Kerala HC Bans Flash Hartal Without Prior Notice Of 7 Days

The High Court of Kerala today passed an order banning ‘flash’ hartals.

The Division Bench of Chief Justice Hrishikesh Roy and Justice A K Jayasankaran Nambiar ordered that hartals can be declared only after giving prior notice of seven days. The Court held that within the 7 days, any citizen can challenge the declaration of hartal.

The operative portion of the Court’s order said :

“Hartal without 7 days notice is unconstitutional and within those 7 days any citizen can challenge Hartal”.

The Court was considering a PIL filed by Kerala Chamber of Commerce and Industry against hartals. The petition stated that in last year 97 hartals were conducted in the Kerala, which had a severe impact on business and livelihood of workers, leading to a loss of crores of rupees. Normal life was paralyzed on all these days, with even public offices and educational institutions compelled to shut down.

All prominent political parties of the State- CPI(M), Congress, CPI, BJP, IUML and Kerala Congress(M)- were made respondents in the petition.

The petition also sought for police protection for shops and commercial establishments during hartals.

The Court expressed strong disapproval at the practice of calling for hartals at the drop of a hat.

On hearing the arguments of Dr.K P Satheeshan, Senior Advocate appearing for the petitioner, the Court also ordered that the Government should take adequate steps to ensure that the workers’ strike scheduled to be held tomorrow will not affect the public.

The Court also held that the damages to public and private properties caused during hartals will be realized from the party or association which called for it.

The Government was also directed to explore the option of regulating hartals by appropriate legislation.

The High Court of Kerala had earlier declared “bandh” unconstitutional way back in 1997 in Bharat Kumar v State of Kerala. This judgment was affirmed by the Supreme Court as well. However, the practice of hartals continued on the understanding that they are voluntarily shut down of work in protest.

But in reality, hartals operate with an element of coercion, as people are forced to refrain from work due to fear of attack from protesters. So, despite the ban on ‘bandhs’, public shutdowns continued to be forced on the public by political parties and associations under the euphemism of ‘hartal’.

Of late, merchants and tourism operators have been airing their objections against this practice. Last December, the merchants’ association of Kerala had declared that they will not co-operate with hartals from 2019 onwards.

However, a hartal took place in the first week of new year itself, when Sabarimala Karma Samithi declared it on January 3 to protest the entry of two women in Sabarimala temple. The hartal on January 3 witnessed widespread violence and vandalism across the state.

Though hoteliers and merchants had declared that they will not shut down on January 3, most of them could not keep up with the promise in the face of threats of violence, and inadequate police security.

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Clause 6 of Assam Accord: Cabinet clears high-level panel to safeguard Assamese identity

The Union Home Ministry will set up a high-level committee to look into the implementation of Clause 6 of the Assam Accord, which “envisaged that appropriate constitutional, legislative and administrative safeguards shall be provided to protect, preserve and promote the cultural, social, linguistic identity and heritage of the Assamese people,” Home Minister Rajnath Singh said on Wednesday.

Clause 6 of the Assam Accord “envisaged that appropriate constitutional, legislative and administrative safeguards shall be provided to protect, preserve and promote the cultural, social, linguistic identity and heritage of the Assamese people.”

Hold discussions with all stakeholders and assess the required quantum of reservation of seats in the Assam Assembly and local bodies for Assamese people.

Look at measures to protect Assamese and other indigenous languages of Assam, reservation in state government jobs, and other steps to protect, preserve and promote cultural, social, linguistic identity and heritage of Assamese people.

Suggest constitutional, legislative and administrative safeguards and examine the effectiveness of actions since 1985 to implement the clause.

Look into issues of the Bodo people, especially the measures mentioned in the Memorandum of Settlement signed between the Government of India, Assam government and the Bodo Liberation Tigers Force in 2003.

