THE HINDU ANALYSIS NOTES 29/11/22 BY:- SANJAY KUMAR SAH

*** :- ANGUISH OVER NJAC ORDER BEHIND POSTING DELAYS : S.C.(SUPREME COURT)

   PAGE NO. 1 , GS 2

 About NJAC and the Act: NJAC is a body responsible for the appointment and transfer of judges to the higher judiciary in India. NJAC Bill sought to replace the collegium system of appointing the judges of Supreme Court and High Courts with judicial appointments commission wherein the executive will have a say in appointing the judges.

 • A new article, Article 124A, (which provides for the composition of the NJAC) was to be inserted into the Constitution.

 • The Bill provided for the procedure to be followed by the NJAC for recommending persons for appointment as Chief Justice of India and other Judges of the Supreme Court (SC), and Chief Justice and other Judges of High Courts (HC).

 According to the bill the commission will consist of the following members: 1.Chief Justice of India (Chairperson, ex officio) 2.Two other senior judges of the Supreme Court next to the Chief Justice of India – ex officio 3.The Union Minister of Law and Justice, ex-officio 4.Two eminent persons (to be nominated by a committee consisting of the Chief Justice of India, Prime Minister of India and the Leader of opposition in the Lok Sabha or where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in Lok Sabha), provided that of the two eminent persons, one person would be from the Scheduled Castes or Scheduled Tribes or OBC or minority communities or a woman. The eminent persons shall be nominated for a period of three years and shall not be eligible for re-nomination.

 •First Judges Case (1981):

 • It declared that the “primacy” of the CJI’s (Chief Justice of India) recommendation on judicial appointments and transfers can be refused for “cogent reasons.” 

• The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.

 •Second Judges Case (1993): 

• SC introduced the Collegium system, holding that “consultation” really meant “concurrence”. 

• It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC.

 •Third Judges Case (1998):

 • SC on the President's reference (Article 143) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

***:-H.C. STAYS CONSTRUCTION IN NAINITAL AS GOOGLE SHOWS SHRINKING GREEN COVER :-

PAGE NO. 4,GS 3.

 The Uttarakhand High Court last week stayed till December 15 all further construction activities taking place in Jilling Estate, a small hamlet in Nainital district. The direction was passed after taking an account of Google Maps imagery submitted in the court that depicted depletion of green cover, particularly in 8.5 hectares of the 36-hectares estate.

 About NGT:

 •Established on 18th October, 2010 under the National Green Tribunal Act 2010. 

•Established for effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources.

 •New Delhi is the Principal Place of Sitting of the Tribunal and Bhopal, Pune, Kolkata and Chennai shall be the other four places of sitting of the Tribunal.

 •The Tribunal is not bound by the procedure laid down under the Code of Civil Procedure, 1908, but shall be guided by principles of natural justice. 

•NGT is mandated to make disposal of applications or appeals finally within 6 months of filing of the same. Composition: Sanctioned strength: The act allows for up to 40 members (20 expert members and 20 judicial members).

 Chairman:

 Is the administrative head of the tribunal, also serves as a judicial member and is required to be a serving or retired Chief Justice of a High Court or a judge of the Supreme Court of India. 

Selection: 

1.Members are chosen by a selection committee (headed by a sitting judge of the Supreme Court of India) that reviews their applications and conducts interviews. 

2.The Judicial members are chosen from applicants who are serving or retired judges of High Courts.

 3.Expert members are chosen from applicants who are either serving or retired bureaucrats not below the rank of an Additional Secretary to the Government of India (not below the rank of Principal Secretary if serving under a state government) with a minimum administrative experience of five years in dealing with environmental matters. Or, the expert members must have a doctorate in a related field.

***:- STILL NIGHTMARE FOR DOMESTIC VIOLANCE SURVIVORS 

Pg no. 6 GS 1,2

 • Just ahead of the International Day for Elimination of All Forms of Violence against Women (November 25), the brutal murder and mutilation of a young woman by her partner has drawn attention to intimate partner violence, also recognised under the Protection of Women from Domestic Violence Act 2005 (PWDVA) as a kind of domestic violence.

