The Hindu Editorial Analysis | 15th Nov ’19 | PDF Download

Larger Bench to decide role of courts in religion

•  Once a Constitution Bench has laid down the law, both legislature and the executive, were bound to comply.
• Instead of complying with the Supreme Court judgment, the country was witness to the “sad spectacle of unarmed women between the ages of 10 and 50 being thwarted in the exercise of their fundamental right of worship at the Sabarimala temple”. Organised efforts to thwart women from entering the temple should be put down firmly. All persons, including women between the ages of 10 and 50, were “equally entitled to practice the Hindu religion”.
• The Sabarimala judgment of September 2018 was based on a bona fide PIL plea, which had raised grave issues of gender bias on account of a physiological or biological function common to all women.

 ‘Constitution is holy’

• The fears raised by Justice Malhotra, who dissented in 2018, about the threat of PILs being used by third parties to tinker with religious beliefs were unfounded. “Busybodies, religious fanatics, cranks and persons with vested interests will be turned down by the Court at the threshold itself,” Justice Nariman read out in open court. For judges, “the holy book is the Constitution”, he stressed.
• But Chief Justice Gogoi reasoned that an authoritative pronouncement from a larger Bench would instil public confidence. An increasing number of petitions were being filed questioning the validity of religious practices and their restrictions on women, he noted. Some of these have questioned long-held religious beliefs.
• Like the Sabarimala issue, these petitions concerned the tug-of-war between women’s fundamental right to equality under Article 14 and the believers’ right to freely practice religion.

Sabarimala case:

•  larger Bench to decide role of courts in religion Chandrachud and Nariman deliver a dissenting judgment A majority judgment delivered by a five-judge Bench led by Chief Justice of India (CJI) Ranjan Gogoi on Thursday kept a final decision on the Sabarimala review and writ petitions in abeyance till a larger Bench of seven judges delivers an “authoritative pronouncement” on the exact role a nonepistolary court can play in deciding whether a particular practice is essential or integral to a religion. The review Bench, however, did not pass any interim order for stay of its September 28, 2018 judgment, which upheld the right of women aged between 10 and 50 to enter and worship at the temple in Kerala.
• Chief Justice Gogoi, delivering the majority opinion along with Justices A.M. Khanwilkar and Indu Malhotra, framed a series of questions for the larger Bench.
• These include whether a court can probe if a practice is essential to a religion or should the question be left to the respective religious head; should “essential religious practices” be afforded constitutional protection under Article 26 (freedom to manage religious affairs); and what is the “permissible extent” of judicial recognition a court should give to PILs filed by people who do not belong to the religion of which practices are under the scanner.
• Justices Rohinton F. Nariman and D.Y. Chandrachud, however, joined to deliver a stinging dissent. Both dismissed the majority decision of a reference to a larger Bench. Both Justice Nariman and Justice Chandrachud were part of the Constitution Bench that delivered the original majority judgment in September 2018.Justice Nariman, who wrote the dissent, said the judgment of a five-judge Constitution Bench was the last word on the interpretation of the Constitution.
• The slugfest between DoT and the telecom companies has been on since 2005, when the the Cellular Operators Association of India — the lobby group for players such as Airtel and Vodafone Idea — challenged the DoT’s definition for AGR calculation.

What is AGR?

• Telecom operators are required to pay licence fee and spectrum charges in the form of ‘revenue share’ to the Centre. The revenue amount used to calculate this revenue share is termed as the AGR.
• According to the DoT, the calculations should incorporate all revenues earned by a telecom company – including from non-telecom sources such as deposit interests and sale of assets.
• The companies, however, have been of the view that AGR should comprise the revenues generated from telecom services only and non-telecom revenues should be kept out of it

How long has the fight been going on?

• The slugfest between DoT and the telecom companies has been on since 2005, when the the Cellular Operators Association of India — the lobby group for players such as Airtel and Vodafone Idea — challenged the DoT’s definition for AGR calculation.
• Subsequently, in 2015, the TDSAT ruled that the AGR included all receipts, except capital receipts and revenue from non-core sources such as rent, profit on the sale of fixed assets, dividend, interest and miscellaneous income, etc.
• The government, meanwhile, continued to raise the issue of under-reporting of revenues to duck charges. The Comptroller and Auditor General of India (CAG), in a recent report, blamed the telecom companies for “understating revenues” to the tune of Rs 61,064.5 crore. The latest petition by the DoT was being heard in the Supreme Court, wherein the DoT sought interest, penalty and interest on penalty on the outstanding amount. These amounted to Rs 92,641 crore (disputed actual demand is Rs 23,189 crore, levy of Interest of Rs 41,650 crore, penalty of Rs 10,923 crore and interest on penalty of Rs16,878 crore)
• All the appeals against the TDSAT order dated April 23, 2015, alongside multiple appeals and verdicts by the DoT and the industry in various forums including High Courts and the Supreme Court of India, were heard before the Bench of Justice Arun Mishra, Justice S Abdul and Justice MR Shah. The bench delivered the verdict Thursday and effectively upheld the definition of AGR calculation as stipulated by the DoT. That is bad news for an already beleaguered telecom sector, which would need to cough up the pending payments.