Significance:

  • The setting up of the committee will pave the way for the implementation of the Assam Accord in letter and spirit and will help fulfill longstanding expectations of Assamese people.
  • The Union Cabinet’s announcement comes at a time when Centre is facing criticism in Assam over the Citizenship (Amendment) Bill, 2016, which proposes to make minority (non-Muslim) immigrants from three neighboring countries — Bangladesh, Afghanistan, and Pakistan — eligible for Indian citizenship.
  • But as per the Assam Accord, any person who came to the state after the midnight of March 24, 1971, will be identified as a foreigner. So the proposed Bill is seen to violate the Assam Accord by differentiating between migrants on the basis of religion.

What is the Assam Accord?

  • The Assam Accord (1985) was a Memorandum of Settlement (MoS) signed between representatives of the Government of India and the leaders of the Assam Movement in New Delhi on 15 August 1985.
  • The accord brought an end to the Assam Agitation and paved the way for the leaders of the agitation to form a political party and form a government in the state of Assam soon after.
  • As per the Accord, those Bangladeshis who came between 1966 and 1971 will be barred from voting for ten years. The Accord also mentions that the international borders will be sealed and all persons who crossed over from Bangladesh after 1971 are to be deported.
  • Though the accord brought an end to the agitation, some of the key clauses are yet to be implemented, which has kept some of the issues festering.
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Sabarimala temple opened for Makaravilakku festival

The hill shrine of Lord Ayyappa here on Sunday was opened for the 21 day-long Makaravilakku festival season, marking the concluding phase of the annual pilgrimage season. Melsanthi Vasudevan Nampoothiri opened the Sreekovil of the temple at 5 pm in the presence of Thantri Kandararu Rajivararu. No rituals were performed at the Sreekovil of the temple in the evening, in line with the existing practice.

Neyyabhishekam, one of the major offerings, will begin at 3.30 am on Monday and pilgrims can offer it till noon. Pettathullal ritual will take place at Erumely on January 11. Thiruvabharanam procession to Sabarimala from Pandalam and Marakavilakku on January 14 are the major highlights of the Makaravilakku festival,

Erumely Pettathullal

  • Pettathullal ritual,  marking the memory of Lord Ayyappa’s victory over demon Mahishi, will be celebrated at the Erumley Sree Dharma Sastha temple on January 11. The 500-member Ambalappuzha team headed by nonagenarian  Chandrasekharan Nair and the 300-member Alangattu team led by 75-year-old Vijayakumar will perform Pettathullal at noon and 2 pm on January 11.

Thiruvabharanam procession

  • The Thiruvabharanam procession, carrying the attire in gold to be adorned on Lord Ayyappa during  Makaravilakku, will be taken out from Pandalam Valiyakoickal Sree Dharma Sastha temple at noon on January 12.

Makaravilakku

  • Makaravilakku, the most auspicious day of the annual pilgrimage season, will be celebrated after  Thiruvabharanam is adorned on Lord Ayyappa ’s idol of at 6.30 pm on January 14.

Temple to close on Jan 20

The Sabarimala temple will be closed at 7 am on January 20 after the Thiruvabharanam procession makes it way back to the Pandalam Palace from the Sannidhanam.

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The Aadhaar and Other Laws (Amendment) Bill, 2018

The Aadhaar and Other Laws (Amendment) Bill, 2018 was introduced by the Minister of Law and Justice, and Electronics and Information Technology, Mr. Ravi Shankar Prasad, in Lok Sabha on January 2, 2019. The Bill amends the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, the Indian Telegraph Act, 1885, and the Prevention of Money Laundering Act, 2002.  The Aadhaar Act provides targeted delivery of subsidies and benefits to individuals residing in India by assigning them unique identity numbers, called Aadhaar numbers.

Offline verification of Aadhaar number holder: Under the Aadhaar Act, an individual’s identity may be verified by Aadhaar ‘authentication’. Authentication involves submitting the Aadhaar number, and their biometric and demographic information to the Central Identities Data Repository for verification.  The Bill additionally allows ‘offline verification’ of an individual’s identity, without authentication, through modes specified by the Unique Identification Authority of India (UIDAI) by regulations.

