Issues in VVPAT Machines

28, Apr 2023

Why in News?

• The Election Commission of India was criticized for not being transparent and keeping political parties out of the loop regarding defects in the Voter Verified Paper Audit Trail (VVPAT) machines.

What is the Criticism against the Election Commission (EC)?

• The EC has not informed political parties about the identification of 6.5 lakh VVPAT machines as defective.
• The number of machines in which defects have been found is more than 1/3rd (37%) the number used in the 2019 Lok Sabha election and could have affected voters in the last general election and subsequent Assembly poll.
• Thousands of VVPATs with consecutive serial numbers in entire batches from different manufacturers have been found defective.
• The defects are serious enough that the machines have been returned to the manufacturers.
• The EC did not follow standard operating procedures (Model Code of Conduct) that the panel had framed for itself, which requires field officers to identify defects, and any faults to be identified within 7 days.
• EC needs to restore public faith and trust in the electoral process by being transparent.

What is an EVM?

• The Electronic Voting Machine, also known as EVM, is an electronic device used for casting votes. The EVM aims to make the electoral process secure, fair and transparent.
• The voting in India is done using electronic voting machines since 1999 to simplify the voting process and do away with paper ballots.

Can EVMs be tampered with?

• The EVM is a tamper-proof machine. It is made of a one-time programmable chip, which cannot be connected to any external device or network such as the internet, Wi-Fi, USB or Bluetooth. Hence, it cannot be corrupted or modified in any way possible.

What is the process of allotment of EVMS to polling booths?

• The EVMS are allotted to the polling booths through an elaborated randomization process. This way, there is no prior knowledge on which unit will go to which polling booth almost until the polling date. The machines undergo mock polls at every stage to ensure that they are in the right working condition.

How do the EVMS work?

• An EVM is designed with two units: the control unit and the balloting unit. These units are joined together by a cable. While the control unit of the EVM is kept with the presiding officer or the polling officer, the balloting unit is kept within the voting compartment for electors to cast their votes. This is done to ensure that the polling officer verifies your identity.

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How to use an EVM?

• In order to enable the voter to cast their vote, the polling officer instead of issuing a ballot paper presses the ballot button. The balloting unit of the machine will have a list of candidate names and party symbols with a blue button next to it. The voter can press the button next to the candidate’s name they wish to vote for.
• When the voter presses a button of his/ her choice, the machine locks itself and a printed VVPAT slip is displayed for 7 seconds before it’s automatically cut and delivered to a sealed ballot compartment.
• The votes are stored in the VVPAT or Voter Verifiable Paper Audit Trail machine.
• The EVM can then be opened only with a new ballot number. This way, EVMs ensure that one person gets to vote only once.

About VVPATs:

• VVPAT is a slip generated in a printer-like machine attached to EVM and shows voter’s choice of candidate as well as the party. Generated slip is displayed for a few seconds to the voter to verify before it falls into a sealed drop box which can be opened during counting.
• Advantages: Initially, election results are announced based on the recording of votes given by EVMs. If the election results are disputed, then the votes recorded under VVPATs shall be counted and announced. If there is any mismatch between the two results, then the VVPAT’s result will prevail over the EVMs.
• Disadvantages: However, VVPATs address only the issues at the voting part and the counting part still stays an opaque operation.
• Furthermore, currently, the EC’s VVPAT auditing is limited to one randomly selected polling booth per constituency. But, this sample size will not detect faulty EVMs 98-99 percent of the time.
• VVPATs can be an effective deterrent to fraud, but, the detection of even one faulty EVM in a constituency is followed by the VVPAT auditing of all the EVMs (at all booths) in that constituency = poses a serious logistical challenge and hence VVPATs are not the solution to counting level failures.

Why are EVMs used in India?

• The electronic voting machine came in India as a replacement to ballot papers and was first used in No. 70 Parvur assembly constituency in Kerala in 1982.
• In a large scale, the machines have been in use in India since 1999. The machines have been credited with making the voting process simpler, as now vote can be registered with just a click on the button.The machines are also cost-effective in the long run. Although the initial cost of an EVM is between Rs 5,000 and Rs 6,000, the machine, on an average, lasts for 15 years.Further, the machines run on batteries and hence don’t require electricity. They are also lighter and easily portable compared to the huge ballot boxes.
• The machines also make vote counting process faster, delivering results within hours as against manual counting of votes which could take days.

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Aadhaar Authentication Rules

24, Apr 2023

Why in News?

• The Ministry of Electronics and Information Technology (MeitY) has proposed rules to allow entities other than Government Ministries and Departments to use Aadhaar authentication to promote ease of living and enable better access to services for citizens.

What does the Rule say?      

• Any entity other than a ministry or department that desires to use Aadhaar authentication needs to submit its proposal to the concerned ministry/department at the Centre or state level with justification. The proposal is forwarded to UIDAI, which will review and decide on the application.

What is Aadhaar Authentication (AA)?    

• Aadhaar authentication is a process that verifies the identity of an individual using their Aadhaar number. It is mainly used for availing government services and schemes.

Entities currently allowed to perform AA:

• Government ministries and departments; Some private entities like banks and telecom companies (for KYC authentication and only if UIDAI was satisfied with regard to standards of privacy and security)

Purpose of AA:

• For the interest of good governance, preventing leakage of public funds, enablement of innovation, the spread of knowledge, and promoting ease of living and enabling better access to services for residents.

Legal provision:

• Aadhaar Authentication for Good Governance (Social Welfare, Innovation, Knowledge) Rules, 2020

Concerns:

• SC (2018) struck down Section 57 of the Aadhaar Act which allowed the use of Aadhaar data by private companies – to establish the identity of an individual for being “unconstitutional”

What is Aadhaar?

• A 12-digit unique identity for every Indian individual, including children and infants
• Enables identification for every resident Indian.
• Establishes uniqueness of every individual on the basis of demographic and biometric information.
• It is a voluntary service that every resident can avail irrespective of present documentation.
• Each individual will be given a single unique Aadhaar ID number.
• Aadhaar will provide a universal identity infrastructure which can be used by any identity-based application (like ration card, passport, etc.)

About the new regulations:

• Updating the documents:
• As per the regulations earlier, residents who were older than 15 years at the time of enrollment were recommended to update their biometric data every 10 years.
• The process of updating documents is not mandatory.
• Ensuring accuracy
• This process will help in ensuring the accuracy of information in the Central Identities Data Repository (CIDR).
• Demographic information
• The amendment of the Aadhaar regulation is limited to updating demographic information and does not involve biometric data such as fingerprints.

Issues with Aadhar:

• Aadhaar act allows cancellation of Aadhaar number for any reason by the government and citizens have no recourse.
• A Centralized database is a concern because once it is compromised everyone is at risk.
• There is no ID or address verification and there is no means of identifying fakes.
• There is no data protection law in place in India.
• Enrollment software hacks allowed foreign nationals to create Aadhaar numbers thus creating a national security risk.
• UIDAI does not have a monitoring mechanism but only an audit mechanism.
• Data goes to third parties vulnerability increases due to that.

Significance of Aadhar:

• Eliminate the leakages: Increasing the accuracy of Aadhaar information is likely to help the government eliminate the leakage of benefit transfers from various schemes.
• Jhan Dhan Yojana: Aadhaar Card is used as the major document of proof when opening a bank account under the Pradhan Mantri Jhan Dhan Yojana in the nation.
• Direct Benefit Transfer: Aadhar Card linked bank accounts will get their set of LPG Subsidy directly accredited in the bank account.
• Monthly Pension and Provident Fund: a person needs to link their Aadhaar Card to their respective pension account and provident fund.
• Passport and Voter ID: Aadhaar Card will relieve you of the lengthy procedure while obtaining Passport.

Unique Identification Authority of India (UIDAI) & Aadhar:

• Aadhaar Act & Establishment of UIDAI:
• The UIDAI is a statutory authority established under the provisions of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (“Aadhaar Act 2016”) by the Government of India, under the Ministry of Electronics and Information Technology (MeitY).
• Need of UIDAI: UIDAI was created to issue Unique Identification numbers (UID), named as “Aadhaar”, to all residents of India. The UID had to be –
• Robust enough to eliminate duplicate and fake identities, and
• Verifiable and authenticable in an easy, cost-effective way.
• Under the Aadhaar Act 2016, UIDAI is responsible for:
• Aadhaar enrolment and authentication, including operation and management of all stages of Aadhaar life cycle,
• Developing the policy, procedure, and system for issuing Aadhaar numbers to individuals and
• Perform authentication and the security of identity information and authentication records of individuals.

Ninth Schedule

20, Apr 2023

Why in News?

• Recently, the Chhattisgarh Chief Minister wrote to the Prime Minister seeking the inclusion of two amendment Bills allowing for a higher quota of reservation in jobs and educational institutions, in the Ninth Schedule of the Constitution.

What are these Bills?

• In Chhattisgarh, the State Assembly unanimously approved the two amendment bills, creating a 76% quota for members of the Scheduled Caste, Scheduled Tribes, and Other Backward Classes.
• The Governor has not yet approved the bills.

Why is there a Need to include these Bills in Ninth Schedule?

• The Ninth Schedule of the Constitution includes a list of Central and State laws that cannot be challenged in courts.
• Including the two amendment Bills in the Ninth Schedule would make them immune to legal challenges.
• Chhattisgarh government argues that including the amended provisions in the Ninth Schedule is crucial for providing justice to the backward and deprived classes in the State.
• Previously, the Chhattisgarh High Court had struck down a government order allowing 58% quota, stating that the reservation cannot exceed 50% as it unconstitutional.
• However, two amendment Bills were passed by the State Assembly to provide 76% quota for Scheduled Caste, Scheduled Tribes, and Other Backward Classes.

What is the Ninth Schedule?

• The Schedule contains a list of central and state laws which cannot be challenged in courts and was added by the Constitution (First Amendment) Act, 1951.
• The first Amendment added 13 laws to the Schedule. Subsequent amendments in various years have taken the number of protected laws to 284 currently.
• It was created by the new Article 31B, which along with Article 31A was brought in by the government to protect laws related to agrarian reform and for abolishing the Zamindari system.
• While Article 31A extends protection to ‘classes’ of laws, Article 31B shields specific laws or enactments.
• While most of the laws protected under the Schedule concern agriculture/land issues, the list includes other subjects.
• Article 31B also has a retrospective operation which means that if laws are inserted in the Ninth Schedule after they are declared unconstitutional, they are considered to have been in the Schedule since their commencement, and thus valid.
• Although Article 31B excludes judicial review, the apex court has said in the past that even laws under the Ninth Schedule would be open to scrutiny if they violated Fundamental Rights or the basic structure of the Constitution.

Are Laws in the Ninth Schedule completely Exempt from Judicial Scrutiny?

• Keshavananda Bharati v. State of Kerala (1973): The court upheld the judgement in Golaknath and introduced a new concept of “Basic structure of the Indian Constitution” and stated that, “all provisions of the constitution can be amended but those amendments which will abrogate or take away the essence or basic structure of constitution which included Fundamental Rights are fit to be struck down by the court”.
• Waman Rao v. Union of India (1981): In this important judgement, the SC ruled that, “those amendments which were made in the constitution before 24th April 1973 (date on which judgement in Keshavananda Bharati was delivered) are valid and constitutional but those which were made after the stated date are open to being challenged on the ground of constitutionality.
• I R Coelho v. State of Tamil Nadu (2007): It was held that every law must be tested under Article 14, 19 and 21 if it came into force after 24th April 1973.
• In addition, the court upheld its previous rulings and declared that any act can be challenged and is open to scrutiny by the judiciary if it is not in consonance with the basic structure of the constitution.
• In addition, it was held that if the constitutional validity of any law under the ninth schedule has been upheld before, in future it cannot be challenged again.

Way Forward:

• Although reservation is necessary, it should also be open to judicial scrutiny in order to ensure any abrupt or irrational policy initiative by the Executive or the Legislature.
• Any loophole or shortcomings in reservation policy must be addressed by involving various stakeholders.
• The need of the hour is not to go to extremes of either scrapping or shielding reservation policy, rather a rational framework on this contentious policy must be developed.

Bilkis Bano Case

19, Apr 2023

Why in News?

• The Centre and the Gujarat Government has told the Supreme Court that they may file a plea seeking a review of its March 27 order asking them to be ready with original files on the grant of remission to the convicts in the Bilkis Bano case.

What is Remission?

• The suspension is the stay or postponement of the execution of the sentence.
• In remission, the duration of the sentence is reduced, without changing the nature of the sentence.
• In remission, the nature of the sentence is remained untouched, while the duration is reduced i.e. the rest of the sentence need not be undergone.
• The effect of the remission is that the prisoner is given a certain date on which he shall be released and the eyes of the law he would be a free man.
• However, in case of breach of any of the condition of remission, it will be cancelled and the offender has to serve the entire term for which he was originally sentenced.

Constitutional provisions for Remission:

• ‘Prisons’ is a State subject under the State List of the Seventh Schedule of the Constitution.
• Indian laws provide pardoning power sourcing from statuary and constitutional authorities.
• By virtue of Article 72 and 161 of the Constitution of India, the President and Governor can grant pardon, to suspend, remit or commute a sentences passed by the courts.

What are the new norms?

• The prisoners who would qualify for premature release under the scheme are:
• Women and transgender convicts of ages 50 and above
• Male convicts of 60 and above who have completed 50% of their total sentence period without counting the period of general remission earned
• Physically challenged or disabled convicts with 70% disability and more who have completed 50% of their total sentence period
• Terminally ill convicts
• Convicted prisoners who have completed two-thirds (66%) of their total sentence
• Poor or indigent prisoners who have completed their sentence but are still in jail due to non-payment of fine imposed on them by waiving off the fine
• Persons who committed an offence at a young age (18-21) and with no other criminal involvement or case against them and who have completed 50% of their sentence period would also be eligible for the remission

Exceptions to these norms:

• Following persons would not be eligible for the grant of special remission:
• Persons convicted with death sentence or where death sentence has been commuted to life imprisonment or persons convicted for an offence for which punishment of death has been specified as one of the punishments
• Persons convicted with sentence of life imprisonment
• Convicts involved in terrorist activities or persons convicted under the Terrorist and Disruptive (Prevention) Act, 1985, Prevention of Terrorist Act, 2002, Unlawful Activities (Prevention) Act, 1967, Explosives Act, 1908, National Security Act, 1982, Official Secrets Act, 1923, and Anti-Hijacking Act, 2016

CBI summons Delhi CM Arvind Kejriwal in excise policy scam case

15, Apr 2023

Why in News?

• The CBI has summoned Delhi Chief Minister Arvind Kejriwal in connection with the excise policy scam case on April 16.

Types of Consent Given by state government:

• There are two types of consent for a probe by the CBI.

These are: general and specific.

• When a state gives a general consent (Section 6 of the Delhi Special Police Establishment Act) to the CBI for probing a case, the agency is not required to seek fresh permission every time it enters that state in connection with investigation or for every case.
• When a general consent is withdrawn, CBI needs to seek case-wise consent for investigation from the concerned state government. If specific consent is not granted, the CBI officials will not have the power of police personnel when they enter that state.
• This hurdle impedes seamless investigation by the CBI.
• A general consent is given to facilitate that seamless investigation in a case of corruption or violence.

Issue of Withdrawal of general Consent by States:

• Recently it has been seen that various states like Andhra Pradesh and West Bengal governments have withdrawn their general consent as a result of tussle between Centre and States.

Impact of withdrawal:

• It means the CBI will not be able to register any fresh case involving a central government official or a private person stationed in the states who withdrew their general consent, without getting case-specific consent.
• In simple terms withdrawal of general consent simply means that CBI officers will lose all powers of a police officer as soon as they enter the state unless the state government has allowed them.
• It will have no impact on investigation of cases already registered with CBI as old cases were registered when general consent existed.

What was the Calcutta High Court’s earlier verdict over CBI investigation in the stae affairs?

• Calcutta High Court recently ruled in a case of illegal coal mining and cattle smuggling being investigated by the CBI, that the central agency cannot be stopped from probing an employee of the central government in another state. The order has been challenged in the Supreme Court.
• In Vinay Mishra vs the CBI, Calcutta HC ruled in July this year that corruption cases must be treated equally across the country, and a central government employee could not be “distinguished” just because his office was located in a state that had withdrawn general consent.
• The HC also said that withdrawal of consent would apply in cases where only employees of the state government were involved.

Issues with CBI Autonomy:

• After the 2018 amendments to the Prevention of Corruption Act, 1988, the Centre has come to exercise power over the CBI not just administratively, but also legally.
• In 2018, the government pushed through Parliament amendments to Section 17A of the Act making it mandatory for the CBI to seek the Centre’s permission before registering a case of corruption against any government servant.

About Delhi Special Police Establishment Act:

• The Central Bureau of Investigation traces its origin to the Special Police Establishment (SPE) which was set up in 1941 by the Government of India.
• The functions of the SPE then were to investigate cases of bribery and corruption in transactions with the War & Supply Deptt. Of India during World War II.
• Even after the end of the War, the need for a Central Government agency to investigate cases of bribery and corruption by Central Government employees was felt.
• The Delhi Special Police Establishment Act was therefore brought into force in 1946. The CBI’s power to investigate cases is derived from this Act.

Role of Parliamentary Committees in Indian Democracy

15, Apr 2023

Why in News?

• Parliamentary committees are constituted to delve deeper into matters of public concern and develop expert opinions.

Genesis & Types of Parliamentary Committee:

• Origin: As is the case with several other practices of Indian parliamentary democracy, the institution of Parliamentary Committees also has its origins in the British Parliament
• In independent India, the first Public Accounts Committee was constituted in April 1950.
• Constitutional Provisions: Parliamentary committees draw their authority from Article 105 (on privileges of Parliament members) and Article 118 (on Parliament’s authority to make rules for regulating its procedure and conduct of business).
• Types: Most committees are ‘standing’ as their existence is uninterrupted and usually reconstituted on an annual basis; some are ‘select’ committees formed for a specific purpose, for instance, to deliberate on a particular bill.
• In 1993, 17 Departmentally-related Standing Committees (DRSCs), later increased to 24, were constituted in the Parliament.
• These committees drew members from both Houses roughly in proportion to the strength of the political parties in the Houses.
• Allocation of Business: The chair uses her discretion to refer a matter to a parliamentary committee but this is usually done in consultation with leaders of parties in the House.
• The practice of regularly referring bills to committees began in 1989 after government departments started forming their own standing committees.
• Prior to that, select committees or joint committees of the houses were only set up to scrutinise in detail some very important bills.
• Some Important Parliamentary Committees in Finances: Financial control is a critical tool for Parliament’s authority over the executive; hence finance committees are considered to be particularly powerful.
• The three financial committees are the Public Accounts Committee, the Estimates Committee and the Committee on Public Undertakings.

Significance of Parliamentary Committee System:

• Inter-Ministerial Coordination: They are envisaged to be the face of Parliament in a set of inter- related departments and ministries.
• They are assigned the task of looking into the demands for grants of the ministries/departments concerned, to examine Bills pertaining to them, to consider their annual reports, and to look into their long-term plans and report to Parliament.
• Instrument For Detailed Scrutiny: Committee reports are usually exhaustive and provide authentic information on matters related to governance.
• Bills that are referred to committees are returned to the House with significant value addition.
• Besides the standing committees, the Houses of Parliament set up ad hoc committees to enquire and report on specific subjects that are assigned the task of studying a Bill closely and reporting back to the House.
• Also, in the discharge of their mandate, they can solicit expert advice and elicit public opinion.
• Acting As Mini-Parliament: These Committees are smaller units of MPs from both Houses, across political parties and they function throughout the year.
• Also, Parliamentary committees are not bound by the populistic demands that generally act as hindrance in working of parliament.
• As committee meetings are ‘closed door’ and members are not bound by party whips, the parliamentary committee work on the ethos of debate and discussions.
• Moreover, they work away from the public glare, remain informal compared to the codes that govern parliamentary proceedings, and are great training schools for new and young members of the House.

How has the Role of Parliamentary Committees Declined Recently?

• During the course of the 17th Lok Sabha, only 14 Bills have been referred for further examination so far.
• As per data from PRS, as little as 25% of the Bills introduced were referred to committees in the 16th Lok Sabha, as compared to 71% and 60% in the 15th and 14th Lok Sabha, respectively.

Way Forward:

• Strengthen the role of parliamentary committees by giving them more resources, powers, and authority to hold the executive accountable.
• Encourage greater participation from civil society, experts, and stakeholders in the committee proceedings to ensure diverse perspectives and informed decision-making.
• Ensure transparency and accountability in committee proceedings by live streaming and recording meetings and making reports and recommendations publicly available.
• Develop a culture of bipartisan consensus-building within committees to ensure that the interests of all stakeholders are represented and to promote a more productive and efficient legislative process.

Election Commission grants national party status to AAP

12, Apr 2023

Why in News?

• The EC stripped the national party status of Trinamool Congress, the NCP and the CPI, and recognised the AAP as a national party.

What are unrecognised political parties?

• Either newly registered parties or those which have not secured enough percentage of votes in Assembly or General Elections to become a State party or those which have never contested in elections since being registered are considered unrecognised parties. Such parties don’t enjoy all the benefits extended to the recognised parties.

Unrecognised political parties in India:

• There are 2,360 political parties registered with the Election Commission of India and 2,301 or 97.50% of them are unrecognised.

Registration of political parties:

• Registration of Political parties is governed by the provisions of Section 29A of the Representation of the People Act, 1951.
• A party seeking registration under the said Section with the Election Commission has to submit an application to the Commission within a period of 30 days following the date of its formation as per guidelines prescribed by the Election Commission of India in exercise of the powers conferred by Article 324 of the Commission of India and Section 29A of the Representation of the People Act, 1951.

To be eligible for a ‘National Political Party of India:

• It secures at least six percent of the valid votes polled in any four or more states, at a general election to the House of the People or, to the State Legislative Assembly.
• In addition, it wins at least four seats in the House of the People from any State or States.
• It wins at least two percent seats in the House of the People (i.e., 11 seats in the existing House having 543 members), and these members are elected from at least three different States.

To be eligible for a ‘State Political Party:

• It secures at least six percent of the valid votes polled in the State at a general election, either to the House of the People or to the Legislative Assembly of the State concerned
• In addition, it wins at least two seats in the Legislative Assembly of the State concerned.
• It wins at least three percent (3%) of the total number of seats in the Legislative Assembly of the State, or at least three seats in the Assembly, whichever is more.

Benefits:

• If a party is recognised as a State Party’, it is entitled for exclusive allotment of its reserved symbol to the candidates set up by it in the State in which it is so recognised, and if a party is recognised as a `National Party’ it is entitled for exclusive allotment of its reserved symbol to the candidates set up by it throughout India.
• Recognised `State’ and `National’ parties need only one proposer for filing the nomination and are also entitled for two sets of electoral rolls free of cost at the time of revision of rolls and their candidates get one copy of electoral roll free of cost during General Elections.
• They also get broadcast/telecast facilities over Akashvani/Doordarshan during general elections.
• The travel expenses of star campaigners are not to be accounted for in the election expense accounts of candidates of their party.

Lokayukta

05, Apr 2023

Why in News?

• The Kerala Lokayukta, has referred a case related to alleged nepotism and anomalies in the Chief Minister’s Distress Relief Fund (CMDRF) to a three-member full bench for investigation.

What is Lokayukta?

• The Lokayukta is the Indian Parliamentary Ombudsman, executed into power, through and for, each of the State Governments of India.
• It is an anti-corruption authority. The object of Lokayukta system in a state is to make investigation of grievances, allegations against public servants.
• The origin of the Lokayukta can be drawn to the Ombudsman in Scandinavian countries.
• In India, the Administrative Reforms Commission, (1966-70), had recommended the creation of the Lokpal at the Centre and Lokayukta in the states.
• Before the passing of the Lokpal and Lokayuktas Act in 2013, several states in India passed laws for creating the Institution of ‘Lokayukta’.
• Maharashtra was first in this respect with its Lokayukta body established in 1971.
• The lokayukta and upalokayukta are appointed by the Governor of the state. While appointing, the governor in most of the states consults

(a) the chief justice of the state high court, and

(b) the leader of Opposition in the state legislative assembly.

• In most of the states, the term of office fixed for lokayukta is of 5 years duration or 65 years of age, whichever is earlier. He is not eligible for reappointment for a second term.

Issues Related to Lokayukta:

• No Clear Legislation:
• The Lokpal and Lokayuktas Act 2013 only has one section on Lokayukta, which mandates that states must pass the Lokayukta Act within one year and there is no information about their makeup, powers, or other features.
• States, in fact, have complete autonomy over how their own Lokayuktas are appointed, how they work, and under what conditions they serve.
• Delay in Resolution:
• One of the major challenges faced by the Lokayukta is the delay in the investigation and resolution of complaints.
• The Lokayukta is also dependent on the state government for funding and infrastructure, which can lead to interference and lack of independence.

Way Forward:

• Strengthening the Lokpal and Lokayukta Act: The Lokpal and Lokayukta Act should be amended to provide more powers to the Lokayukta, such as the power to investigate and prosecute cases of corruption against all public servants, including the Chief Minister and the judiciary.
• Ensure Adequate Resources and Staffing: The Lokayukta offices across the country need to be adequately staffed and resourced to enable them to effectively carry out their mandate.
• Enhance Accountability and Transparency: The Lokayukta should be made more accountable and transparent in its functioning. It should regularly publish reports on its activities, investigations, and outcomes.

EWS quota is ‘economic justice’ and not ‘social justice’, says TN CM Stalin

05, Apr 2023

Why in News?

• Bringing together leaders of different political parties on a virtual platform, DMK president and Tamil Nadu Chief Minister M.K. Stalin strongly opposed the 10% reservation for Economically Weaker Sections (EWS) among the Open Competition category.

Background of the issue:

• The Supreme Court had referred the EWS quota case to the Constitution Bench in August 2020.
• The petitions in this issue raise a “substantial question of law” as to whether grant of 10% reservation violated the 50% ceiling cap on quota declared by the top court itself.
• On whether reservation on the sole basis of economic criteria violated the Basic Structure of the Constitution, one of the Justice took the expansive view that reservation was an “instrument of affirmative action by the state” and should not be confined to just SCs, STs, SEBCs, and the non-creamy layer of OBCs, but also include “any class or sections so disadvantaged as to answer the description of ‘weaker section’”.
• Another Justice noted that “the legislature understands and appreciates the needs of its own people”.
• The three judges in the majority held that reservation on economic criteria alone did not violate the Basic Structure of the Constitution.
• In their minority view, SC held that though quota on the basis of economic deprivation, destitution and poverty was “per se permissible/valid” and even “constitutionally indefeasible”, the “othering” of socially and educationally disadvantaged classes, including the SC/ST/OBC/SEBC communities, on the ground that they already enjoy the benefits of a pre-existing 50% reservation on the basis of their caste and class origins, would amount to heaping injustice based on their past disability.

Who are “Economically Weaker Sections”?

• For the purposes of article 15 and article 16, “economically weaker sections” shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage.’
• Central Government of India has specified certain criteria for identifying the EWS. This will be a class distinct from the already specified classes of SCs, STs and socially and educationally backward classes (OBCs).
• The EWS quota applies to household with
• Annual household income below Rs 8 lakh.
• Agriculture land below 5 acres.
• Residential house below 1000 sq ft.
• Residential plot below 100 yards in notified municipality.
• Residential plot below 200 yards in non-notified municipality area.

What are the Implications?

• The 10% reservation will be in addition to the existing cap of 50% reservation for the Scheduled Castes, Scheduled Tribes and the Other Backward Classes, taking total reservation to 60%.
• The quota targets the poor among the upper castes. This will be over and above 50% mandated by Constitution and hence the need for Constitution amendment Bill.

SC verdict in Indira Sawhney case:

• The proposed law would face roadblocks if challenged in the Supreme Court.
• A nine-judge Constitution Bench of the Supreme Court in the Indira Sawhney case of 1992 specifically answered the question “whether backward classes can be identified only and exclusively with reference to the economic criterion.”
• The constitution bench had categorically ruled that a backward class cannot be determined only and exclusively with reference to economic criterion. The bench had held that economic criterion may be a consideration or basis along with, and in addition to, social backwardness, but it can never be the sole criterion.
• The bench in its judgement declared 50% quota as the rule unless extraordinary situations “inherent in the great diversity of this country and the people” happen. Even then, the court stated that extreme caution is to be exercised and a special case should be made out.

Model Code of Conduct

30, Mar 2023

Why in News?

• With the announcement of the Karnataka Assembly elections, the Model Code of Conduct (MCC) has come into force with immediate effect.

About MCC:

• The MCC is a set of guidelines issued by the EC to regulate political parties and candidates prior to elections.
• It helps EC in keeping with the mandate it has been given under Article 324 of the Constitution, which gives it the power to supervise and conduct free and fair elections to the Parliament and State Legislatures.
• The MCC is operational from the date on which the election schedule is announced until the date of result announcement.

Historical Background:

• The origins of the MCC lie in the Assembly elections of Kerala in 1960, when the State administration prepared a ‘Code of Conduct’ for political actors.
• Subsequently, in the Lok Sabha elections in 1962, the ECI circulated the code to all recognised political parties and State governments and it was wholeheartedly followed.
• It was in 1991 after repeated flouting of the election norms and continued corruption, the EC decided to enforce the MCC more strictly.

What are the main provisions of MCC?

• General Conduct: Criticism of political parties must be limited to their policies and programmes, past record and work. Activities such as using caste and communal feelings to secure votes, criticising candidates on the basis of unverified reports, bribing or intimidation of voters, etc. are prohibited.
• Meetings: Parties must inform the local police authorities of the venue and time of any meeting in time to enable the police to make adequate security arrangements.
• Processions: If two or more candidates plan processions along the same route, organisers must establish a contact in advance to ensure that the processions do not clash. Carrying and burning effigies representing members of other political parties is not allowed.
• Polling Day: All authorised party workers at polling booths should be given suitable badges or identity cards. Identity slips supplied by them to voters shall be on plain (white) paper and shall not contain any symbol, name of the candidate or the name of the party.
• Polling Booths: Only voters, and those with a valid pass from the EC are allowed to enter polling booths.
• Observers: The EC will appoint observers to whom any candidates may report problems regarding the conduct of the election.
• Party in power: The MCC incorporated certain restrictions in 1979, regulating the conduct of the party in power.
• Ministers must not combine official visits with election work or use official machinery for the same.
• The party must avoid advertising at the cost of the public exchequer or using official mass media for publicity on achievements to improve chances of victory in the elections.
• Ministers and other authorities must not announce any financial grants, or promise any construction of roads, provision of drinking water, etc.
• Other parties must be allowed to use public spaces and rest houses and these must not be monopolised by the party in power.
• Election manifestos: Added in 2013, these guidelines prohibit parties from making promises that exert an undue influence on voters, and suggest that manifestos also indicate the means to achieve promises.

Legal Enforcement:

• Though MCC does not have any statutory backing, it has come to acquire strength in the past decade because of its strict enforcement by the EC.
• Certain provisions of the MCC may be enforced through invoking corresponding provisions in other statutes such as the Indian Penal Code 1860, Code of Criminal Procedure 1973, and Representation of the People Act 1951.
• In 2013, the Standing Committee on Personnel, Public Grievances, Law and Justice, recommended making the MCC legally binding and recommended that the MCC be made a part of the RPA 1951.However, the EC argues against making it legally binding.
• According to it, elections must be completed within a relatively short time or close to 45 days and judicial proceedings typically take longer, therefore it is not feasible to make it enforceable by law.

Deadline for linking PAN-Aadhaar extended beyond March 31

29, Mar 2023

Why in News?

• The Finance Ministry has extended the last date to link Permanent Account Number (PAN) and Aadhaar by three months from March 31 to June 30, 2023.

What is the rationale behind linking PAN with Aadhaar?

• The Income-tax Department announced the linking of PAN with Aadhaar after it came across instances where multiple permanent account numbers (PANs) were allotted to one person, or where one PAN was allotted to more than one person.
• To have a robust way of de-duplication of the PAN database, it was made mandatory for a taxpayer who is eligible to obtain Aadhaar, to quote his Aadhaar in the application form for PAN and return of income.

Who needs to link PAN with Aadhaar?

• As per a circular issued by CBDT in March 2022, the Income-tax Act makes it mandatory for every person who has been allotted a PAN as on July 1, 2017, to intimate his/her Aadhaar number so that Aadhaar and PAN can be linked.

Who is not required to link PAN with Aadhaar?

• There are a few categories of individuals for whom this linkage is not compulsory.
• Any person of age 80 years and above;
• A non-resident as per the Income-tax Act;
• A person who is not a citizen of India.