 • Domestic violence is a punishable offence under Indian law. It is a violation of human rights. Yet, the latest round of the National Family Health Survey-5 (2019-21) reveals that we live in a society where violence against women persists to such an extent that 32% of ever-married women aged 18-49 years have ever experienced emotional, physical, or sexual violence committed by their husband, with more rural than urban women reporting experiences of domestic violence. This does not even capture the prevalence of violence by other family members too.

 • The most disheartening reality is that despite almost a third of women being subject to domestic violence, the National Family Health Survey-5 (2019-21) reports that only 14% of women who have experienced domestic violence have ever sought help; and this number is much lower in the rural areas.

 • Women were hopeful that things would change, that they could change their husband’s behaviour, that he would listen to them. Crucially women did not want to be a ‘burden’ on others, in particular their families.

***:- LOSS AND DAMAGE DECISIONS,  PITFALLS AND PROMISES:-

PAGE NO.6,GS 3

A major takeaway from COP27 in Egypt, as far as loss and damage (L and D) is concerned, is the decision relating to new funding arrangements focusing on L and D — those particularly vulnerable to the adverse effects of climate change. 

• The committee will aim to identify and expand sources of funding, which demonstrates a lack of clarity on the source of funding (adequate and predictable) accruing to the new fund only. There is a question mark over the new L and D fund with non-compliance by developed countries as far as climate finance commitment (mobilising $100 billion per year by 2020) is concerned. 

• In the entire climate change negotiations, the developed countries have consistently opposed being made liable for climate-change related adverse effects. The basis for their contribution to various funds so far is the principle of common but differentiated responsibilities and respective capabilities (CBDR).

***:- SAME RIGHTS:-

PAGE NO. 6,GS 1,2

 What are the key features of the Special Marriage Act (SMA)? 

 • The Special Marriage Act, 1954 (SMA) was enacted to facilitate the marriage of couples professing different faiths and preferring a civil wedding.

 • Conditions -The marriage of any two persons may be solemnised under the SMA, subject to the man having completed 21 years of age and the woman 18.

 •First petition - The petition argued that the SMA was “ultra vires” (beyond the powers) the Constitution as it discriminates between same-sex couples and opposite-sex couples.

 •It stated that the Act denied same-sex couples both legal rights as well as the social recognition and status that came from marriage.

 •It argued that about 15 legislations which guaranteed the rights of wages, gratuity, adoption, surrogacy, etc.

                             were not available to LGBTQ+ citizens.

 •Second petition – It argued that the recognition of same-sex marriage was only a continuation of the Navtej Singh Johar judgment of 2018 and the Puttaswamy judgment of 2017. 

•The petition only sought to make the 1954 Act gender-neutral.

 •It argued that the use of gendered language such as the terms male’/‘female’ , ‘husband/wife’ , ‘bride/bridegroom’ in the Act limit the accessibilty.

***:- RIGHT TO RELIGION DOES NOT INCLUDE RIGHT TO CONVERT "HOME  MINISTRY " TELLS COURT:-

PAGE NO.11, GS 2

  • The right to religion does not include the right to convert other people to a particular religion, especially through fraud, deception, coercion, allurement and other means, the Ministry of Home Affairs told the Supreme Court on Monday.

 • The Ministry said the word ‘propagate’ in Article 25 (right to freedom of religion) does not include the right to convert. It is rather in the nature of a positive right to spread one’s religion by exposition of its tenets.

 • The government said that, “Fraudulent or induced conversion impinged upon the right to freedom of conscience of an individual apart from hampering public order and therefore, the state is well within its power to regulate or restrict it”. 

•Fundamental Right Enshrined: Article 25 says that all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion. 

•The implications of this are: 

                      • Freedom of conscience: Inner freedom of an individual to mould his relation with God or Creatures in whatever way he desires. 

• Right to Profess:

 Declaration of one’s religious beliefs and faith openly and freely. 

• Right to Practice:

 Performance of religious worship, rituals, ceremonies and exhibition of beliefs and ideas. 

• Right to Propagate: 

Transmission and dissemination of one’s religious beliefs to others or exposition of the tenets of one’s religion. 

Restrictions: 

These rights are subject to public order, morality, health and other provisions relating to fundamental rights.