Why in news:

There need to be more inclusive opportunities and employment in the rural areas as a majority of persons with disabilities live there.

Synopsis:

• Disability is not a standalone issue but intersects with social, economic, and gender vulnerabilities.
• Recognizing and addressing the multifaceted nature of these vulnerabilities is crucial for effective action.

Quantum of disability:

• Globally, 1.3 billion people (which is equivalent to nearly the entire population of India) live with some form of disability.
• Of them, 80% live in developing countries; further, 70% of them live in rural areas.

Issues with the current approach to address concerns of disability:

• Current systems are often designed without considering the needs of persons with disabilities, leading to exclusionary practices. This lead to:
  • Higher instances of poverty,
  • Lack of access to education and opportunities,
  • Informality and other forms of social and economic discrimination.
• The current employment scenario not only creates entry barrier for people with disability but also gives only limited opportunity to disabled.

Disadvantaged faced by rural population:

• They have  limited access to education and employment.
• Some developmental schemes, too, exclude them.
• They are viewed as objects of charity and not as persons with agency with an ability to participate in decision-making processes.
• Various challenges in rural areas further increase their vulnerability such as:
  • High agricultural dependence
  • Risk of climate calamities arising from rising sea levels, reduced access to clean water and food, hurricanes, heatwaves and floods.

Various steps taken to address the concern of disabled people:

• United Nations Convention on the Rights of Persons with Disabilities, advocates changing attitudes and perceptions towards persons with disabilities and viewing inclusion from a social development dimension.
• Rights of Persons with Disabilities Act (2016) ensures a unique id for persons with disabilities (UDID) card.

Steps that are needed:

• Disability inclusion is rooted in assuring the rights of persons with disabilities and recognizing the economic benefits of inclusion.
• To ensure this the first step is awareness to ensure last-mile connectivity of the benefits enumerated for people with disabilities by the government.
• It begins with the capacity-building of community leaders who can advocate for this at the grass-roots level.
• A bottom-up approach to disability inclusion is crucial to build productive pathways out of poverty and ensure that persons with disabilities are recognized as active members of society and the economy.
• The private sector holds a key in promoting the employment of persons with disabilities. To ensure this following steps need to be taken :
  • Engage with the private sector and build the confidence of companies to hire and retain workers with disabilities.
• Additionally, engagement of employers’ federations, including small and medium-sized enterprises, as well as with trade unions have great potential to promote the employment of persons with disabilities.

Conclusion:

• The goal of social justice cannot be achieved without the inclusion of persons with disabilities in all spheres of development, starting with rural areas and rural resilience.
• Evidence shows a bi-directional link to poverty, nutrition, and hunger therefore, there needs to be more inclusive opportunities and employment in rural areas.
• Given the historic marginalization of persons with disabilities and the backsliding of the progress on the Sustainable Development Goals, a fundamental shift in commitment, solidarity, financing and action is critical.
• It is about time that the voices and needs of persons with disabilities be prioritized at the center of the global development agenda.

Subject: Social Justice

Topic: Vulnerable section of the society.

Issues: Welfare schemes, mechanisms, laws and institutions related to disabled.

Source: The Hindu

Why in news:

The Parliament Standing Committee on Home Affairs has suggested that the proposed Bharatiya Nyaya Sanhita Bill, 2023 be amended to make adultery a criminal offence again— but on gender-neutral terms.

Synopsis:

• Parliamentary Standing Committee, examining the three new criminal law Bills have recommended to reintroduce adultery as a crime in a gender neutral manner.

Recommendation of the committee:

• The committee suggests making adultery a gender-neutral offense, holding both men and women equally culpable under the law.
• The committee emphasized the sanctity of the institution of marriage in Indian society.
• The aim is to rectify the previous law (Section 497 of the IPC) which only penalized married men, treating married women as the property of their husbands.
• However, former Home Minister P. Chidambaram, in his dissent note, stressed the importance of avoiding state interference in the private lives of consenting adults.
• He rejects the idea of elevating marriage to the level of a sacrament and questions the state’s role in punishing alleged wrongdoers in private matters.