What will happen if PAN is not linked with Aadhaar?

• CBDT has said that in case a person fails to link his or her PAN with Aadhaar, the PAN will become inoperative. In such a case, the person will not be able to furnish, intimate, or quote his/ her PAN, and shall be liable to all the consequences under the Income-tax Act for such failure. Some of the major implications of non-compliance are:
• The person shall not be able to file the income tax return using the inoperative PAN.
• Pending returns will not be processed.
• Pending refunds cannot be issued to inoperative PANs.
• Pending proceedings as in the case of defective returns cannot be completed once the PAN is inoperative.
• Tax will be required to be deducted at a higher rate if PAN becomes inoperative.
• Besides these consequences, the person may find difficulties in doing other financial transactions such as with banks, as PAN is an important KYC criterion for these transactions.

And why has SEBI made it mandatory for investors to link PAN with Aadhaar?

• Since PAN is the key identification number and part of KYC requirements for all transactions in the securities market, all SEBI-registered entities and Market Infrastructure Institutions (MIIs) are required to ensure valid KYC for all participants.
• All existing investors are required to ensure the linking of their PAN with their Aadhaar before June 30, 2023, for continual and smooth transactions in the securities market and to avoid consequences of non-compliance such accounts would be considered non-KYC compliant, and there could be restrictions on securities and other transactions until the PAN and Aadhaar are linked.

How to link PAN with Aadhaar?

• One can link PAN and Aadhaar by clicking on the Link Aadhaar option available on the official website of the Income-tax Department, www.incometax.gov.in.

Edappadi Palaniswami declared AIADMK general secretary

29, Mar 2023

Why in News?

• Moments after the Madras High Court dismissed interim applications filed by former AIADMK coordinator O. Panneerselvam and a few of his colleagues against resolutions of the July 11, 2022 party general council and the consequent general secretary election, Leader of Opposition in the Assembly, Edappadi K. Palaniswami, was declared elected as the party’s general secretary.

Firstly, how are symbols allotted to political parties?

• As per the guidelines, to get a symbol allotted:
• A party/candidate has to provide a list of three symbols from the EC’s free symbols list at the time of filing nomination papers.
• Among them, one symbol is allotted to the party/candidate on a first-come-first-serve basis.
• When a recognised political party splits, the Election Commission takes the decision on assigning the symbol.

 Powers of Election Commission:

• The Election Symbols (Reservation and Allotment) Order, 1968 empowers the EC to recognise political parties and allot symbols.
• Under Paragraph 15 of the Order, it can decide disputes among rival groups or sections of a recognised political party staking claim to its name and symbol.
• The EC is also the only authority to decide issues on a dispute or a merger. The Supreme Court upheld its validity in Sadiq Ali and another vs. ECI in 1971.

How many types of symbols are there?

• As per the Election Symbols (Reservation and Allotment) (Amendment) Order, 2017, party symbols are either:
• Reserved: Eight national parties and 64 state parties across the country have “reserved” symbols.
• Free: The Election Commission also has a pool of nearly 200 “free” symbols that are allotted to the thousands of unrecognised regional parties that pop up before elections.

What are the Election Commission’s powers in a dispute over the election symbol when a party splits?

• On the question of a split in a political party outside the legislature, Para 15 of the Symbols Order, 1968, states:
• “When the Commission is satisfied that there are rival sections or groups of a recognised political party each of whom claims to be that party the Commission may decide that one such rival section or group or none of such rival sections or groups is that recognised political party and the decision of the Commission shall be binding on all such rival sections or groups.”
• This applies to disputes in recognised national and state parties (like the LJP, in this case). For splits in registered but unrecognised parties, the EC usually advises the warring factions to resolve their differences internally or to approach the court.
• Please note that before 1968, the EC issued notifications and executive orders under the Conduct of Election Rules, 1961.

Bilkis Bano Case

28, Mar 2023

Why in News?

• The Supreme Court has recently sought a response from the Centre, Gujarat Government and others on a plea filed by Bilkis Bano, who was gang-raped and seven members of her family were killed during the 2002 post-Godhra riots.

What is Remission?

• The suspension is the stay or postponement of the execution of the sentence.
• In remission, the duration of the sentence is reduced, without changing the nature of the sentence.
• In remission, the nature of the sentence is remained untouched, while the duration is reduced i.e. the rest of the sentence need not be undergone.
• The effect of the remission is that the prisoner is given a certain date on which he shall be released and the eyes of the law he would be a free man.
• However, in case of breach of any of the condition of remission, it will be cancelled and the offender has to serve the entire term for which he was originally sentenced.

Constitutional provisions for Remission:

• ‘Prisons’ is a State subject under the State List of the Seventh Schedule of the Constitution.
• Indian laws provide pardoning power sourcing from statuary and constitutional authorities.
• By virtue of Article 72 and 161 of the Constitution of India, the President and Governor can grant pardon, to suspend, remit or commute a sentences passed by the courts.

What are the new norms?

• The prisoners who would qualify for premature release under the scheme are:
• Women and transgender convicts of ages 50 and above
• Male convicts of 60 and above who have completed 50% of their total sentence period without counting the period of general remission earned
• Physically challenged or disabled convicts with 70% disability and more who have completed 50% of their total sentence period
• Terminally ill convicts
• Convicted prisoners who have completed two-thirds (66%) of their total sentence
• Poor or indigent prisoners who have completed their sentence but are still in jail due to non-payment of fine imposed on them by waiving off the fine
• Persons who committed an offence at a young age (18-21) and with no other criminal involvement or case against them and who have completed 50% of their sentence period would also be eligible for the remission

Exceptions to these norms:

• Following persons would not be eligible for the grant of special remission:
• Persons convicted with death sentence or where death sentence has been commuted to life imprisonment or persons convicted for an offence for which punishment of death has been specified as one of the punishments
• Persons convicted with sentence of life imprisonment
• Convicts involved in terrorist activities or persons convicted under the Terrorist and Disruptive (Prevention) Act, 1985, Prevention of Terrorist Act, 2002, Unlawful Activities (Prevention) Act, 1967, Explosives Act, 1908, National Security Act, 1982, Official Secrets Act, 1923, and Anti-Hijacking Act, 2016

Central Bureau of Investigation

27, Mar 2023

Why in News?

• The Parliamentary Committee on Personnel, Public Grievances, Law and Justice, in view of withdrawal of general consent for CBI probe by many states, has said that the existing law governing the CBI has “many limitations” and needs to be replaced with a new legislation to define its status, functions, and powers.

Types of Consent Given by state government:

• There are two types of consent for a probe by the CBI. These are: general and specific.
• When a state gives a general consent (Section 6 of the Delhi Special Police Establishment Act) to the CBI for probing a case, the agency is not required to seek fresh permission every time it enters that state in connection with investigation or for every case.
• When a general consent is withdrawn, CBI needs to seek case-wise consent for investigation from the concerned state government. If specific consent is not granted, the CBI officials will not have the power of police personnel when they enter that state.
• This hurdle impedes seamless investigation by the CBI. A general consent is given to facilitate that seamless investigation in a case of corruption or violence.

Issue of Withdrawal of general Consent by States:

• Recently it has been seen that various states like Andhra Pradesh and West Bengal governments have withdrawn their general consent as a result of tussle between Centre and States.

Impact of withdrawal:

• It means the CBI will not be able to register any fresh case involving a central government official or a private person stationed in the states who withdrew their general consent, without getting case-specific consent.
• In simple terms withdrawal of general consent simply means that CBI officers will lose all powers of a police officer as soon as they enter the state unless the state government has allowed them.
• It will have no impact on investigation of cases already registered with CBI as old cases were registered when general consent existed.

What was the Calcutta High Court’s earlier verdict over CBI investigation in the state affairs?

• Calcutta High Court recently ruled in a case of illegal coal mining and cattle smuggling being investigated by the CBI, that the central agency cannot be stopped from probing an employee of the central government in another state. The order has been challenged in the Supreme Court.
• In Vinay Mishra vs the CBI, Calcutta HC ruled in July this year that corruption cases must be treated equally across the country, and a central government employee could not be “distinguished” just because his office was located in a state that had withdrawn general consent.
• The HC also said that withdrawal of consent would apply in cases where only employees of the state government were involved.

Issues with CBI Autonomy:

• After the 2018 amendments to the Prevention of Corruption Act, 1988, the Centre has come to exercise power over the CBI not just administratively, but also legally.
• In 2018, the government pushed through Parliament amendments to Section 17A of the Act making it mandatory for the CBI to seek the Centre’s permission before registering a case of corruption against any government servant.

About Delhi Special Police Establishment Act:

• The Central Bureau of Investigation traces its origin to the Special Police Establishment (SPE) which was set up in 1941 by the Government of India.
• The functions of the SPE then were to investigate cases of bribery and corruption in transactions with the War & Supply Deptt. Of India during World War II.
• Even after the end of the War, the need for a Central Government agency to investigate cases of bribery and corruption by Central Government employees was felt.
• The Delhi Special Police Establishment Act was therefore brought into force in 1946. The CBI’s power to investigate cases is derived from this Act.

Disqualification of MPs

25, Mar 2023

Why in News?

• Congress leader Rahul Gandhi has been disqualified from the Lok Sabha, a day after he was convicted in a defamation case by a Surat court.

Constitutional Provisions for Disqualification of MLAs:

• Under the Constitution, a person shall be disqualified for being chosen as and for being a member of the legislative assembly or legislative council of a state:
• If he holds any office of profit under the Union or state government (except that of a minister or any other office exempted by state legislature),
• If he is of unsound mind and stands so declared by a court,
• If he is an undischarged insolvent,
• If he is not a citizen of India or has voluntarily acquired the citizenship of a foreign state or is under any acknowledgement of allegiance to a foreign state, and
• If he is so disqualified under any law made by Parliament.

Parliamentary Provisions for Disqualification of MLAs:

The Parliament has prescribed a number of additional disqualifications in the Representation of People Act (1951) and the same is followed by Legislative Assembly and Council:

• He must not have been found guilty of certain election offences or corrupt practices in the elections.
• He must not have been convicted for any offence resulting in imprisonment for two or more years.
• But, the detention of a person under a preventive detention law is not a disqualification.
• He must not have failed to lodge an account of his election expenses within the time.
• He must not have any interest in government contracts, works or services.
• He must not be a director or managing agent nor hold an office of profit in a corporation in which the government has at least 25 per cent share.
• He must not have been dismissed from government service for corruption or disloyalty to the state.He must not have been convicted for promoting enmity between different groups or for the offence of bribery.He must not have been punished for preaching and practicing social crimes such as untouchability, dowry and sati.
• The governor’s decision is final on the question whether a member has become subject to any of the above disqualifications.
• The governor should obtain the opinion of the Election Commission and act accordingly.

Disqualification on Ground of Defection:

• The Constitution lays down that a person shall be disqualified for being a member of either House of state legislature if he is so disqualified on the ground of defection under the provisions of the Tenth Schedule.
• The question of disqualification under the Tenth Schedule is decided by the Chairman, in the case of legislative council and, Speaker, in the case of legislative assembly.
• In 1992, the Supreme Court ruled that the decision of Chairman/Speaker in this regard is subject to judicial review.

Lok Sabha adjourned amid continued sloganeering by Opposition

24, Mar 2023

Why in News?

• As Opposition MPs resorted to sloganeering over demand for JPC probe into the Adani issue, proceedings in the Lok Sabha were adjourned.

About:

• A sitting of Parliament can be terminated by adjournment or adjournment sine die or prorogation or dissolution (in the case of the Lok Sabha).
• Adjournment: It suspends the work in a sitting for a specified time, which may be hours, days or weeks.
• Adjournment sine die: It means terminating a sitting of Parliament for an indefinite period.
• In other words, when the House is adjourned without naming a day for reassembly.
• The power of adjournment as well as adjournment sine die lies with the presiding officer (Speaker or Chairman) of the House.

What the Constitution says on Parliamentary Sessions?

• Article 85 requires that there should not be a gap of more than six months between two sessions of Parliament.
• Please note, the Constitution does not specify when or for how many days Parliament should meet.
• The maximum gap between two sessions of Parliament cannot be more than six months. That means the Parliament should meet at least twice a year.
• A ‘session’ of Parliament is the period between the first sitting of a House and its prorogation.

Who shall convene a session?

• In practice, the Cabinet Committee on Parliamentary Affairs, comprising senior ministers, decides on the dates for parliament’s sitting and it is then conveyed to the president.
• So, the executive, headed by the prime minister, which steers the business to be taken up by parliament will have the power to advise the president to summon the legislature.

What are the other different sessions in Parliament?

• Summoning of Parliament: Summoning is the process of calling all members of the Parliament to meet.

The President summons each House of the Parliament from time to time. The gap between two sessions of the Parliament cannot exceed 6 months, which means the Parliament meets at least two times in one year.

• Prorogation: Prorogation is the end of a session. A prorogation puts an end to a session. The time between the Prorogation and reassembly is called Recess. Prorogation is the end of session and not the dissolution of the house (in case of Lok Sabha, as Rajya Sabha does not dissolve).
• Quorum: Quorum refers to the minimum number of the members required to be present for conducting a meeting of the house.

The Constitution has fixed one-tenth strength as quorum for both Lok Sabha and Rajya Sabha. Thus, to conduct a sitting of Lok Sabha, there should be at least 55 members present while to conduct a sitting of Rajya Sabha, there should be at least 25 members present.

Why is a Parliamentary Session important?

• Law-making is dependent on when Parliament meets.
• Also, a thorough scrutiny of the government’s functioning and deliberation on national issues can only take place when the two Houses are in session.
• Predictability in the functioning of Parliament is key to a well-functioning democracy.

Defamation Case

24, Mar 2023

Why in News?

• Congress leader Rahul Gandhi was sentenced to two years imprisonment by a local court in Gujarat’s Surat, in a criminal defamation case filed against him over his remark on the “Modi surname” that he had allegedly made during campaigning for 2019 parliamentary polls.

What is defamation?

• Defamation is the communication of a false statement that harms the reputation of an individual person, business, product, group, government, religion, or nation.
• In India, defamation can both be a civil wrong and a criminal offence.
• The difference between the two lies in the objects they seek to achieve.
• A civil wrong tends to provide for a redressal of wrongs by awarding compensation and a criminal law seeks to punish a wrongdoer and send a message to others not to commit such acts.

What are the Legal provisions?

• Criminal defamation has been specifically defined as an offence under section 499 of the Indian Penal Code (IPC).
• Civil defamation is based on tort law (an area of law which does not rely on statutes to define wrongs but takes from ever-increasing body of case laws to define what would constitute a wrong).
• Section 499 states defamation could be through words, spoken or intended to be read, through signs, and also through visible representations.
• Section 499 also cites exceptions. These include “imputation of truth” which is required for the “public good” and thus has to be published, on the public conduct of government officials, the conduct of any person touching any public question and merits of the public performance.
• Section 500 of IPC, which is on punishment for defamation, reads, “Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.”

Misuse of the law and concerns associated:

• The criminal provisions have often been used purely as a means of harassment.
• Given the cumbersome nature of Indian legal procedures, the process itself turns into punishment, regardless of the merits of the case.
• Critics argue that defamation law impinges upon the fundamental right to freedom of speech and expression and that civil defamation is an adequate remedy against such wrongs.
• Criminal defamation has a pernicious effect on society: for instance, the state uses it as a means to coerce the media and political opponents into adopting self-censorship and unwarranted self-restraint.

What has the Supreme Court said?

• In Subramanian Swamy vs Union of India case 2014, the Court approved the Constitutional validity of sections 499 and 500 (criminal defamation) in the Indian Penal Code, underlining that an individual’s fundamental right to live with dignity and reputation “cannot be ruined solely because another individual can have his freedom”.
• In August 2016, the court also passed strictures on Tamil Nadu Chief Minister J Jayalalithaa for misusing the criminal defamation law to “suffocate democracy” and, the court said, “public figures must face criticism”.

JPC demand on Adani issue

21, Mar 2023

Why in News?

• Both Houses of Parliament remained paralysed over the BJP’s insistence on an apology from Congress leader Rahul Gandhi for his democracy remarks and the Opposition’s demand for a joint parliamentary committee (JPC) probe into the alleged stock manipulation by the Adani Group.

About the Hindenberg group and its report:

• Hindenburg Research is a company that specializes in forensic financial research.
• It especially looks for accounting irregularities; undisclosed related-party transactions; illegal/ unethical business or financial reporting practices; and undisclosed regulatory, product, or financial issues in companies.
• In late January, Hindenburg Research, which specializes in short selling, published a report critical of the group’s finances.
• The research firm, which has short positions in Adani companies through US-traded bonds and non-Indian-traded derivative instruments, said key listed companies in the group had “substantial debt” which has put the entire group on a “precarious financial footing”.

Outcome of the report:

• The seven listed firms have still lost about half their market value – or more than USD 100 billion combined – since the US-based short-seller last week questioned the group over its debt levels, Reuters reported. The listed Adani firms now have a combined market value of USD 108 billion, versus USD 218 billion before Hindenburg’s report.
• The report has also caused a political storm in the country with opposition stalling the parliament and demanding a JPC or Supreme court led investigation of the allegations against the Adani Group on the basis of the Hindenburg report.

What is a JPC?

• A Joint Parliamentary Committee (JPC) is set up to examine a particular bill presented before the Parliament, or for the purpose of investigating cases of financial irregularities in any government activity.
• The JPC is an ad-hoc body.
• It is set up for a given period of time and is aimed at addressing a specific issue.
• In order to set up a JPC, a motion is passed in one House and supported by the other House.
• The committee’s members are decided by Parliament.
• The number of members can vary. There are twice as many Lok Sabha members as the Rajya Sabha.

Powers and Functions of JPC:

• A JPC is authorised to collect evidence in oral or written form or demand documents in connection with the matter.
• The proceedings and findings of the committee are confidential, except in matters of public interest.
• The government can take the decision to withhold a document if it is considered prejudicial to the safety or interest of the State.
• The Speaker has the final word in case of a dispute over calling for evidence.
• The committee can invite interested parties for inquiry and summon people to appear before it.
• The committee gets disbanded following the submission of its report to Parliament.

Government bats for simultaneous polls

18, Mar 2023

Why in News?

• The government has recently batted for holding simultaneous elections to Lok Sabha and State assemblies, saying it would result in huge saving to the public exchequer, as it listed out “imperatives” such as amending the Constitution and bringing all political parties on board before carrying out the gigantic exercise.

Background:

• While the Centre may not be planning to amend the Representation of the People Act, it has held meetings with various stakeholders, including the EC, on the possibility of States adopting the same electoral roll for local body polls. Prime Minister Narendra Modi has spoken in favour of “One Nation, One Election one nation, one election” many times.

What is One Nation, One Election?

• It refers to holding elections to Lok Sabha, State Legislative Assemblies, Panchayats and Urban local bodies simultaneously, once in five years.

But, what are the challenges posed by frequent elections?

• Massive expenditure.
• Policy paralysis that results from the imposition of the Model Code of Conduct during election time.
• Impact on delivery of essential services.
• Burden on crucial manpower that is deployed during election time.
• Puts pressure on political parties, especially smaller ones, as elections are becoming increasingly expensive.

Benefits of Simultaneous Elections:

• Governance and consistency: The ruling parties will be able to focus on legislation and governance rather than having to be in campaign mode forever.
• Reduced Expenditure of Money and Administration.
• Continuity in policies and programmes.
• Efficiency of Governance: Populist measures by governments will reduce.
• The impact of black money on the voters will be reduced as all elections are held at a time.

Impact on Regional parties:

• There is always a tendency for voters to vote the same party in power in the state and at the Centre in case the Lok Sabha polls and the state elections are held together.
• For simultaneous elections to be implemented, Changes to be made in Constitution and Legislations:
• Article 83 which deals with the duration of Houses of Parliament need an amendment.
• Article 85 (on dissolution of Lok Sabha by the president).
• Article 172 (relating to the duration of state legislatures).
• The Representation of People Act, 1951 Act would have to be amended to build in provisions for stability of tenure for both parliament and assemblies. This should include the following crucial elements:
• Restructuring the powers and functions of the ECI to facilitate procedures required for simultaneous elections
• A definition of simultaneous election can be added to section 2 of the 1951 act.

What is the Common Electoral Roll?

• Under the Common Electoral Roll, only one voter list will be used for Lok Sabha, Vidhan Sabha and other elections.

How many types of electoral rolls do we have in our country and why the distinction?

• In many states, the voters’ list for the panchayat and municipality elections is different from the one used for Parliament and Assembly elections.
• The distinction stems from the fact that the supervision and conduct of elections in our country are with two constitutional authorities — the Election Commission (EC) of India and the State Election Commissions (SECs).

Significance:

• The preparation of a separate voters list causes duplication of the effort and the expenditure.
• Therefore, a common electoral roll and simultaneous elections as a way to save an enormous amount of effort and expenditure.

Governor’s Power to Call for Floor Test

17, Mar 2023

Why in New?

• Recently, the Supreme Court (SC) has said that the Governor cannot call for a Floor Test on the basis of internal differences in the Party Members.

What is a floor test?

• It is a term used for the test of the majority. If there are doubts against the Chief Minister (CM) of a State, he/she can be asked to prove the majority in the House.
• In the case of a coalition government, the CM may be asked to move a vote of confidence and win a majority.
• In the absence of a clear majority, when there is more than one individual stake to form the government, the Governor may call for a special session to see who has the majority to form the government.
• Some legislators may be absent or choose not to vote. The numbers are then considered based only on those MLAs who were present to vote.

How can the Governor Call for a Floor Test?

• Article 174 of the Constitution authorizes the Governor to summon, dissolve and prorogue the state legislative assembly.
• Article 174(2)(b) of the Constitution gives powers to the Governor to dissolve the Assembly on the aid and advice of the cabinet. However, the Governor can apply his mind when the advice comes from a Chief Minister whose majority could be in doubt.
• According to Article 175(2), the Governor can summon the House and call for a floor test to prove whether the government has the numbers.
• However, the Governor can exercise the above only as per Article 163 of the Constitution which says that the Governor acts on the aid and advice of the Council of Ministers headed by the Chief Minister.
• When the House is in session, it is the Speaker who can call for a floor test. But when the Assembly is not in session, the Governor’s residuary powers under Article 163 allow him to call for a floor test.

Governor’s Discretionary Power:

• Article 163 (1) essentially limits any discretionary power of the Governor only to cases where the Constitution expressly specifies that the Governor must act on his own and apply an independent mind.
• The Governor can exercise his discretionary power under Article 174, when the chief minister has lost the support of the House and his strength is debatable.
• Generally, when doubts are cast on the chief minister that he has lost the majority, the opposition and the Governor would rally for a floor test.
• On numerous occasions, the courts have also clarified that when the majority of the ruling party is in question, a floor test must be conducted at the earliest available opportunity.

What are the SC’s Observations on the Governor’s Floor Test Call?

• In 2016, the SC in Nabam Rebia and Bamang Felix vs Deputy Speaker case (the Arunachal Pradesh Assembly case) said that the power to summon the House is not solely vested in the Governor and should be exercised with aid and advice of the Council of Ministers and not at his own.
• The Court highlighted the facts that the Governor is not an elected authority and is a mere nominee of the President, such a nominee cannot have an overriding authority over the representatives of the people, who constitute the House or Houses of the State Legislature.
• In 2020, the Supreme Court, in Shivraj Singh Chouhan & Ors versus Speaker, Madhya Pradesh Legislative Assembly & Ors, upheld the powers of the Speaker to call for a floor test if there is a prima facie view that the government has lost its majority.
• The Governor is not denied the power to order a floor test where on the basis of the material available to the Governor it becomes evident that the issue as to whether the government commands the confidence of the House requires it to be assessed on the basis of a floor test.

What is Confidence and No-confidence motion?

• A confidence motion or a vote of confidence or a trust vote, is sought by the government in power on the floor of the House.
• It enables the elected representatives to determine if the Council of Ministers commanded the confidence of the House.
• The idea underlying the trust vote is to uphold the political accountability of the elected government to the State legislature.
• A no-confidence motion, or vote of no-confidence, or a no-trust vote, can be sought by any House member to express that they no longer have confidence in the government.

Electoral Bonds Scheme

08, Mar 2023

Why in News?

• Five years ago, the sale window for the first tranche of Electoral Bonds was opened in March 2018.

What is an Electoral Bond?

• Electoral Bond is a financial instrument for making donations to political parties.
• The bonds are issued in multiples of Rs. 1,000, Rs. 10,000, Rs. 1 lakh, Rs. 10 lakh and Rs. 1 crore without any maximum limit.
• State Bank of India is authorised to issue and encash these bonds, which are valid for fifteen days from the date of issuance.
• These bonds are redeemable in the designated account of a registered political party.
• Every party that is registered under section 29A of the Representation of the Peoples Act, 1951 and has secured at least 1% of the votes polled in the most recent Lok Sabha or State election will be allotted a verified account by the Election Commission of India.
• Electoral bond transactions can be made only via this account.
• The bonds are available for purchase by any person (who is a citizen of India or incorporated or established in India) for a period of ten days each in the months of January, April, July and October as may be specified by the Central Government.
• A person being an individual can buy bonds, either singly or jointly with other individuals.
• Donor’s name is not mentioned on the bond.
• During general elections, the central government may specify an additional period of thirty days for sale of these bonds.
• There have been some occasions when the government has deviated from the specified periodicity for issuance of these bonds.
• For example, the sixth tranche of electoral bonds was issued from 1st-10th November 2018 and electoral bonds were sold in the months of March, April and May during 2019 general elections.

What are the concerns?

• While the Scheme acts as a check against traditional under-the-table donations as it insists on cheque and digital paper trails of transactions, several key provisions of the scheme make it highly controversial.
• Anonymity:
• Neither the donor (who could be an individual or a corporate) nor the political party is obligated to reveal whom the donation comes from.
• In 2019, the Supreme Court held that all political parties who had received donations through electoral bonds must submit details to the Election Commission of India.
• This undercuts a fundamental constitutional principle, the freedom of political information, which is an integral element of Article 19(1) (a) of the Constitution.
• Defeating Transparency:
• It defeats the fundamental principle of transparency in political finance because it conceals from public scrutiny the identity of the corporates and moneybags.
• Asymmetric Opacity:
• The government is always in a position to know who the donor is because the bonds are purchased through the SBI.
• This asymmetry of information threatens to colour the process in favour of whichever political party is ruling at the time.
• Chanel of Black money:
• Elimination of a cap of 7.5% on corporate donations, elimination of requirement to reveal political contributions in profit and loss statements and also the elimination of the provision that a corporation must be three years in existence, undercuts the intent of the scheme.
• Any troubled, dying or shell companies can donate an unlimited amount anonymously to a political party giving them a convenient channel for business to round-trip their cash parked in tax havens for a favour or advantage granted in return for something.

Way Forward:

• There is a need for fixing the governance system and effective regulation of political financing along with bold reforms to break the vicious cycle of corruption and erosion of quality of democratic polity. It is crucial to plug the loopholes in the current laws to make the entire governance machinery more accountable and transparent.
• Voters can help bring in substantial changes by demanding awareness campaigns. If voters reject candidates and parties that overspend or bribe them, democracy would move a step higher.

SC on Article 142

07, Mar 2023

Why in News?

• Recently, the Supreme Court (SC) under Article 142 ruled that the lawyers and professionals with 10 years of experience will be eligible for appointment as President and member of the state consumer commission and district forums.

About the News:

• The SC upheld the Bombay High Court judgement quashing the provisions of Consumer Protection Rules, 2020, under section 101 of Consumer Protection Act 2019, which prescribe a minimum professional experience of 20 years and 15 years for adjudicating members to the State consumer commissions and District forums respectively.

What is the Court’s Ruling?

• The Central government and the state governments concerned have to come up with an amendment in the Consumer Protection (Qualification for appointment, method of recruitment, procedure of appointment, term of office, resignation and removal of President and Members of State Commission and District Commission) Rules, 2020 to provide for 10 years’ experience to become eligible for appointment as President and member of the state commission and district forums instead of 20 years and 15 years respectively.
• Till suitable amendments are made, the Lawyers and professionals with a bachelor’s degree who has 10 years of experience in consumer affairs, law, public affairs, administration, economics, commerce, industry, finance, management, engineering, technology, public health or medicine will be eligible for appointment as President and member of the state consumer commission and district forums.
• It also introduced written exams and viva voce to check the candidates’ performance.

What is Article 142?

• Article 142 provides discretionary power to the Supreme Court as it states that the SC in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.

Constructive Application:

• In the early years of the evolution of Article 142, the general public and the lawyers both lauded the SC for its efforts to bring complete justice to various deprived sections of society or to protect the environment.
• The Cleansing of Taj Mahal and justice to many undertrials is a result of the invocation of this article only.

Cases of Judicial Overreach:

• In recent years, there have been several judgments of the Supreme Court wherein it has been foraying into areas which had long been forbidden to the judiciary by reason of the doctrine of ‘separation of powers’, which is part of the basic structure of the Constitution. One such example is:
• The ban on the sale of alcohol along national and state highways: While the notification by the central government prohibited liquor stores along National Highways only, the Supreme Court put in place a ban on a distance of 500 metres by invoking Article 142.
• Additionally, and in the absence of any similar notification by any of the State governments, the court extended the ban to State highways as well.
• Such judgments have created uncertainty about the discretion vested in the court to invoke Article 142 where even fundamental rights of individuals are being ignored.

Defamation Case

06, Mar 2023

Why in News?

• A magistrate court will pass an order on April 1 on an application by Congress leader Rahul Gandhi seeking permanent exemption from appearing in ongoing defamation proceedings against him by a Rashtriya Swayamsevak Sangh (RSS) secretary.

What is defamation?

• Defamation is the communication of a false statement that harms the reputation of an individual person, business, product, group, government, religion, or nation.
• In India, defamation can both be a civil wrong and a criminal offence.
• The difference between the two lies in the objects they seek to achieve.
• A civil wrong tends to provide for a redressal of wrongs by awarding compensation and a criminal law seeks to punish a wrongdoer and send a message to others not to commit such acts.

What are the Legal provisions?

• Criminal defamation has been specifically defined as an offence under section 499 of the Indian Penal Code (IPC).
• Civil defamation is based on tort law (an area of law which does not rely on statutes to define wrongs but takes from ever-increasing body of case laws to define what would constitute a wrong).
• Section 499 states defamation could be through words, spoken or intended to be read, through signs, and also through visible representations.
• Section 499 also cites exceptions. These include “imputation of truth” which is required for the “public good” and thus has to be published, on the public conduct of government officials, the conduct of any person touching any public question and merits of the public performance.
• Section 500 of IPC, which is on punishment for defamation, reads, “Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.”

Misuse of the law and concerns associated:

• The criminal provisions have often been used purely as a means of harassment.
• Given the cumbersome nature of Indian legal procedures, the process itself turns into punishment, regardless of the merits of the case.
• Critics argue that defamation law impinges upon the fundamental right to freedom of speech and expression and that civil defamation is an adequate remedy against such wrongs.
• Criminal defamation has a pernicious effect on society: for instance, the state uses it as a means to coerce the media and political opponents into adopting self-censorship and unwarranted self-restraint.

What has the Supreme Court said?

• In Subramanian Swamy vs Union of India case 2014, the Court approved the Constitutional validity of sections 499 and 500 (criminal defamation) in the Indian Penal Code, underlining that an individual’s fundamental right to live with dignity and reputation “cannot be ruined solely because another individual can have his freedom”.
• In August 2016, the court also passed strictures on Tamil Nadu Chief Minister
  J Jayalalithaa for misusing the criminal defamation law to “suffocate democracy” and, the court said, “public figures must face criticism”.

Show mature statesmanship, SC tells Governors, Chief Ministers

01, Mar 2023

Context:

• The Supreme Court recently urged constitutional functionaries to show “mature statesmanship” and not vie with each other in a “race to the bottom” after a war of words between Punjab Chief Minister Bhagwant Mann and Governor Banwarilal Purohit led to an impasse over convening the Budget Session for the State.

Constitutional Immunity to President and Governor:

• As per Article 361,
• The President or Governor are not personally answerable to any court for the exercise and performance of their powers, while in office.
• But it does not mean that conduct of these two office holders can not be checked. The Article 361 makes it clear that conduct of the President may be brought under review by any court, tribunal or body appointed or designated by either House of Parliament for the investigation of a charge under article 61.
• No criminal proceedings can be started or continued against the President, or the Governor of a State, in any court during his term of office.
• No court can issue arrest warrants for President as well as Governor.
• Civil proceedings against a Governor or President against things done by him in his personal capacity can be done only with a prior 2 months notice.