During offline verification, the agency must (i) obtain the consent of the individual, (ii) inform them of alternatives to sharing information, and (iii) not collect, use or store Aadhaar number or biometric information.

Voluntary use of Aadhaar to verify identity: The Act provides for the use of Aadhaar number as proof of identity of a person, subject to authentication.  The Bill replaces this provision to state that an individual may voluntarily use his Aadhaar number to establish his identity, by authentication or offline verification.  The Bill states that the authentication of an individual’s identity via Aadhaar, for the provision of any service, may be made mandatory only by a law of Parliament.

The Bill amends the Telegraph Act, 1885 and the Prevention of Money Laundering Act, 2002 to state that telecom companies, banks, and financial institutions may verify the identity of their clients by (i) authentication or offline verification of Aadhaar, or (ii) passport, or (iii) any other documents notified by the central government. The person has the choice to use either mode to verify his identity and no person shall be denied any service for not having an Aadhaar number.

Entities using Aadhaar: Under the Act, usage of Aadhaar number for establishing the identity of an individual, by the State or a body corporate under any law, is permitted.  The Bill removes this provision.  An entity may be allowed to perform authentication through Aadhaar if the UIDAI is satisfied that it is (i) compliant with certain standards of privacy and security, or (ii) permitted by law, or (iii) seeking authentication for a purpose specified by the central government in the interest of the State.

Aadhaar number of children: The Bill specifies that at the time of enrolling a child to obtain an Aadhaar number, the enrolling agency shall seek the consent of his parent or guardian. The agency must inform the parent or guardian of (i) the manner in which the information will be used, (ii) the recipients with whom it will be shared, and (iii) their right to access the information. After attaining eighteen years of age, the child may apply for cancellation of his Aadhaar.

Disclosure of information in certain cases: Under the Act, restrictions on security and confidentiality of Aadhaar related information do not apply in case the disclosure is pursuant to an order of a District Court (or above). The Bill amends this to allow such disclosure only for orders by High Courts (or above).

Further, under the Act, an officer not below the rank of a Joint Secretary may issue directions for disclosing information in the interest of national security. The Bill amends this to allow such disclosure on directions of officers, not below the rank of a Secretary.

UIDAI Fund: Under the Act, all fees and revenue collected by the UIDAI shall be credited to the Consolidated Fund of India. The Bill removes this provision and creates the Unique Identification Authority of India Fund.  All fees, grants, and charges received by the UIDAI shall be credited to this fund.  The fund shall be used for expenses of the UIDAI, including salaries and allowances of its employees.

Complaints: Under the Act, courts can take cognizance of an offence only if the UIDAI registers a complaint. The Bill amends this to allow the individual to register complaints in certain cases, including impersonation or disclosure of their identity.

The Bill defines the Aadhaar ecosystem to include enrolling agencies, requesting agencies, and offline verification-seeking entities. It allows the UIDAI to issue directions to them if necessary for the discharge of its functions under the Act.

Penalties: Under the Bill, the UIDAI may initiate a complaint against an entity in the Aadhaar ecosystem for failure to (i) comply with the Act or the UIDAI’s directions, and (ii) furnish information required by the UIDAI. Adjudicating Officers appointed by the UIDAI shall decide such matters and may impose penalties up to one crore rupees on such entities.  The Telecom Disputes Settlement and Appellate Tribunal shall be the appellate authority against decisions of the Adjudicating Officer.

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Cabinet approves ‘The Constitution (Scheduled Tribes) Order (Amendment) Bill, 2018’ for revision in list of Scheduled Tribes of Arunachal Pradesh

The Union Cabinet chaired by Prime Minister Shri Narendra Modi has approved the introduction of a Bill namely The Constitution (Scheduled Tribes) Order (Amendment) Bill, 2018 in the Parliament for certain amendments in the Constitution (Scheduled Tribes) Order, 1950 so as to modify the list of Scheduled Tribes (STs) of Arunachal Pradesh.

