council resolutions and bilateral agreements” and said it “opposes any unilateral actions that complicate the situation”. Beijing had in 2019 voiced opposition to India’s reorganisation of Jammu and Kashmir and creation of Ladakh union territory calling it a “unilateral action”.

A readout from Islamabad on Mr. Khan’s remarks to Mr. Xi, published by the official Associated Press of Pakistan, quoted the Pakistani leader as hitting out at India. He claimed that “the persecution of minorities in India in advancing the Hindutva mindset of RSS-BJP, was a threat to regional peace and stability” and “that the rapid militarisation of India was undermining regional stability.”

Those comments and references to India were not mentioned in the Chinese readout, which quoted Mr. Xi as saying “the strategic significance of China-Pakistan relations is getting more prominent since the world has entered a period of turbulence and transformation.”

Mr. Xi said China “firmly supports Pakistan in safeguarding national independence, sovereignty, dignity and fighting terrorism” and would continue supporting the China Pakistan Economic Corridor (CPEC). Both sides on Friday signed an agreement to boost industrial cooperation as part of the second phase of CPEC.

The joint statement said the two sides discussed the situation in Afghanistan and the need to expedite humanitarian aid, and said both sides were “ready to discuss with Afghanistan the extension of CPEC to Afghanistan.”

7. Redrawing the electoral map of the Union Territory of J&K

How have the constituencies of Jammu and Kashmir been reframed? What has been the response from local leaders?

The three-member J&K delimitation commission has submitted its interim report to its five associate members, which included three MPs of the National Conference and two MPs of the BJP.

The Commission has added seven assembly constituencies to J&K. The interim report proposes an increase of six seats for the Jammu province and of one seat in the Kashmir province, almost bringing the two regions at par with each other.

The Commission has suggested redrawing of boundaries of most of the Assembly segments in J&K. It has reconfigured 28 new constituencies and deleted 19 assembly segments.

Peerzada Ashiq

The story so far: The three-member J&K delimitation commission, headed by retired Supreme Court (SC) judge Justice Ranjana Prakash Desai, has submitted its interim report to its five associate members, which included three Members of Parliament (MP) of the National Conference (NC) and two MPs of the BJP.

This paves way for the winding up of the exercise and likely announcement of elections in J&K, directly ruled by the Centre since the BJP withdrew from the coalition Government with the Peoples Democratic Party (PDP) in 2018.

What is the role of the delimitation commission?

The delimitation commission is an independent body constituted under Article 82 after the Parliament enacted a Delimitation Act after every census.

Interestingly, the J&K delimitation commission has not been clear to the associate members about the census report that was made as a base to carve out new constituencies in the Union Territory (UT).

How many seats have been added?

The Commission has, as per the mandate granted under the J&K Reorganisation Act, 2019, added seven assembly constituencies to J&K, increasing its strength from 87 to 90. The interim report proposes an increase of six seats for the Jammu province, taking the number of constituencies to 43, and an increase of one seat in the Kashmir province, taking the seat strength to 47, almost bringing the two regions at par with each other. In Kashmir, Kupwara district has been granted an additional seat and in the Jammu region Kathua district gets one additional seat, Samba gets one, Doda gets one, Rajouri gets one, Kisthwar gets one and Udhampur gets one. Of six seats, three assembly segments are from the Muslim-majority Chenab Valley and Pir Panjal valley, while three are in the Hindu Jammu-Samba-Kathua belt. The Commission has also proposed to reserve seven seats for Scheduled Castes (SCs) Hindus that mainly populate the Samba-Kathua-Jammu-Udhampur belt and nine seats for Schedule Tribes (STs) which will help Gujjar and Bakerwals, mostly non-Kashmiri speaking Muslims inhabiting the Rajouri-Poonch belt in the Jammu province.

Prior to the Centre’s move to end J&K’s special constitutional position on August 5, 2019, the erstwhile State had an 87-member assembly, with 37 constituencies in the Jammu region and 46 in the Kashmir division and four in Ladakh . Besides, 24 seats are reserved and vacant for Pakistan occupied Kashmir (PoK).

Have the constituencies been reconfigured?

The Commission has suggested redrawing of boundaries of most of the Assembly segments in J&K. It has named and reconfigured 28 new constituencies and deleted 19 assembly segments.

The Commission has also proposed reframing of Lok Sabha constituencies, with J&K having five parliamentary constituencies, which included three seats from Kashmir and two from Jammu. It has proposed a Lok Sabha seat, disjointed geographically, by merging three districts of south Kashmir and two districts of Rajouri and Poonch in the Pir Panjal valley. It will be named Anantnag-Rajouri seat, which will comprise a significant population of the non-Kashmiri speaking Schedule Tribe assembly segments.

What has been the response from regional actors?

This seat sharing was criticised by regional parties in Kashmir, including the NC and the PDP, on the grounds that the Kashmir province has more population at 68.88 lakhs against 53.50 lakhs in the Jammu province. However, the commission argued that it has taken into account the topography, means of communication and convenience available and not just the population size.

According to the NC, whose MPs first boycotted and later joined the delimitation exercise, none of the suggestions made to the commission had been respected. It has maintained that the J&K Reorganisation Act, 2019 was “palpably unconstitutional” and has already challenged the J&K Reorganisation Act in the Supreme Court. The party reiterated that the delimitation be carried out after 2026, as ordered by the Supreme court, after the relevant figures of the census were published. It also questioned the formula applied in case of J&K by the commission. CPI(M) leader Mohamad Yousuf Tarigami termed the Commission’s report “an arbitrary overhaul, with no regard for even the terrain, let alone the population that tends to be a basic parameter for redrawing the boundaries of assembly and parliamentary segments.

Share on facebook
Facebook
Share on google
Google+
Share on twitter
Twitter
Share on linkedin
LinkedIn
Share on pinterest
Pinterest
kurukshetraiasacademy

kurukshetraiasacademy

Leave a Reply

Your email address will not be published.