Governors of States in India:

• Governor is the nominal head of a state, unlike the Chief Minister who is the real head of a state in India.
• According to an amendment in the Constitution of India (7th Constitutional Amendment Act), brought about in 1956, the same person can be the Governor of two or more states.

Appointment and removal:

• The governors and lieutenant-governors are appointed by the president for a term of 5 years.
• The term of governor’s office is normally 5 years but it can be terminated earlier by: Dismissal by the president on the advice of the prime minister of the country, at whose pleasure the governor holds office or Resignation by the governor. Thus, the term is subject to pleasure of the president.
• There is no provision of impeachment, as it happens for the president.
• Article 157 and Article 158of the Constitution of India specify eligibility requirements for the post of governor.

Powers of the Governor:

• Like the President of India, the Governor of any state in India is vested with certain executive, legislative and judicial powers.
• He or she also possesses certain discretionary or emergency powers.
• But one major difference in the powers enjoyed by the President and those enjoyed by the Governor is, the Governor does not have any diplomatic or military powers.

Some discretionary powers are as follows:

• Governor can dissolve the legislative assembly if the chief minister advices him to do following a vote of no confidence. Following which, it is up to the Governor what he/ she would like to do.
• Governor, on his/ her discretion can recommend the president about the failure of the constitutional machinery in the state.
• On his/ her discretion, the Governor can reserve a bill passed by the state legislature for president’s assent.
• If there is no political party with a clear-cut majority in the assembly, Governor on his/ her discretion can appoint anybody as chief minister.
• Governor determines the amount payable by the Government of Assam, Meghalaya, Tripura and Mizoram to an autonomous Tribal District Council as royalty accruing from licenses for mineral exploration.
• Governor can seek information from the chief minister with regard to the administrative and legislative matters of the state.
• Governor has discretion to refuse to sign to an ordinary bill passed by the state legislature.

What is the problem with constitutional design?

• The governor is merely appointed by the president on the advice of the Central government.
• Unlike the president, a governor does not have a fixed term. He/she holds office at the pleasure of the ruling party in the centre. Both the manner of the appointment and the uncertainty of tenure conspire to make the incumbent an object of the Central government in politically charged circumstances.

Manual Scavenging in India

27, Feb 2023

Why in News?

• The Supreme Court has directed the government to place on record within six weeks the steps taken by it to implement its nearly 10-year-old judgment to end manual scavenging and prevent future generations from the “inhuman practice” while making entry into sewers without safety gear a crime even in emergency situations.

What does the act says?

• The act prohibits the employment of manual scavengers, manual cleaning of sewers and septic tanks without protective equipment, and the construction of insanitary latrines.
• It seeks to rehabilitate manual scavengers and provide for their alternative employment.
• Each local authority, cantonment board and railway authority is responsible for surveying insanitary latrines within its jurisdiction. They shall also construct a number of sanitary community latrines.
• The District Magistrate and the local authority shall be the implementing authorities. Offences under the Act shall be cognizable and non-bailable and may be tried summarily.

What does the previous report says?

• According to the National Commission of Safai Karamcharis (NCSK), a total of 53,598 people, of which 29,923 were in Uttar Pradesh alone had been identified as engaged in manual scavenging after surveys in 2013 and 2018.
• Though most of the sewer death compensation had been paid but states like Gujarat, Maharashtra is yet to pay compensation.
• Since 1993, a total of 926 deaths related to the manual scavenging is reported in the country, out of which 172 families are yet to receive compensation.
• Tamil Nadu reported the highest number of deaths but has paid compensation in all but seven of the 234 cases.
• Gujarat has the highest number of cases where the compensation amount was not paid followed by Maharashtra.
• Currently, one-time cash assistance, capital subsidy and skill development training are provided to the identified manual scavengers.

National Commission of Safai Karamcharis

• The National Commission for Safai Karamcharis (NCSK) was constituted on 12th August 1994 as a statutory body by an Act of Parliament viz. ‘National Commission for Safai Karamcharis Act, 1993’.
• The act “The National Commission for Safai Karamcharis Act, 1993” lapsed in February 2004.
• The Commission is acting as a non-statutory body of the Ministry of Social Justice and Empowerment whose tenure is extended from time to time through Government Resolutions.

Why Manual Scavenging is still prevailing?

• Despite the most stringent penal provisions in the law against manual scavenging, it continues in parts of India largely due to governmental indifference and social prejudice.
• The continued presence of insanitary latrines, of which there are about 2.6 million that require cleaning by hand, according to Safai Karamchari Andolan.
• Many communities still regard the presence of a sanitary toilet inside the house as physical pollution.
• The entrenched belief in the caste system that assumes people belonging to a particular caste group will readily perform the stigmatized task of emptying latrines.
• The state governments are not keen to demolish and rebuild old facilities lacking sanitation, or conduct a full census of both the latrines and the people engaged in clearing such waste.

Way Forward:

• With Swachh Bharat Mission identified as a top priority area by the 15th Finance Commission and funds available for smart cities and urban development providing for a strong case to address the problem of manual scavenging.
• To address the social sanction behind manual scavenging, it is required first to acknowledge and then understand how and why manual scavenging continues to be embedded in the caste system.
• The state and society need to take active interest in the issue and look into all possible options to accurately assess and subsequently eradicate this practice.

Anti-Defection Law

25, Feb 2023

         Why in News?

• The Supreme Court’s examining of the ‘Maharashtra political controversy cases’ could either end up as a counterweight to political games or make government destabilising even easier.
  

  What’s the issue?

• The practice of politicians deserting parties just ahead of elections is not unusual. And every time there are defections, the anti-defection law special damages san diego, which penalises individual lawmakers for switching parties, comes into the picture.About Anti-Defection Law:

• The Tenth Schedule of Indian Constitution is popularly known as the Anti-Defection Act.
• Original constitution had no such provisions. It was included in the Constitution in 1985 by the Rajiv Gandhi government.
• The main intent of the law was to deter “the evil of political defections” by legislators motivated by the lure of office or other similar considerations.
• The grounds for disqualification under the Anti-Defection Law includes
• If an elected member voluntarily gives up his membership of a political party.
• If he votes or abstains from voting in such House contrary to any direction issued by his political party or anyone authorized to do so, without obtaining prior permission.
• Going against the party whip.
• As a pre-condition for his disqualification, his abstention from voting should not be condoned by his party or the authorized person within 15 days of such incident.
• Articles 102 (2) and 191 (2) deals with anti-defection.
• The law disallows MPs/ MLAs to switch parties after elections, make the members follow the whips issued by their party.
• It also applies to a nominated member if he/ she join a political party after 6 months of nomination and to an independent candidate if he/she joins a party after the election.,
  

  What is not a Defection?

• A split in a political party won’t be considered a defection if a complete political party merges with another political party.
• If a new political party is created by the elected members of one party
• If he or she or alternative members of the party haven’t accepted the merger between the two parties and opted to perform as a separate group from the time of such a merger.When does the 10th schedule might not apply?

• The 10th Schedule of the Indian Constitution commonly referred to as the Anti-defection Act says that disqualification on ground of defection will not apply in case of a split.
• Where a member of a House claims that he/she and any other members of his/her legislature party constitute the group representing a faction which has arisen as a result of a split in the original political party and such group consists of not less than two-thirds of the members of such legislature party, he/she shall not be disqualified.
• From the time of such split, the faction shall be deemed to be the political party to which he/she henceforth belongs.
  

  What are the loop-holes?

• Resignation as MLA was not one of the conditions.
• Exploiting this loophole, the 17 rebel MLAs in Karnataka resigned, their act aimed at ending the majority of the ruling coalition and, at the same time, avoiding disqualification.
• However, the Speaker refused to accept the resignations and declared them disqualified. This was possible as the legislation empowers the presiding officer of the House (i.e. the Speaker) to decide on complaints of defection under no time constraint.
• The law originally protected the Speaker’s decision from judicial review.
• However, this safeguard was struck down in Kihoto Hollohan v. Zachillhu
  and Others (1992).
• While the SC upheld the Speaker’s discretionary power, it underscored that the Speaker functioned as a tribunal under the anti-defection law, thereby making her/his decisions subject to judicial review.
• This judgment enabled judiciary to become the watchdog of the anti-defection law, instead of the Speaker, who increasingly had become a political character contrary to the expected neutral constitutional role.
• The same could be witnessed in Shrimanth Balasaheb Patel & Ors vs. Speaker Karnataka Legislative Assembly & Ors (2019), where the three-judge SC bench upheld the then Karnataka Speaker’s decision of disqualification of the 17 rebel MLAs.
• However, it struck down his ban on the MLAs from contesting elections till 2023, negating the only possible permanent solution to the problem.
• The Supreme Court played the role of a neutral umpire in this political slugfest.
• But, the spectacle of MLAs hoarded in a bus, and being sent to a resort, openly exposed not just the absence of ideological ties between a leader and his party, but also her/his weak moral character.
• It was also upsetting to see public acceptance of such malpractices as part of politics, with some even calling it Chanakya niti!
  

  Is there any safeguard for anti-defection?

• The Anti-Defection Law provided a safeguard for defections made on genuine ideological differences.
• It accepted “split” within a party if at least one-third of the members of the legislative party defect, and allowed the formation of a new party or “merger” with other political party if not less than two-thirds of the party’s members commit to it.
• The 91st Constitutional Amendment introduced in 2003 deleted the provision allowing split.
• The 91st Amendment also barred the appointment of defectors as Ministers until their disqualification period is over or they are re-elected, whichever is earlier.
• But, obviously, such laws have not put to rest the trend of defections.
  

  What should be done?

• The main issue, as witnessed in Karnataka, is that the defectors treat disqualification as a mere detour, before they return to the House or government by re-contesting.
• This can only be stopped by extending the disqualification period from re-contesting and appointment to Chairmanships/Ministries to at least six years.
• The minimum period limit of six years is needed to ensure that the defectors are not allowed to enter the election fray for least one election cycle, which is five years.
• Of course, MLAs can still be bought from the ruling dispensation to bring it to a minority by being paid hefty sums, simply to stay at home for six years.
  

  Contradictory Reforms to the Law:

• Nowadays, no real democratic discussions happen inside political parties about major issues affecting the country. Individual MPs and MLAs need to be empowered to think independently.
• Anti-defection law should be applied only to confidence and no-confidence motions (Dinesh Goswami Committee on electoral reforms, 1990) or only when the government is in danger (Law Commission (170th report, 1999).
• The rationale that a representative is elected on the basis of the party’s programme can be extended to pre-poll alliances.
• Instead of making Speaker the authority for disqualification, the decision should be made by the president or the governor on the advice of the Election Commission. This would make the process similar to the disqualification procedure as given in Representation of Peoples Act (RPA).
• There can be additional penalties for defectors as well.

Genetic Information and Privacy

24, Feb 2023

Why in News?

• Recently, the Supreme Court has ruled that children have the right to protect their genetic information from being revealed in Deoxyribonucleic Acid (DNA) Tests without their consent.

About the News:

• The judgment came in a petition filed by a man who questioned his second child’s paternity while accusing his wife of an adulterous relationship.
• The apex court concluded on the facts of the case that no adverse inference could be drawn on the ground that the mother declined to subject the child to a paternity test.

What is the Judgement?

• Genetic information is personal and intimate. It sheds light on a person’s very essence.
• It allows individuals to make informed decisions about their health, privacy, and identity.
• Children have the right to protect their genetic information from DNA testing in divorce proceedings, as it is part of their fundamental right to privacy. This is guaranteed under Article 21 of Indian Constitution.
• It is imperative that children do not become the focal point of the battle between spouses.
• Rights of privacy, autonomy and identity are recognised under the United Nations’ Convention on the Rights of the Child.
• The Convention acknowledges the control that individuals, including children, have over their own personal boundaries and the means by which they define who they are in relation to other people.
• Children are not to be deprived of this entitlement to influence and understand their sense of self simply by virtue of being children.

What is the Status of Genetic Information in India?

Genetic Data and Privacy:

• Genetic data privacy is a term that seeks to prevent a third party or anyone else from using a person’s genetic data without his permission.
• Technological advances have made it easy to extract personal information from DNA samples, violating privacy rights.
• While genetic research holds promise for the future, misapplication can have negative consequences. Due to the significance of genetic data as the blueprint for a person’s physical being, privacy protection is crucial.

Advantages of Genetic Information:

• Genetic information can reveal details about disease, health, and ancestry.
• This knowledge can increase a person’s awareness of their own health, be used in medical research, and enable early intervention for disease prevention.

Disadvantages of Genetic Information:

• Genetic data consists of a person’s DNA and chromosomes and can reveal personal information about health and ancestry. Direct-to-consumer genetic tests are not always reliable and can result in unintended exposure of private information. Unauthorized access to genetic data can result in negative impacts, such as unwelcome responses from employers, insurance providers, and the government, affecting a person’s privacy and life.

Status of Genetic Privacy:

• In 2018, The Delhi High Court ruled against United India Insurance Company’s discrimination in health insurance against a person with a heart disease that was thought to be a genetic disorder.
• Genetic discrimination is a breach of Article 14, which guarantees that everyone is treated fairly under the law.
• The Supreme Court of India unanimously stated that the Right to Privacy is a Fundamental Right under Article 21 in Justice KS Puttaswamy (Retd.) & Anr. v. Union of India.Genetic discrimination is illegal in almost all countries. In 2008, the United States passed the Genetic Information Non-discrimination Act (GINA), a federal law that protects people from genetic discrimination in health care and jobs.

Way Forward:

• From a legal standpoint, there is a need to develop more comprehensive privacy laws and regulations specifically tailored to genetic information.
• It may include stricter requirements for obtaining informed consent for genetic testing and data sharing, as well as penalties for unauthorized access or use of genetic information.
• Technologically, there may be opportunities to enhance privacy protections through advancements in encryption, secure storage, and data sharing protocols.
• For example, homomorphic encryption techniques could be used to allow computation on encrypted genetic data without revealing the underlying information.
• From an Ethical perspective, it will be important to continue to engage in public dialogue and education around the value and risks of genetic testing and data sharing.
• It may involve efforts to promote transparency, openness, and accountability around how genetic data is collected, used, and shared, as well as initiatives to promote equitable access to genetic testing and benefits.

SC grants interim bail to detained Congress leader Pawan Khera

24, Feb 2023

Why in News?

• The Supreme Court has recently, ordered the Magistrate to release Congress party spokesperson Pawan Khera on interim bail.

What is a Bail?

• Bail is the conditional/provisional release of a person held under legal custody (in matters which are yet to be pronounced by the Court), by undertaking a promise to appear in the Court as and when required.

About Default Bail:

• Legal Source: This is a right to bail that accrues when the police fail to complete investigation within a specified period in respect of a person in judicial custody.
• It is also known as statutory bail.
• This is enshrined in Section 167(2) of the Code of Criminal Procedure.
• Supreme Court Judgment: In Bikramjit Singh case 2020, the Supreme Court had observed that the accused gets an indefeasible right to ‘default bail’ if he makes an application after the maximum period for investigation of an offence is over, and before a charge sheet is filed.
• Right to default bail under Section 167(2), CrPC not merely a statutory right, but part of procedure established by law under Article 21.
• Underlying Principle: In general, the right to bail on the investigation agency’s default is considered an ‘indefeasible right’, but it should be availed of at the appropriate time.
• Default bail is a right, regardless of the nature of the crime.
• The stipulated period within which the charge sheet has to be filed begins from the day the accused is remanded for the first time.
• Under Section 173 of CrPC, the police officer is obligated to file a report after the completion of the necessary investigation of an offence. This report is called the Charge Sheet in common parlance.
• Time Period: The issue of default bail arises where it is not possible for the police to complete an investigation in 24 hours, the police produce the suspect in court and seek orders for either police or judicial custody.
• For most offences, the police have 60 days to complete the investigation and file a final report before the court.
• However, where the offence attracts death sentence or life imprisonment, or a jail term of not less than 10 years, the period available is 90 days.
• In other words, a magistrate cannot authorise a person’s judicial remand beyond the 60-or 90-day limit.
• At the end of this period, if the investigation is not complete, the court shall release the person “if he is prepared to and does furnish bail”.
• Special Cases: The 60- or 90-day limit is only for ordinary penal law. Special enactments allow greater latitude to the police for completing the probe.
• In the Narcotic Drugs and Psychotropic Substances Act 1985, the period is 180 days, which can be extended up to one year.
• In the Unlawful Activities (Prevention) Act 1967, the default limit is 90 days only, which can be extended to another 90 days.
• This extension can be granted only on a report by the Public Prosecutor indicating the progress made in the investigation and giving reasons to keep the accused in continued detention.
• These provisions show that the extension of time is not automatic but requires a judicial order.

Other Types of Bail in India:

• Regular Bail: It is a direction given by the Court (any Court within the country) to release a person who is already under arrest and kept in police custody. For such Bail, a person can file an application under Section 437 and 439 of the CrPC.
• Interim Bail: Bail granted for a temporary and short period by the Court till the application seeking Anticipatory Bail or Regular Bail is pending before a Court.
• Anticipatory Bail: A direction issued to release a person on Bail even before the person is arrested. In this situation, there is apprehension of arrest and the person is not arrested before the Bail is granted.
• For such Bail, a person can file an application under Sec. 438 of the Code of Criminal Procedure (CrPC). It is issued only by the Sessions Court and High Court.

Constitutional Provisions Related To Arrest:

• Article 22 grants protection to persons who are arrested or detained. Detention is of two types, namely, punitive and preventive.
• Punitive detention is to punish a person for an offence committed by him after trial and conviction in a court.
• Preventive detention, on the other hand, means detention of a person without trial and conviction by a court.
• Article 22 has two parts—the first part deals with the cases of ordinary law and the second part deals with the cases of preventive detention law.

SC urgently lists Uddhav Thackeray’s plea to stay EC order on Shiv Sena

22, Feb 2023

Why in News?

• The Supreme Court has recently listed former Maharashtra Chief Minister Uddhav Thackeray’s petition challenging the decision of the Election Commission of India (ECI) to allot party name ‘Shiv Sena’ and symbol ‘bow and arrow’ to the Eknath Shinde faction for hearing tomorrow.

Firstly, how are symbols allotted to political parties?

• As per the guidelines, to get a symbol allotted:
• A party/candidate has to provide a list of three symbols from the EC’s free symbols list at the time of filing nomination papers.
• Among them, one symbol is allotted to the party/candidate on a first-come-first-serve basis.
• When a recognised political party splits, the Election Commission takes the decision on assigning the symbol.

 Powers of Election Commission:

• The Election Symbols (Reservation and Allotment) Order, 1968 empowers the EC to recognise political parties and allot symbols.
• Under Paragraph 15 of the Order, it can decide disputes among rival groups or sections of a recognised political party staking claim to its name and symbol.
• The EC is also the only authority to decide issues on a dispute or a merger. The Supreme Court upheld its validity in Sadiq Ali and another vs. ECI in 1971.

How many types of symbols are there?

• As per the Election Symbols (Reservation and Allotment) (Amendment) Order, 2017, party symbols are either:
• Reserved: Eight national parties and 64 state parties across the country have “reserved” symbols.
• Free: The Election Commission also has a pool of nearly 200 “free” symbols that are allotted to the thousands of unrecognised regional parties that pop up before elections.

What are the Election Commission’s powers in a dispute over the election symbol when a party splits?

• On the question of a split in a political party outside the legislature, Para 15 of the Symbols Order, 1968, states: “When the Commission is satisfied that there are rival sections or groups of a recognised political party each of whom claims to be that party the Commission may decide that one such rival section or group or none of such rival sections or groups is that recognised political party and the decision of the Commission shall be binding on all such rival sections or groups.”
• This applies to disputes in recognised national and state parties (like the LJP, in this case). For splits in registered but unrecognised parties, the EC usually advises the warring factions to resolve their differences internally or to approach the court.
• Please note that before 1968, the EC issued notifications and executive orders under the Conduct of Election Rules, 1961.

Political Party Symbols

20, Feb 2023

Why in News?

• The Election Commission of India allotted the name ‘Shiv Sena’ and the party’s bow and arrow symbol to the Eknath Shinde faction.

Highlights:

• The Election Commission of India (ECI) recognized the Eknath Shinde faction as the original party founded by Balasaheb Thackeray and allotted them the name ‘Shiv Sena’ and the party’s bow and arrow symbol to it.
• The commission based its decision on a “test on majority”.
• ECI also ordered the Shinde faction to amend the 2018 Constitution in line with the Representation of the People Act, 1951 and the EC’s guidelines on the internal democracy of parties.
• The ECI remarked that it was “paradoxical” that the internal functioning of a party was scrutinised only in cases of dispute redressals. The Commission asked parties to follow ECI guidelines and periodically upload a copy of their constitutions and the list of the office-bearers on their websites.

Disputes over election symbols:

• Under Paragraph 15 of the Election Symbols (Reservation and Allotment) Order, 1968 Order, ECI can decide disputes among rival groups or sections of a recognised political party staking claim to its name and symbol.
• The decision of the Commission shall be binding on all such rival sections/groups.
• This applies to disputes between recognized national and state parties.
• For splits in registered but unrecognised parties, the EC usually advises the warring factions to resolve their differences internally or to approach the court.

How does the EC decide?

• The ECI primarily ascertains the support enjoyed by a claimant within a political party in its organisational wing and in its legislative wing.
• For the Organisational Wing, the Commission examines the party’s constitution and its list of office-bearers submitted when the party was united.
• ECI identifies the apex committee(s) in the organisation and finds out how many office-bearers, members or delegates support the rival claimants.
• For the Legislative Wing, the party goes by the number of MPs and MLAs in the rival camps.
• ECI may consider affidavits filed by these members to ascertain where they stand.

‘Test on Majority’:

• While passing its decision, ECI considered and analysed three tests mentioned in the Sadiq Ali V/s ECI case 1971, which includes the Test of Aims and Objects of the Party Constitution, Test of Party Constitution, and Test of Majority.
• Of these, ECI found the Test of Aims and Objects of the Party Constitution to be inapplicable.
• ECI also concluded that using the Test of Party Constitution for determining the present dispute case will be undemocratic and catalytic in spreading such practices across parties.
• While applying the Test of Party Constitution, the EC said the amended Constitution of 2018 of Shiv Sena is not on record of the commission.
• ECI observed that the party had been made into a fiefdom by the undemocratic norms of its original constitution.
• Its 2018 Constitution has conferred widespread powers of making various organisational appointments on a single person.
• ECI hence, relied upon the Test of Majority in the legislative wing, which shows qualitative superiority in the majority test of the legislative party to the Shinde faction which has the support of 40 out of 55 Sena MLAs and 13 out of 18 Sena MPs.

What happens when there is no certainty?

• Where the party is either vertically divided or it is not possible to say with certainty which group has a majority, the EC may freeze the party’s symbol and allow the groups to register themselves with new names or add prefixes or suffixes to the party’s existing names.

What happens when rival factions reunite in future?

• If reunited, the claimants may approach the EC again and seek to be recognised as a unified party. The EC is also empowered to recognise mergers of groups into one entity. It may restore the symbol and name of the original party.

Centre unlikely to make overtures to protesting Ladakhi leaders

17, Feb 2023

Why in News?

• With the Centre unlikely to make overtures to civil society groups in Ladakh, who have been demanding Statehood and constitutional safeguards, the leaders said recently that the path to agitation will continue.
• Background:

• On August 5, 2019, the erstwhile state of Jammu and Kashmir was stripped of its special status and bifurcated into two Union Territories (Jammu and Kashmir, and Ladakh).
• However, the region’s intellectuals and the politicians have been repeatedly raising concern over the demography, land and unique culture of the Ladakh and are saying the statehood with legislature would be able to give them necessary safeguards.
• In September 2019, the National Commission for Scheduled Tribes recommended the inclusion of Ladakh under the Sixth Schedule.
• The Commission took note of the fact that the newly created Union Territory of Ladakh is predominantly a tribal region in the country.
• The total tribal population in the Ladakh region is more than 97 per cent.
• What is the issue now?
  • There is a demand to amend the Ladakh Hill Development Council Act, passed in 1997.
  • Ladakh needs safeguards for land, employment and cultural identity on the lines under the Sixth Schedule of the Constitution.
  • Roles and responsibilities of the central government, the Union Territory administration and the Lieutenant-Governor need to be defined.
  • It aims to safeguard the demography, environment and unique culture of Ladakh.

   

• About Sixth Schedule of the Constitution:
  • It provides for the administration of tribal areas in Assam, Meghalaya, Tripura and Mizoram to safeguard the rights of the tribal population in these states.
  • This special provision is provided under Article 244(2) and Article 275(1) of the Constitution.
  • It seeks to safeguard the rights of the tribal population through the formation of Autonomous District Councils (ADC).
  • ADCs are bodies representing a district to which the Constitution has given varying degrees of autonomy within the state legislature.

   

  What are its Features?

  • Provisions have been made for the creation of the District Councils and regional councils for the exercise of certain legislative and judicial powers. However, their jurisdiction is subject to the jurisdiction of the concerned High Court.
  • They have powers to form courts to hear cases where both parties are members of Scheduled Tribes and the maximum sentence is less than 5 years in prison.
  • They also have powers to levy taxes, fees and tolls on buildings, land, animals, vehicles, boats, entry of goods into the area, roads, ferries, bridges, employment and income and general taxes for the maintenance of schools and roads.
  • The Acts of Parliament or the State Legislature do not apply to autonomous districts and autonomous regions or apply with specified modifications and exceptions.
  • The Governor is vested with powers regarding the councils. He/she, by public notification, may:
  • Include or exclude any new area.
  • Create a new autonomous district.
  • Define the boundaries of any autonomous district.
  • Increase or decrease the area of an existing autonomous district.
  • Alter the name of any autonomous district.

  Benefits:

  • It was incorporated to protect the rights of the minority tribals living within a larger state dominated by the majority.
  • It allows for greater political autonomy and decentralised governance in certain tribal areas of the Northeast.

  Issues:

  • It undermines the social harmony, stability and economic development of the state and the region.

  Way Forward:

  • There should be certain clear-cut parameters and safeguards to check the unfettered demands.
  • It is better to allow democratic concerns like development, decentralisation and governance rather than religion, caste, language or dialect to be the valid bases for conceding the demands.

Vacancy on Deputy Speaker

16, Feb 2023

Why in News?

• The Supreme Court has issued notices on a petition highlighting the vacant posts of Deputy Speakers in Lok Sabha and five state assemblies for years.

About the News:

• A Bench sought responses on a PIL that contends that not electing a Deputy Speaker to the 17th (present) Lok Sabha, is “against the letter and spirit of the Constitution”.

Constitutional provisions regarding Deputy Speaker:

• Article 93 of the Constitution of India establishes the post of the Deputy Speaker of Lok Sabha and Articles 94-96 detail their appointment, removal, and powers.
• In the absence of the Speaker, the Deputy Speaker serves as the Speaker and wields the full powers of the Speaker.
• Deputy Speaker is not subordinate to the Speaker and is directly responsible to the House.
• Article 178 of the Constitution establishes the post of Deputy Speaker of assemblies and Articles 179-181 deal with their powers and appointment or resignation.

Is it mandatory to have a Deputy Speaker?

• Constitutional experts point out that both Articles 93 and 178 use the word “shall”, indicating that the election of Speaker and Deputy Speaker is mandatory under the Constitution.

Do the powers of the Speaker extend to the Deputy Speaker as well?

• Article 95(1) says: “While the office of Speaker is vacant, the duties of the office shall be performed by the Deputy Speaker”.
• The Deputy Speaker has the same powers as the Speaker when presiding over a sitting of the House. All references to the Speaker in the Rules are deemed to be references to the Deputy Speaker when he presides.

What is the position of the Union government on the current vacancy in the post of Deputy Speaker?

• The Treasury benches have maintained there is no “immediate requirement” for a Deputy Speaker as “bills are being passed and discussions are being held” as normal in the House. A Minister argued that “there is a panel of nine members — senior, experienced and selected from different parties — who can act as chairpersons to assist the Speaker to run the House”.

Can the courts intervene in cases of a delay in electing the Deputy Speaker?

• Article 122(1) says: “The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure.”
• However, experts said that the courts do have jurisdiction to at least inquire into why there has been no election to the post of Deputy Speaker since the Constitution does envisage an election “as soon as may be”.

Mizoram Assembly adopts resolution opposing any move to implement UCC

15, Feb 2023

Why in News?

• The Mizoram Assembly has recently unanimously adopted an official resolution opposing any move to implement the Uniform Civil Code (UCC) in the country. 

Background:

• The promulgation of the UCC emerges as a positive obligation and not duty of the State under Article 44 of the Constitution in the Directive Principles of State Policy (DPSP).
• Goa’s Portuguese Civil Code of 1867 is an example of a common family law prevalent in a State.
• This to govern matters of divorce, adoption, inheritance, guardianship, succession of all citizens equally regardless of their religion, gender and sexual orientation.
• Several other petitions are also pending before the top court seeking uniform ground and procedures of divorce, adoption and guardianship for all communities across the country.
• The Centre has maintained the issue of UCC falls within the domain of legislature.

What is a Uniform Civil Code?

• A Uniform Civil Code is one that would provide for one law for the entire country, applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption etc.
• Article 44, one of the directive principles of the Constitution lays down that the state shall endeavour to secure a Uniform Civil Code for the citizens throughout the territory of India.
• These, as defined in Article 37, are not justiciable (not enforceable by any court) but the principles laid down therein are fundamental in governance.

What did the SC say?

• The constitution of such committees by the states cannot be challenged for being ultra vires to the Constitution of India, as Article 162 empowers the State to constitute such committees.
• Article 162 of the Constitution states that the executive power of a state shall extend to the matters with respect to which the legislature of the State has power to make laws.
• Also, Entry 5 (Concurrent List) of the 7th schedule of the Constitution gives such power to the states to form a committee.
• It deals with marriage and divorce; infants and minors; adoption; etc.

Role of State in this regard:

• Fundamental rights are enforceable in a court of law.
• While Article 44 uses the words “the state shall endeavour”, other Articles in the ‘Directive Principles’ chapter use words such as “in particular strive”; “shall, in particular, direct its policy”; “shall be the obligation of the state” etc.
• Article 43 mentions “state shall endeavour by suitable legislation” while the phrase “by suitable legislation” is absent in Article 44. All this implies that the duty of the state is greater in other directive principles than in Article 44.

What are more important — fundamental rights or directive principles?

• There is no doubt that fundamental rights are more important.
• The Supreme Court held in Minerva Mills (1980): Indian Constitution is founded on the bedrock of the balance between Parts III (Fundamental Rights) and IV (Directive Principles).
• To give absolute primacy to one over the other is to disturb the harmony of the Constitution.
• Article 31C inserted by the 42nd Amendment in 1976, however, lays down that if a law is made to implement any directive principle, it cannot be challenged on the ground of being violative of the FRs under Articles 14 and 19.

Does India not already have a uniform code in civil matters?

• Indian laws do follow a uniform code in most civil matters – Indian Contract Act, Civil Procedure Code, Sale of Goods Act, Transfer of Property Act, Partnership Act, Evidence Act etc.
• States, however, have made hundreds of amendments and therefore in certain matters, there is diversity even under these secular civil laws.
• Recently, several states refused to be governed by the uniform Motor Vehicles Act, 2019.

What about personal laws?

• If the framers of the Constitution had intended to have a Uniform Civil Code, they would have given exclusive jurisdiction to Parliament in respect of personal laws, by including this subject in the Union List.
• But “personal laws” are mentioned in the Concurrent List.
• Last year, the Law Commission concluded that a Uniform Civil Code is neither feasible nor desirable.

Is there one common personal law for any religious community governing all its members?

• All Hindus of the country are not governed by one law, nor are all Muslims or all Christians. Not only British legal traditions, even those of the Portuguese and the French remain operative in some parts.
• In Jammu and Kashmir until August 5, 2019, local Hindu law statutes differed from central enactments.
• The Shariat Act of 1937 was extended to J&K a few years ago but has now been repealed.

Various customary laws

• Muslims of Kashmir were governed by a customary law, which in many ways was at variance with Muslim Personal Law in the rest of the country and was, in fact, closer to Hindu law.
• Even on the registration of marriage among Muslims, laws differ from place to place. It was compulsory in J&K (1981 Act), and is optional in Bengal, Bihar (both under 1876 Act), Assam (1935 Act) and Odisha (1949 Act).
• In the Northeast, there are more than 200 tribes with their own varied customary laws.
• The Constitution itself protects local customs in Nagaland. Similar protections are enjoyed by Meghalaya and Mizoram.
• Even reformed Hindu law, in spite of codification, protects customary practices.

How does the idea of a Uniform Civil Code relate to the fundamental right to religion?