Open, all the same

• With the CJI under the RTI Act, there will be greater transparency by public authorities
• The adage, “sunlight is the best disinfectant” is often used to delineate the need for disclosure of matters related to public interest through the Right to Information mechanism. The declaration of assets by ministers and legislators, besides electoral candidates, has gone a long way in shedding light on public authorities and provided the citizenry more relevant information about their representatives. Yet, judges of the Supreme Court had hitherto refused to share information on their personal assets, citing the express lack of public interest. The welcome ruling by a five-member Constitution Bench of the Supreme Court that the office of the Chief Justice of India is a “public authority” under the RTI Act, as much as the apex court itself, now enables the disclosure of information such as the judges’ personal assets. The judgment’s majority opinion, written by Justice Sanjiv Khanna, emphasised the need for transparency and accountability and that “disclosure is a facet of public interest”. In concurring opinions, Justice D.Y. Chandrachud asserted that judicial independence was not secured by secrecy while Justice N.V. Ramana argued for the need of a proper calibration of transparency in light of the importance of judicial independence. The Bench unanimously argued that the right to know under the RTI Act was not absolute and this had to be balanced with the right of privacy of judges. But the key takeaway from the judgment is that disclosure of details of serving judges’ personal assets was not a violation of their right to privacy.
• The main opinion also argued that information related to issues such as judicial appointments will also be subject to the test of public interest and procedures mandated in the RTI Act that specify that views of third parties (in this case, judges) must be sought. While laying out the importance of the assessment of public interest in any RTI query besides bringing the office of the CJI under the purview of the Act, the decision has gone on to uphold the Delhi High Court verdict in 2010. The RTI Act is a strong weapon that enhances accountability, citizen activism and, consequently, participative democracy, even if its implementation has come under strain in recent years due mainly to the Central government’s apathy and disregard for the nuts and bolts of the Act. Yet, despite this, the Supreme Court judgment paves the way for greater transparency and could now impinge upon issues such as disclosure, under the RTI Act, by other institutions such as registered political parties. This is vital as political party financing is a murky area today, marked by opacity and exacerbated by the issue of electoral bonds, precluding citizens from being fully informed on sources of party incomes.

 Back from the brink

•  The nearly year-long measles outbreaks in the U.S. offer lessons for India
• On October 3, 2019, the U.S. just about managed to retain its measles elimination status declared nearly 20 years ago. A month earlier, New York State declared the end of a measles outbreak, which began on October 1, 2018 and continued for almost a year, bringing the country very close to losing the status. The last case of measles in New York State occurred on August 19 and completed 42 days (two incubation periods for measles) after the onset of rash. It ended just a couple of days before the duration of the outbreak could cross the one-year mark. This was crucial as a country loses the measles elimination status if a chain of transmission from a given outbreak is sustained for more than 12 months.
• An outbreak in New York City, which began on September 30, 2018, led to more than 600 confirmed cases. The outbreak in nearby Rockland County, New York, started the next day and led to more than 300 cases. While 29 other States in the U.S. reported outbreaks in the past year, these did not last long. The reason why they were both limited in size and short-lived was mainly because the vaccination coverage was high leading to high immunity protection in the population.

Reasons for outbreak

• The nearly year-long transmission in New York highlights the possibility of a sustained spread of measles in small pockets of an under-immunised community even when vaccine coverage with two doses nationally is high. Inequities in vaccine coverage, or gaps in vaccine coverage between communities, age groups and geographic areas in countries with high coverage at the national level, provide a fertile ground for outbreaks and for prolonged spread in such under-immunised groups.
• Gaps and disparities in vaccine coverage between communities was the reason why the two outbreaks among the children of New York lasted for almost a year. Vaccine coverage among children belonging to the ultra-Orthodox Jewish community was not high; measles vaccination coverage in schools in the outbreak area was only 77%. In addition, there was also a delay in vaccination. The reason? Parents had refused to vaccinate their children fearing that the vaccine might cause autism. Low protection in children of this community meant that they ran a high risk of getting infected by unvaccinated people returning from countries with ongoing measles transmission.
• While 1,249 cases of measles were laboratory-confirmed in 2019 from 22 outbreaks in 31 States, 75% of the cases were restricted to the Orthodox Jewish community in New York.

 Problem in India

• These details are important for India, which has a twin problem.

1. The first is that it has huge pockets of under-immunised children.
2. Second, the immunisation coverage with two doses at the national level is far below the World Health Organization level of 95% needed for protection and elimination.

• Intensified efforts to increase immunisation coverage in recent years have led to a sharp drop in the number of measles cases annually in India. Yet, in the October 2018-2019 period, India reported 71,834 cases, the third highest number in the world, according to the WHO.
• While India intends to eliminate measles by 2020, the vaccination coverage has nowhere reached the 95% threshold for two doses. According to the June 2019 WHO and UNICEF estimate for national immunisation coverage, measles vaccine coverage in India in 2018 for the first dose was 90%. It was 80% for the second dose. But the reported coverage levels are “likely an overestimation”, the report cautions, based on a coverage evaluation survey.
• Protection offered by maternal antibodies last for only four-five months, while the first dose of measles immunisation is at nine-12 months of age. Thus there is a huge window during which infants are vulnerable to measles infection. Also, about 15% of children in India fail to develop immunity from the first dose of measles vaccine. Till such time older children are fully protected with two doses, infants will remain vulnerable.
• Write an essay on “Relevance of collective religious belief and needs of practical complex lives in modern times.” (800 words)

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