History of offence of adultery:

• Lord Macaulay, involved in the drafting of Criminal Procedure Code (CrPC), was not inclined to make adultery a penal offense, given the sacramental nature of marriage.
• Court Commissioners reviewing the Penal Code proposed making adultery an offense but initially held only the male offender liable, considering “the condition of women in this country” and the law’s duty to protect it.

Law Commission’s Deliberation in 1971:

• In 1971, the Law Commission deliberated on criminalizing adulterous conduct but didn’t recommend repeal.
• There was a strong dissent by Anna Chandy, advocating for a reconsideration of the offense in light of contemporary notions of women’s status within marriage.
• The Commission recommended removing the exemption from liability for women.
• However these proposals were not reflected in either the 41st Report (which led to the Cr.P.C.) or the 154th Report which reviewed the Cr.P.C.

Gender-Neutral Proposal by Malimath Committee (2003):

• In 2003, the Malimath Committee proposed retaining adultery as an offense but on gender-neutral terms.
• The committee emphasized preserving the sanctity of marriage and suggested that both husbands and wives be treated similarly in cases of marital infidelity.

Adultery as an unconstitutional offence:

A five-judge Constitution Bench, led by then CJI Dipak Misra, decriminalized adultery in its landmark judgment in Joseph Shine v. Union of India (2018). The bench highlighted following reasons:

Privacy and Autonomy:

• The judgment emphasized that adultery is a matter of privacy and treating it as a crime would intrude into the extreme privacy of the matrimonial sphere.
• The ability to make sexual choices is considered essential to human liberty, and criminalization would infringe on individual autonomy.

Gender Stereotypes and Equality:

• Justices highlighted that Section 497 made the husband the ‘licensor’ of his wife’s sexual choices, perpetuating gender stereotypes.
• Criminalization subjugated women and disregarded their sexuality, contributing to an unequal legal framework.

Role of Marriage in Criminal Law:

• The judgment questioned the over-importance given to marriage in criminal law, suggesting that personal choices within marriage should be protected.

Post-Judgment Developments and view of experts criticizing the reintroduction of adultery as an offence:

• In 2020, a five-judge Bench dismissed review petitions seeking a reconsideration of the 2018 verdict, asserting the lack of merit.
• Lawyers and advocates argue against criminalizing adultery, emphasizing that personal choices and privacy should be protected by the law.
• Criminalization is seen as undue interference by the state into the private lives of individuals.
• Critics point out a perceived contradiction in the recent recommendation, suggesting that curtailing the right to sex to protect the sanctity of marriage may be inconsistent.
• While making adultery gender-neutral removes the aspect of treating women as property, it may not address the broader issue of criminalizing relationships recognized as marriages.
• Concerns are raised about the potential impact of a gender-neutral provision on relationships, including those within the LGBTQ community, depending on the recognition of such relationships as marriages.

Do legislature has the authority to overrule the judgement of Supreme Court:

• While a Supreme Court ruling establishes a precedent, the Parliament has the authority to overrule judicial pronouncements through legislative action.
• For such legislative action to be considered valid, it must alter the legal basis of the judgment.
• The Supreme Court, in the Madras Bar Association v. Union of India (2021) case, outlined a test for validating legislation.
• The test considers whether the defect pointed out in the judgment would have existed if the altered position brought in by the validating statute had been present when the court rendered its judgment.
• Legislative action is permitted to remove defects in earlier legislation as pointed out by a constitutional court.
• The court emphasized that the legislature can pass laws both prospectively and retrospectively to address and correct identified defects.
• The Supreme Court, in NHPC Ltd. v. State of Himachal Pradesh Secretary (September 2021), cautioned that if the legislature seeks to validate acts under previous legislation without curing the defects, the subsequent legislation would be ultra vires (beyond legal authority).

Subject: Polity

Topic: Legal issues

Issues: Reintroduction of adultery as an offence

Source: The Hindu

Why in news:

All India Judicial Services seeks to centralise the recruitment of judges at the level of additional district judges and district judges for all states. This is similar to how the Union Public Service Commission (UPSC) conducts a central recruitment examination.