• Article 25 lays down an individual’s fundamental right to religion;
• Article 26(b) upholds the right of each religious denomination or any section thereof to “manage its own affairs in matters of religion”;
• Article 29 defines the right to conserve distinctive culture.
• An individual’s freedom of religion under Article 25 is subject to “public order, health, morality” and other provisions relating to FRs, but a group’s freedom under Article 26 has not been subjected to other fundamental rights.
• In the Constituent Assembly, there was division on the issue of putting UCC in the fundamental rights chapter. The matter was settled by a vote.
• By a 5:4 majority, the fundamental rights sub-committee headed by Sardar Patel held that the provision was outside the scope of FRs and therefore the UCC was made less important than freedom of religion.

Minority opinion in the Constituent Assembly

• Some members sought to immunize Muslim Personal Law from state regulation.
• Mohammed Ismail, who thrice tried unsuccessfully to get Muslim Personal Law exempted from Article 44, said a secular state should not interfere with the personal law of people.
• B Pocker Saheb said he had received representations against a common civil code from various organisations, including Hindu organisations.
• Hussain Imam questioned whether there could ever be uniformity of personal laws in a diverse country like India.
• B R Ambedkar said, “no government can use its provisions in a way that would force the Muslims to revolt”.
• Alladi Krishnaswami, who was in favour of a UCC, conceded that it would be unwise to enact UCC ignoring strong opposition from any community.
• Gender justice was never discussed in these debates.

How did the debate on a common code for Hindus play out?

• In June 1948, Rajendra Prasad, President of the Constituent Assembly, warned Nehru that to introduce “basic changes” in personal law was to impose “progressive ideas” of a “microscopic minority” on the Hindu community as a whole.
• Others opposed to reforms in Hindu law included Sardar Patel, Pattabhi Sitaramayya, M A Ayyangar, M M Malaviya and Kailash Nath Katju.
• When the debate on the Hindu Code Bill took place in December 1949, 23 of 28 speakers opposed it.
• On September 15, 1951, President Prasad threatened to use his powers of returning the Bill to Parliament or vetoing it. Ambedkar eventually had to resign.
• Nehru agreed to trifurcation of the Code into separate Acts and diluted several provisions.

Former Supreme Court Judge Abdul Nazeer Appointed As Governor of Andhra Pradesh

14, Feb 2023

Context:

• The President of India has appointed former Supreme Court judge Justice S Abdul Nazeer as the Governor of Andhra Pradesh recently.

Governors of States in India:

• Governor is the nominal head of a state, unlike the Chief Minister who is the real head of a state in India.
• According to an amendment in the Constitution of India (7th Constitutional Amendment Act), brought about in 1956, the same person can be the Governor of two or more states.

Appointment and removal:

• The governors and lieutenant-governors are appointed by the president for a term of 5 years.
• The term of governor’s office is normally 5 years but it can be terminated earlier by: Dismissal by the president on the advice of the prime minister of the country, at whose pleasure the governor holds office or Resignation by the governor. Thus, the term is subject to pleasure of the president.
• There is no provision of impeachment, as it happens for the president.
• Article 157 and Article 158of the Constitution of India specify eligibility requirements for the post of governor.

Powers of the Governor:

• Like the President of India, the Governor of any state in India is vested with certain executive, legislative and judicial powers.
• He or she also possesses certain discretionary or emergency powers.
• But one major difference in the powers enjoyed by the President and those enjoyed by the Governor is, the Governor does not have any diplomatic or military powers.

Some discretionary powers are as follows:

• Governor can dissolve the legislative assembly if the chief minister advices him to do following a vote of no confidence. Following which, it is up to the Governor what he/ she would like to do.
• Governor, on his/ her discretion can recommend the president about the failure of the constitutional machinery in the state.
• On his/ her discretion, the Governor can reserve a bill passed by the state legislature for president’s assent.
• If there is no political party with a clear-cut majority in the assembly, Governor on his/ her discretion can appoint anybody as chief minister.
• Governor determines the amount payable by the Government of Assam, Meghalaya, Tripura and Mizoram to an autonomous Tribal District Council as royalty accruing from licenses for mineral exploration.
• Governor can seek information from the chief minister with regard to the administrative and legislative matters of the state.
• Governor has discretion to refuse to sign to an ordinary bill passed by the state legislature.

Constitutional Immunity to President and Governor:

• As per Article 361,
• The President or Governor are not personally answerable to any court for the exercise and performance of their powers, while in office.
• But it does not mean that conduct of these two office holders cannot be checked. The Article 361 makes it clear that conduct of the President may be brought under review by any court, tribunal or body appointed or designated by either House of Parliament for the investigation of a charge under article 61.
• No criminal proceedings can be started or continued against the President, or the Governor of a State, in any court during his term of office.
• No court can issue arrest warrants for President as well as Governor.
• Civil proceedings against a Governor or President against things done by him in his personal capacity can be done only with a prior 2 months’ notice.

What is the problem with constitutional design?

• The governor is merely appointed by the president on the advice of the Central government.

Unlike the president, a governor does not have a fixed term. He/she holds office at the pleasure of the ruling party in the centre. Both the manner of the appointment and the uncertainty of tenure conspire to make the incumbent an object of the Central government in politically charged circumstances.

The limits to free speech in Parliament

14, Feb 2023

Why in News?

• Some opposition leaders are protesting the removal of parts of their speech on the motion of thanks on the President’s address during the current session of Parliament.

What are the Highlights of Recent Judgement given for Civil Servants?

• A five-judge Constitution bench reserved its verdict on whether restrictions can be imposed on a public functionary’s right to freedom of speech and expression.
• The court observed there is always a civil remedy available to citizens on account of a public functionary making a speech that affects someone.
• The court noted that irrespective of what Article 19(2) may say, there is a constitutional culture in the country where there is an inherent limitation or a restriction on what people holding responsible positions say.
• Article 19 (2) relates to the powers of the State to make laws imposing reasonable restrictions on the exercise of the right to freedom of speech and expression in the interest of sovereignty and integrity of the country, public order, decency, morality etc.

What was the Earlier Judgement?

• In 2017, a three-judge bench had referred to the Constitution bench various issues for adjudication, including whether a public functionary or a minister can claim freedom of speech while expressing views on sensitive matters.
• The need for an authoritative pronouncement on the issue arose as there were arguments that a minister cannot take a personal view and his statements have to be in sync with government policy.
• The court earlier said that it will consider whether the Fundamental Right of Speech and Expression would be governed under reasonable restriction of decency or morality or other preferred fundamental rights would also have an impact on it.

What is the Code of Conduct?

• A code of conduct is a set of rules, standards of behaviour or practices for an individual or organization that guide the decisions, procedures and systems of an organization in a way that contributes to the welfare of its stakeholders.
• For example, the Election Commission of India’s Model Code of Conduct is a set of guidelines issued by the Election Commission of India for conduct of political parties and candidates during elections mainly with respect to speeches, polling day, polling booths, portfolios, election manifestos, processions and general conduct.
• Similarly, a set of codes of rules are prescribed for civil servants with regard to their conduct in performing their duties.

What are the concerns?

• A disconnect between the speeches in the parliamentary record and the publicly available version online.
• It also means that every individual (including MPs) who shared the speech as was delivered by an MP on the floor of the House is in breach of the privilege of Parliament.

What are the Seven Principles of the Code of Conduct for Civil Servants?

• Selflessness: Holders of public office should take decisions solely in terms of the public interest. They should not do so in order to gain financial or other material benefits for themselves, their family, or their friends.
• Integrity: Holders of public office should not place themselves under any financial or other obligation to outside individuals or organisations that might influence them in the performance of their official duties.
• Objectivity: In carrying out public business, including making public appointments, awarding contracts, or recommending individuals for rewards and benefits, holders of public office should make choices on merit.
• Accountability: Holders of public office are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office.
• Openness: Holders of public office should be as open as possible about all the decisions and actions that they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands.
• Honesty: Holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest.
• Leadership: Holders of public office should promote and support these principles by leadership and example.

Way Forward:

• Some of the conclusions have general application across the entire public service which can be added on over and above the seven principles of public service.
• Codes of Conduct: All public bodies should draw up Codes of Conduct incorporating these principles.
• Independent Scrutiny: Internal systems for maintaining standards should be supported by independent scrutiny.
• Education: More needs to be done to promote and reinforce standards of conduct in public bodies, in particular through guidance and training, including induction training.

The Parliamentary committee report on the Earth Sciences Ministry

13, Feb 2023

Why in News?

• According to a Parliamentary committee report, the Ministry of Earth Sciences (MoES) made progress but has been ‘sluggish’ on a few counts.
• Genesis & Types of Parliamentary Committee:
  • Origin: As is the case with several other practices of Indian parliamentary democracy, the institution of Parliamentary Committees also has its origins in the British Parliament
  • In independent India, the first Public Accounts Committee was constituted in April 1950.
  • Constitutional Provisions: Parliamentary committees draw their authority from Article 105 (on privileges of Parliament members) and Article 118 (on Parliament’s authority to make rules for regulating its procedure and conduct of business).
  • Types: Most committees are ‘standing’ as their existence is uninterrupted and usually reconstituted on an annual basis; some are ‘select’ committees formed for a specific purpose, for instance, to deliberate on a particular bill.
  • In 1993, 17 Departmentally-related Standing Committees (DRSCs), later increased to 24, were constituted in the Parliament.
  • These committees drew members from both Houses roughly in proportion to the strength of the political parties in the Houses.
  • Allocation of Business: The chair uses her discretion to refer a matter to a parliamentary committee but this is usually done in consultation with leaders of parties in the House.
  • The practice of regularly referring bills to committees began in 1989 after government departments started forming their own standing committees.
  • Prior to that, select committees or joint committees of the houses were only set up to scrutinise in detail some very important bills.
  • Some Important Parliamentary Committees in Finances: Financial control is a critical tool for Parliament’s authority over the executive; hence finance committees are considered to be particularly powerful.
  • The three financial committees are the Public Accounts Committee, the Estimates Committee and the Committee on Public Undertakings.

  Significance of Parliamentary Committee System:

  • Inter-Ministerial Coordination: They are envisaged to be the face of Parliament in a set of inter- related departments and ministries.
  • They are assigned the task of looking into the demands for grants of the ministries/departments concerned, to examine Bills pertaining to them, to consider their annual reports, and to look into their long-term plans and report to Parliament.
  • Instrument For Detailed Scrutiny: Committee reports are usually exhaustive and provide authentic information on matters related to governance.
  • Bills that are referred to committees are returned to the House with significant value addition.Besides the standing committees, the Houses of Parliament set up ad hoc committees to enquire and report on specific subjects that are assigned the task of studying a Bill closely and reporting back to the House.
  • Also, in the discharge of their mandate, they can solicit expert advice and elicit public opinion.
  • Acting As Mini-Parliament: These Committees are smaller units of MPs from both Houses, across political parties and they function throughout the year.
  • Also, Parliamentary committees are not bound by the populistic demands that generally act as hindrance in working of parliament.
  • As committee meetings are ‘closed door’ and members are not bound by party whips, the parliamentary committee work on the ethos of debate and discussions.
  • Moreover, they work away from the public glare, remain informal compared to the codes that govern parliamentary proceedings, and are great training schools for new and young members of the House.

  Major schemes of MoES:

  • The atmosphere and Climate Research-Modelling Observing Systems and Services (ACROSS)
  • Ocean-Services, Modelling, Application, Resources, and Technology (O-SMART)
  • POLAR SCIENCE AND CRYOSPHERE RESEARCH (PACER)
  • Seismology and Geosciences (SAGE)
  • Research, Education, Training, and Outreach (REACHOUT)
  • Deep Ocean Mission (DOM)

  Way ahead:

  • To revisit its performance in terms of the realization of physical targets set under various
  • As acquiring the funds has been challenging, getting in-principle approval from the Department of Expenditure for different initiatives.

Lack of Quorum in Lok Sabha

10, Feb 2023

Why in News?

• The Lok Sabha began a discussion on the general Budget but the House had to be adjourned before the scheduled time due to lack of quorum.

What is Quorum?

• Quorum is the minimum number of members of a deliberative assembly necessary to conduct the business of that assembly.
• Article 100 of the Indian Constitution states that the quorum to constitute a meeting of either House of Parliament shall be one-tenth of the total number of members of that House.
• This means that the quorum of Lok Sabha (Lower House) is 55 and that of Rajya Sabha (Upper House) is 25.

Who decides the Quorum?

• The quorum is usually decided at the beginning of the session and if it is not present when a vote is taken, the vote is invalid.
• In the event of inadequate quorum, the Speaker or the Chairman can adjourn the House or suspend the sitting till the quorum is present.

Challenging a Quorum:

• Furthermore, the quorum can be challenged by any member of the House.
• In the event that the quorum is challenged, the Speaker or the Chairman can direct that a count of the members present be taken.
• If the quorum is not present, the House is adjourned. However, if the quorum is present, the business of the House is resumed.

Other important events in Parliament:

• Summoning of Parliament: Summoning is the process of calling all members of the Parliament to meet. The President summons each House of the Parliament from time to time. The gap between two sessions of the Parliament cannot exceed 6 months, which means the Parliament meets at least two times in one year.
• Adjournment: Adjournment terminates the sitting of the House which meets again at the time appointed for the next sitting. The postponement may be for a specified time such as hours, days or weeks. If the meeting is terminated without any definite time/ date fixed for the next meeting, it is called Adjournment sine die.
• Prorogation: Prorogation is the end of a session. A prorogation puts an end to a session. The time between the Prorogation and reassembly is called Recess. Prorogation is the end of session and not the dissolution of the house (in case of Lok Sabha, as Rajya Sabha does not dissolve).

Over 16 lakh people renounced Indian citizenship since 2011

10, Feb 2023

Why in News?

• According to data provided by the government in Rajya Sabha, more than 16 lakh Indians renounced their Indian citizenship since 2011 including 2,25,620 last year.

What is Citizenship?

Constitutional Provisions:

• Citizenship is listed in the Union List under the Constitution and thus is under the exclusive jurisdiction of Parliament.
• The Constitution does not define the term ‘citizen’ but details of various categories of persons who are entitled to citizenship are given in Part 2 (Articles 5 to 11).

Acquisition of Indian Citizenship:

• The Citizenship Act of 1955 prescribes five ways of acquiring citizenship, viz, birth, descent, registration, naturalisation and incorporation of territory.

Citizenship (Amendment) Act, 2019:

• The Act amended the law to fast-track citizenship for religious minorities, specifically Hindus, Sikhs, Buddhists, Jains, Parsis and Christians, from Afghanistan, Bangladesh and Pakistan who entered India prior to 2015.
• The requirement for them to stay in India for at least 11 years before applying for Indian citizenship has been reduced to five years.

Why do People Relinquish Citizenship?

• For India with newer generations holding passports of other countries, some older Indians are choosing to leave to be with family settled overseas. 
• In some high-profile cases, people who leave India may be fleeing the law or fear legal action for alleged crimes.
• The post-Independence diasporic community has been going (out of India) for jobs and higher education but the pre-Independence diasporic movement was completely different, witnessing forced and contractual labour.
• Since India does not provide dual citizenship, therefore one has to renounce his/her Indian Citizenship for acquiring citizenship of another country.
• Countries where Indians have been migrating for long or where people have family or friends would be more automatic choices, as would considerations such as easier paperwork and more welcoming social and ethnic environments.

What are the Ways to Renounce Citizenship in India?

Voluntary Renunciation:

• If an Indian citizen wishes, who is of full age and capacity, he can relinquish citizenship of India by his will. When a person relinquishes his citizenship, every minor child of that person also loses Indian citizenship. 
• However, when such a child attains the age of 18, he may resume Indian citizenship.

By Termination:

• The Constitution of India provides single citizenship. It means an Indian person can only be a citizen of one country at a time. If a person takes the citizenship of another country, then his Indian citizenship ends automatically. 
• However, this provision does not apply when India is busy in war.

Deprivation by Government:

• The Government of India may terminate the citizenship of an Indian citizen if;
• The citizen has disrespected the Constitution.

• Has obtained citizenship by fraud.
• The citizen has unlawfully traded or communicated with the enemy during a war.
• Within 5 years of registration or naturalisation, a citizen has been sentenced to 2 years of imprisonment in any country.
• The citizen has been living outside India for 7 years continuously.

Internet blocking committee met 53 times in 2022

09, Feb 2023

Why in News?

• The Ministry of Electronics and Information Technology (MeitY) said in a parliamentary response that a committee to consider blocking requests under the Information Technology (Procedure and Safeguards for Blocking for Access of Information for Public) Rules, 2009, met 53 times in 2022.

What is an Internet shutdown?

• Internet shutdowns are measures taken by a government or on behalf of a government, to intentionally disrupt access to and the use of information and communications systems online.

About Anuradha Bhasin case verdict:

• The Court said that all restrictive orders under Section 144 of CrPC and suspension of internet services in Jammu and Kashmir have to be reviewed.
• The verdict has laid down a framework of how the Internet can be suspended, and what rights and legal recourses a citizen has when it is suspended.
• Right to internet is a fundamental right (subject to reasonable restrictions) included in the freedom of expression under Article 19 of the Indian Constitution.
• Restrictions on fundamental rights could not be in exercise of arbitrary powers. These freedoms could only be restricted as a last resort if “relevant factors” have been considered and no other options are there.
• Any order passed to restrict or suspend judicial scrutiny will be subject to judicial scrutiny.
• Suspension of internet services indefinitely is also a violation of telecom rules.

SC on section 144:

• Sec 144 cannot be used to suppress the legitimate expression of opinion or grievance, or the exercise of democratic rights. 
• When Sec 144 is imposed for reasons of apprehended danger, that danger must be an “emergency”. 
• The imposition of Sec 144 must strike a balance between the rights of the individual and the concerns of the state.
• Powers under Sec 144 should be exercised in a reasonable and bona fide manner, and the order must state material facts in order to enable judicial review.

What procedure does the government follow to suspend Internet services?

• The Information Technology Act, 2000, the Criminal Procedure Code (CrPC), 1973 and the Telegraph Act, 1885 are the three laws that deal with suspension of Internet services.
• But before 2017, Internet suspension orders were issued under section 14 of the CrPC.
• In 2017, the central government notified the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules under the Telegraph Act to govern suspension of Internet. These Rules derive their powers from Section 5(2) of the Indian Telegraph Act, which talks about interception of messages in the “interests of the sovereignty and integrity of India”.
• Despite the 2017 rules, the government has often used the broad powers under Section 144. 
• India also tops the list of Internet shutdowns globally. According to Software Freedom Law Centre’s tracker, there have been 381 shutdowns since 2012, 106 of which were in 2019.

What did the judgment say on the rules to be followed?

• The court recognised that the 2017 Rules are the only procedure to be followed to suspend Internet services in the occurrence of a “public emergency” or for it to be “in the interest of public safety”. 
• The verdict reiterated that the competent authority to issue an order under the Suspension Rules, in ordinary circumstances, would be the Secretary to the Ministry of Home Affairs.
• The Rules also say that in case the confirmation does not come from a competent authority, the orders shall cease to exist within a period of 24 hours.
• Clear reasons for such orders need to be given in writing, and need to be forwarded to a Review Committee by the next working day. 
• The confirmation must not be a mere formality, but must indicate independent application of mind by the competent authority to the order passed by the authorised officer, who must also take into account changed circumstances if any, etc.
• According to the Temporary Suspension of Telecom Services [Public Emergency or Public Service] Rules, 2017 only the Home Secretary of the country and a secretary of a state’s home department can pass such an order. 
• These also state that any such order should be taken up by a review committee within five days.

73rd anniversary of the Supreme Court

07, Feb 2023

Why in News? 

• This year, the court is hosting the first-ever celebration of its anniversary with Singapore Chief Justice Sundaresh Menon as chief guest. The Supreme Court was established on January 28, 1950, two days after the Constitution.

A brief overview of India’s Supreme Court:

• The Supreme Court of India is the highest judicial body in the country and was established in 1950 after India gained independence from British rule. It evolved from the Federal Court of India, which was established in 1937.

How has the Supreme Court changed over the years?

• The number of judges: The original Constitution envisaged a Supreme Court with a Chief Justice and 7 puisne judges – leaving it to Parliament to increase this number.

• Currently, there are 32 judges (including the Chief Justice) (maximum possible strength is 34)

• Sittings: In the early years, all the judges of the Supreme Court sat together to hear the cases presented before them.

• As the number of cases has increased, the SC sit in smaller benches of two and three– coming together in larger benches of 5 and more only when required to do so.

• Expansion of its jurisdiction: Over the years, the Supreme Court has expanded its jurisdiction, taking on an increasingly active role in public interest litigation and providing judicial remedies for a wide range of social and economic issues.

Significance of SC: 

• Final appellate court
• Defender of the Constitution: The Supreme Court is the ultimate interpreter of the Indian Constitution
• Leader in the development of public interest litigation in India, allowing citizens to bring cases to the court to address issues of public concern.
• Political Stability: It serves as a check on the power of the government and other institutions, helping to ensure political stability and the rule of law in the country
• Defender of rights: It has also established itself as a defender of the rights of marginalized groups, including women, children, and religious and ethnic minorities.

Limitations of SC: 

• Case backlog, shortage of judges, staff, and funding, Political pressure, and Difficulty in enforcing judgments.

Judicial Majoritarianism

03, Feb 2023

Why in News? 

• The blind acceptance of numerical majorities in judicial decision-making and the constitutional disregard of analysis and appreciation of arguments and evidence in dissenting judgments have been in news recently after the recent Supreme Court Judgement on demonetization.

What is Judicial Majoritarianism?

• The requirement for a majority consensus flows from Article 145(5) of the Constitution, which states that no judgment in such cases can be delivered except with the concurrence of a majority of the judges but that judges are free to deliver dissenting judgments or opinions.
• Numerical majorities are of particular importance to cases, which involve a substantial interpretation of constitutional provisions. In such cases, Constitutional Benches, consisting of five or more judges, are set up in consonance with Article 145(3) of the Constitution.
• Such Benches usually consist of five, seven, nine, 11 or even 13 judges.

An issue with Judicial Majoritarianism:

• Issue of why numerical majorities of judicial bodies are accepted without any debate, while numerical majorities in representative bodies such as the Lok Sabha are often looked at with suspicion.

Reflect upon the concept of judicial majoritarianism:

• Jeremy Waldron in his ‘Five to Four: Why Do Bare Majorities Rule on Courts?’ He holds that the arguments of – efficiency through ease of decision-making; epistemic objectivity through majority adherence; and equality through fairness, which are made in defence of judicial majoritarianism cannot explain or justify our adherence to majority decisions.
• As opposed to representatives of the people in legislatures who may act on hunches or popular perception, judges are experts of law and are aware of the arguments for and against the impugned matter. 
• Given the same, Jeremy Waldron questions why is it that the judges too have to resort to head counting in order to resolve disagreements amongst judges.
• All judges on a particular Bench give their rulings on the same set of facts, laws, arguments and written submissions. 
• In light of the same, any differences in judicial decisions can be attributed to a difference in either the methodology adopted and the logic applied by the judges in their interpretation, or, upon their own ‘judicial hunches’ which may be an outcome of their subjective experiences, outlook, perceptions, prejudices and biases.

Constitutional history:

• The dissenting opinion of Justice H.R. Khanna in A.D.M. Jabalpur v. Shivkant Shukla (1976) upholding the right to life and personal liberty even during situations of constitutional exceptionalism is a prime example.
• Another example is the dissenting opinion of Justice Subba Rao in the Kharak Singh v. State of U.P. (1962) case upholding the right to privacy which received the judicial stamp of approval in the K.S. Puttaswamy v. UOI (2017) case.

Way Forward:

• Seniority-based assessment: Ronald Dworkin proffers a system which may either give more weightage to the vote of senior judges given that they have more experience or to the junior judges as they may represent popular opinion better.
• Inculcate critical discourse

SC rejects plea seeking to bar candidates from contesting elections from more than one seat

03, Feb 2023

Why in News?

• The Supreme Court recently refused to set aside a provision in the election law which allows candidates to contest polls from two constituencies simultaneously.

What is the Background?

• As per Section 33(7) of the RPA (Representation of the People Act), 1951, one candidate can contest from a maximum of two constituencies.
• More constituencies were allowed until 1996 when the RPA was amended to set the cap at two constituencies.
• Since 1951, many politicians have used this factor to contest from more than one seat – sometimes to divide the opponent’s vote, sometimes to profess their party’s power across the country, sometimes to cause a ripple effect in the region surrounding the constituencies in favour of the candidate’s party and all parties have exploited Section 33(7).

What are the Points in Favour of Contesting two Seats?

• The system of one candidate, two constituencies provides a “wider choice to the polity as well as candidates”.
• Doing away with the provision could cause an infringement of the rights of the candidates contesting elections as well as curtail choice of candidates to the polity.

What are the Recommendations of the Election Commission?

• The Election Commission recommended amending Section 33(7) so as to allow one candidate to contest from only one seat.
• It did so in 2004, 2010, 2016 and in 2018.
• A system should be devised wherein if a candidate contested from two constituencies and won both, then he or she would bear the financial burden of conducting the subsequent by-election in one of the constituencies. The amount would be Rs 5 lakh for a Vidhan Sabha election and Rs 10 lakh for a Lok Sabha election.

What are the procedures and timelines for effecting this?

Lok Sabha and Rajya Sabha:

• If a person is elected simultaneously to both Rajya Sabha and Lok Sabha, and if he has not yet taken his seat in either House, he can choose, within 10 days from the later of the dates on which he is chosen to those Houses, the House of which he would like to be a member. [Article 101(1) of the Constitution read with Section 68(1) of The Representation of the People Act, 1951]
• The member must intimate his choice in writing to the Secretary to the Election Commission of India (ECI) within the 10-day window, failing which his seat in Rajya Sabha will fall vacant at the end of this period. [Sec 68(2), RPA 1951]. The choice, once intimated, is final. [Sec 68(3), RPA, 1951]
• No such option is, however, available to a person who is already a member of one House and has contested the election for membership of the other House. 
• So, if a sitting Rajya Sabha member contests and wins a Lok Sabha election, his seat in the Upper House becomes automatically vacant on the date he is declared elected to Lok Sabha. The same applies to a Lok Sabha member who contests an election to Rajya Sabha. [Sec 69 read with Sec 67A, RPA 1951]

Elected on two Lok Sabha seats:

• There is no one in this category in the new Lok Sabha. Under Sec 33(7) of RPA, 1951, an individual can contest from two parliamentary constituencies but, if elected from both, he has to resign one seat within 14 days of the declaration of the result, failing which both his seats shall fall vacant. [Sec 70, RPA, 1951 read with Rule 91 of the Conduct of Elections Rules, 1961]

State Assembly and Lok Sabha:

• Under Article 101(2) of the Constitution (read with Rule 2 of the Prohibition of Simultaneous Membership Rules, 1950, made by the President under this Article) members of state legislatures who have been elected to Lok Sabha must resign their seats within 14 days “from the date of publication in the Gazette of India or in the Official Gazette of the State, whichever is later, of the declaration that he has been so chosen”, failing which their seats in Lok Sabha shall automatically fall vacant.

Validity of Electoral Bonds Scheme

31, Jan 2023

Why in News?

• The Supreme Court is on January 31 scheduled to examine whether petitions challenging the validity of electoral bonds scheme need to be referred to a Constitution Bench.

What is an Electoral Bond?

• Electoral Bond is a financial instrument for making donations to political parties.
• The bonds are issued in multiples of Rs. 1,000, Rs. 10,000, Rs. 1 lakh, Rs. 10 lakh and Rs. 1 crore without any maximum limit.
• State Bank of India is authorised to issue and encash these bonds, which are valid for fifteen days from the date of issuance.
• These bonds are redeemable in the designated account of a registered political party.

• Every party that is registered under section 29A of the Representation of the Peoples Act, 1951 and has secured at least 1% of the votes polled in the most recent Lok Sabha or State election will be allotted a verified account by the Election Commission of India.
• Electoral bond transactions can be made only via this account.

• The bonds are available for purchase by any person (who is a citizen of India or incorporated or established in India) for a period of ten days each in the months of January, April, July and October as may be specified by the Central Government.

• A person being an individual can buy bonds, either singly or jointly with other individuals.
• Donor’s name is not mentioned on the bond.

• During general elections, the central government may specify an additional period of thirty days for sale of these bonds. There have been some occasions when the government has deviated from the specified periodicity for issuance of these bonds.

• For example, the sixth tranche of electoral bonds was issued from 1st-10th November 2018 and electoral bonds were sold in the months of March, April and May during 2019 general elections.

What are the concerns?

• While the Scheme acts as a check against traditional under-the-table donations as it insists on cheque and digital paper trails of transactions, several key provisions of the scheme make it highly controversial.
• Anonymity:

• Neither the donor (who could be an individual or a corporate) nor the political party is obligated to reveal whom the donation comes from.
• In 2019, the Supreme Court held that all political parties who had received donations through electoral bonds must submit details to the Election Commission of India.
• This undercuts a fundamental constitutional principle, the freedom of political information, which is an integral element of Article 19(1) (a) of the Constitution.

• Defeating Transparency:

• It defeats the fundamental principle of transparency in political finance because it conceals from public scrutiny the identity of the corporates and moneybags.

• Asymmetric Opacity:

• The government is always in a position to know who the donor is because the bonds are purchased through the SBI.
• This asymmetry of information threatens to colour the process in favour of whichever political party is ruling at the time.

• Chanel of Black money:

• Elimination of a cap of 7.5% on corporate donations, elimination of requirement to reveal political contributions in profit and loss statements and also the elimination of the provision that a corporation must be three years in existence, undercuts the intent of the scheme.
• Any troubled, dying or shell companies can donate an unlimited amount anonymously to a political party giving them a convenient channel for business to round-trip their cash parked in tax havens for a favour or advantage granted in return for something.

Way Forward:

• There is a need for fixing the governance system and effective regulation of political financing along with bold reforms to break the vicious cycle of corruption and erosion of quality of democratic polity. It is crucial to plug the loopholes in the current laws to make the entire governance machinery more accountable and transparent.
• Voters can help bring in substantial changes by demanding awareness campaigns. If voters reject candidates and parties that overspend or bribe them, democracy would move a step higher.

OBC sub-categorisation panel gets 14th extension

30, Jan 2023

Why in News?

• According to a gazette notification issued by the Union Ministry of Social Justice and Empowerment, the Justice G. Rohini-led commission for the sub-categorisation of other backward classes (OBCs) has now been given yet another extension in its tenure by the President.

About the News:

• This is the 14th extension in tenure that the commission has been given. 
• The commission, formed in October 2017, was initially given 12 weeks to finish the task of sub-categorising the nearly 3,000 castes within the OBC umbrella and recommend division of the 27% OBC quota among them equitably. 
• Initially, the government cited more time required by the panel to gather information and data and then it cited the pandemic.

About the Commission:

• The commission was set up on 2nd October, 2017 under Article 340 of the Constitution.
• It was tasked with sub-categorisation of the Other Backward Classes (OBCs) and equitable distribution of benefits reserved for them.
• In 2015, the National Commission for Backward Classes (NCBC) had recommended that OBCs should be categorised into extremely backward classes, more backward classes and backward classes.
• NCBC has the authority to examine complaints and welfare measures regarding socially and educationally backward classes.

Commission’s Terms of References:

• To examine the uneven distribution of reservation benefits among different castes in the central OBC list.
• To work out the mechanism, criteria, norms and parameters in a scientific approach for sub-categorisation within such OBCs.
• To take up the exercise of identifying the respective castes/communities/sub-castes/synonyms for comprehensive data coverage.
• To study and recommend correction of any repetitions, ambiguities, inconsistencies and errors of spelling or transcription.

Work Done So Far:

• It has met representatives of state governments, state backward classes commissions, community associations etc. apart from obtaining caste-wise data of OBCs in higher educational institutions and recruits in central departments, public sector banks and financial institutions.
• In 2021, the commission proposed to divide OBCs into four subcategories numbered 1, 2, 3 and 4 and split the 27% into 2, 6, 9 and 10%, respectively.
• It also recommended complete digitisation of all OBC records and a standardised system of issuing OBC certificates.

How has the status of OBC reservation evolved over time?

• The Kalelkar Commission, set up in 1953, was the first to identify backward classes other than the Scheduled Castes (SCs) and Scheduled Tribes (STs) at the national level.
• The Mandal Commission Report, 1980 estimated the OBC population at 52% and classified 1,257 communities as backward.
• It recommended increasing the existing quotas, which were only for SC/ST, from 22.5% to 49.5% to include the OBCs.
• The central government reserved 27% of seats in union civil posts and services for OBCs [Article 16(4)]. The quotas were subsequently enforced in central government educational institutions [Article 15 (4)].
• In 2008, the Supreme Court directed the central government to exclude the creamy layer (advanced sections) among the OBCs.
• The 102nd Constitution Amendment Act, 2018 provided constitutional status to the National Commission for Backward Classes (NCBC), which was previously a statutory body under the Ministry of Social Justice and Empowerment.

