IAS Gyan

Daily News Analysis


16th November, 2019


Explained: How Supreme Court’s Sabarimala verdict differs with Ayodhya order

In Adelaide Co. of Jehovah’s Witnesses Inc. vs. Commonwealth (1943), Australia’s High Court observed: “What is religion to one is superstition to another”.

Court view:

-       The Sabarimala review has been referred to a seven-judge Bench of the Supreme Court.

Dissident view:

-       Neither any error in the 2018 judgment has been pointed out, nor has any new fact been discovered after the judgment. It does not make case for review petition.

-       They disagreed with the Chief Justice of India on clubbing with the Sabarimala review the issues of female genital mutilation among Bohras, entry of women into mosques, and Parsi women married to non-Parsis visiting the Agyari.

-       This case was limited to only the review of the Sabarimala judgment, and no arguments were heard on other issues.

Role of Judiciary:

-       They should not tell us what is essential or non-essential in a religion.

-       It is not supposed to take over the role of clergy.

-       In Babri judgement, it observed that it cannot scrutinise anyone’s religious beliefs.

Difference from Babri verdict:

-       They didn’t consider whether the belief about Lord Ram’s birth under the central dome of the Babri mosque was an essential practice of the Hindu religion.

-       No one asked whether one could remain a Hindu despite not having such a belief.

-       Minority judges agreed that a Hindu temple remains a temple despite being visited by people of other religion. However, in Babri Mosque court had argued that Muslims were not exclusively praying in the inner courtyard from 1528 to 1856.


-       It allows regulation of secular activities within a religion.

-       Constitution allows the freedom of religion with a mandate to the state to intervene in religious affairs if social welfare so demands.

Regulation of religion or “Doctrine of Essentiality”:

-       In the Shirur Mutt (1954) case, court held that “religion” in Article 25 covers all rituals and practices that are “integral” to a religion.

-       It also invented the doctrine of "essentiality" in this verdict.

-       Doctrine of essentiality means that court decides what is essential or not in religion.

-       This test of arriving at the definition of religion was called the essential practices test.

-       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 conclusion that untouchability was not an essential Hindu practice.

-       In the Sabarimala (2018) judgment, Justice Chandrachud said that ban on the entry of women in Sabarimala is a kind of untouchability, and thus violative of Article 17.

How court arrives:

-       It undertakes liberal interpretation of religious texts to determine the essentiality.

-       It takes general religious practice to determine the constitutionality of any specific practice. As it happened in Sabrimala.

-       The court looked at empirical evidence of the practice, rather than at religious texts to determine whether Muslims can sport beards in Army.

-       The court relied on the doctrine of precedent to hold that tandava dance was not an essential practice of the Ananda Marga faith. The faith came before adopting the tandava dance thus it is not essential for its existence.

-       In Ismail Faruqui (1994) judgement, court had ruled that ruled that while praying is an essential practice, the offering of such prayers in a mosque is not, unless the place has a particular religious significance in itself.

-       It considers rationality and morality before considering constitutionality of any practices.

Criticism of court:

-       Court has recognized the freedom of religion is an individualistic right. While, essential practice test makes it group right thus goes antithetical to fundamental rights.

-       The court privileges certain religious practices over others.

-       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.

-       Essentiality/integrality doctrine has tended to lead the court into an area that is beyond its competence.

-       Courts have been inconsistent on this question — in some cases; they have relied on religious texts to determine essentiality, in others on the empirical behaviour of followers.

-       The doctrine assumes that one element or practice of religion is independent of other elements or practices.

-       It goes against freedom of religion as freedom of religion was meant to guarantee freedom to practice one’s beliefs based on the concept of “inward association” of man with God.

Reference: https://indianexpress.com/article/explained/an-expert-explains-when-judges-decide-questions-of-religion-problems-with-test-of-essential-practices-6120291/


Centre drops plan to bring in changes to Forest Act of 1927



The Union Environment Ministry on Friday withdrew a draft amendment that proposed updates to the Indian Forest Act, 1927.

About the amendment:

-       It was an amendment to the Indian Forest Act, 1927, and an attempt to address contemporary challenges to the country’s forests.

Proposed Amendment:

-       The draft bill brings in forest bureaucracy to manage "village forests" through joint forest management committee (JFMC).

-       Even when a village forest belongs to tribal community, use of timber and other forest produce, pasture rights and protections and management of these forests would be "in consultation with the forest department.