Synopsis:

All India Judicial Service:

• Article 312 of the Constitution provides for the establishment of an All-India Judicial Service (AIJS), along the lines of the central civil services.
• If the Rajya Sabha declares through a resolution, supported by at least two-thirds of its present and voting members, that it is necessary or expedient to create a service in “national interest”.
• The Parliament “may by law provide for the creation of one or more all India services (including an all India judicial service) common to the Union and the States” and regulate the recruitment and service conditions of persons appointed to any such service.
• However, Article 312 (2) states that the AIJS cannot include any post inferior to that of a district judge, as defined in Article 236.
• A district judge can include a city civil court judge, additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate, additional chief presidency magistrate, session’s judge, additional sessions judge, and assistant sessions judge.
• Essentially, the AIJS seeks to centralize the recruitment of judges at the level of additional district judges and district judges for all states.
• Just as the Union Public Service Commission (UPSC) conducts a central recruitment process and assigns successful candidates to cadres.
• The recruitment of judges of the lower judiciary is being proposed to be made central, following which they’ll be assigned to states.

Present system of selection:

• Articles 233 and 234 of the Constitution of India deal with the appointment of district judges and place it in the domain of the states.
• The State Public Service Commissions and the concerned High Court conduct the selection process.
• Panels of HC judges interview candidates after the exam and select them for appointment.
• All judges of the lower judiciary up to the level of district judges are selected through the Provincial Civil Services (Judicial) exam.

Reason behind the proposal of AIJS:

• The idea of a centralized judicial service was first deliberated in the Law Commission’s 1958 ‘Report on Reforms on Judicial Administration’.
• It was to ensure an efficient subordinate judiciary to address structural issues such as varying pay and remuneration across states, filling vacancies faster, and ensuring standard training nationwide.
• A statutory or constitutional body such as the UPSC to conduct a standard, centralized exam to recruit and train judges was discussed.
• The idea was proposed again in the Law Commission Report of 1978, which discussed delays and arrears of cases in the lower courts.
• In 2006, the Parliamentary Standing Committee on Personnel, Public Grievances, Law, and Justice, in its 15th Report, supported the idea of a pan-Indian judicial service and also prepared a draft bill.

Supreme Court ruling on AIJS:

• In 1992, the SC in ‘All India Judges’ Association (1) v. UOI’ directed the Centre to set up an AIJS.
• However, in a 1993 review of the judgement, the court left the Centre at liberty to take initiatives on the issue.
• In 2017, the Supreme Court took suo motu cognizance of the issue of appointment of district judges and mooted a “Central Selection Mechanism”.
• Senior advocate Arvind Datar, who was the amicus curiae in the matter, circulated a concept note to all states that recommended.
• Conducting a common examination instead of separate state exams.
• Based on the merit list, HCs would then hold interviews and appoint judges.
• Datar submitted that this would not change the constitutional framework or take away the powers of states or HCs.

The reason behind non implementation of AIJS:

• The Centre took various steps towards the constitution of the AIJS, such as coming up with a “comprehensive proposal”, which was approved by the Committee of Secretaries in November 2012.
• In April 2013, this proposal was included as an agenda item in the Conference of Chief Ministers and Chief Justices of the High Court.
• However, it was agreed upon that the issue needs further deliberation. Subsequently, the views of state governments and HCs were sought on the proposal, but no consensus could be reached.
• In April 2015, the creation of AIJS to help with the recruitment for the post of district judges and the review of the selection process of judges and judicial officers at all levels were included in the agenda for the Chief Justices Conference.
• However, ultimately, it was decided that the respective HCs would evolve appropriate methods within the existing system to fill up the vacancies for appointing district judges.
• In January 2017, aspects of AISJ, like eligibility, age, selection criteria, qualification, and reservation, were discussed in a meeting chaired by the Minister of Law and Justice, with participation from India’s Attorney General, Solicitor General, and DoJ secretaries. However, the proposal failed to reach the stage of implementation.
• Recently, when asked about AIJS’s implementation in the Lok Sabha, former Union Law Minister Kiren Rijiju said that owing to diverging opinions amongst the major stakeholders, “there is no consensus on the proposal for setting up an All India Judicial Service right now.”

Subject: Polity

Topic: Judiciary and tribunals.

Issues: All India Judicial Service.

Source: The Hindu