Disqualification of MPs

27, Jan 2023

Why in News?

• The Kerala High Court recently suspended the conviction and sentence of 10 years of rigorous imprisonment awarded by the Kavarathi Sessions Court to disqualified Lakshadweep MP Mohammed Faizal in a case of attempt to murder Mohammed Salih, son-in-law of former Union Minister P.M. Sayeed, during the 2009 Lok sabha polls.

Constitutional Provisions for Disqualification of MLAs:

• Under the Constitution, a person shall be disqualified for being chosen as and for being a member of the legislative assembly or legislative council of a state:
• If he holds any office of profit under the Union or state government (except that of a minister or any other office exempted by state legislature),
• If he is of unsound mind and stands so declared by a court,
• If he is an undischarged insolvent,
• If he is not a citizen of India or has voluntarily acquired the citizenship of a foreign state or is under any acknowledgement of allegiance to a foreign state, and
• If he is so disqualified under any law made by Parliament.

Parliamentary Provisions for Disqualification of MLAs:

The Parliament has prescribed a number of additional disqualifications in the Representation of People Act (1951) and the same is followed by Legislative Assembly and Council:

• He must not have been found guilty of certain election offences or corrupt practices in the elections.
• He must not have been convicted for any offence resulting in imprisonment for two or more years.
• But, the detention of a person under a preventive detention law is not a disqualification.
• He must not have failed to lodge an account of his election expenses within the time.
• He must not have any interest in government contracts, works or services.
• He must not be a director or managing agent nor hold an office of profit in a corporation in which the government has at least 25 per cent share.
• He must not have been dismissed from government service for corruption or disloyalty to the state.
• He must not have been convicted for promoting enmity between different groups or for the offence of bribery.
• He must not have been punished for preaching and practicing social crimes such as untouchability, dowry and sati.
• The governor’s decision is final on the question whether a member has become subject to any of the above disqualifications.
• The governor should obtain the opinion of the Election Commission and act accordingly.

Disqualification on Ground of Defection:

• The Constitution lays down that a person shall be disqualified for being a member of either House of state legislature if he is so disqualified on the ground of defection under the provisions of the Tenth Schedule.
• The question of disqualification under the Tenth Schedule is decided by the Chairman, in the case of legislative council and, Speaker, in the case of legislative assembly.
• In 1992, the Supreme Court ruled that the decision of Chairman/Speaker in this regard is subject to judicial review.

Four SC Collegium resolutions give an insight into government’s priorities

21, Jan 2023

Why in News?

• Four Supreme Court Collegium resolutions backing online free speech, dignity based on sexual orientation and integrity in judicial appointments deliver an extraordinary display of transparency, but at the government’s cost. 

What is Collegium System?

• It is the system of appointment and transfer of judges that has evolved through judgments of the SC, and not by an Act of Parliament or by a provision of the Constitution.
• The SC collegium is headed by the CJI and comprises four other senior most judges of the court.
• A HC collegium is led by its Chief Justice and four other senior most judges of that court.
• Names recommended for appointment by a HC collegium reaches the government only after approval by the CJI and the SC collegium.
• Judges of the higher judiciary are appointed only through the collegium system and the government has a role only after names have been decided by the collegium.
• The government’s role is limited to getting an inquiry conducted by the Intelligence Bureau (IB) if a lawyer is to be elevated as a judge in a High Court or the Supreme Court.

• Intelligence Bureau (IB): It is a reputed and established intelligence agency. It is authoritatively controlled by the Ministry of Home Affairs.
• It can also raise objections and seek clarifications regarding the collegium’s choices, but if the collegium reiterates the same names, the government is bound, under Constitution Bench judgments, to appoint them as judges. 

Evolution of the Collegium System:

• First Judges Case (1981):

• It declared that the “primacy” of the Chief Justice of India (CJI)s recommendation on judicial appointments and transfers can be refused for “cogent reasons.”
• The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.

• Second Judges Case (1993):

• SC introduced the Collegium system, holding that “consultation” really meant “concurrence”.
• It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC.

• Third Judges Case (1998):

• SC on President’s reference expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

Procedure for Various Judicial Appointments:

• For CJI:

• The President of India appoints the CJI and the other SC judges.
• As far as the CJI is concerned, the outgoing CJI recommends his successor.
• In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.

• For SC Judges:

• For other judges of the SC, the proposal is initiated by the CJI.
• The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
• The consultees must record their opinions in writing and it should form part of the file.
• The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.

• For Chief Justice of High Courts:

• The Chief Justice of High Court is appointed as per the policy of having Chief Justices from outside the respective States.
• The Collegium takes the call on the elevation.
• High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
• The proposal, however, is initiated by the outgoing Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
• The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.

Criticism of the Collegium System:

• Opaqueness and a lack of transparency.
• Scope for nepotism.
• Embroilment in public controversies.
• Overlooks several talented junior judges and advocates.

Attempts to reform the Appointment System:

• The attempt made to replace it by a ‘National Judicial Appointments Commission’ was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.

Related Constitutional Provisions:

• Article 124(2) of the Indian Constitution provides that the Judges of the Supreme Court are appointed by the President after consultation with such a number of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose.
• Article 217 of the Indian Constitution states that the Judge of a High Court shall be appointed by the President consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.

Way Forward:

• Filling up of vacancies is a continuous and collaborative process involving the executive and the judiciary, and there cannot be a time frame for it. However, it is time to think of a permanent, independent body to institutionalize the process with adequate safeguards to preserve the judiciary’s independence guaranteeing judicial primacy but not judicial exclusivity.
• It should ensure independence, reflect diversity, demonstrate professional competence and integrity.
• Instead of selecting the number of judges required against a certain number of vacancies, the collegium must provide a panel of possible names to the President to appoint in order of preference and other valid criteria.

Centre Vs Union

12, Jan 2023

Why in News?

• Since the Tamil Nadu government shunned the usage of the term ‘Central government’ in its official communications by replacing it with ‘Union government’, it has erupted the Union Vs Centre Debate.

What is the Constitutionality of the Term Union/Centre?

• There is no mention of the term ‘Central government’ in the Constitution of India because the Constituent Assembly did not use the term ‘Centre’ or ‘Central government’ in all of its 395 Articles in 22 Parts and eight Schedules in the original Constitution.
• There are only references of the ‘Union’ and the ‘States’ with the executive powers of the Union wielded by the President acting on the aid and advice of the Council of Ministers headed by the Prime Minister.
• Even though there is no reference to the ‘Central government’ in the Constitution, the General Clauses Act, 1897 gives a definition for it.
• The ‘Central government’ for all practical purposes is the President after the commencement of the Constitution.

What is the Intent of the Constituent Assembly?

• Article 1(1) of the Constitution of India says “India, that is Bharat, shall be a Union of States.”
• On 13th December, 1946, Jawaharlal Nehru introduced the aims and objectives of the Constituent Assembly by resolving that India shall be a Union of territories willing to join the “Independent Sovereign Republic”. The emphasis was on the consolidation and confluence of various provinces and territories to form a strong united country.
• While submitting the draft Constitution in 1948, Dr B R Ambedkar, chairman of the drafting committee, had said that the committee had used the word ‘Union’ because:

• the Indian federation was not the result of an agreement by the units, and
• the component units had no freedom to secede from the federation.

• The members of the Constituent Assembly were very cautious of not using the word ‘Centre’ or ‘Central government’ in the Constitution as they intended to keep away the tendency of centralizing of powers in one unit.

What is the Difference Between Union & Centre?

• According to constitution expert Subash Kashyap, from the point of the usage of the words, ‘center’ indicates a point in the middle of a circle, whereas ‘Union’ is the whole circle.
• In India, the relationship between the so-called ‘Centre’ and States, as per the Constitution, is actually a relationship between the whole and its parts.
• Both the Union and the States are created by the Constitution, both derive their respective authority from the Constitution. The one is not subordinate to the other in its own field and the authority of one is to coordinate with that of the other.
• The judiciary is designed in the Constitution to ensure that the Supreme Court, the tallest court in the country, has no superintendence over the High Court.
• Though the Supreme Court has appellate jurisdiction, not only over High Courts but also over other courts and tribunals, they are not declared to be subordinate to it.
• In fact, the High Courts have wider powers to issue prerogative writs despite having the power of superintendence over the district and subordinate courts.
• In very common parlance, Union gives a sense of Federal while centre gives more of a sense of unitary government. 
• But practically both are the same in the Indian political system.

What are the Associated Issues with the Term Central Government?

• Discarded By Constituent Assembly: The word ‘Centre’ is not used in the Constitution; the makers of the Constitution specifically discarded it and instead used the word ‘Union’.
• Colonial Legacy: ‘Centre’ is a hangover from the colonial period because the bureaucracy in the Secretariat, New Delhi who are used to using the word ‘Central Laws,’ ‘Central legislature,’ etc, and so everyone else, including the media, started using the word.
• Conflict With Idea of Federalism: India is a federal government. The power to govern is divided between a government for the whole country, which is responsible for subjects of common national interest, and the states, which look after the detailed day-to-day governing of the state.
• According to Subash Kashyap, using the term ‘Centre’ or ‘central government’ would mean state governments are subservient to it.

Way Forward:

• The federal nature of the Constitution is its basic feature and cannot be altered, thus, the stakeholders wielding power intend to protect the federal feature of our Constitution.
• A diverse and large country like India requires a proper balance between the pillars of federalism, i.e., autonomy of states, national integration, centralisation, decentralisation, nationalisation, and regionalisation.
• Extreme political centralisation or chaotic political decentralisation can both lead to the weakening of Indian federalism.
• The satisfactory and lasting solution of the vexed problem is to be found not in the statute-book but in the conscience of men in power.

Tussle between Tamil Nadu Governor and CM Escalates in Assembly

11, Jan 2023

Why in News?

• The governor-government tussle in Tamil Nadu erupted in the assembly after the CM objected to the Governor skipping portions of his customary speech to the state legislature and tabled a resolution against him, prompting the latter to leave the House.

Previous Incidents in India:

• West Bengal: The governor of West Bengal, Jagdeep Dhankhar, was unable to deliver his address at the Vidhan Sabha on the first day of the budget session, amid sloganeering, chaos and protests.
• Telangana: In Telangana, the budget session of the state assembly commenced without the customary governor’s address, and the incumbent, Tamilisai Soundararajan, expressed discontent over the state government’s decision to not have the governor’s address at the beginning of the session.

Governor’s Address:

• Article 176(1) of the Constitution of India enjoins that the Governor shall Address both the Houses assembled together at the commencement of the first Session after each general election to the Assembly and at the commencement of the first session of each year and inform the Legislature of the causes of its Summons.

What it contains?

• The Address of the Governor contains a review of the activities and Achievements of the Government during the previous year and their policy with regard to important internal problems as well as a brief account of the programme of Government Business for the session.

Discussions on Governor’s address:

• On the first day on which the discussion on the Address of the Governor begins, a copy of the Address of the Governor is laid on the table of the House.
• The Speaker, in consultation with the Business Advisory Committee, allots time for discussion of the matters referred to in the Governor’s Address.
• A motion is moved by a member and seconded by another member thanking the Governor for the Address. The occasion provided for General Discussion in respect of any aspect of administration and also the matters referred to in the address.
• Members may move Amendments to the Motion of Thanks in such form as may be considered appropriate by the Speaker.

SC dismisses PIL challenging committees set up by Gujarat and Uttarakhand for Uniform Civil Code

11, Jan 2023

Why in News?

• The SC refused to entertain a PIL challenging the decisions of the Uttarakhand and Gujarat governments to constitute committees for implementing Uniform Civil Code (UCC) in their respective states. 

Background:

• The promulgation of the UCC emerges as a positive obligation and not duty of the State under Article 44 of the Constitution in the Directive Principles of State Policy (DPSP).
• Goa’s Portuguese Civil Code of 1867 is an example of a common family law prevalent in a State.
• Both the Uttarakhand and Gujarat governments have constituted committees to look into the issue of implementation of UCC.
• This to govern matters of divorce, adoption, inheritance, guardianship, succession of all citizens equally regardless of their religion, gender and sexual orientation.
• Several other petitions are also pending before the top court seeking uniform ground and procedures of divorce, adoption and guardianship for all communities across the country.
• The Centre has maintained the issue of UCC falls within the domain of legislature.

What is a Uniform Civil Code?

• A Uniform Civil Code is one that would provide for one law for the entire country, applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption etc.
• Article 44, one of the directive principles of the Constitution lays down that the state shall endeavour to secure a Uniform Civil Code for the citizens throughout the territory of India.
• These, as defined in Article 37, are not justiciable (not enforceable by any court) but the principles laid down therein are fundamental in governance.

What did the SC say?

• The constitution of such committees by the states cannot be challenged for being ultra vires to the Constitution of India, as Article 162 empowers the State to constitute such committees.
• Article 162 of the Constitution states that the executive power of a state shall extend to the matters with respect to which the legislature of the State has power to make laws.
• Also, Entry 5 (Concurrent List) of the 7th schedule of the Constitution gives such power to the states to form a committee.
• It deals with marriage and divorce; infants and minors; adoption; etc.

Role of State in this regard:

• Fundamental rights are enforceable in a court of law.
• While Article 44 uses the words “the state shall endeavour”, other Articles in the ‘Directive Principles’ chapter use words such as “in particular strive”; “shall, in particular, direct its policy”; “shall be the obligation of the state” etc.
• Article 43 mentions “state shall endeavour by suitable legislation” while the phrase “by suitable legislation” is absent in Article 44.
• All this implies that the duty of the state is greater in other directive principles than in Article 44.

What are more important — fundamental rights or directive principles?

• There is no doubt that fundamental rights are more important.
• The Supreme Court held in Minerva Mills (1980): Indian Constitution is founded on the bedrock of the balance between Parts III (Fundamental Rights) and IV (Directive Principles).
• To give absolute primacy to one over the other is to disturb the harmony of the Constitution.
• Article 31C inserted by the 42nd Amendment in 1976, however, lays down that if a law is made to implement any directive principle, it cannot be challenged on the ground of being violative of the FRs under Articles 14 and 19.

Does India not already have a uniform code in civil matters?

• Indian laws do follow a uniform code in most civil matters – Indian Contract Act, Civil Procedure Code, Sale of Goods Act, Transfer of Property Act, Partnership Act, Evidence Act etc.
• States, however, have made hundreds of amendments and therefore in certain matters, there is diversity even under these secular civil laws.
• Recently, several states refused to be governed by the uniform Motor Vehicles Act, 2019.

What about personal laws?

• If the framers of the Constitution had intended to have a Uniform Civil Code, they would have given exclusive jurisdiction to Parliament in respect of personal laws, by including this subject in the Union List.
• But “personal laws” are mentioned in the Concurrent List.
• Last year, the Law Commission concluded that a Uniform Civil Code is neither feasible nor desirable.

Is there one common personal law for any religious community governing all its members?

• All Hindus of the country are not governed by one law, nor are all Muslims or all Christians.
• Not only British legal traditions, even those of the Portuguese and the French remain operative in some parts.
• In Jammu and Kashmir until August 5, 2019, local Hindu law statutes differed from central enactments.
• The Shariat Act of 1937 was extended to J&K a few years ago but has now been repealed.

Various customary laws

• Muslims of Kashmir were governed by a customary law, which in many ways was at variance with Muslim Personal Law in the rest of the country and was, in fact, closer to Hindu law.
• Even on the registration of marriage among Muslims, laws differ from place to place. It was compulsory in J&K (1981 Act), and is optional in Bengal, Bihar (both under 1876 Act), Assam (1935 Act) and Odisha (1949 Act).
• In the Northeast, there are more than 200 tribes with their own varied customary laws.
• The Constitution itself protects local customs in Nagaland. Similar protections are enjoyed by Meghalaya and Mizoram.
• Even reformed Hindu law, in spite of codification, protects customary practices.

How does the idea of a Uniform Civil Code relate to the fundamental right to religion?

• Article 25 lays down an individual’s fundamental right to religion;
• Article 26(b) upholds the right of each religious denomination or any section thereof to “manage its own affairs in matters of religion”;
• Article 29 defines the right to conserve distinctive culture.
• An individual’s freedom of religion under Article 25 is subject to “public order, health, morality” and other provisions relating to FRs, but a group’s freedom under Article 26 has not been subjected to other fundamental rights.
• In the Constituent Assembly, there was division on the issue of putting UCC in the fundamental rights chapter. The matter was settled by a vote.
• By a 5:4 majority, the fundamental rights sub-committee headed by Sardar Patel held that the provision was outside the scope of FRs and therefore the UCC was made less important than freedom of religion.

Minority opinion in the Constituent Assembly

• Some members sought to immunize Muslim Personal Law from state regulation.
• Mohammed Ismail, who thrice tried unsuccessfully to get Muslim Personal Law exempted from Article 44, said a secular state should not interfere with the personal law of people.
• B Pocker Saheb said he had received representations against a common civil code from various organisations, including Hindu organisations.
• Hussain Imam questioned whether there could ever be uniformity of personal laws in a diverse country like India.
• B R Ambedkar said, “no government can use its provisions in a way that would force the Muslims to revolt”.
• Alladi Krishnaswami, who was in favour of a UCC, conceded that it would be unwise to enact UCC ignoring strong opposition from any community.
• Gender justice was never discussed in these debates.

How did the debate on a common code for Hindus play out?

• In June 1948, Rajendra Prasad, President of the Constituent Assembly, warned Nehru that to introduce “basic changes” in personal law was to impose “progressive ideas” of a “microscopic minority” on the Hindu community as a whole.
• Others opposed to reforms in Hindu law included Sardar Patel, Pattabhi Sitaramayya, M A Ayyangar, M M Malaviya and Kailash Nath Katju.
• When the debate on the Hindu Code Bill took place in December 1949, 23 of 28 speakers opposed it.
• On September 15, 1951, President Prasad threatened to use his powers of returning the Bill to Parliament or vetoing it. Ambedkar eventually had to resign.
• Nehru agreed to trifurcation of the Code into separate Acts and diluted several provisions.

Case against T.N. Governor R.N. Ravi not maintainable, rules Madras HC

06, Jan 2023

Context: 

• The Madras High Court has recently held as not maintainable a writ of quo warranto filed against Tamil Nadu Governor R.N. Ravi questioning the authority under which he is holding the office while simultaneously serving as the Chairman of the Board of Governors of Auroville Foundation in Puducherry.

Constitutional Immunity to President and Governor:

• As per Article 361,

• The President or Governor are not personally answerable to any court for the exercise and performance of their powers, while in office.
• But it does not mean that conduct of these two office holders can not be checked. The Article 361 makes it clear that conduct of the President may be brought under review by any court, tribunal or body appointed or designated by either House of Parliament for the investigation of a charge under article 61.
• No criminal proceedings can be started or continued against the President, or the Governor of a State, in any court during his term of office.
• No court can issue arrest warrants for President as well as Governor.
• Civil proceedings against a Governor or President against things done by him in his personal capacity can be done only with a prior 2 months notice.

Governors of States in India:

• Governor is the nominal head of a state, unlike the Chief Minister who is the real head of a state in India.
• According to an amendment in the Constitution of India (7th Constitutional Amendment Act), brought about in 1956, the same person can be the Governor of two or more states.

Appointment and removal: 

• The governors and lieutenant-governors are appointed by the president for a term of 5 years.
• The term of governor’s office is normally 5 years but it can be terminated earlier by: Dismissal by the president on the advice of the prime minister of the country, at whose pleasure the governor holds office or Resignation by the governor. Thus, the term is subject to pleasure of the president.
• There is no provision of impeachment, as it happens for the president.
• Article 157 and Article 158of the Constitution of India specify eligibility requirements for the post of governor.

Powers of the Governor: 

• Like the President of India, the Governor of any state in India is vested with certain executive, legislative and judicial powers.
• He or she also possesses certain discretionary or emergency powers.
• But one major difference in the powers enjoyed by the President and those enjoyed by the Governor is, the Governor does not have any diplomatic or military powers.

Some discretionary powers are as follows:

• Governor can dissolve the legislative assembly if the chief minister advices him to do following a vote of no confidence. Following which, it is up to the Governor what he/ she would like to do.
• Governor, on his/ her discretion can recommend the president about the failure of the constitutional machinery in the state.
• On his/ her discretion, the Governor can reserve a bill passed by the state legislature for president’s assent.
• If there is no political party with a clear-cut majority in the assembly, Governor on his/ her discretion can appoint anybody as chief minister.
• Governor determines the amount payable by the Government of Assam, Meghalaya, Tripura and Mizoram to an autonomous Tribal District Council as royalty accruing from licenses for mineral exploration.
• Governor can seek information from the chief minister with regard to the administrative and legislative matters of the state.
• Governor has discretion to refuse to sign to an ordinary bill passed by the state legislature.

What is the problem with constitutional design?

• The governor is merely appointed by the president on the advice of the Central government.
• Unlike the president, a governor does not have a fixed term. He/she holds office at the pleasure of the ruling party in the centre. Both the manner of the appointment and the uncertainty of tenure conspire to make the incumbent an object of the Central government in politically charged circumstances.

Whip in Parliament

05, Jan 2023

Why in News?

• In a recent Constitution Bench judgment, the Supreme Court held that a country with a multi-party system cannot afford to crack the whip every time a Minister makes an offensive or disparaging statement.

What is Whip?

• A whip is an official of a political party who acts as the party’s ‘enforcer’ inside the legislative assembly or house of parliament.
• In India, every major political party appoints a whip who is responsible for the party’s discipline and behaviour on the floor of the House.
• A whip is an important office-bearer of the party in the Parliament.
• Parties appoint a senior member from among their House contingents to issue whips — this member is called a Chief Whip, and he/she is assisted by additional Whips.
• India inherited the concept of the whip from the British parliamentary system.

Violation of Whip:

• A legislator may face disqualification proceedings if she/he disobeys the whip of the party unless the number of lawmakers defying the whip is 2/3rds of the party’s strength in the house.
• Disqualification is decided by the Speaker of the house.

Limitations of Whip:

• There are some cases such as Presidential elections where whips cannot direct a Member of Parliament (MP) or Member of Legislative Assembly (MLA) to vote in a particular fashion.

Types of Whips:

• The One-line whip to inform the members about a vote. It allows a member to abstain in case they decide not to follow the party line.
• The Two-line whip is issued to direct the members to be present in the House at the time of voting. No special instructions are given on the pattern of voting.
• The Three-line whip is issued to members directing them to vote as per the party line. It is the strictest of all the whip.

What are the Functions of Whip?

• The whip plays a crucial role in ensuring the smooth and efficient conduct of business on the floor of the House.
• He is charged with the responsibility of ensuring the attendance of his party members in large numbers and securing their support in favour of or against a particular issue.
• He ensures discipline among party members in the House.
• He identifies the signs of discontent among MPs and informs the respective leaders of their party.
• He or she acts as a binding force in the party and responsible for maintaining the internal party organisation in the Parliament.
• Under the Tenth Schedule (anti-defection law) a political party has a constitutional right to issue a whip to its legislators.

HC directs Delhi Government to provide free food, treatment to HIV-positive persons

04, Jan 2023

Why in News?

• Delhi High Court has directed the City government to ensure free food and medical treatment to HIV-positive persons living below the poverty line and strictly comply with the law dealing with the affected patients’ grievances.

Food Security and the Right to Food:

• Food security exists when all people, at all times, have physical, social and economic access to sufficient, safe and nutritious food which meets their dietary needs and food preferences for an active and healthy life. Household food security is the application of this concept to the family level, with individuals within households as the focus of concern.
• The right to adequate food is a universal human right that is realized when all people have physical and economic access at all times to adequate food or the means for its procurement, without discrimination of any kind.
• Ensuring food security requires action in multiple dimensions, including: improving the governance of food systems; inclusive and responsible investments in agriculture and rural areas, in health and education; empowering small producers; and strengthening social protection mechanisms for risk reduction.
• Article 21 of the Indian Constitution embarks that right to life does not mean mere existence, but life with dignity but the Centre and state governments as well as ministries in the present grim scenario have failed to fulfil their obligations for effectively providing food security in the country.

Community Kitchen Initiatives across the world:

• The State-funded community kitchen is not a new concept in the country. Tamil Nadu’s Amma Unavagam had become a roaring success by involving peers in self-help groups, employing the poor to serve hygienic food to eradicate the growing problem of hunger on the streets. 
• Other example are Rajasthan’s Annapurna Rasoi, Indira Canteens in Karnataka, Delhi’s Aam Aadmi Canteen, Anna Canteen in Andhra Pradesh, Jharkhand Mukhyamantri Dal Bhat and Odisha’s Ahaar Centre were combating starvation and malnutrition crisis and serve meals at subsidised rates in hygienic conditions.
• In other countries, there are concepts of soup kitchen, meal centre, food kitchen or community kitchen, where food is offered to the hungry usually for free or sometimes at a below-market picre.
• In the interest of justice and for entitlement of nutritious food, which has been held as a basic fundamental and human right, in both national and international law, alike, the establishment of community kitchens may be directed as an added mechanism for provision of nutritious food with the intent of holistically combating eradication of hunger, malnutrition and starvation in the country, and diseases, illnesses and deaths resulting thereof.

Why Community Kitchen is Important?

• Various schemes run by government to address the problem of hunger are futile in as much as there are eligible persons who have not been issued cards requisite to avail subsidies and benefits and then there is a segment of persons who are homeless and outside the grid of these schemes for the mere reasons that they do not possess a roof on their head. 
• Public Distribution system (PDS) in India which accounts for distribution of wheat and rice, only, does not account for proteins and other components of a well-balanced diet, in turn leads to malnutrition.

Supreme Court on Food Security and Right to Food:

• Supreme Court has in a plethora of cases held that right to food comes within the purview of right to life and is a basic component to right to life. Issues pertaining to malnutrition and starvation deaths, emerging from inadequate nutrition and hunger crisis breach the fundamental right to food and are violative of Articles 14, 21, 38, 39 and 47, 51(c) of the Constitution of India.
• In the People’s Union for Civil Liberties v. Union of India., (2013), commonly known as the “Right to Food Case”, the Supreme Court directed all the States and UTs to introduce Mid-day meals for all children between the age of 6 to 14. This petition however sought implementation of a scheme providing cooked food to all persons.
• The present government’s schemes to eradicate hunger suffer on account of ineffective implementation and the proposed community kitchens, managed with funding from the state as well as funds from Corporate Social Responsibility of the Companies Act, 2013 by a Public-Private Partnership, may be implemented to complement the existing schemes.
• The Supreme Court in the case of Maneka Gandhi v. Union of India, 1978, stated that “Right to life enshrined under Article 21 means something more than animal instinct and includes the right to live with human dignity, it would include all aspects which would make life meaningful, complete and living.”
• In Shantistar Builders v. Narayan Khimala Totame, (1990), it was held that “the right to life is guaranteed in any civilized society. That would take within its sweep the right to food.”
• The Supreme Court in Ahemdabad Municipal Corporation v. Nawab Khan Gulab Khan, 1997, reminded the government of its duty towards the hungry and starving persons in the country and further held that the nation state should promote socio-economic justice and fulfill the basic human needs.

Government’s Initiatives on Food Security:

• The government is running various schemes for combating hunger and malnutrition such as:

• The Public Distribution System (PDS).
• Antyodaya Anna Yojana (AAY).
• The National Programme of Nutritional Support to Primary Education, also known as “Mid-Day Meal Scheme”.
• The Integrate Child Development Services (ICDS).
• Annapurna Scheme.
• The National Old Age Pension Scheme (NOAPS).
• The National Maternity Benefit Scheme (NMBS).
• The National Family Benefit Scheme (NFBS).
• Furthermore, the Parliament of India enacted the National Food Security Act causing a paradigm shift in the approach food security from welfare to rights-based approach. Hence, both the State and Central Government in the country have launched a range of promotional, preventive and protective social measures to tackle deprivation, food insecurity and poverty alleviation.

Way Forward:

• India houses a staggering proportion of persons suffering from hunger, malnutrition and food insecurity, in today’s day and age. 
• Despite there being a wide range of governmental schemes and programmes intended to achieve the decline and eradication of pertinent issues of hunger and malnutrition, the desired result at present poses as a distant reality. 
• As each of these schemes appear to be ridden with problems, ensuring right to food requires action on multiple fronts. 
• It is noteworthy that in-spite of the existence of a plethora of schemes aimed at eradicating Hunger, Malnutrition, Starvation Deaths, and allied issues, the country is still grappling with the said problems on a large scale, leaving scope for newer radical solutions to combat the same.

Delimitation Commission

04, Jan 2023

Why in News?

• The Assam state Cabinet recently approved the merger of four districts with their constituent districts.

About the News:

• Recently, the EC announced the process of delimitation of Assembly and Parliamentary constituencies in Assam, saying it would be based on Census data from 2001. Assam currently has 14 Lok Sabha constituencies and 126 Assembly constituencies.

What is Delimitation?

• Delimitation literally means the process of fixing limits or boundaries of territorial constituencies in a state that has a legislative body.
• Bifurcation of J&K into two UTs has led to redrawing of Assembly constituency boundaries. While, the UT of Ladakh will not have its own legislature, J&K will. This would be similar to Puducherry or Delhi.
• Such delimitation was also necessitated in 2014 when Andhra Pradesh and Telangana were bifurcated.
• According to the Delimitation Commission Act, 2002, the Delimitation Commission appointed by the Centre has to have three members: a serving or retired judge of the Supreme Court as the chairperson, and the Chief Election Commissioner or Election Commissioner nominated by the CEC and the State Election Commissioner as ex-officio members.

How Delimitation process is done?

• Under Article 82, the Parliament enacts a Delimitation Act after every Census.
• Under Article 170, States also get divided into territorial constituencies as per Delimitation Act after every Census.
• Once the Act is in force, the Union government sets up a Delimitation Commission.
• The new state assembly shall have 114 seats (currently 107), out of which only 90 will be open for elections, and the remaining 24 will be shadow seats reserved for the areas of the erstwhile state that have been occupied by Pakistan (PoJK).
• For the delimitation exercise, the population figures of 2011 census shall be taken as the basis.
• The J&K Representation of the People Act 1957 has now been invalidated and, instead, delimitation will be done as per the Representation of the People Act, 1950 (as amended from time to time) and provisions of Sections 59, 60 of Act 34 of 2019.

Who carry out the exercise?

• Delimitation is undertaken by a highly powerful commission. They are formally known as Delimitation Commission or Boundary Commission.
• These bodies are so powerful that its orders have the force of law and they cannot be challenged before any court.
• Such commissions have been constituted at least four times in India — in 1952 under the Delimitation Commission Act, 1952; in 1963 under Delimitation Commission Act, 1962; in 1973 under Delimitation Act, 1972 and last in 2002 under Delimitation Act, 2002.
• The commissions’ orders are enforced as per the date specified by the President of India. Copies of these orders are laid before the Lok Sabha or the concerned Legislative Assembly. No modifications are permitted.

Why delimitation is needed?

• To provide equal representation to equal segments of a population.
• Fair division of geographical areas so that one political party doesn’t have an advantage over others in an election.
• To follow the principle of “One Vote One Value”

What are the problems with Delimitation?

• States that take little interest in population control could end up with a greater number of seats in Parliament. The southern states that promoted family planning faced the possibility of having their seats reduced.
• In 2008, Delimitation was done based on the 2001 census, but the total number of seats in the Assemblies and Parliament decided as per the 1971 Census that was not changed.
• The constitution has also capped the number of Lok Shaba & Rajya Sabha seats to a maximum of 550 & 250 respectively and increasing populations are being represented by a single representative.

EPFO Staff, Pensioners seek clarity on circular to implement SC verdict

03, Jan 2023

Why in News?

• The headquarters of the Employees Provident Fund Organisation (EPFO) is likely to come up with yet another circular on implementing the recent Supreme Court order on higher pension. 

What was the SC’s Judgement?

• Under Article 142, the Supreme Court ruling gives EPFO members, who have availed of the EPS, another opportunity over the next four months to opt and contribute up to 8.33% of their actual salaries as against 8.33% of the pensionable salary capped at Rs 15,000 a month towards pension.
• Under the pre-amendment scheme, the pensionable salary was computed as the average of the salary drawn during the 12 months prior to exit from membership of the Pension Fund. The amendments raised this to an average of 60 months prior to exit from the membership of the Pension Fund.
• The court held the amendment requiring members to contribute an additional 1.16 % of their salary exceeding Rs 15,000 a month as ultra vires the provisions of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952.

