Daily Current Affairs

The hijab case and the essential practices doctrine (GS Paper 2, Polity and Governance)

Context:

• A two-judge Bench of the Supreme Court of India is presently hearing arguments on the correctness of a Karnataka High Court judgment that upheld the ban on the use of the hijab by students in Karnataka.

Theological aspect:

• Over the last few days, counsel for the petitioners has addressed a bundle of different issues, ranging from the rights of students to freedom of expression, conscience, and religion to the disparate impact that the ban has had on the right to education of Muslim women.
• In theory, the issues emanating out of these submissions ought to be capable of easy resolution, through an application of ordinary doctrines of constitutional law.
• But, as transcripts from the hearings have shown that every time an argument over religious freedom in India is made, it invariably mires itself in the court-crafted doctrine of essential practice.
• This requires judges to engage not merely in legal analysis but also in theological study, something an education in the law scarcely equips one to perform.

 

Findings by Karnataka High Court:

The Karnataka High Court made three primary findings in its judgment:

1. First, it held that the use of a hijab is not essential to the practice of Islam. Thus, the right to freedom of religion was not violated.
2. Second, it ruled that there exists no substantive right to freedom of expression or privacy inside a classroom and, therefore, these rights were simply not at stake here.
3. Third, it held that the ban did not stem directly out of the government’s order, which only called for a uniform dress code to be prescribed by the State or school management committees, and, hence, the law did not discriminate, either directly or indirectly, against Muslim students.

• To decide on the correctness of this verdict, the Supreme Court need not answer all the questions posed before it. A reversal of any of the three findings made by the High Court ought to result in a nullification of the ban.

 

Possible outcomes of the issue:

• If the petitioners can establish that the law’s seemingly neutral language does not negate the ringfencing of most forms of expression against the singling out of the hijab, and for that reason if they can show that Muslim women have been discriminated against, the Bench must reverse the High Court’s judgment.
• Similarly, if the petitioners can establish that there is nothing to suggest that there exists no right to freedom of expression within the confines of an educational institution, then the onus shifts to the State to show that the ban is proportionate and legitimate.
• That analysis was never conducted by the High Court because in its belief, classrooms are “qualified public spaces” where individual rights must give way to the interests of “general discipline and decorum”.
• The Supreme Court should be able to decide these questions based on settled canons of constitutional law.

 

Practice & Faith:

• If the SC Bench were to find that the Karnataka High Court erred in deciding either of these issues against the petitioners perhaps it might be keen on ignoring altogether the question of whether the ban impinges on the right to freedom of religion.
• For that analysis, on the law as it stands today, requires it to engage in a study of scriptures and conventions, and to then determine how indispensable the practice is to faith.

 

Essential practices doctrine by B.R. Ambedkar:

• The essential practices doctrine owes its existence to a speech made by B.R. Ambedkar in the Constituent Assembly. “The religious conceptions in this country are so vast that they cover every aspect of life, from birth to death,” he said. “…I do not think it is possible to accept a position of that sort… we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious. It is not necessary that… laws relating to tenancy or laws relating to succession, should be governed by religion.”
• Ambedkar was striving to distinguish the religious from the secular, by arguing that the state should be allowed to intervene in matters that are connected to religion but are not intrinsically religious.
• Indeed, it was in this vein that the Supreme Court, in the case concerning the Shirur Mutt (1954), held that to determine what constituted an ‘essential’ aspect of religion, the Court ought to look towards the religion concerned, and to what its adherents believed was demanded by their faith.
• But since then, the Court has, with a view to determining the kinds of circumstances in which the state could legitimately intervene, transformed this doctrine into an altogether different form of inquiry.

 

Supreme Court’s essential practices test:

• Through a fusion of tests, the Court is now deciding not only when the state could lawfully interfere in the interests of social welfare and reform, but also which practices are deserving of constitutional protection in the first place.
• The embedding of this test in the Court’s jurisprudence has achieved at least two things, neither of which is particularly desirable.

1. First, it has allowed the Court to narrow the extent of safeguards available to religious customs by directly impinging on the autonomy of groups to decide for themselves what they deem valuable, violating, in the process, their right to ethical independence.
2. Second, it has also negated legislation that might otherwise enhance the cause of social justice by holding that such laws cannot under any circumstances encroach on matters integral to the practice of a religion.
3. For example, in 1962, the Court struck down a Bombay law that prohibited excommunications made by the Dai of the Dawoodi Bohra community when it held that the power to excommunicate is an essential facet of faith and that any measure aimed at social welfare cannot reform a religion out of its existence.

 

Principle of anti-exclusion:

• In his concurring opinion, in the case concerning the ban on entry of women into the Sabarimala temple, Justice D.Y. Chandrachud proposed one such doctrine: a principle of anti-exclusion.
• Its application would require the Court to presume that a practice asserted by a religious group is, in fact, essential to the proponents of its faith.
• But regardless of such grounding, the Constitution will not offer protection to the practice if it excludes people on grounds of caste, gender, or other discriminatory criteria.
• As Justice Chandrachud put it, “the anti-exclusion principle allows for due-deference to the ability of a religion to determine its own religious tenets and doctrines. At the same time, the anti-exclusion principle postulates that where a religious practice causes the exclusion of individuals in a manner which impairs their dignity or hampers their access to basic goods, the freedom of religion must give way to the over-arching values of a liberal constitution”.
• But until such time as the essential practices doctrine is overruled by a Bench of more than seven judges, the Court is bound to apply its tenets.
• Perhaps that reassessment will happen when a nine-judge Bench constituted in the review petitions filed against the judgment in the Sabarimala case passes judgment.

 

Conclusion:

• For now, any Court hearing a matter touching upon a matter of faith has the unenviable task of acting not merely as an expert on law but also as an expert on religion.