The following changes will be made in the list of Scheduled Tribes of Arunachal Pradesh:

  • Deletion of ‘Abor’ in serial No. 1, as it is the same as ‘Adi’ in Serial No. 16.
  • Replace Tai Khamti’ instead of ‘Khampti’ at serial No. 6.
  • Inclusion of ‘Mishmi-Kaman’ (Miju Mishmi), Idu (Mishmi) and Taraon (Digaru Mishmi) in serial No. 8.
  • The inclusion of Monpa, Memba, Sartang, Sajolong (Miji) in serial No. 9 in lieu of ‘Momba’.
  • The inclusion of ‘Nocte’, “Tangsa’, Tutsa’, ‘Wancho’ in lieu of ‘Any Naga Tribes’ in serial No. 10 in the list of Scheduled Tribes of Arunachal Pradesh.

The rationale for the proposed amendments are:

  • Deletion of Abor – Removal of duplication
  • Replace Khampti – There is no tribe called ‘Khampti’
  • The inclusion of Mishmi-Kaman, Idu and Taraon – Existing entry is only of ‘Mishmi’. There is reportedly no such community.
  • The inclusion of Monpa, Memba, Sartang, Wancho – Existing entry is of ‘Any Naga Tribes’. These are reportedly the only Naga tribes in the State.
  • The inclusion of Nocte, Tangsa, Tutsa, Wancho – Existing entry is of ‘Any Naga Tribes’. These are reportedly the only Naga tribes in the State.

After the Bill becomes an Act, member of the communities newly listed in the revised list of Scheduled Tribes of Arunachal Pradesh will also be able to derive benefits meant for STs under the existing schemes of the Government. Some of the major schemes of this kind include Post Matric Scholarship, National Overseas Scholarship, National Fellowship, Top Class Education, Concessional Loans from National Scheduled Tribes Finance and Development Corporation, Hostels for ST boys and girls etc. In addition to the above, they will also be entitled to benefits of reservation in services and admission to educational institutions as per Government policy.

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New Rajasthan govt’s move is a welcome one

Rajasthan will once again have direct elections for mayors  and chairpersons in urban municipal bodies.

The education criteria were introduced by the previous government, which stipulated that for contesting the Zila Parishad or Panchayat Samiti polls, a contestant must have a minimum qualification of secondary education (Class X).

To contest the sarpanch elections, an aspirant from the general category must have passed Class VIII and an SC/ST aspirant must have passed Class V.

Few experts are of the opinion that the requirement of minimum qualification for contesting elections is against the very spirit of 73rd and 74th amendments.

It also violates the right of every citizen to vote and to contest elections, which form the basic structure of the constitution.

It may be noted here that due to these restrictions, many able candidates were debarred from contesting elections. In one way, it can be said that this law has prevented many people from coming to the mainstream.

What has the Supreme Court said in this regard?

  • Even Haryana had passed a similar law mandating minimum education qualification for those contesting in Panchayat Raj Institutions. The constitutional validity of this law of Haryana was questioned in the Supreme Court.
  • The Supreme Court had upheld the constitutional validity of the law enacted by Haryana government to bar the illiterate from contesting panchayat polls in the state. The Supreme Court had ruled that “it is only education which gives a human being the power to discriminate between right and wrong, good and bad”.
  • The Supreme Court’s interpretation is based on the fact that uneducated or illiterate people getting elected to the local bodies can easily be misled by officials if they don’t know to write and read. In such cases, administrative actions that they are going can pose many challenges. The Court has further observed that it is only the education which can give people the power to differentiate between right and wrong, and good and bad.
  • Rajasthan Literacy Rate 2011: Literacy rate in Rajasthan has seen an upward trend and is 66.11 percent as per 2011 population census. Of that, male literacy stands at 79.19 percent while female literacy is at 52.12 percent. In 2001, the literacy rate in Rajasthan stood at 60.41 percent.
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Centre gives 6-month extension to complete update of NRC in Assam by June 30

The Centre has given an extension of six months to complete the ongoing exercise for updating the National Register of Citizens (NRC) in Assam by June 30.