What are the Implications?

• People who have subscribed to EPF will be able to get pension on their full salary instead of Rs. 15000 cap.
• Employees and Employers, who have contributed to the EPF without any approval from Assistant Provident Commissioner, may not get the benefit of judgment.
• Amendment done in 2014 may remain applicable to the companies which manage their EPF corpus through trusts.

What is EPS?

• Employees’ Pension Scheme 1995 or EPS-95 is a social security scheme which was introduced in November 19, 1995 by the EPFO. 
• The scheme entitles the employees working in the organised sector for a pension after their retirement at the age of 58 years.

Who is eligible for EPS?

• All employees who are eligible for the EPF scheme are be eligible for EPS however, the benefits of the EPS can be availed only if the employee has been in service for at least 10 years (this does not have to be continuous service). The scheme’s benefits are available to both existing as well as new EPF members.

Who contributes to EPS?

• Both the employee and the employer contribute 12 per cent of the employee’s basic salary and Dearness Allowance (DA) to the EPF. While the entire portion of employee’s contribution goes to EPF, the employer’s contribution goes to EPS at a rate of 8.33 per cent.

What are the benefits under EPS?

• Pension on retirement at the age of 58 years: An EPS member becomes eligible for pension once they retire at the age of 58 years. However, it is mandatory for them to be in service for at least 10 years before turning 58 and availing pension benefits. An EPS Scheme Certificate is generated which can be used to fill Form 10D for withdrawing the monthly pension.
• Complete withdrawal on leaving service before becoming eligible for monthly pension: If a member is not able to remain in service for 10 years before turning 58 years old, he/she can withdraw the complete sum invested so far after turning 58 years by filling Form 10C. However, he/she will not get monthly pension benefits post retirement.
• Pension on total disablement during the service: An EPFO member who becomes disabled permanently is entitled to a monthly pension irrespective of the fact that he/she has not served the pensionable service period. In this case, the employer has to deposit funds in the concerned employee’s EPS account for at least one month to be eligible for the pension.

• The member becomes eligible for monthly pension from the date of permanent disablement and is paid for lifetime. However, the member may have to undergo a medical examination to determine whether he/she is unfit for their job before becoming disabled.

• Family pension on the death of the member: A member’s family becomes eligible for the pension benefits in the following cases: 1) In case of death of the member while in service and the employer has deposited funds in his EPS account for at least one month 2) In case the member has completed 10 years of service and dies before attaining 58 years of age 3) In case of death of the member after the commencement of the monthly pension.

Congress to move Supreme Court against Pragya over ‘hate speech’

29, Dec 2022

Why in News?

• Congress leader Jairam Ramesh recently said that BJP MP Pragya Singh Thakur’s remarks at a function in Shivamogga in Karnataka are a clear example of hate speech and that he would move the Supreme Court against her.

What is Hate Speech?

• According to Law Commission of India (267th report), hate speech is “incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like”
• The report of the commission further clarifies that hate speech is “any word written or spoken, signs, visible representations within the hearing or sight of a person with the intention to cause fear or alarm, or incitement to violence.

What are the Constitutional Provisions regarding the freedom of speech?

• Article 19(1)(a) of the Indian Constitution guarantees freedom of speech and expression. Any restriction on this right shall only be permitted if the speech falls within one of the eight grounds set out in Article 19(2) of the Constitution.
• The freedom of speech under Article 19(1)(a) includes the right to express one’s views and opinions at any issue through any medium, e.g. by words of mouth, writing, printing, picture, film, movie, etc.  It thus includes the freedom of communication and the right to propagate or publish an opinion. 

Can Freedom of speech be curtailed?

• This right is subject to reasonable restrictions being imposed under Article 19(2).  Out of the eight different grounds listed on Article 19(2) of the Constitution, the majority of hate speech laws are saved by the ‘public order’ exception. The eight different grounds are;

• Security of the State.
• Friendly relations with foreign States.
• Public order.
• Decency and morality.
• Contempt of court.
• Defamation.
• Incitement to an offence, and
• Sovereignty and integrity of India.

• Reasonable restrictions on these grounds can be imposed only by a duly enacted law and not by executive action.

Issues of Social Media Misuse:

• Rumour Mongering: Fake narratives on online platforms have real life implications. For example, recently in India, online rumours, regarding child traffickers, through popular messaging platform WhatsApp, led to a spate of lynchings in rural areas.
• Facilitating Polarisation: It enables the communalising agents to polarise people for electoral gains.For example, during the election campaign of recently conducted Delhi legislative assembly elections, a leader enticed crowds with the use of communalising and violence on social media platforms.

• Following this, a young man translated these words into reality by opening fire on protesters.
• This incident highlighted how the spread of hate speech through social media has real consequences.
• Social Media AI poorly adapted to local languages: Social media platforms’ artificial intelligence based algorithms that filter out hate speeches are not adapted to local languages. Also, the companies have invested little in staff fluent in them. Due to this, it failed to limit the ultranationalist Buddhist monks using Facebook for disseminating hate speech which eventually led to Rohingya massacres.

Way Forward:

• Harmonising the Laws: Harmonising the regulations to check misuse of social media are scattered across multiple acts and rules. Thus, there is a need to synchronise the relevant provisions under the Indian Penal Code, the Information Technology Act and Criminal Procedure Code.
• Obeying the regulation by Supreme Court: In Shreya Singhal v. Union of India (2015) case, Supreme Court gave a verdict on the issue of online speech and intermediary liability in India.

• It struck down the Section 66A of the Information Technology Act, 2000, relating to restrictions on online speech, on grounds of violating the freedom of speech guaranteed under Article 19(1)(a) of the Constitution of India.
• It also gave the direction on how hate content should be regulated and the government should follow this direction, where the user reports to the intermediary and the platforms then takes it down after following due process.

• Transparency obligation for digital platforms: Digital platforms can be made to publish the name and amount paid by the author in the event that content is sponsored.

• For example, with regard to fake news, France has an 1881 law that defines the criteria to establish that news is fake and being disseminated deliberately on a large scale.
• A legal injunction should be created to swiftly halt such news from being disseminated.

• Establishing regulatory framework: Responsible broadcasting and institutional arrangements should be made with consultations between social media platforms, media industry bodies, civil society and law enforcement as an ideal regulatory framework.

• Even global regulations could be made to establish baseline content, electoral integrity, privacy, and data standards.

• Creating Code of Conduct: It can be framed without creating an ambiguous statutory structure that could leave avenues for potential legislative and state control.

• For example, the European Union has also established a code of conduct to ensure non-proliferation of hate speech under the framework of a ‘digital single market.’

Delhi Versus Centre Row

23, Dec 2022

Why in News?

• Delhi Lieutenant-Governor (L-G) Vinai Kumar Saxena has directed Chief Secretary Naresh Kumar to implement a 2016 order of the Committee on Content Regulation in Government Advertising (CCRGA). 

What’s the issue?

• The tussle between the Union and Delhi governments is over the limited question concerning ‘services’ or bureaucracy.

Delhi Government’s arguments:

• The National Capital Territory government had compared its predicament without power over the ‘services’ like that of a king without a kingdom. 
• For example, the government had to get the approval of the Lieutenant Governor to appoint a Health Secretary or a Commerce Secretary. This makes administration really difficult and undemocratic.
• The government argues that without the power to control the transfers and postings of the officers, the Principle of “Collective Responsibility” will not be upheld.

What the Centre says?

• The Centre had argued that Delhi, the nation’s capital and a sprawling metropolis, should be under its control.
• It says, Delhi could not be left to the “small mercies and smaller resources” of a State legislature.

Supreme Court judgements so far:

2018 judgment:

• The Constitution Bench had unanimously held that the Lieutenant Governor of Delhi was bound by the “aid and advice” of the government and both had to work harmoniously with each other.
• There was no room for anarchy or absolutism in a democracy.
• The 2018 judgment had not specifically dealt with the issue of ‘services’.

Unresolved Areas in the Judgement:

• Overlapping Areas: Though the court has settled that LG is bound to act on the aid and advice except in respect of ‘Land’, ‘Public Order’ and the ‘Police’. However, Public Order is a very wide connotation, which subsequently leads to overlapping executive powers.
• Still No Clarity on Article 239AA (4): The court did not very clearly delineate the issues in respect of which the LG can refer a decision taken by the Council of Ministers to the President in the event of a difference of opinion between the LG and the State government.
• Open-Ended Terminologies: In the event of referring any matter to the President, the Court enunciated that LG must adhere to the constitutional principles of collaborative federalism, constitutional balance and the concept of constitutional governance. However, these terms are very wide and open- ended. They are subject to different interpretations.

February 2019 Judgment:

• The Supreme Court gave a split opinion on the question of control over ‘services’ in the Capital.
• Justice Bhushan had held that the Delhi government had no power over ‘services’.
• Justice Sikri: Took the middle path; he concluded that files on the transfers and postings of officers in the rank of secretary, head of department and joint secretary could be directly submitted to the Lieutenant Governor.
• As far as DANICS (Delhi Andamans Nicobar Islands Civil Service) cadre was concerned, the files could be processed through the Council of Ministers led by the Chief Minister to the Lieutenant Governor.
• Again, in case of a difference of opinion, the Lieutenant Governor prevailed.

What are the latest demands by the Delhi Government now?

• The Delhi government has also separately sought the quashing of amendments to the ‘Government of National Capital Territory of Delhi (GNCTD) Act’ and 13 Rules of the ‘Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993’.
• It has contended that the amendments violate the doctrine of basic structure of the Constitution and that the Centre, through these changes, has given more power to the Lieutenant Governor than the elected government of the people of Delhi.

How is Delhi administered?

• Delhi is a Union Territory with a legislature and it came into being in 1991 under Article 239AA of the Constitution inserted by ‘the Constitution (Sixty-ninth Amendment) Act, 1991.
• As per the parent Act, the legislative assembly of Delhi has power to make laws in all matters except public order, police and land.

Supreme Court clears 6,844 pending cases

20, Dec 2022

Why in News?

• The Supreme Court has disposed of 6,844 cases since Chief Justice of India (CJI) D.Y. Chandrachud took over as the country’s top judge on November 9. 

About the Supreme Court:

• The Supreme Court of India is the highest judicial court and the final court of appeal under the Constitution of India, the highest constitutional court, with the power of judicial review.
• India is a federal State and has a single and unified judicial system with three tier structure, i.e. Supreme Court, High Courts and Subordinate Courts.

What are the concerns?

• The retirements come at a time when the court is in the process of steadying itself after particularly brutal waves of the pandemic. There is a huge pendency of cases.
• India’s legal system has the largest backlog of pending cases in the world – as many as 30 million pending cases.
• This number is continuously increasing and this itself shows the inadequacy of the legal system.
• And also due to this backlog, most of the prisoners in India’s prisons are detainees awaiting trial.

Pendency in Supreme Court:

• The Supreme Court’s statistics show that 70,362 cases are pending with it as of April 1, 2022.
• Over 19% of them are not ready to be placed before a Bench for judicial hearing as they have not completed the required preliminaries.
• While 52,110 are admission matters, 18,522 are regular hearing cases.
• The number of Constitution Bench cases (both main and connected matters) totals 422.
• The Supreme Court has only recently resumed full physical hearings after two years of virtual systems.

Various steps taken by the Government to reduce Pendency:

• Adoption of “National Litigation Policy 2010” to transform government into an Efficient and Responsible litigant.
• All states formulated state litigation policies after National Litigation Policy 2010.
• Legal Information Management and Briefing System (LIMBS) was created in 2015 with the objective of tracking cases to which the government is a party.
• The Supreme Court had advised the centre that criminals sentenced to imprisonment for 6 months or a year should be allocated social service duties rather than be sent to further choke the already overflowing prisons.

Need of the hour:

• Revise national litigation policy.
• Promotion of alternative dispute resolution mechanisms to encourage mediation.
• Coordinated action between government and judiciary.
• Judicial capacity should be strengthened in the lower courts to reduce the burden on higher courts.
• Increase expenditure on the judiciary.
• Improve courts case management and court automation system.
• Create subject-specific benches.
• Robust internal dispute resolution mechanisms.
• Judges should write Shorter and more Pointed judgments.

Deadline for comments on Digital Data Protection Bill extended

19, Dec 2022

Why in News?

• The Ministry of Electronics and Information Technology has extended the last date for receiving public comments on the Digital Personal Data Protection Bill, 2022, till January 2, 2023.

About the new draft:

• The Bill seeks to establish a comprehensive legal framework governing digital personal data protection in India, recognizing both the –
• Rights of citizens (Digital Nagrik), societal rights to protect their personal data – a strict user-consent regime for data processing.
• Duties/obligations of the Data Fiduciary (consumer internet and social-media companies) to process and use collected data lawfully.

Background:

• The revamped draft was released after the government withdrew an earlier version – the Personal Data Protection Bill, 2019, that sparked outrage from Big Tech and civil society.
• The 2019 Bill was prepared by former Supreme Court judge B N Srikrishna, to guarantee the protection of persons’ personal data and to establish a Data Protection Authority.
• The government has decided to come up with a fresh bill that fits into the comprehensive suggestions made by the Joint Committee of Parliament (JCP) on the 2019 Bill.
• The JPC had submitted many recommendations (such as broad data protection in line with KS Puttaswamy judgement of 2017) to the 2019 Bill in 2021.

Key provisions of the Digital Personal Data Protection Bill, 2022:

• Data Protection Board: It will act as the adjudicating body to enforce the provisions of the Bill.
• Data Protection Officer and independent data auditor: They will be appointed by businesses of “significant” size (based on the volume of data they process), to evaluate compliance with provisions of the law.
• Easing cross-border data flows:

• The new Bill relaxes data localisation rules and permits data to flow to certain global destinations, based on their data security landscape.
• The previous Bill mandated enterprises to keep a copy of sensitive personal data within India and prohibited the transfer of critical personal data from the country, the most important concern expressed by IT firms.

• Right to correction/eraser: Users will have the right to have their personal data in the custody of enterprises corrected and erased.
• Duties of companies:

• Companies will not be obligated to keep user data that no longer serves a business purpose.
• Companies should not process personal data that could harm minors (less than 18 years of age).

• Promoting start-up ecosystem: The government may also exclude certain enterprises from Bill’s restrictions based on the volume of users and personal data handling.
• Exemptions: The Central government has been empowered to exempt its agencies from adhering to provisions of the Bill in the interest of –

• Sovereignty and integrity of India,
• Security of the state,
• Friendly relations with foreign states,
• Maintenance of public order or preventing incitement to any cognisable offence.

• Penalties: Focus is more on financial penalties than a criminal conviction.
• For companies: Between Rs 50 – 500 crore for data breaches and noncompliance.
• For users: A consumer who submits false documents for an online service or makes bogus grievance complaints may face a Rs 10,000 fine.

Significance:

• Based on global best practices: The government says that it has reviewed the Personal Data Protection laws of Singapore, Australia, the European Union and the US.
• Economic benefits: The bill draft also considers the country’s 1 trillion-dollar Digital Economy goals and the rapidly growing innovation and startup ecosystem.

Concerns:

• State agencies are granted broad-vague exemptions. This may not meet the ‘necessity’ and ‘proportionality’ tests outlined in the landmark right to privacy judgement (KS Puttaswamy case) of 2017.
• The independence of a proposed regulator – the Data Protection Board, has been reduced. Unlike the Data Protection Authority, which is envisioned as a statutory body under the 2019 Bill, the appointment of the chairperson and members of the Board is entirely up to the discretion of the central government.
• Relaxing data localisation requirements will make it difficult to detect and investigate non-compliance and breaches.

RS sees Adjournment as Congress Demands Debate on Chinese Incursion

17, Dec 2022

Why in News?

• Rajya Sabha faced an adjournment recenty as the Congress party insisted for a debate on the “Chinese incursion” in Arunachal Pradesh.

About: 

• A sitting of Parliament can be terminated by adjournment or adjournment sine die or prorogation or dissolution (in the case of the Lok Sabha).

• Adjournment: It suspends the work in a sitting for a specified time, which may be hours, days or weeks.
• Adjournment sine die: It means terminating a sitting of Parliament for an indefinite period.
• In other words, when the House is adjourned without naming a day for reassembly.
• The power of adjournment as well as adjournment sine die lies with the presiding officer (Speaker or Chairman) of the House.

What the Constitution says on Parliamentary Sessions?

• Article 85 requires that there should not be a gap of more than six months between two sessions of Parliament.
• Please note, the Constitution does not specify when or for how many days Parliament should meet.
• The maximum gap between two sessions of Parliament cannot be more than six months. That means the Parliament should meet at least twice a year.
• A ‘session’ of Parliament is the period between the first sitting of a House and its prorogation.

Who shall convene a session?

• In practice, the Cabinet Committee on Parliamentary Affairs, comprising senior ministers, decides on the dates for parliament’s sitting and it is then conveyed to the president.
• So, the executive, headed by the prime minister, which steers the business to be taken up by parliament will have the power to advise the president to summon the legislature.

What are the other different sessions in Parliament?

• Summoning of Parliament: Summoning is the process of calling all members of the Parliament to meet. The President summons each House of the Parliament from time to time. The gap between two sessions of the Parliament cannot exceed 6 months, which means the Parliament meets at least two times in one year.
• Prorogation: Prorogation is the end of a session. A prorogation puts an end to a session. The time between the Prorogation and reassembly is called Recess. Prorogation is the end of session and not the dissolution of the house (in case of Lok Sabha, as Rajya Sabha does not dissolve).
• Quorum: Quorum refers to the minimum number of the members required to be present for conducting a meeting of the house. The Constitution has fixed one-tenth strength as quorum for both Lok Sabha and Rajya Sabha. Thus, to conduct a sitting of Lok Sabha, there should be at least 55 members present while to conduct a sitting of Rajya Sabha, there should be at least 25 members present.

Why is a Parliamentary Session important?

• Law-making is dependent on when Parliament meets.
• Also, a thorough scrutiny of the government’s functioning and deliberation on national issues can only take place when the two Houses are in session.
• Predictability in the functioning of Parliament is key to a well-functioning democracy.

Manual Scavenging Deaths in India

16, Dec 2022

Why in News?

• Recently, the Ministry of Social Justice and Empowerment (MoSJ&E) told Lok Sabha that no person had died from Manual Scavenging in the last three years (2019 to 2022).

About the News:

• A total of 233 people had died “due to accidents while undertaking hazardous cleaning of sewer and septic tanks’ in this time period.

What does the act says?

• The act prohibits the employment of manual scavengers, manual cleaning of sewers and septic tanks without protective equipment, and the construction of insanitary latrines.
• It seeks to rehabilitate manual scavengers and provide for their alternative employment.
• Each local authority, cantonment board and railway authority is responsible for surveying insanitary latrines within its jurisdiction. They shall also construct a number of sanitary community latrines. 
• The District Magistrate and the local authority shall be the implementing authorities. Offences under the Act shall be cognizable and non-bailable and may be tried summarily.

What does the previous report says?

• According to the National Commission of Safai Karamcharis (NCSK), a total of 53,598 people, of which 29,923 were in Uttar Pradesh alone had been identified as engaged in manual scavenging after surveys in 2013 and 2018.
• Though most of the sewer death compensation had been paid but states like Gujarat, Maharashtra is yet to pay compensation.
• Since 1993, a total of 926 deaths related to the manual scavenging is reported in the country, out of which 172 families are yet to receive compensation.
• Tamil Nadu reported the highest number of deaths but has paid compensation in all but seven of the 234 cases.
• Gujarat has the highest number of cases where the compensation amount was not paid followed by Maharashtra.
• Currently, one-time cash assistance, capital subsidy and skill development training are provided to the identified manual scavengers.

National Commission of Safai Karamcharis

• The National Commission for Safai Karamcharis (NCSK) was constituted on 12th August 1994 as a statutory body by an Act of Parliament viz. ‘National Commission for Safai Karamcharis Act, 1993’.
• The act “The National Commission for Safai Karamcharis Act, 1993” lapsed in February 2004.
• The Commission is acting as a non-statutory body of the Ministry of Social Justice and Empowerment whose tenure is extended from time to time through Government Resolutions.

Why Manual Scavenging is still prevailing?

• Despite the most stringent penal provisions in the law against manual scavenging, it continues in parts of India largely due to governmental indifference and social prejudice.
• The continued presence of insanitary latrines, of which there are about 2.6 million that require cleaning by hand, according to Safai Karamchari Andolan.
• Many communities still regard the presence of a sanitary toilet inside the house as physical pollution.
• The entrenched belief in the caste system that assumes people belonging to a particular caste group will readily perform the stigmatized task of emptying latrines.
• The state governments are not keen to demolish and rebuild old facilities lacking sanitation, or conduct a full census of both the latrines and the people engaged in clearing such waste.

Way Forward:

• With Swachh Bharat Mission identified as a top priority area by the 15th Finance Commission and funds available for smart cities and urban development providing for a strong case to address the problem of manual scavenging.
• To address the social sanction behind manual scavenging, it is required first to acknowledge and then understand how and why manual scavenging continues to be embedded in the caste system.
• The state and society need to take active interest in the issue and look into all possible options to accurately assess and subsequently eradicate this practice.

Aadhar Voter-ID linking

16, Dec 2022

Why in News?

• Law Minister Kiren Rijiju has recently informed the Parliament that over 54 crore voters out of a total of nearly 95 crore have opted to link their Aadhaar details with the electoral rolls.

Need for linking of Aadhaar and Voter ID:

• This has been a demand of the Election Commission ever since 2015. 
• The EC had launched the National Electoral Law Purification and Authentication Programme to link the Aadhaar number with the voter ID number. 
• It said the linking will weed out multiple enrolments in the name of one person.
• At that time, the programme was stalled as the Supreme Court ordered that the use of Aadhaar will remain optional to avail of welfare schemes.
• Following this, the EC modified its proposal and said the linking will be optional.

Other provisions in the Bill:

• It will provide registration of new voters on four qualifying dates in place of the existing January 1 of every year. 
• At present, anyone turning 18 on or before January 1 will be eligible to be registered as a voter. Anyone born after January 1 will have to get enlisted only after a year.
• According to the bill, along with January 1, there will be three other qualifying dates – April 1, July 1 and October 1 – in every calendar year.
• The amendments also allow the elections to become gender neutral for service voters.
• The amendment will help replace the word ‘wife’ with the word ‘spouse’ making the statutes “gender neutral”.
• At present, an Armyman’s wife is entitled to be enrolled as a service voter, but a woman officer’s husband is not. With ‘wife’ being replaced by the term ‘spouse’, this will change.

What Are the Issues Raised Over Voter ID-Aadhaar Seeding?

• The proposal fails to specify the extent of data sharing between the ECI and UIDAI databases, the methods through which consent will be obtained, and whether consent to link the databases can be revoked.
• In the absence of a robust personal data protection law — a Bill in that regard is yet to clear Parliament — any move to allow sharing of data can prove to be problematic. There would be an intrusion to the privacy of the individual.

Private Member Bill seeks PM-Led Panel for selecting Chief Election Commissioner

13, Dec 2022

Why in News? 

• Recently, a private member’s Bill was introduced in Lok Sabha seeking to make Election Commission (EC) of India responsible for regulating and monitoring the internal operations of political parties in the country.

Background:

• The bill comes at a time when the Supreme Court is hearing petitions on the need for reforms in the appointment of Chief Election Commissioner (CEC) and the Election Commissioners (ECs).
• It was argued that the internal functioning and structures of a large number of political parties have become very “opaque and ossified” and there is a need to make their functioning transparent, accountable and rule based.

What are the Highlights of the Bill?

• On Appointment of CEC:

• It also seeks the members of the EC, including the Chief Election Commissioners, to be appointed by a panel consisting of the Prime Minister, Union Home Minister, Leader of Opposition or floor leader in Lok Sabha, Leader of Opposition or floor leader in Rajya Sabha, the Chief Justice of India and two senior most judges of the Supreme Court.

• Tenure for CEC:

• The Bill envisages a fixed tenure of six years for the CEC and EC and three years from the date of appointment for the Regional Commissioners.

• Removal Procedure for CEC:

• They should not be removed from office except in accordance with the procedure laid down for the removal of a SC Judge.
• Also, after retirement, they should not be eligible for any reappointment to any office under the Government of India, State Governments and the Constitution.

• Procedure in Case of Non-Compliance:

• If any registered political party fails to comply with the advisories, duration and instructions issued by the ECI with regard to their internal functions, the recognition of such political party as a State or National may be withdrawn including any other action as the Election Commission deems fit under section 16A of the Election Symbols (Reservation and Allotment) Order 1968.

About the Election Commission of India (ECI):

• It is a permanent constitutional body established in 1950 to conduct and regulate elections in the country.
• Part XV (Article 324-329) of the Indian Constitution: It deals with elections and establishes a commission for these matters.
• Article 324 of the Constitution provides that the power of superintendence, direction and control of elections to Parliament, state legislatures, the office of the President of India, and the office of Vice-President of India shall be vested in the election commission.
• Thus, the Election Commission is an all-India body in the sense that it is common to both the Central government and the state governments.
• Being a constitutional authority, Election Commission is amongst the few institutions which function with both autonomy and freedom, along with the country’s higher judiciary, UPSC and CAG.
• It is a multi-member body (1 CEC + 2 ECs) and the tenure of election commissioners is not prescribed by the Indian Constitution.
• The CEC of India can be removed from their office in a manner similar to the removal of a judge of the SC of India, while other ECs can be removed by the President of India on the recommendation of the CEC.
• A CEC has never been impeached in India.

What has the SC said about the Election Commissioners?

• The Constitution of India has vested vast powers on the shoulders of the CEC and the 2 Election Commissioners.
• Apart from competence, the character is crucial, so that those appointed as Election Commissioners will not allow themselves to be bulldozed.
• In the absence of a law to oversee such appointments, the silence of the Indian Constitution is being exploited by all.
• The government assures that the person nominated does not serve the full six years by picking someone close to 65, thus undermining independence.

What was the government’s reply?

• There is no vacuum in the Constitution on the issue.
• If the Constitution takes a position despite multiple ideas put forward by the original Constituent Assembly, that position cannot be contested.
• The separation of powers cannot be challenged, as it is the basic feature of the Constitution.
• This matter is for Parliament to debate and not the court.

What was the suggestion given by the SC?

• An appointment committee including the Chief Justice of India to appoint the Election Commissioners to ensure neutrality.

NESO holds ‘Black Day’ to Mark Three Years of CAA

12, Dec 2022

Why in News?

• The North East Students’ Organisation (NESO) observed the third anniversary of the passage of the contentious Citizenship (Amendment) Bill (CAB), which subsequently became the Citizenship (Amendment) Act or CAA” as a black day.

About the CAA and Foreigners Tribunal:

• The Parliament passed the Citizenship Amendment Act (CAA), 2019 that seeks to give citizenship to refugees from the Hindu, Christian, Buddhist, Sikh and Zoroastrian communities fleeing religious persecution from Pakistan, Bangladesh and Afghanistan, who came to India before 31st December, 2014. 
• Residential requirement for citizenship through naturalization from the above said countries is at least 5 years. Residential requirement for citizenship through naturalization for others is 11 years.
• The Act applies to all States and Union Territories of the country. 
• The beneficiaries of Citizenship Amendment Act can reside in any state of the country.
• In 1964, the govt. brought in the Foreigners (Tribunals) Order.

• Advocates not below the age of 35 years of age with at least 7 years of practice (or) Retired Judicial Officers from the Assam Judicial Service (or) Retired IAS of ACS Officers (not below the rank of Secretary/Addl. Secretary) having experience in quasi-judicial works.
• The Ministry of Home Affairs (MHA) has amended the Foreigners (Tribunals) Order, 1964, and has empowered district magistrates in all States and Union Territories to set up tribunals (quasi-judicial bodies) to decide whether a person staying illegally in India is a foreigner or not.
• Earlier, the powers to constitute tribunals were vested only with the Centre.
• Typically, the tribunals there have seen two kinds of cases: those concerning persons against whom a reference has been made by the border police and those whose names in the electoral roll has a “D”, or “doubtful”, marked against them.

Who are illegal immigrants?

• According to the Citizenship Act, 1955, an illegal immigrant is one who enters India without a valid passport or with forged documents, or a person who stays beyond the visa permit.

What is NRC?

• The National Register of Citizens (NRC) is meant to identify a bona fide citizen. 
• In other words, by the order of the Supreme Court of India, NRC is being currently updated in Assam to detect Bangladeshi nationals who might have entered the State illegally after the midnight of March 24, 1971. 
• The date was decided in the 1985 Assam Accord, which was signed between the then Prime Minister Rajiv Gandhi and the AASU. 
• The NRC was first published after the 1951 Census in the independent India when parts of Assam went to the East Pakistan, now Bangladesh.
• The first draft of the updated list was concluded by December 31, 2017. 

Arguments against the Act:

• The fundamental criticism of the Act has been that it specifically targets Muslims. Critics argue that it is violative of Article 14 of the Constitution (which guarantees the right to equality) and the principle of secularism.
• India has several other refugees that include Tamils from Sri Lanka and Hindu Rohingya from Myanmar. They are not covered under the Act.
• Despite exemption granted to some regions in the North-eastern states, the prospect of citizenship for massive numbers of illegal Bangladeshi migrants has triggered deep anxieties in the states.
• It will be difficult for the government to differentiate between illegal migrants and those persecuted.

Arguments in Favour:

• The government has clarified that Pakistan, Afghanistan and Bangladesh are Islamic republics where Muslims are in majority hence they cannot be treated as persecuted minorities. It has assured that the government will examine the application from any other community on a case to case basis.
• This Act is a big boon to all those people who have been the victims of Partition and the subsequent conversion of the three countries into theocratic Islamic republics.
• Citing partition between India and Pakistan on religious lines in 1947, the government has argued that millions of citizens of undivided India belonging to various faiths were staying in Pakistan and Bangladesh from 1947.
• The constitutions of Pakistan, Afghanistan and Bangladesh provide for a specific state religion. As a result, many persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities have faced persecution on grounds of religion in those countries.
• Many such persons have fled to India to seek shelter and continued to stay in India even if their travel documents have expired or they have incomplete or no documents.
• After Independence, not once but twice, India conceded that the minorities in its neighbourhood is its responsibility. First, immediately after Partition and again during the Indira-Mujib Pact in 1972 when India had agreed to absorb over 1.2 million refugees. It is a historical fact that on both occasions, it was only the Hindus, Sikhs, Buddhists and Christians who had come over to Indian side.

Uniform Civil Code

10, Dec 2022

Why in News?

• The introduction of a private member bill by a BJP member on implementation of Uniform Civil Code (UCC) across the country witnessed vociferous protest from the Opposition members in Rajya Sabha recently. 

What is a Uniform Civil Code?

• A Uniform Civil Code is one that would provide for one law for the entire country, applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption etc.
• Article 44, one of the directive principles of the Constitution lays down that the state shall endeavour to secure a Uniform Civil Code for the citizens throughout the territory of India.
• These, as defined in Article 37, are not justiciable (not enforceable by any court) but the principles laid down therein are fundamental in governance.

Role of State in this regard:

• Fundamental rights are enforceable in a court of law.
• While Article 44 uses the words “the state shall endeavour”, other Articles in the ‘Directive Principles’ chapter use words such as “in particular strive”; “shall, in particular, direct its policy”; “shall be the obligation of the state” etc.
• Article 43 mentions “state shall endeavour by suitable legislation” while the phrase “by suitable legislation” is absent in Article 44.
• All this implies that the duty of the state is greater in other directive principles than in Article 44.

What are more important — fundamental rights or directive principles?

• There is no doubt that fundamental rights are more important.
• The Supreme Court held in Minerva Mills (1980): Indian Constitution is founded on the bedrock of the balance between Parts III (Fundamental Rights) and IV (Directive Principles).
• To give absolute primacy to one over the other is to disturb the harmony of the Constitution.
• Article 31C inserted by the 42nd Amendment in 1976, however, lays down that if a law is made to implement any directive principle, it cannot be challenged on the ground of being violative of the FRs under Articles 14 and 19.

Does India not already have a uniform code in civil matters?

• Indian laws do follow a uniform code in most civil matters – Indian Contract Act, Civil Procedure Code, Sale of Goods Act, Transfer of Property Act, Partnership Act, Evidence Act etc.
• States, however, have made hundreds of amendments and therefore in certain matters, there is diversity even under these secular civil laws.
• Recently, several states refused to be governed by the uniform Motor Vehicles Act, 2019.

What about personal laws?