 

MHA notifies rules governing the Criminal Procedure (Identification) Act, 2022

(GS Paper 2, Governance)

Why in news?

• Recently, the Ministry of Home Affairs (MHA) has notified the rules governing The Criminal Procedure (Identification) Act, 2022 that would enable police and central investigating agencies to collect, store and analyse physical and biological samples including retina and iris scans of arrested persons.

 

Exemptions:

• The rules do not mention the procedure to be adopted for convicted persons.
• The measurements of persons detained under various preventive detention laws shall not be taken unless clubbed with a serious offence or ordered by a court. 
• When the Bill was introduced in Parliament in March 2022, the Opposition members termed it “unconstitutional” and an attack on privacy as it allowed to record samples of even political detainees.
• However, the rules notified state that samples of those detained under preventive sections such as 107, 108, 109, 110, 144, 145 and 151 of the Code of Criminal Procedure Code (CrPC) code shall not be taken unless such person is charged or arrested in connection with any other offence punishable under any other law for the time being in force or the person has been ordered to give security for his good behaviour or maintaining peace under section 117 of the said Code for a proceeding under the said sections.

 

Measurements:

• “Measurements” includes finger-impressions, palm-print, foot-print, photographs, iris and retina scan, physical, biological samples and their analysis, behavioural attributes including signatures, handwriting or any other examination referred to in section 53 or section 53A of the Code of Criminal Procedure, 1973 (2 of 1974).
• The National Crime Records Bureau (NCRB) under the MHA will direct States on how to collect and store the information.
• This includes- specifications of the equipment or devices to be used for taking measurements, specifications and the digital and physical format of the measurements, method of handling and storage of measurements in the State government in a format compatible with the database of the NCRB and also the information technology system to be used for taking of measurements. 

 

Other Guidelines:

• If any person who is required to allow the measurements to be taken under the Act resists or refuses to allow the taking of such measurements, the authorised user shall take the measurements in accordance with the provisions of sections 53 and 53A of the Code of Criminal Procedure, 1973 (2 of 1974).
• The record of measurements shall be stored and preserved in a secure and encrypted format as specified in the Standard Operating Procedures by the NCRB from “time to time.” 
• Any act of unauthorised access, distribution or sharing of data collected under the Act shall be punishable as per the provisions of the Indian Penal Code, 1860 and the Information Technology Act, 2000. 

 

Repealed Act:

• The Act repeals ‘The Identification of Prisoners Act, 1920’, even though the rules do not mention convicted persons.
• The over 100-year-old Act’s scope was limited to capturing finger impressions, footprint impressions and photographs of convicted prisoners and certain categories of arrested and non-convicted persons on the order of a Magistrate.

 

Objects and Reasons:

• The Statement of Objects and Reasons of the bill said that new ‘‘measurement’’ techniques being used in advanced countries are giving credible and reliable results and are recognised the world over.
• It said that the 1920 Act does not provide for taking these body measurements as many of the techniques and technologies had not been developed then.

 

GB 9 of the International Treaty on Plant Genetic Resources for Food and Agriculture
(GS Paper 3, Food Security)

Why in news?

• Recently, Union Minister of Agriculture and Farmers Welfare, inauguratedthe Ninth Session of the Governing Body of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) in New Delhi.

 

Theme:

• GB9 is being organized under the theme ‘Celebrating the Guardians of Crop Diversity: Towards an Inclusive Post-2020 Global Biodiversity Framework’.
• The theme aims to highlight the contribution of the world's small farmers to the effective management of PGRFA and provide an opportunity to consider how the treaty and its community can contribute to the new global biodiversity architecture.

 

Agenda:

The major issues to be deliberated during the meeting comprise  

1. Amendment of the Treaty to expand the list of crops in the multilateral system;
2. Capacity-development strategy for the Treaty;
3. Funding strategy, resource mobilization and the budget;
4. Conservation and sustainable use of PGRFA and agriculture;
5. Compliance;
6. Cooperation with other organizations and bodies; and
7. Multi-year Programme of Work, including genome sequence information to pursue a more robust Treaty implementation.

What is ITPGRFA?

• The ITPGRFA is a legally binding comprehensive agreement signed during the 31st session of the United Nations Food and Agriculture Organization (FAO) in Rome in November, 2001, which took effect on 29 June 2004, and currently has 149 Contracting Parties including India.
• This treaty, in consonance with the Convention on Biological Diversity, seeks to achieve food security through the conservation, exchange and sustainable use of the world's Plant Genetic Resources for Food and Agriculture (PGRFA), equitable sharing of profits from its use, as well as playing an important role in the recognition of rights of farmers.
• PGRFA provides scale-free solutions to achieve food and nutritional security as well as climate resilient agriculture. Countries are mutually interdependent for the PGRFA, leading to the need for a global system to facilitate access and profit sharing.

 

Rights of farmers:

• Article 9 of the ITPGFRA deals with the rights of farmers, which India is fully compliant with and relevant provisions are contained in the PPV&FR Act, 2001.
• 166 farmers/agriculture communities have been honoured with Plant Genome Saviour Awards.
• India proposes to the Governing Body of ITPGRFA to consider putting into action a module of Awareness, Outreach and Capacity Building Programme related to Farmers’ Rights, for which India will support its implementation

Way Forward:

• As host of GB9, India is expected to play a crucial role in minimizing the dissonance between technology-rich developed and gene-rich developing countries to achieve functional resolutions on critical agenda items.
• The GB9 also provides an excellent opportunity to convey the steadfast commitment of India to conservation and sustainable utilization of plant genetic diversity as well as farmers’ rights.

On the eve of GB9, India called for a global harmony to use every available germplasm resource and every advanced technology to fight global hunger and ensure food and environmental security.