Legal Updates for Law Exams: 28th September 2021

1. Women Should Demand 50% Reservation in the Judiciary, not as Charity But As A Matter Of Right: CJI Ramana

• Drawing from the ideas of Karl Marx, Chief Justice N.V. Ramana remarked that women of the world must unite because they have nothing to lose but their chains. He observed that women must 'shout with anger and demand 50% reservation', not as charity but as a matter of right. Acknowledging thousands of years of suppression of women, he expressed that it is high time we must realize and reach this goal in the Supreme Courts and other subordinate courts.

• He was addressing the felicitation function organized by the Lady Advocates honor of Hon'ble CJI and Hon'ble Judges of Supreme Court on 26 09 2021. Citing statistics on the representation of women, he informed that women constitute less than 30% strength of the lower judiciary, while at the High Court, they are at a meager 11%. At the Supreme Court, we now have four out of 33 judges, CJI remarked. He further said that amongst 1.7 million lawyers, only 15% are women, while they constitute only 2% of the elected representatives at the State Bar Councils.

• "This needs urgent correction. People will cite difficulties that women have to face to be fully represented. That is not correct. I agree there is the client's preference, uncomfortable environment, and lack of infrastructure are the major issues unfriendly to women in the legal profession. Among the 60,000 Courts, 22% do not even have toilets due to which even lady officers suffer.

• On the demands raised by the lady advocates earlier in the session, he mentioned that he supports the resumption of the physical hearing, noting that the Senior Counsels have reservations regarding this. Moreover, he expressed his reluctance to take any further risks amidst the COVID-19 pandemic; however, he stated that post-Dushehra holidays, it is hopeful that courts can be fully reopened physically.

• He also strongly recommended and supported the demand for a certain percentage of reservations for women at law schools.

Source: Bar & Bench

2. Right To Get Aid From Govt Not Fundamental Right, There Cannot Be Any Difference Between Minority & Non- Minority Aided Institutions: Supreme Court

• The Supreme Court observed that there is no difference between minority and non-minority aided institutions and that their right to get an aid from the Government is not a fundamental right.

• An institution receiving aid is bound by the conditions imposed and therefore expected to comply, the bench of Justices Sanjay Kishan Kaul and MM Sundresh observed while allowing the appeal filed by State of Uttar Pradesh against the Allahabad High Court judgment that declared that Regulation 101 framed under the Intermediate Education Act, 1921 is unconstitutional.

• "Outsourcing" cannot be declared as ultra vires of the constitution on the basis of mere presumption and assumption

• The court noted that "Outsourcing" as a matter of policy is being introduced throughout the State.

• "It is one thing to say that it has to be given effect to with caution as recommended by the Seventh Central Pay Commission, and another to strike it down as unconstitutional. "Outsourcing" per se is not prohibited in law. It is clear that a recruitment by way of "Outsourcing" may have its own deficiencies and pit falls, however, a decision to take "Outsourcing" cannot be declared as ultra vires of the constitution on the basis of mere presumption and assumption. Obviously, we do not know the nature of the scheme and safeguards attached to it."

• One cannot simply presume that "Outsourcing" as a method of recruitment would necessarily be adopting contract labour and that there exists an element of unfair trade practice, as sought to be contended by the respondents.

• Article 14 does not prohibit valid discrimination - Article 14 is positive in nature. Adequate leverage is to be provided to the law maker in making the classification. Article 14 of the Constitution of India does not prohibit discrimination, what is required is a valid discrimination against a hostile one

• Persons who challenged has to satisfy 'Unconstitutionality' - When a challenge is made either to a regulation, rule or an Act, it is for the persons who challenged, to satisfy the Court that they cannot be sustained in the eyes of law. Such a challenge has to be considered within the contours of law. Mere fact that a counsel representing the State is not able to satisfy the Court on the policy challenged would not ipso facto lead to a declaration that it is unconstitutional. (Para 51)

• Concept of "always speaking" as a principle of interpretation - The concept of "always speaking" as a principle of interpretation is to be applied for a proper understanding of an old enactment. After all, such a statute having its intended object which certainly includes regulating the functions of aided institutions requires to be interpreted to deal with the past, present and future situations. Therefore, an interpretation which is reasonable, constructive and purposive would serve the purpose.

Source: Bar & Bench

3. "The State Has To Protect People Exercising Free Speech From Groups Threatening Them For Their Views": Justice Ravindra Bhat

• "The promise of free speech or free association would be of little use if a segment of the population threatens the free enjoyment of rights by others; rights would only be academic then. The State must act actively engage in the promotion of fundamental rights, in upholding the freedom of thought, expression, and of legitimate speech which can be contrary to the dominant discourse, freely expressed without fear of reprisal by private entities or collectives", said Justice Ravindra Bhat.

• The Supreme Court judge was speaking on the topic'Fundamental Rights And The Role Of The Regulatory State' at the Second Professor Shamnad Basheer Memorial Lecture 2021 organized by LiveLaw.

• Justice Bhat was of the view that the State has to frame policies proactively as the enforcer of fundamental rights to ensure that others, being private individuals or entities, who are not bound by fundamental rights, are compelled to respect them through law. "The enjoyment of any of the freedoms guaranteed under Article 19 assumes that the conditions conducive towards their enjoyment are assured by the State", said the judge.

• 'Absence Of Data Law Renders Right To Privacy A Dead-Letter': The need for personal data protection and privacy flows from its enlarged scope and ambit under the Constitution- the right to privacy has now been recognised as a fundamental right in Puttuswamy's case in 2019. It is mostly non-State actors, that is private entities, which provide services that have the potential to encroach upon an individual's right to privacy. There not being any effective mechanism in the form of positive law to enforce the right against these entities, or for that matter, even against the State, is a very serious lacunae. Regrettably, we are still left standing, though the articulation of this right to privacy happened in 2019.

• Justice Bhat opined that while informational privacy is low on priority in the legislative order of business, the government's reliance on technology is becoming ubiquitous. "The absence of legislation makes this right somewhat academic. In the absence of a clearly enunciated data law, which sets out the norms, rights and remedies, the nature of that right is rendered, by and large, a dead letter, except in cases where the individual can approach the court and seek enforcement against the State.

Source: Bar & Bench