• If the framers of the Constitution had intended to have a Uniform Civil Code, they would have given exclusive jurisdiction to Parliament in respect of personal laws, by including this subject in the Union List.
• But “personal laws” are mentioned in the Concurrent List.
• Last year, the Law Commission concluded that a Uniform Civil Code is neither feasible nor desirable.

Is there one common personal law for any religious community governing all its members?

• All Hindus of the country are not governed by one law, nor are all Muslims or all Christians.
• Not only British legal traditions, even those of the Portuguese and the French remain operative in some parts.
• In Jammu and Kashmir until August 5, 2019, local Hindu law statutes differed from central enactments.
• The Shariat Act of 1937 was extended to J&K a few years ago but has now been repealed.

Various customary laws

• Muslims of Kashmir were governed by a customary law, which in many ways was at variance with Muslim Personal Law in the rest of the country and was, in fact, closer to Hindu law.
• Even on the registration of marriage among Muslims, laws differ from place to place. It was compulsory in J&K (1981 Act), and is optional in Bengal, Bihar (both under 1876 Act), Assam (1935 Act) and Odisha (1949 Act).
• In the Northeast, there are more than 200 tribes with their own varied customary laws.
• The Constitution itself protects local customs in Nagaland. Similar protections are enjoyed by Meghalaya and Mizoram.
• Even reformed Hindu law, in spite of codification, protects customary practices.

How does the idea of a Uniform Civil Code relate to the fundamental right to religion?

• Article 25 lays down an individual’s fundamental right to religion;
• Article 26(b) upholds the right of each religious denomination or any section thereof to “manage its own affairs in matters of religion”;
• Article 29 defines the right to conserve distinctive culture.
• An individual’s freedom of religion under Article 25 is subject to “public order, health, morality” and other provisions relating to FRs, but a group’s freedom under Article 26 has not been subjected to other fundamental rights.
• In the Constituent Assembly, there was division on the issue of putting UCC in the fundamental rights chapter. The matter was settled by a vote.
• By a 5:4 majority, the fundamental rights sub-committee headed by Sardar Patel held that the provision was outside the scope of FRs and therefore the UCC was made less important than freedom of religion.

Minority opinion in the Constituent Assembly

• Some members sought to immunize Muslim Personal Law from state regulation.
• Mohammed Ismail, who thrice tried unsuccessfully to get Muslim Personal Law exempted from Article 44, said a secular state should not interfere with the personal law of people.
• B Pocker Saheb said he had received representations against a common civil code from various organisations, including Hindu organisations.
• Hussain Imam questioned whether there could ever be uniformity of personal laws in a diverse country like India.
• B R Ambedkar said, “no government can use its provisions in a way that would force the Muslims to revolt”.
• Alladi Krishnaswami, who was in favour of a UCC, conceded that it would be unwise to enact UCC ignoring strong opposition from any community.
• Gender justice was never discussed in these debates.

How did the debate on a common code for Hindus play out?

• In June 1948, Rajendra Prasad, President of the Constituent Assembly, warned Nehru that to introduce “basic changes” in personal law was to impose “progressive ideas” of a “microscopic minority” on the Hindu community as a whole.
• Others opposed to reforms in Hindu law included Sardar Patel, Pattabhi Sitaramayya, M A Ayyangar, M M Malaviya and Kailash Nath Katju.
• When the debate on the Hindu Code Bill took place in December 1949, 23 of 28 speakers opposed it.
• On September 15, 1951, President Prasad threatened to use his powers of returning the Bill to Parliament or vetoing it. Ambedkar eventually had to resign.
• Nehru agreed to trifurcation of the Code into separate Acts and diluted several provisions.

Private Members Bill

10, Dec 2022

Why in News?

• The introduction of a private member bill by a BJP member on implementation of Uniform Civil Code (UCC) across the country witnessed vociferous protest from the Opposition members in Rajya Sabha recently.

Who is a Private Member?

• Any MP who is not a Minister is referred to as a private member.
• The purpose of private member’s bill is to draw the government’s attention to what individual MPs see as issues and gaps in the existing legal framework, which require legislative intervention.

Admissibility of a private member’s Bill:

• The admissibility is decided by the Chairman for Rajya Sabha and Speaker in the case of Lok Sabha.
• Its rejection by the House has no implication on the parliamentary confidence in the government or its resignation.
• The procedure is roughly the same for both Houses:

• The Member must give at least a month’s notice before the Bill can be listed for introduction.
• The House secretariat examines it for compliance with constitutional provisions and rules on legislation before listing.

Is there any exception?

• While government Bills can be introduced and discussed on any day, private member’s Bills can be introduced and discussed only on Fridays.

Has a private member’s bill ever become a law?

• As per PRS Legislative, no private member’s Bill has been passed by Parliament since 1970. To date, Parliament has passed 14 such Bills, six of them in 1956. In the 14th Lok Sabha, of the over 300 private member’s Bills introduced, roughly four per cent were discussed, the remaining 96 per cent lapsed without a single dialogue.

Winter Session of Parliament

08, Dec 2022

Why in News?

• Both Lok Sabha and Rajya Sabha conducted business as usual on the first day of the 2022 Winter Session, as opposed to a turbulent previous session. 

Background:

• Article 85 says the President can summon a session of Parliament “at such time and place as he thinks fit”. Thus, a session can be called on the recommendation of the government, which decides its date and duration.
• As per parliamentary records, there have only been three instances in the past of the winter session not being held — in 1975, 1979 and 1984.

What the Constitution says?

• Article 85 requires that there should not be a gap of more than six months between two sessions of Parliament.
• Therefore, with the monsoon session of Parliament held in September, the government has no constitutional compulsion to hold a winter session.
• Besides, the Constitution does not specify when or for how many days Parliament should meet.

Why is a Parliamentary Session important?

• Law-making is dependent on when Parliament meets.
• Also, a thorough scrutiny of the government’s functioning and deliberation on national issues can only take place when the two Houses are in session.
• Predictability in the functioning of Parliament is a key to a well-functioning democracy.

How does it help to have Parliament in session throughout the year?

• There are three main advantages.

• It enables detailed planning of legislative and policy work all year round.
• It negates the need for enacting Ordinances.
• It enables accountability of government functioning by Parliament throughout the year.

Supreme Court Quashes Kerala HC order Granting Anticipatory Bail

03, Dec 2022

Why in News?

• The Supreme Court has recently quashed the anticipatory bail granted by the Kerala High Court to former police and intelligence officers, including retired Kerala Director General of Police Siby Mathews, accused of being part of a conspiracy to frame ISRO scientist Nambi Narayanan in an espionage case in 1994.

What did the apex court say earlier in this regard?

• A Bench while considering an application for grant of anticipatory bail, had to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, etc.
• The apex court judgment set aside an anticipatory bail granted by the Madhya Pradesh High Court in a murder case. The High Court had granted the bail, despite refusal by the trial court earlier. A man was shot dead by two men while a third held him down over a rivalry.
• Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant and the facts of the case, while considering whether to grant anticipatory bail.
• The court reiterated the settled law that an appellate or superior court could set aside anticipatory bail granted by a lower court on the ground that the latter “did not consider material facts or crucial circumstances”.

What is Anticipatory Bail?

• Anticipatory bail is a direction to release a person on bail, issued even before the person is arrested.
• Under Indian criminal law, there is a provision for anticipatory bail under Section 438 of the Criminal Procedure Code. 
• Law Commission of India in its 41st report recommended incorporating this provision in procedure code.
• This provision allows a person to seek bail in anticipation of an arrest on accusation of having committed a non-bailable offence.
• It is only issued by the Sessions court and High Court.

Why such a law is needed?

• Anticipatory bail helps to prevent influential powers from implicating their rivals in false cases. 
• Section 438 (anticipatory bail) of the Code of Criminal Procedure protects people from the ignominy of detention in jail for days on end and disgrace to their reputation. 
• Anticipatory bail is more needed now because there is rising trend of political rivalry and is showing signs of steady increase.

SC previous Verdicts regarding Anticipatory Bail:

• The questions referred to the Constitution Bench was, whether the protection granted to a person under Section 438 should be limited to a fixed period till the accused surrenders in court.
• Whether the life of anticipatory bail should end when the accused is summoned by the court.
• SC said that the life or duration of an anticipatory bail order does not normally end at the time and stage when the accused is summoned by the court, or when charges are framed, but can continue till the end of the trial.

What are the contradictions?

• Denial of bail amounts to deprivation of the Article 21 of the Indian Constitution (fundamental right to personal liberty in a free and democratic country).
• The specter of arbitrary and heavy-handed arrests: too often, to harass and humiliate citizens, and oftentimes, at the interest of powerful individuals (and not to further any meaningful investigation into offences) led to the enactment of Section 438.
• The protection against arrest should be in favour of the accused. Restricting the protection would prove unfavorable for the accused.

Is there any a restriction or condition for granting bail?

• It is open for a court to impose appropriate conditions for grant of anticipatory bail if the specific facts or the feature of the offence involved demands it. 
• Courts have to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation or tampering of evidence, including intimidating witnesses and fleeing justice. 
• But restrictions/conditions can be imposed only on a case-to-case basis.

What is the concern?

• The court held that a plea for anticipatory bail can be filed even before the registration of FIR as long as there is reasonable basis for apprehension of arrest and clarity of facts.
• However, the grant of protection should not be “blanket” but confined to specific offence or incident for which relief from arrest is sought.

Constitutional validity of J&K Reorganisation Act

02, Dec 2022

Why in News?

• The Supreme Court questioned petitioners on why they did not challenge the constitutionality of a specific provision in the J&K Reorganisation Act, 2019. 

About the J&K Delimitation:

• The commission came into being by virtue of an Act of the Parliament, under the provisions of Part V of the Jammu and Kashmir Reorganisation Act, 2019. It is redrawing boundaries of seven additional seats for the 83-member Assembly.
• “In exercise of powers conferred by Section 3 of the Delimitation Act 2002 (33 of 2002), the Central government hereby makes the further amendment of two months in the notification of Government of India in the Ministry of Law and Justice (Legislative department no So-1015(e) dated 6th March 2020. 
• In the notification in paragraph two for the words ‘two years’ the words ‘two years and two months’ shall be substituted,” read the gazette notification.
• Originally set up in March 2020, the commission was given a one-year extension as its work got delayed after the National Conference (NC) had refused to participate in the deliberations.
• The NC decided to take part in the commission proceedings only after Prime Minister Narendra Modi held an all-party meeting in June 2021.

What is Delimitation?

• Delimitation literally means the process of fixing limits or boundaries of territorial constituencies in a state that has a legislative body.
• Bifurcation of J&K into two UTs has led to redrawing of Assembly constituency boundaries. While, the UT of Ladakh will not have its own legislature, J&K will. This would be similar to Puducherry or Delhi.
• Such delimitation was also necessitated in 2014 when Andhra Pradesh and Telangana were bifurcated.
• According to the Delimitation Commission Act, 2002, the Delimitation Commission appointed by the Centre has to have three members: a serving or retired judge of the Supreme Court as the chairperson, and the Chief Election Commissioner or Election Commissioner nominated by the CEC and the State Election Commissioner as ex-officio members.

How Delimitation process is done?

• Under Article 82, the Parliament enacts a Delimitation Act after every Census.
• Under Article 170, States also get divided into territorial constituencies as per Delimitation Act after every Census.
• Once the Act is in force, the Union government sets up a Delimitation Commission.
• The new state assembly shall have 114 seats (currently 107), out of which only 90 will be open for elections, and the remaining 24 will be shadow seats reserved for the areas of the erstwhile state that have been occupied by Pakistan (PoJK).
• For the delimitation exercise, the population figures of 2011 census shall be taken as the basis.
• The J&K Representation of the People Act 1957 has now been invalidated and, instead, delimitation will be done as per the Representation of the People Act, 1950 (as amended from time to time) and provisions of Sections 59, 60 of Act 34 of 2019.

Who carry out the exercise?

• Delimitation is undertaken by a highly powerful commission. They are formally known as Delimitation Commission or Boundary Commission.
• These bodies are so powerful that its orders have the force of law and they cannot be challenged before any court.
• Such commissions have been constituted at least four times in India — in 1952 under the Delimitation Commission Act, 1952; in 1963 under Delimitation Commission Act, 1962; in 1973 under Delimitation Act, 1972 and last in 2002 under Delimitation Act, 2002.
• The commissions’ orders are enforced as per the date specified by the President of India. Copies of these orders are laid before the Lok Sabha or the concerned Legislative Assembly. No modifications are permitted.

Why delimitation is needed?

• To provide equal representation to equal segments of a population.
• Fair division of geographical areas so that one political party doesn’t have an advantage over others in an election.
• To follow the principle of “One Vote One Value.”

What are the problems with Delimitation?

• States that take little interest in population control could end up with a greater number of seats in Parliament. The southern states that promoted family planning faced the possibility of having their seats reduced.
• In 2008, Delimitation was done based on the 2001 census, but the total number of seats in the Assemblies and Parliament decided as per the 1971 Census that was not changed.
• The constitution has also capped the number of Lok Shaba & Rajya Sabha seats to a maximum of 550 & 250 respectively and increasing populations are being represented by a single representative.

Bilkis Bano Case

01, Dec 2022

Why in News?

• Chief Justice of India D. Y. Chandrachud recently agreed to look into the listing of two petitions filed by Bilkis Bano, who was gangraped in the Gujarat riots, against the Gujarat Government’s decision to prematurely release 11 convicts serving life sentence in her case. 

What is Remission?

• The suspension is the stay or postponement of the execution of the sentence. 
• In remission, the duration of the sentence is reduced, without changing the nature of the sentence.
• In remission, the nature of the sentence is remained untouched, while the duration is reduced i.e. the rest of the sentence need not be undergone.
• The effect of the remission is that the prisoner is given a certain date on which he shall be released and the eyes of the law he would be a free man.
• However, in case of breach of any of the condition of remission, it will be cancelled and the offender has to serve the entire term for which he was originally sentenced.

Constitutional provisions for Remission:

• ‘Prisons’ is a State subject under the State List of the Seventh Schedule of the Constitution.
• Indian laws provide pardoning power sourcing from statuary and constitutional authorities.
• By virtue of Article 72 and 161 of the Constitution of India, the President and Governor can grant pardon, to suspend, remit or commute a sentences passed by the courts.

What are the new norms?

• The prisoners who would qualify for premature release under the scheme are:

• Women and transgender convicts of ages 50 and above
• Male convicts of 60 and above who have completed 50% of their total sentence period without counting the period of general remission earned
• Physically challenged or disabled convicts with 70% disability and more who have completed 50% of their total sentence period
• Terminally ill convicts
• Convicted prisoners who have completed two-thirds (66%) of their total sentence
• Poor or indigent prisoners who have completed their sentence but are still in jail due to non-payment of fine imposed on them by waiving off the fine
• Persons who committed an offence at a young age (18-21) and with no other criminal involvement or case against them and who have completed 50% of their sentence period would also be eligible for the remission

Exceptions to these norms:

• Following persons would not be eligible for the grant of special remission:

• Persons convicted with death sentence or where death sentence has been commuted to life imprisonment or persons convicted for an offence for which punishment of death has been specified as one of the punishments
• Persons convicted with sentence of life imprisonment
• Convicts involved in terrorist activities or persons convicted under the Terrorist and Disruptive (Prevention) Act, 1985, Prevention of Terrorist Act, 2002, Unlawful Activities (Prevention) Act, 1967, Explosives Act, 1908, National Security Act, 1982, Official Secrets Act, 1923, and Anti-Hijacking Act, 2016

Transfers of High Court Judges

29, Nov 2022

Why in News?

• The frequent criticism that the Collegium system of judicial appointments is opaque, appears to be more valid in the case of transfers of judges from one High Court to another.

Background:

• A fresh round of transfers among the many that have occurred in recent years has brought the contentious topic to the forefront once more.
• Lawyers recently raised the matter of the transfer of a Gujarat HC judge (Justice Kariel) to the Chief Justice of India (CJI), citing rumours that the Gujarat HC Chief Justice was uninformed of the impending transfer.

The Indian Constitution on the transfer of judges:

• Article 222: It provides for the transfer of HC judges, including the Chief Justice. The President, after consultation with the CJI, may transfer a judge from one HC to any other HC and a compensatory allowance is provided to the transferred judge.
• Interpretation: The executive could transfer a judge, but only after consulting the CJI. 

The Supreme Court’s view on the issue:

• The SC (in 1977) rejected the idea that HC judges can be transferred only with their consent, as the transfer powers can be exercised only in the public interest. Also, the President is under an obligation to consult the CJI.
• In S.P. Gupta vs. President of India (1981), also known as the Judges Transfer Case/the First Judges Case, the SC ruled that the consultation with the CJI did not mean ‘concurrence,’ thus giving primacy to the executive in the matter of appointments and transfers.
• However, this position was overruled in the ‘Second Judges Case’ (1993). The opinion of the CJI, formed after taking into account the views of senior-most judges, was to have primacy.
• Since then, appointments are being made by the Collegium.

The current procedure for transfers:

• The proposal for transferring a HC judge (including a Chief Justice) should be initiated by the CJI and the consent of the judge is not required. All transfers are to be made in the public interest.
• For transferring a judge other than the Chief Justice, the CJI should take the views of –

• The Chief Justice of the court concerned, as well as the Chief Justice of the court to which the transfer is taking place.
• One or more SC judges

• The views, expressed in writing, should be considered by a full Collegium of five – the CJI + 4 senior-most judges of the SC.
• The recommendation is sent to the Union Law Minister → the Prime Minister → the President.

Need for the transfer of judges:

• To exchange talent across the country.
• To prevent the emergence of local grouping in the judiciary. There have been proposals that one-third of the composition of every HC should have judges from other States.

What makes transfers controversial?

• The public feel that there is a punitive element behind the decision.
• As a matter of practice, the SC and the government do not disclose the reason for a transfer.
• The power of transfer has always been seen as a possible threat to judicial independence.

Attempts to reform the Appointment System:

• The attempt made to replace it by a ‘National Judicial Appointments Commission’ was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.

Related Constitutional Provisions:

• Article 124(2) of the Indian Constitution provides that the Judges of the Supreme Court are appointed by the President after consultation with such a number of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose.
• Article 217 of the Indian Constitution states that the Judge of a High Court shall be appointed by the President consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.

Way Forward:

• Filling up of vacancies is a continuous and collaborative process involving the executive and the judiciary, and there cannot be a time frame for it. However, it is time to think of a permanent, independent body to institutionalize the process with adequate safeguards to preserve the judiciary’s independence guaranteeing judicial primacy but not judicial exclusivity.
• It should ensure independence, reflect diversity, demonstrate professional competence and integrity. Instead of selecting the number of judges required against a certain number of vacancies, the collegium must provide a panel of possible names to the President to appoint in order of preference and other valid criteria.

Uniform Civil Code

25, Nov 2022

Why in News?

• Union Home Minister Amit Shah recently said that the government is committed to bring the Uniform Civil Code (UCC) after all democratic debates and discussions are concluded. 

What is a Uniform Civil Code?

• A Uniform Civil Code is one that would provide for one law for the entire country, applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption etc.
• Article 44, one of the directive principles of the Constitution lays down that the state shall endeavour to secure a Uniform Civil Code for the citizens throughout the territory of India.
• These, as defined in Article 37, are not justiciable (not enforceable by any court) but the principles laid down therein are fundamental in governance.

Role of State in this regard:

• Fundamental rights are enforceable in a court of law.
• While Article 44 uses the words “the state shall endeavour”, other Articles in the ‘Directive Principles’ chapter use words such as “in particular strive”; “shall, in particular, direct its policy”; “shall be the obligation of the state” etc.
• Article 43 mentions “state shall endeavour by suitable legislation” while the phrase “by suitable legislation” is absent in Article 44.
• All this implies that the duty of the state is greater in other directive principles than in Article 44.

What are more important — fundamental rights or directive principles?

• There is no doubt that fundamental rights are more important.
• The Supreme Court held in Minerva Mills (1980): Indian Constitution is founded on the bedrock of the balance between Parts III (Fundamental Rights) and IV (Directive Principles).
• To give absolute primacy to one over the other is to disturb the harmony of the Constitution.
• Article 31C inserted by the 42nd Amendment in 1976, however, lays down that if a law is made to implement any directive principle, it cannot be challenged on the ground of being violative of the FRs under Articles 14 and 19.

Does India not already have a uniform code in civil matters?

• Indian laws do follow a uniform code in most civil matters – Indian Contract Act, Civil Procedure Code, Sale of Goods Act, Transfer of Property Act, Partnership Act, Evidence Act etc.
• States, however, have made hundreds of amendments and therefore in certain matters, there is diversity even under these secular civil laws.
• Recently, several states refused to be governed by the uniform Motor Vehicles Act, 2019.

What about personal laws?

• If the framers of the Constitution had intended to have a Uniform Civil Code, they would have given exclusive jurisdiction to Parliament in respect of personal laws, by including this subject in the Union List.
• But “personal laws” are mentioned in the Concurrent List.
• Last year, the Law Commission concluded that a Uniform Civil Code is neither feasible nor desirable.

Is there one common personal law for any religious community governing all its members?

• All Hindus of the country are not governed by one law, nor are all Muslims or all Christians.
• Not only British legal traditions, even those of the Portuguese and the French remain operative in some parts.
• In Jammu and Kashmir until August 5, 2019, local Hindu law statutes differed from central enactments.
• The Shariat Act of 1937 was extended to J&K a few years ago but has now been repealed.

Various customary laws

• Muslims of Kashmir were governed by a customary law, which in many ways was at variance with Muslim Personal Law in the rest of the country and was, in fact, closer to Hindu law.
• Even on the registration of marriage among Muslims, laws differ from place to place. It was compulsory in J&K (1981 Act), and is optional in Bengal, Bihar (both under 1876 Act), Assam (1935 Act) and Odisha (1949 Act).
• In the Northeast, there are more than 200 tribes with their own varied customary laws.
• The Constitution itself protects local customs in Nagaland. Similar protections are enjoyed by Meghalaya and Mizoram.
• Even reformed Hindu law, in spite of codification, protects customary practices.

How does the idea of a Uniform Civil Code relate to the fundamental right to religion?

• Article 25 lays down an individual’s fundamental right to religion;
• Article 26(b) upholds the right of each religious denomination or any section thereof to “manage its own affairs in matters of religion”;
• Article 29 defines the right to conserve distinctive culture.
• An individual’s freedom of religion under Article 25 is subject to “public order, health, morality” and other provisions relating to FRs, but a group’s freedom under Article 26 has not been subjected to other fundamental rights.
• In the Constituent Assembly, there was division on the issue of putting UCC in the fundamental rights chapter. The matter was settled by a vote.
• By a 5:4 majority, the fundamental rights sub-committee headed by Sardar Patel held that the provision was outside the scope of FRs and therefore the UCC was made less important than freedom of religion.

Minority opinion in the Constituent Assembly

• Some members sought to immunize Muslim Personal Law from state regulation.
• Mohammed Ismail, who thrice tried unsuccessfully to get Muslim Personal Law exempted from Article 44, said a secular state should not interfere with the personal law of people.
• B Pocker Saheb said he had received representations against a common civil code from various organisations, including Hindu organisations.
• Hussain Imam questioned whether there could ever be uniformity of personal laws in a diverse country like India.
• B R Ambedkar said, “no government can use its provisions in a way that would force the Muslims to revolt”.
• Alladi Krishnaswami, who was in favour of a UCC, conceded that it would be unwise to enact UCC ignoring strong opposition from any community.
• Gender justice was never discussed in these debates.

How did the debate on a common code for Hindus play out?

• In June 1948, Rajendra Prasad, President of the Constituent Assembly, warned Nehru that to introduce “basic changes” in personal law was to impose “progressive ideas” of a “microscopic minority” on the Hindu community as a whole.
• Others opposed to reforms in Hindu law included Sardar Patel, Pattabhi Sitaramayya, M A Ayyangar, M M Malaviya and Kailash Nath Katju.
• When the debate on the Hindu Code Bill took place in December 1949, 23 of 28 speakers opposed it. On September 15, 1951, President Prasad threatened to use his powers of returning the Bill to Parliament or vetoing it. Ambedkar eventually had to resign.
• Nehru agreed to trifurcation of the Code into separate Acts and diluted several provisions.

Meghalaya Extends Mobile Internet Ban

25, Nov 2022

Why in News?

• The Meghalaya government has extended the suspension of mobile internet services in seven districts by another 48 hours following stray incidents of arson and attack on Assam-registered vehicles stranded in various parts of the State.

What is an Internet shutdown?

• Internet shutdowns are measures taken by a government or on behalf of a government, to intentionally disrupt access to and the use of information and communications systems online.

About Anuradha Bhasin case verdict:

• The Court said that all restrictive orders under Section 144 of CrPC and suspension of internet services in Jammu and Kashmir have to be reviewed.
• The verdict has laid down a framework of how the Internet can be suspended, and what rights and legal recourses a citizen has when it is suspended.
• Right to internet is a fundamental right (subject to reasonable restrictions) included in the freedom of expression under Article 19 of the Indian Constitution.
• Restrictions on fundamental rights could not be in exercise of arbitrary powers. These freedoms could only be restricted as a last resort if “relevant factors” have been considered and no other options are there.
• Any order passed to restrict or suspend judicial scrutiny will be subject to judicial scrutiny.
• Suspension of internet services indefinitely is also a violation of telecom rules.

SC on section 144:

• Sec 144 cannot be used to suppress the legitimate expression of opinion or grievance, or the exercise of democratic rights.
• When Sec 144 is imposed for reasons of apprehended danger, that danger must be an “emergency”. The imposition of Sec 144 must strike a balance between the rights of the individual and the concerns of the state.
• Powers under Sec 144 should be exercised in a reasonable and bona fide manner, and the order must state material facts in order to enable judicial review.

What procedure does the government follow to suspend Internet services?

• The Information Technology Act, 2000, the Criminal Procedure Code (CrPC), 1973 and the Telegraph Act, 1885 are the three laws that deal with suspension of Internet services.
• But before 2017, Internet suspension orders were issued under section 14 of the CrPC.
• In 2017, the central government notified the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules under the Telegraph Act to govern suspension of Internet. These Rules derive their powers from Section 5(2) of the Indian Telegraph Act, which talks about interception of messages in the “interests of the sovereignty and integrity of India”.
• Despite the 2017 rules, the government has often used the broad powers under Section 144.
• India also tops the list of Internet shutdowns globally. According to Software Freedom Law Centre’s tracker, there have been 381 shutdowns since 2012, 106 of which were in 2019.

What did the judgment say on the rules to be followed?

• The court recognised that the 2017 Rules are the only procedure to be followed to suspend Internet services in the occurrence of a “public emergency” or for it to be “in the interest of public safety”.
• The verdict reiterated that the competent authority to issue an order under the Suspension Rules, in ordinary circumstances, would be the Secretary to the Ministry of Home Affairs.
• The Rules also say that in case the confirmation does not come from a competent authority, the orders shall cease to exist within a period of 24 hours.
• Clear reasons for such orders need to be given in writing, and need to be forwarded to a Review Committee by the next working day.
• The confirmation must not be a mere formality, but must indicate independent application of mind by the competent authority to the order passed by the authorised officer, who must also take into account changed circumstances if any, etc.
• According to the Temporary Suspension of Telecom Services [Public Emergency or Public Service] Rules, 2017 only the Home Secretary of the country and a secretary of a state’s home department can pass such an order. 
• These also state that any such order should be taken up by a review committee within five days.

SC calls out centre over short tenures of CEC

24, Nov 2022

• According to the Supreme Court, the government does not give much importance to Election Commissioners’ independence, as evidenced by the reduction in tenures of Chief Election Commissioners (CECs) from over 8 years (in the 1950s) to just a few 100 days (after 2004).

Background:

• Presently, Election Commissioners are appointed by the President of India, on the aid and advice of the Council of Ministers
• The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, prescribes that the term of a CEC and Election Commissioner is 6 years or till the age of 65 years, whichever is earlier.
• Article 324 of the Indian Constitution, dealing with the appointment of Election Commissioners, called for the enactment of legislation to oversee such appointments, but the government had yet to do so.
• The SC was hearing petitions seeking reforms in the system of appointing Election Commissioners.

About the Election Commission of India (ECI):

• It is a permanent constitutional body established in 1950 to conduct and regulate elections in the country.
• Part XV (Article 324-329) of the Indian Constitution: It deals with elections and establishes a commission for these matters.
• Article 324 of the Constitution provides that the power of superintendence, direction and control of elections to Parliament, state legislatures, the office of the President of India, and the office of Vice-President of India shall be vested in the election commission.
• Thus, the Election Commission is an all-India body in the sense that it is common to both the Central government and the state governments.
• Being a constitutional authority, Election Commission is amongst the few institutions which function with both autonomy and freedom, along with the country’s higher judiciary, UPSC and CAG.
• It is a multi-member body (1 CEC + 2 ECs) and the tenure of election commissioners is not prescribed by the Indian Constitution.
• The CEC of India can be removed from their office in a manner similar to the removal of a judge of the SC of India, while other ECs can be removed by the President of India on the recommendation of the CEC.
• A CEC has never been impeached in India.

What has the SC said about the Election Commissioners?

• The Constitution of India has vested vast powers on the shoulders of the CEC and the 2 Election Commissioners.
• Apart from competence, the character is crucial, so that those appointed as Election Commissioners will not allow themselves to be bulldozed.
• In the absence of a law to oversee such appointments, the silence of the Indian Constitution is being exploited by all.
• The government assures that the person nominated does not serve the full six years by picking someone close to 65, thus undermining independence.

What was the government’s reply?

• There is no vacuum in the Constitution on the issue.
• If the Constitution takes a position despite multiple ideas put forward by the original Constituent Assembly, that position cannot be contested.
• The separation of powers cannot be challenged, as it is the basic feature of the Constitution.
• This matter is for Parliament to debate and not the court.

What was the suggestion given by the SC?

• An appointment committee including the Chief Justice of India to appoint the Election Commissioners to ensure neutrality.

Freedom of Speech of People holding Public Offices

21, Nov 2022

Why in News?

• Recently, the Supreme Court stated that people holding public office should exercise self-restriction and not blabber things which are disparaging or insulting to other countrymen.

What are the Highlights of Judgement?

• A five-judge Constitution bench reserved its verdict on whether restrictions can be imposed on a public functionary’s right to freedom of speech and expression.
• The court observed there is always a civil remedy available to citizens on account of a public functionary making a speech that affects someone.
• The court noted that irrespective of what Article 19(2) may say, there is a constitutional culture in the country where there is an inherent limitation or a restriction on what people holding responsible positions say.
• Article 19 (2) relates to the powers of the State to make laws imposing reasonable restrictions on the exercise of the right to freedom of speech and expression in the interest of sovereignty and integrity of the country, public order, decency, morality etc.

What was the Earlier Judgement?

• In 2017, a three-judge bench had referred to the Constitution bench various issues for adjudication, including whether a public functionary or a minister can claim freedom of speech while expressing views on sensitive matters.
• The need for an authoritative pronouncement on the issue arose as there were arguments that a minister cannot take a personal view and his statements have to be in sync with government policy.
• The court earlier said that it will consider whether the Fundamental Right of Speech and Expression would be governed under reasonable restriction of decency or morality or other preferred fundamental rights would also have an impact on it.

What is the Code of Conduct?

• A code of conduct is a set of rules, standards of behaviour or practices for an individual or organization that guide the decisions, procedures and systems of an organization in a way that contributes to the welfare of its stakeholders.
• For example, the Election Commission of India’s Model Code of Conduct is a set of guidelines issued by the Election Commission of India for conduct of political parties and candidates during elections mainly with respect to speeches, polling day, polling booths, portfolios, election manifestos, processions and general conduct.
• Similarly, a set of codes of rules are prescribed for civil servants with regard to their conduct in performing their duties.

What are the Seven Principles of the Code of Conduct for Civil Servants?

• Selflessness: Holders of public office should take decisions solely in terms of the public interest. They should not do so in order to gain financial or other material benefits for themselves, their family, or their friends.
• Integrity: Holders of public office should not place themselves under any financial or other obligation to outside individuals or organisations that might influence them in the performance of their official duties.
• Objectivity: In carrying out public business, including making public appointments, awarding contracts, or recommending individuals for rewards and benefits, holders of public office should make choices on merit.
• Accountability: Holders of public office are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office.
• Openness: Holders of public office should be as open as possible about all the decisions and actions that they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands.
• Honesty: Holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest.
• Leadership: Holders of public office should promote and support these principles by leadership and example.