In a notification, the Registrar General of India said the decision has been taken as the exercise to enumerate citizens in the NRC, a list of Assam’s residents, could not be completed within the specified date of December 31, 2018.

The decision was taken as the exercise to enumerate citizens in the NRC, a list of Assam’s residents, could not be completed within the specified date of December 31, 2018.

On December 6, 2013, the government issued the first notification setting a deadline of three years for completion of the entire NRC process. Since then, five extensions have been given by the government. The draft NRC was published on July 30 and included the names of 2.9 crore people of the total 3.29 crore applicants.

Why is NRC being updated in Assam?

Officially, the NRC process will address the issue of illegal migrants, specifically from Bangladesh. The National Register of Citizens was first published in 1951 to record citizens, their houses and holdings. Updating the NRC to root out foreigners was a demand during the Assam Agitation (1979-1985).

There have been several waves of migration to Assam from Bangladesh, but the biggest was in March 1971 when the Pakistan army crackdown forced many to flee to India. The Assam Accord of 1985 that ended the six-year anti-foreigners’ agitation decided upon the midnight of March 24, 1971, as the cut-off date.

Who is a citizen in Assam?

The Citizenship Act of 1955 was amended after the Assam Accord for all Indian-origin people who came from Bangladesh before January 1, 1966, to be deemed as citizens. Those who came between January 1, 1966, and March 25, 1971, were eligible for citizenship after registering and living in the State for 10 years while those entering after March 25, 1971, were to be deported.

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The Muslim Women (Protection of Rights on Marriage) Bill, 2018

The Muslim Women (Protection of Rights on Marriage) Bill, 2018 was introduced in Lok Sabha by the Minister of Law and Justice, Mr. Ravi Shankar Prasad on December 17, 2018. It replaces an Ordinance promulgated on September 19, 2018.  Note that a Muslim Women (Protection of Rights on Marriage) Bill, 2017 was introduced and passed in Lok Sabha on December 28, 2017.  The 2017 Bill is listed for withdrawal.

The Bill makes all declaration of talaq, including in written or electronic form, to be void (i.e. not enforceable in law) and illegal. It defines talaq as talaq-e-biddat or any other similar form of talaq pronounced by a Muslim man resulting in instant and irrevocable divorce.  Talaq-e-biddat refers to the practice under Muslim personal laws where pronouncement of the word ‘talaq’ thrice in one sitting by a Muslim man to his wife results in an instant and irrevocable divorce.

Offense and penalty: The Bill makes the declaration of talaq a cognizable offense, attracting up to three years’ imprisonment with a fine.  (A cognizable offense is one for which a police officer may arrest an accused person without a warrant.)  The offense will be cognizable only if information relating to the offense is given by (i) the married woman (against whom talaq has been declared), or (ii) any person related to her by blood or marriage.

The Bill provides that the Magistrate may grant bail to the accused. The bail may be granted only after hearing the woman (against whom talaq has been pronounced), and if the Magistrate is satisfied that there are reasonable grounds for granting bail.

The offense may be compounded by the Magistrate upon the request of the woman (against whom talaq has been declared). Compounding refers to the procedure where the two sides agree to stop legal proceedings, and settle the dispute.  The terms and conditions of the compounding of the offence will be determined by the Magistrate.

Allowance: A Muslim woman against whom talaq has been declared, is entitled to seek subsistence allowance from her husband for herself and for her dependent children.  The amount of the allowance will be determined by the Magistrate.

Custody: A Muslim woman against whom such talaq has been declared, is entitled to seek custody of her minor children. The manner of custody will be determined by the Magistrate.

What’s the issue all about- A brief history:

The case dates back to 2016 when the Supreme Court had sought assistance from the then Attorney General Mukul Rohatgi on pleas challenging the constitutional validity of “triple talaq”, “nikah halala” and “polygamy”, to assess whether Muslim women face gender discrimination in cases of divorce.