-       It empowers forest bureaucracy to record forest rights and gives it extraordinary power to take away ("commute") individual and community rights for declaring "reserve forest" by paying compensation.

-       The draft bill introduces a new provision (clause 66) to allow forest bureaucracy to use firearms, enter and search any premises on mere suspicion, just by informing Gram Sabha, to check forest offence.

-       It introduces immunity from prosecution for their excesses or wrongdoings in line with the Armed Forces (Special Powers) Act of 1958 applicable in "disturbed areas" to the armed forces.

-       Clause 11 (3) empowers Forest Settlement Officer to act as "deemed as Collector proceeding under the Land Acquisition Act of 1894" for acquiring forestland.

-       It even denies state government the power (forest was shifted to the concurrent list in 1976) to withdraw registered cases.

-       The amendment also introduces a new category of forests — production forest. These will be forests with specific objectives for production of timber, pulp, pulpwood, firewood, non-timber forest produce, medicinal plants or any forest species to increase production in the country for a specified period.

Indian Forest Act 1927:

-       The 1927 act sought to consolidate and reserve the areas having forest cover, or significant wildlife, to regulate movement and transit of forest produce, and duty leviable on timber and other forest produce.

-       It also defines the procedure to be followed for declaring an area to be a Reserved Forest, a Protected Forest or a Village Forest.

-       It defines what a forest offence is, what are the acts prohibited inside a Reserved Forest, and penalties leviable on violation of the provisions of the Act.

Reference: https://www.thehindu.com/todays-paper/tp-national/centre-drops-plan-to-bring-in-changes-to-forest-act-of-1927/article29988199.ece


Rules notified to bring financial firms under IBC

The Centre issued rules to provide a framework for bringing ‘systemically important financial service providers’ under the purview of the Insolvency and Bankruptcy Code (IBC).


-       It provided a generic framework for insolvency and liquidation proceedings of systemically important FSPs other than banks.

-       It was up to the Reserve Bank of India to now decide which financial companies would be taken up under these rules.

Need of the Notification:

-       There was no system like the IBC that was designed exclusively for financial institutions.

-       This notification was brought out in an environment where it might be necessary to invoke an IBC-like proceeding on a financial institution.

The Insolvency and Bankruptcy Code, 2016 (IBC) is the bankruptcy law of India which seeks to consolidate the existing framework by creating a single law for insolvency and bankruptcy. The code aims to protect the interests of small investors and make the process of doing business less cumbersome

IBC key features:

Insolvency Resolution: The Code outlines separate insolvency resolution processes for individuals, companies and partnership firms.

-       The process may be initiated by either the debtor or the creditors.

-       A maximum time limit, for completion of the insolvency resolution process, has been set for corporate and individuals. For companies, the process will have to be completed in 180 days, which may be extended by 90 days, if a majority of the creditors agree. For start-ups (other than partnership firms), small companies and other companies (with asset less than Rs. 1 crores), resolution process would be completed within 90 days of initiation of request which may be extended by 45 days.

Insolvency regulator: The Code establishes the Insolvency and Bankruptcy Board of India, to oversee the insolvency proceedings in the country and regulate the entities registered under it.

-       The Board will have 10 members, including representatives from the Ministries of Finance and Law, and the Reserve Bank of India.

Insolvency professionals: The insolvency process will be managed by licensed professionals. These professionals will also control the assets of the debtor during the insolvency process.

Bankruptcy and Insolvency Adjudicator: The Code proposes two separate tribunals to oversee the process of insolvency resolution, for individuals and companies: (i) the National Company Law Tribunal for Companies and Limited Liability Partnership firms; and (ii) the Debt Recovery Tribunal for individuals and partnerships

Reference: https://www.thehindu.com/todays-paper/tp-business/rules-notified-to-bring-financial-firms-under-ibc/article29988118.ece

Report on household spending put on hold

The government has decided not to release the household consumer expenditure survey results of 2017-18 due to data quality issues.

Reasons for suppression:

-       It showed that consumer demand had declined in 2017-18 for the first time in more than 40 years.

Government Argument:

-       Planning the next consumer expenditure survey in 2021-22 after data quality refinement in the survey process.

-       Household consumer expenditure survey Released by Ministry of statistics. There is a rigorous procedure for vetting of data and reports produced through surveys. All such submissions that come to Ministry are draft in nature and cannot be deemed to be final report.

Reference: https://www.thehindu.com/todays-paper/household-spending-report-on-hold/article29988247.ece