Opposing the practice of triple talaq, the Centre told the top court that there is a need to re-look at these practices on grounds of gender equality and secularism.

The Supreme Court later announced the setting up of a five-judge constitutional bench to hear and deliberate on the challenges against the practice of ‘triple talaq, nikah halala’ and polygamy.

The issue gained political momentum on March 2017 when the All India Muslim Personal Law Board (AIMPLB) told the Supreme Court that the issue of triple talaq falls outside the judiciary’s realm and that these issues should not be touched by the court.

However, on August 22 this year, the Supreme Court set aside the decade-old practice of instant triple talaq saying it was violative of Article 14 and 21 of the Indian Constitution.

In September, the government had proposed the Muslim Women (Protection of Rights on Marriage) Bill in the Parliament and sought to make triple talaq a punishable offense under the law.

At first, the Bill was passed in the Lok Sabha but it failed to secure a majority in the Rajya Sabha. The Bill was postponed till the winter session of Parliament. Following this, an ordinance was issued by the government after the bill failed to get cleared in Rajya Sabha amid protests by the Opposition.

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Review petition in Supreme Court against its Aadhaar verdict

A review petition was filed in the Supreme Court on Monday seeking a re-examination of its verdict by which the Centre’s flagship Aadhaar scheme was held as constitutionally valid.

Senior advocate Indira Jaising said the review petition has been filed against the September 26 verdict of the five-judge constitution bench which had said there was nothing in the Aadhaar Act that violated right to privacy of an individual.

The bench headed by the then Chief Justice of India Dipak Misra had also upheld the passage of the Aadhaar Bill as a Money Bill by the Lok Sabha.

The review petition has been filed by one Imtiyaz Ali Palsaniya, who had also filed interim applications when the apex court was examining the validity of the Aadhaar scheme.

The petition has also sought an open court hearing in the matter.

While declaring the scheme as constitutionally valid, the apex court had struck down some of its provisions including its linking with bank accounts, mobile phones, and school admissions.

The constitution bench had held that Aadhaar would remain mandatory for the filing of Income Tax returns and allotment of Permanent Account Number (PAN).

It claimed that the Aadhaar program, which had been in existence prior to the enactment of the Aadhaar Act, 2016, had itself become an “instrument of transfer of sensitive personal data” belonging to citizens to foreign entities acting as biometric service providers at a time when the UIDAI in 2010 had no cyber or technical infrastructure to store such information.

This, the petition claimed, poses a massive national security risk, more so when, according to a Press Information Bureau notification, 100 crore enrolments had already taken place before April 4, 2016.

In its verdict, the apex court had said that Aadhaar would not be mandatory for school admissions, as also for the examinations conducted by the Central Board of Secondary Examination, National Eligibility cum Entrance Test for medical entrance and the University Grants Commission.

The bench had also struck down the national security exception under the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016.

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New Andhra High Court to function at Amaravati from Jan 1, President issues notification

After several years of delay, Andhra Pradesh will finally have its own High Court in Amaravati. President Ram Nath Kovind on Wednesday issued a gazette notification for the functioning of the new High Court in Amaravati with effect from January 1.

The new High Court for Andhra Pradesh will be the 25th High Court in the country. The new Andhra HC is expected to function from a temporary structure in the state’s capital till a permanent building is set up at the ‘Justice City’ being planned in Amaravati.

Constitutional provisions related to High Court in India:

Article 214 provides that every State shall have a High Court, however, Article 231 states that Article 214 shall not be a bar for constituting a common high court for two or more States.

Only Parliament may by law establish a Common High Court for two or more States. This means that, unless Parliament by law establishes a Common High Court for two or more States, every State has to have a High Court, i.e., upon formation of a new State a new High Court is also formed.

Article 216 provides that every High Court shall consist of a Chief Justice and such other number of judges as the President may from time to time deem necessary to appoint.

Article 217 relates to the appointment of HC judges.

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