Way Forward:

• Some of the conclusions have general application across the entire public service which can be added on over and above the seven principles of public service.
• Codes of Conduct: All public bodies should draw up Codes of Conduct incorporating these principles.
• Independent Scrutiny: Internal systems for maintaining standards should be supported by independent scrutiny.
• Education: More needs to be done to promote and reinforce standards of conduct in public bodies, in particular through guidance and training, including induction training.

National Judicial Appointments Commission (NJAC)

18, Nov 2022

Why in News?

• Chief Justice of India D.Y. Chandrachud has recently agreed to list in due course a writ petition to reconsider the collegium system of judicial appointments to the Supreme Court and the High Courts.

Background:

• On 16 October 2015, in a 4-1 majority verdict, the Supreme Court held that both the Constitution (Ninety-ninth Amendment) Act, 2014, and the National Judicial Appointments Commission (NJAC) Act, 2014, were unconstitutional as it would undermine the independence of the judiciary.
• The majority said the two laws affect the independence of the judiciary, and judicial appointments, among other things, should be protected from executive control.

About NJAC and the Act:

• NJAC is a body responsible for the appointment and transfer of judges to the higher judiciary in India. NJAC Bill sought to replace the collegium system of appointing the judges of Supreme Court and High Courts with judicial appointments commission wherein the executive will have a say in appointing the judges.
• A new article, Article 124A, (which provides for the composition of the NJAC) was to be inserted into the Constitution.
• The Bill provided for the procedure to be followed by the NJAC for recommending persons for appointment as Chief Justice of India and other Judges of the Supreme Court (SC), and Chief Justice and other Judges of High Courts (HC).
• According to the bill the commission will consist of the following members:
• Chief Justice of India (Chairperson, ex officio)
• Two other senior judges of the Supreme Court next to the Chief Justice of India – ex officio
• The Union Minister of Law and Justice, ex-officio
• Two eminent persons (to be nominated by a committee consisting of the Chief Justice of India, Prime Minister of India and the Leader of opposition in the Lok Sabha or where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in Lok Sabha), provided that of the two eminent persons, one person would be from the Scheduled Castes or Scheduled Tribes or OBC or minority communities or a woman.
• The eminent persons shall be nominated for a period of three years and shall not be eligible for re-nomination.

How proponents of NJAC defend it?

• According to them the enactment of the 99th Amendment was intended at redressing the imbalance created by the verdict of court in second judges case.
• For them, NJAC would have been a more broad-minded forum, providing a genuine chance to participate and influence the selection of our higher judiciary — not merely to the Supreme Court and the executive, but also to laypersons (eminent persons) outside the constitutional framework.

Why the court struck down NJAC act?

• The court has held that the appointment of judges, coupled with primacy of judiciary and the CJI, was part of the basic structure of the Constitution and that the parliament, through NJAC act, violated this basic structure.

Ninth Schedule

16, Nov 2022

Why in News?

• The Jharkhand Assembly has cleared two Bills, but these changes will come into force only after the Centre carries out amendments to include these in the Ninth Schedule of the Constitution.

What are these Bills?

• Jharkhand Reservation of Vacancies in Posts and Services (Amendment) Bill, 2022:

• It raises reservations to 77%.
• Within the reserved category, the Scheduled Castes will get a quota of 12 %, up from 10%; 27% for OBCs, up from 14%; 28% for Scheduled Tribes, a 2 % increase; and 10% for Economically Weaker Sections (EWS).

Jharkhand Local Persons Bill, 2022:

• It aims at granting local residents “certain rights, benefits, and preferential treatment” over their land; in their stake in local development of rivers, lakes, fisheries; in local traditional and cultural and commercial enterprises; in rights over agricultural indebtedness or availing agricultural loans; in maintenance and protection of land records; for their social security; in employment in private and public sector; and, for trade and commerce in the state.

Why is there need to Include in Ninth Schedule?

• The 77 % reservation breaches the 50 % ceiling set by the Supreme Court in the 1992 Indra Sawhney v Union of India verdict.
• However, placing a legislation in the Ninth Schedule shields it from judicial scrutiny.
• Previously, the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and of Appointments or Posts in the Services under the State) Act, 1993, reserved 69 % of the seats in colleges and jobs in the state government.

What is the Ninth Schedule?

• The Schedule contains a list of central and state laws which cannot be challenged in courts and was added by the Constitution (First Amendment) Act, 1951.
• The first Amendment added 13 laws to the Schedule. Subsequent amendments in various years have taken the number of protected laws to 284 currently.
• It was created by the new Article 31B, which along with Article 31A was brought in by the government to protect laws related to agrarian reform and for abolishing the Zamindari system.
• While Article 31A extends protection to ‘classes’ of laws, Article 31B shields specific laws or enactments.
• While most of the laws protected under the Schedule concern agriculture/land issues, the list includes other subjects.
• Article 31B also has a retrospective operation which means that if laws are inserted in the Ninth Schedule after they are declared unconstitutional, they are considered to have been in the Schedule since their commencement, and thus valid.
• Although Article 31B excludes judicial review, the apex court has said in the past that even laws under the Ninth Schedule would be open to scrutiny if they violated Fundamental Rights or the basic structure of the Constitution.

Are Laws in the Ninth Schedule completely Exempt from Judicial Scrutiny?

• Keshavananda Bharati v. State of Kerala (1973): The court upheld the judgement in Golaknath and introduced a new concept of “Basic structure of the Indian Constitution” and stated that, “all provisions of the constitution can be amended but those amendments which will abrogate or take away the essence or basic structure of constitution which included Fundamental Rights are fit to be struck down by the court”.
• Waman Rao v. Union of India (1981): In this important judgement, the SC ruled that, “those amendments which were made in the constitution before 24th April 1973 (date on which judgement in Keshavananda Bharati was delivered) are valid and constitutional but those which were made after the stated date are open to being challenged on the ground of constitutionality.
• I R Coelho v. State of Tamil Nadu (2007): It was held that every law must be tested under Article 14, 19 and 21 if it came into force after 24th April 1973.
• In addition, the court upheld its previous rulings and declared that any act can be challenged and is open to scrutiny by the judiciary if it is not in consonance with the basic structure of the constitution.
• In addition, it was held that if the constitutional validity of any law under the ninth schedule has been upheld before, in future it cannot be challenged again.

Way Forward:

• Although reservation is necessary, it should also be open to judicial scrutiny in order to ensure any abrupt or irrational policy initiative by the Executive or the Legislature.
• Any loophole or shortcomings in reservation policy must be addressed by involving various stakeholders. The need of the hour is not to go to extremes of either scrapping or shielding reservation policy, rather a rational framework on this contentious policy must be developed.

Collegium system of appointments of Judges to the Higher Judiciary

11, Nov 2022

Why in News?

• Recently, the Union Minister of Law and Justice citicised the collegium system under which appointments of judges to the High Courts (HC) and the Supreme Court (SC) are made, as opaque. 

What is Collegium System?

• It is the system of appointment and transfer of judges that has evolved through judgments of the SC, and not by an Act of Parliament or by a provision of the Constitution.
• The SC collegium is headed by the CJI and comprises four other senior most judges of the court.
• A HC collegium is led by its Chief Justice and four other senior most judges of that court.
• Names recommended for appointment by a HC collegium reaches the government only after approval by the CJI and the SC collegium.
• Judges of the higher judiciary are appointed only through the collegium system and the government has a role only after names have been decided by the collegium.
• The government’s role is limited to getting an inquiry conducted by the Intelligence Bureau (IB) if a lawyer is to be elevated as a judge in a High Court or the Supreme Court.

• Intelligence Bureau (IB): It is a reputed and established intelligence agency. It is authoritatively controlled by the Ministry of Home Affairs.
• It can also raise objections and seek clarifications regarding the collegium’s choices, but if the collegium reiterates the same names, the government is bound, under Constitution Bench judgments, to appoint them as judges. 

Evolution of the Collegium System:

• First Judges Case (1981):

• It declared that the “primacy” of the Chief Justice of India (CJI)s recommendation on judicial appointments and transfers can be refused for “cogent reasons.”
• The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.

Second Judges Case (1993):

• SC introduced the Collegium system, holding that “consultation” really meant “concurrence”.
• It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC.

• Third Judges Case (1998):

• SC on President’s reference expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

Procedure for Various Judicial Appointments:

• For CJI:

• The President of India appoints the CJI and the other SC judges.
• As far as the CJI is concerned, the outgoing CJI recommends his successor.
• In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.

• For SC Judges:

• For other judges of the SC, the proposal is initiated by the CJI.
• The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
• The consultees must record their opinions in writing and it should form part of the file.
• The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.

• For Chief Justice of High Courts:
• The Chief Justice of High Court is appointed as per the policy of having Chief Justices from outside the respective States.
• The Collegium takes the call on the elevation.
• High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
• The proposal, however, is initiated by the outgoing Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
• The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.

Criticism of the Collegium System:

• Opaqueness and a lack of transparency.
• Scope for nepotism.
• Embroilment in public controversies.
• Overlooks several talented junior judges and advocates.

Attempts to reform the Appointment System:

• The attempt made to replace it by a ‘National Judicial Appointments Commission’ was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.

Related Constitutional Provisions:

• Article 124(2) of the Indian Constitution provides that the Judges of the Supreme Court are appointed by the President after consultation with such a number of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose.
• Article 217 of the Indian Constitution states that the Judge of a High Court shall be appointed by the President consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.

Way Forward:

• Filling up of vacancies is a continuous and collaborative process involving the executive and the judiciary, and there cannot be a time frame for it. However, it is time to think of a permanent, independent body to institutionalize the process with adequate safeguards to preserve the judiciary’s independence guaranteeing judicial primacy but not judicial exclusivity.
• It should ensure independence, reflect diversity, demonstrate professional competence and integrity.
• Instead of selecting the number of judges required against a certain number of vacancies, the collegium must provide a panel of possible names to the President to appoint in order of preference and other valid criteria.

Meghalaya withdraws General Consent from CBI

09, Mar 2022

Why in News?

• Meghalaya has withdrawn consent to the CBI to investigate cases in the state, becoming the ninth state to have taken this step.

About the News:

• Eight other states which had withdrawn consent to the CBI: Maharashtra, Punjab, Rajasthan, West Bengal, Jharkhand, Chhattisgarh, Kerala, and Mizoram.
• In November last year, the Supreme Court had expressed concern over a submission by the CBI that since 2018, around 150 requests for sanction to investigate had been pending with the eight state governments who had withdrawn general consent until then.
• The CBI is governed by the Delhi Special Police Establishment Act that makes consent of a state government mandatory for conducting investigation in that state.

Types of Consent Given by State Government:

• There are two types of consent for a probe by the CBI. These are: general and specific.
• When a state gives a general consent (Section 6 of the Delhi Special Police Establishment Act) to the CBI for probing a case, the agency is not required to seek fresh permission every time it enters that state in connection with investigation or for every case.
• When a general consent is withdrawn, CBI needs to seek case-wise consent for investigation from the concerned state government. If specific consent is not granted, the CBI officials will not have the power of police personnel when they enter that state.
• This hurdle impedes seamless investigation by the CBI. A general consent is given to facilitate that seamless investigation in a case of corruption or violence.

Issue of Withdrawal of General Consent by States:

• Recently it has been seen that various states like Andhra Pradesh and West Bengal Governments have withdrawn their general consent as a result of Tussle between Centre and States.

Impact of withdrawal:

• It means the CBI will not be able to register any fresh case involving a central government official or a private person stationed in the states who withdrew their general consent, without getting case-specific consent.
• In simple terms withdrawal of general consent simply means that CBI officers will lose all powers of a police officer as soon as they enter the state unless the state government has allowed them.
• It will have no impact on investigation of cases already registered with CBI as old cases were registered when General Consent Existed.

What was the Calcutta High Court verdict?

• Calcutta High Court recently ruled in a case of illegal coal mining and cattle smuggling being investigated by the CBI, that the central agency cannot be stopped from probing an employee of the Central Government in another state. The order has been challenged in the Supreme Court.
• In Vinay Mishra vs the CBI, Calcutta HC ruled in July this year that corruption cases must be treated equally across the country, and a central government employee could not be “distinguished” just because his office was located in a state that had withdrawn general consent.
• The HC also said that withdrawal of consent would apply in cases where only employees of the State Government were Involved.

Issues with CBI Autonomy:

• After the 2018 amendments to the Prevention of Corruption Act, 1988, the Centre has come to exercise power over the CBI not just administratively, but also legally.
• In 2018, the government pushed through Parliament amendments to Section 17A of the Act making it mandatory for the CBI to seek the Centre’s permission before registering a case of corruption against any Government servant.

About Delhi Special Police Establishment Act:

• The Central Bureau of Investigation traces its origin to the Special Police Establishment (SPE) which was set up in 1941 by the Government of India.
• The functions of the SPE then were to investigate cases of bribery and corruption in transactions with the War & Supply Deptt. Of India during World War II.
• Even after the end of the War, the need for a Central Government agency to investigate cases of bribery and corruption by Central Government employees was felt.
• The Delhi Special Police Establishment Act was therefore brought into force in 1946. The CBI’s power to investigate cases is derived from this Act.

Elections to 13 Rajya Sabha seats on March 31

09, Mar 2022

Why in News?

• The Election Commission recently announced polls to fill 13 Rajya Sabha seats across six states falling vacant in April, including those of Congress veterans AK Antony and Anand Sharma, that are scheduled to be held on March 31.

About the Rajya Sabha Polls:

• A third of MPs in the Rajya Sabha (which is a permanent House and is not subject to dissolution), from each State, retire once in two years and polls are held to fill up the vacancies.
• Only elected members of the State Legislative Assemblies can vote in a Rajya Sabha election.
• The legislators send a batch of new members to the Upper House every two years for a six-year term.
• In addition, vacancies that arise due to resignation, death or disqualification are filled up through by-polls after which those elected serve out the remainder of their Predecessors’ term.

Composition of Rajya Sabha

• A bloc of MPs belonging to one or more parties can elect a member of their choice if they have the requisite numbers.
• This is to avoid the principle of majority, which would mean that only candidates put up by ruling parties in the respective States will be elected.
• The Delhi and Puducherry Assemblies elect members to the Rajya Sabha to represent the two UTs.

What is the Election Process?

• Polling for a Rajya Sabha election will be held only if the number of candidates exceeds the Number of Vacancies.
• Since the strength of each party in the Assembly is known, it is not difficult to estimate the number of seats a party would win in the Rajya Sabha poll.
• In many states, parties avoid a contest by fielding candidates only in respect to their strength. Where an extra candidate enters the fray, voting becomes necessary.
• Candidates fielded by political parties have to be proposed by at least 10 members of the Assembly or 10% of the party’s strength in the House, whichever is less.
• For independents, there should be 10 proposers, all of whom should be members of the Assembly.

Voting Procedure:

• Voting is by single transferable vote, as the election is held on the principle of proportional representation.
• A single transferable vote means electors can vote for any number of candidates in order of their preference.
• A candidate requires a specified number of first preference votes to win. Each first choice vote has a value of 100 in the first round.
• To qualify, a candidate needs one point more than the quotient obtained by dividing the total value of the number of seats for which elections are taking place plus one.
• Example: If there are four seats and 180 MLAs voting, the qualifying number will be 180/5= 36 votes or value of 3,600.

Why do not the Rajya Sabha Polls have a Secret Ballot?

• The Rajya Sabha polls have a system of the open ballot, but it is a limited form of openness.
• As a measure to check rampant cross-voting, which was taken to mean that the vote had been purchased by corrupt means.
• There is a system of each party MLA showing his or her marked ballots to the party’s authorised agent (called Whip), before they are put into the ballot box.
• Showing a marked ballot to anyone other than one’s own party’s authorised agent will render the vote invalid.
• Not showing the ballot to the authorised agent will also mean that the vote cannot be counted.
• And independent candidates are barred from showing their ballots to anyone.

Is there any NOTA option in voting?

• The ECI issued two circulars, on January 24, 2014, and November 12, 2015, giving Rajya Sabha members the option to press the NOTA button in the Upper House polls.
• However, in 2018, the Supreme Court struck down the provision, holding that the ‘none of the above’ option is only for General Elections. It cannot be applied to indirect elections based on Proportional Representation.

Does cross-voting Attract Disqualification?

• The Supreme Court, while declining to interfere with the open ballot system, ruled that not voting for the party candidate will not attract disqualification under the anti-defection law.
• As voters, MLAs retain their freedom to vote for a candidate of their choice.
• However, the Court observed that since the party would know who voted against its own candidate, it is free to take disciplinary action against the legislator concerned.

Can a legislator vote without taking oath as a Member of the Assembly?

• While taking oath as a member is for anyone to function as a legislator, the Supreme Court has ruled that a member can vote in a Rajya Sabha election even before taking oath as a legislator.
• It ruled that voting at the Rajya Sabha polls, being a non-legislative activity, can be performed without taking the oath.
• It also said that a person becomes a member as soon as the list of elected members is notified by the ECI.
• Further, a member can also propose a Candidate before taking the oath.

Chandigarh’s Proposal to Amend Article 80 of the Constitution

09, Mar 2022

Why in News?

• The Chandigarh Municipal Corporation has approved a proposal to amend Article 80 of the Constitution.

Background of the Issue:

• This amendment says, its councillors could send a representative to the Rajya Sabha.
• A Private Member’s Bill in this regard has also been introduced.
• Article 80 of the Constitution of India deals with the composition of the council of states also called the Upper House and Rajya Sabha (Upper House).
• Chandigarh is a Union Territory without any legislative assembly. Chandigarh has a seat of Member of Parliament (MP) in the lower house (Lok Sabha) or House of the People.
• Chandigarh residents elect an MP every five years through direct voting.

What is the Demand of the Proposed Bill?

• The bill (Private Member Bill) sought the adding of a provision “provided that the representative of the Union Territory of Chandigarh in the council of states shall be elected by an electoral college.
• The electoral college should consist of elected members of the Municipal Corporation of Chandigarh constituted under the Punjab Municipal Corporation (Extension to Chandigarh) Act, 1994 in Article 80 of the Constitution.
• An amendment has also been sought to the Fourth Schedule of the Constitution with ‘Entry 32, Chandigarh.
• The fourth Schedule contains provisions as to the allocation of seats in the Council of States.

What’s the Legal Issue now? Why can’t municipal councillors elect?

• The elected Municipal Corporation Councillors do not form the electoral college for selecting a member for Upper house (Rajya Sabha) because it is beyond the powers of the Municipal Corporation (As defined by the Constitution).
• If the functions of the civic body are to be extended beyond the listed scope of functions it would not be feasible and would go against the constitutional mandate of any such Municipal Corporation.

How Rajya Sabha Members are elected?

• Rajya Sabha members are elected indirectly by the people, that is, by the MLAs.
• Members of a state’s Legislative Assembly vote in the Rajya Sabha elections in proportional representation with the single transferable vote (STV) system. Each MLA’s vote is counted only once.
• To win a Rajya Sabha seat, a candidate should get a required number of votes. That number is found out using the below formula. Required vote = Total number of votes / (Number of Rajya Sabha seats + 1 ) + 1.

SC lifts stay on Haryana Quota for Private Jobs

18, Feb 2022

Why in News?

• The Supreme Court recently set aside a Punjab and Haryana High Court order staying a controversial State law which provides 75% reservation for local youths in private sector jobs earning less than ₹30,000 a Month.

About the News:

• The Bench observed that every law passed by legislature was presumed to be legal. An order of stay of their implementation by a court of law should be reasoned. The High Court had not given sufficient reasons for stopping the Haryana law.
• The Supreme Court, without going into the merits of the issue, requested the High Court to decide the writ petition filed by industrialists before it expeditiously and not later than a period of four weeks from today.
• The parties were directed to not seek adjournments in the High Court.

Highlights of the Law:

• The law provides for 75% reservation in private sector jobs to those having a Resident Certificate (Domicile).
• The law will be Applicable for a period of 10 years.
• Jobs with a gross monthly salary of not more than ₹30,000 will be up for hiring from among Local Candidates.

Rationale behind the Law:

• To create a harmonious environment for industry as well as the youth along with creating the right balance between the progress of Industries and the Economy.

Concerns Over the bill:

• It could lead to Multinational Firms moving out of the state.
• Reservation affects productivity and Industry Competitiveness.

What are the Legal Issues in Such laws?

• The question of domicile reservation in jobs: While domicile quotas in education are fairly common, courts have been reluctant in Expanding this to public employment. It raises questions relating to the fundamental right to Equality of Citizens.
• The issue of forcing the private sector to comply with reservations in employment. For mandating reservation in public employment, the state draws its power from Article 16(4) of the Constitution. But, the Constitution has no manifest provision for private employment from which the state draws the power to make laws mandating reservation.
• It may not be able to withstand judicial scrutiny on the touchstone of Article 19(1)(g).

SC Starts Examining Vanniyar Quota Law

16, Feb 2022

Why in News?

• The Supreme Court recently began examining whether petitions challenging a Madras High Court decision declaring ultra vires a State quota law, which provided 10.5% special reservation to Vanniyars, a most backward community, ought to be referred to a larger Bench.

About the Issue:

• The Tamil Nadu Assembly had in February 2021, passed the then ruling AIADMK-piloted bill providing internal reservation of 10.5 per cent for Vanniyars, with the incumbent DMK government issuing an order in July, 2021 for its implementation.
• It had split the aggregate 20 per cent reservation for MBCs and Denotified Communities into three separate categories by regrouping castes and provided ten per cent plus sub-quota for Vanniyars, formally known as Vanniakula Kshatriyas.
• In fact petitions had been filed seeking internal reservation. The process of consultation for sub classification within 20 per cent earmarked for MBCs began in 2012. Tamil Nadu BC commission had recommended 10.5 per cent reservation for vanniyakula Kshastriya community, after door to door enumeration.

What was Madras HC’s Observation?

• The judges said the state government cannot come out with such a legislation. This had been explained in the Constitution.
• The petitioners contended that if such a reservation was implemented, then the Vanniyar community would enjoy reservation in jobs and admission while 25 other castes under MBC and 68 others would have to share the Remaining Quota.

What was the Apex Court’s Observation?

• A three-judge Bench of SC ordered that no fresh appointments to State Government Services or Admissions to Educational Institutions should be made till February 15, the next date of hearing in the case.
• However, admissions and Appointments already made, pursuant to a Madras High Court order of August 25, would not be disturbed.
• The Bench said the case was important and had implications on the future of a large number of students, State Government employees, etc. The court said it had to be heard expeditiously.

About Vanniyar Movement:

• Vanniyar are one of the largest and most consolidated backward communities in the state.
• They had raised massive protests in the mid-1980s demanding 20% reservation in the state, and 2% in central services.
• Their movement was backed by the Justice Party as well as the Self-Respect Movement.
• The agitation began in 1986 with activists sending hundreds of letters and telegrams to then Chief Minister M G Ramachandran seeking an audience.
• As there was no Response from MGR and the then Rajiv Gandhi government, agitators started Demonstrations in Community strongholds, then went on to blockading rail and Road Traffic.

Order on EWS Criteria will Apply for ‘22-23 NEET Admissions, says SC

15, Feb 2022

Why in News?

• The Supreme Court recently said whatever it decides on the criteria to identify Economically Weaker Section (EWS) for granting benefits of reservation will apply in NEET-PG 2022-23 admissions as well.

About the News:

• The court was hearing a petition filed by Varun Dileepbhai Bhatt and others on the applicability of the EWS criteria in NEET PG 2022-2023 exam. Advocate Charu Mathur, appearing for the students, said they had sought an extension of the deadline for edit option in the online forms with respect to the EWS norms.
• Some MBBS doctors, who have also filed a plea, sought direction to the Centre to specify in an information bulletin that the EWS criteria for academic session 2022-23 would be decided in terms of the pleas challenging the amended reservation policy (27% OBC and 10% EWS) in the All India Quota for the NEET.
• They too had urged for an extension of the date for the edit window from February 11, 2022 to enable the candidates to choose EWS category after the final decision in the pending matter.
• On January 20, the top court had said merit cannot be reduced to narrow definitions of performance in an open competitive examination which only provides formal equality of opportunity. It had upheld the 27% reservation for OBCs in All India Quota (AIQ) seats in the NEET for UG and PG medical courses.

What is NEET?

• The National Eligibility-cum-Entrance Test (NEET) is the entrance examination for entry to all undergraduate (NEET-UG) and postgraduate (NEET-PG) medical and dental courses in the country.
• Until 2016, the All India Pre-Medical Test (AIPMT) was the national-level entrance examination for medical colleges.
• State governments used to hold separate entrance tests for seats that were not contested at an all-India level.
• NEET was held for the first time in 2003, but discontinued the following year.
• On April 13, 2016, the Supreme Court upheld the newly inserted section 10-D of the Indian Medical Council Act.
• This provided for a uniform entrance examination to all medical educational institutions at the undergraduate level and postgraduate level in Hindi, English and various other languages.
• Since then, NEET has been the uniform entrance test for medical courses across the country.

Who are “Economically Weaker Sections”?

• For the purposes of article 15 and article 16, “economically weaker sections” shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage.’
• Central Government of India has specified certain criteria for identifying the EWS. This will be a class distinct from the already specified classes of SCs, STs and socially and educationally backward classes (OBCs).
• The EWS quota applies to household with
• Annual household income below Rs 8 lakh.
• Agriculture land below 5 acres.
• Residential house below 1000 sq ft.
• Residential plot below 100 yards in notified municipality.
• Residential plot below 200 yards in non-notified municipality area.

What are the Implications?

• The 10% reservation will be in addition to the existing cap of 50% reservation for the Scheduled Castes, Scheduled Tribes and the Other Backward Classes, taking total reservation to 60%.
• The quota targets the poor among the upper castes. This will be over and above 50% mandated by Constitution and hence the need for Constitution Amendment Bill.

SC Verdict in Indira Sawhney case:

• The proposed law would face roadblocks if challenged in the Supreme Court.
• A nine-judge Constitution Bench of the Supreme Court in the Indira Sawhney case of 1992 specifically answered the question “whether Backward classes can be identified only and exclusively with reference to the Economic Criterion.”
• The constitution bench had categorically ruled that a backward class cannot be determined only and exclusively with Reference to Economic Criterion. The bench had held that economic criterion may be a Consideration or basis along with, and in addition to, social backwardness, but it can never be the sole Criterion.
• The bench in its judgement declared 50% quota as the rule unless extraordinary situations “inherent in the great diversity of this Country and the people” happen. Even then, the court stated that extreme Caution is to be Exercised and a special case should be made out.

Bhandari sworn in as Chief Justice of Madras HC

15, Feb 2022

Why in News?

• Tamil Nadu Governor R.N. Ravi administered oath of office to Madras High Court Chief Justice Munishwar Nath Bhandari in the presence of Chief Minister M.K. Stalin at the Raj Bhavan recently.

About the News:

• ACJ Bhandari, hailing from Rajasthan, assumed office in the Madras High Court on November 22, following his transfer from Allahabad High Court, where he had served as its ACJ.
• At the time of his transfer, two senior judges, Justices Raghvendra Singh Chauhan and Mohammad Rafiq, from his parent High Court (Rajasthan), were already serving as Chief Justices.
• Since Justice Chauhan retired on December 23, the Supreme Court collegium passed resolutions recommending the elevation of Justice Bhandari as the Chief Justice of Madras High Court.
• He is the 32^nd Indian Chief Justice of the High Court and 43^rd Chief Justice if the 11 British Chief Justices since August 15, 1862 are also taken into consideration.

What is Collegium System?

• It is the system of appointment and transfer of judges that has evolved through judgments of the SC, and not by an Act of Parliament or by a provision of the Constitution.
• The SC collegium is headed by the CJI and comprises four other senior most judges of the court.
• A HC collegium is led by its Chief Justice and four other senior most judges of that court.
• Names recommended for appointment by a HC collegium reaches the government only after approval by the CJI and the SC collegium.
• Judges of the higher judiciary are appointed only through the collegium system and the government has a role only after names have been decided by the collegium.
• The Government’s role is limited to getting an inquiry conducted by the Intelligence Bureau (IB) if a lawyer is to be elevated as a judge in a High Court or the Supreme Court.
• Intelligence Bureau (IB): It is a reputed and established intelligence agency. It is authoritatively controlled by the Ministry of Home Affairs.
• It can also raise objections and seek clarifications regarding the collegium’s choices, but if the collegium reiterates the same names, the government is bound, under Constitution Bench judgments, to appoint them as judges.

Evolution of the Collegium System:

• First Judges Case (1981):
• It declared that the “primacy” of the Chief Justice of India (CJI)s recommendation on judicial appointments and transfers can be refused for “cogent reasons.”
• The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.
• Second Judges Case (1993):
• SC introduced the Collegium system, holding that “consultation” really meant “concurrence”.
• It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC.
• Third Judges Case (1998):
• SC on President’s reference expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

Procedure for Various Judicial Appointments:

• For CJI:
• The President of India appoints the CJI and the other SC judges.
• As far as the CJI is concerned, the outgoing CJI recommends his successor.
• In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
• For SC Judges:
• For other judges of the SC, the proposal is initiated by the CJI.
• The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
• The consultees must record their opinions in writing and it should form part of the file.
• The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.
• For Chief Justice of High Courts:
• The Chief Justice of High Court is appointed as per the policy of having Chief Justices from outside the respective States.
• The Collegium takes the call on the elevation.
• High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
• The proposal, however, is initiated by the outgoing Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
• The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.

Criticism of the Collegium System:

• Opaqueness and a lack of Transparency.
• Scope for Nepotism.
• Embroilment in Public Controversies.
• Overlooks several talented Junior Judges and Advocates.

Attempts to reform the Appointment System:

• The attempt made to replace it by a ‘National Judicial Appointments Commission’ was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.

Related Constitutional Provisions:

• Article 124(2) of the Indian Constitution provides that the Judges of the Supreme Court are appointed by the President after consultation with such a number of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose.
• Article 217 of the Indian Constitution states that the Judge of a High Court shall be appointed by the President consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.

Way Forward:

• Filling up of vacancies is a continuous and collaborative process involving the executive and the judiciary, and there cannot be a time frame for it. However, it is time to think of a permanent, independent body to institutionalize the process with adequate safeguards to preserve the judiciary’s independence guaranteeing judicial primacy but not judicial exclusivity.
• It should ensure independence, reflect diversity, demonstrate professional competence and integrity.
• Instead of selecting the number of judges required against a certain number of vacancies, the collegium must provide a panel of possible names to the President to appoint in order of preference and other Valid Criteria.

Privilege Motion

12, Feb 2022

Why in News?

• An MP from Telangana submitted a Privilege Motion against PM regarding his remarks over the bifurcation of the erstwhile state of Andhra Pradesh.

What is Parliamentary Privilege?

• Parliamentary privilege refers to the right and immunity enjoyed by legislatures.
• The legislators are granted protection against civil or criminal liability for actions done or statements made in the course of their legislative duties.
• They are granted so that the MPs/MLAs can effectively discharge their functions.
• The powers, privileges and Immunities of either House of the Indian Parliament and of its Members and Committees are laid down in Article 105 of the Constitution.
• Article 194 deals with the powers, privileges and Immunities of the State Legislatures, their members and their committees.

What is a Privilege Motion?

• When any of the rights and immunities are disregarded, the offence is called a breach of privilege and is punishable under law of Parliament.
• A notice is moved in the form of a motion by any member of either House against those being held guilty of breach of privilege.
• Each House also claims the right to punish as contempt actions which, while not breach of any specific privilege, are offences against its authority and dignity.

What are the Rules Governing Privilege?

• Rule No 222 in Chapter 20 of the Lok Sabha Rule Book and correspondingly Rule 187 in Chapter 16 of the Rajya Sabha rulebook govern privilege.
• It says that a member may, with the consent of the Speaker or the Chairperson, raise a question involving a breach of privilege either of a member or of the House or of a committee thereof.
• The rules however mandate that any notice should be relating to an incident of recent occurrence and should need the intervention of the House.
• Notices have to be given before 10 am to the Speaker or the Chairperson.

What is the role of the Speaker/Rajya Sabha Chair?

• The Speaker/RS chairperson is the first level of scrutiny of a privilege motion.
• The Speaker/Chair can decide on the privilege motion himself or herself or refer it to the Privileges Committee of Parliament.
• If the Speaker/Chair gives consent under Rule 222, the member concerned is given an Opportunity to make a short statement.

What is the Privileges Committee?

• In the Lok Sabha, the Speaker nominates a committee of privileges consisting of 15 members as per respective Party Strengths.
• A report is then presented to the House for its consideration. The Speaker may permit a half-hour debate while Considering the report.
• The Speaker may then pass final orders or direct that the report be tabled before the House.
• A resolution may then be moved relating to the breach of privilege that has to be Unanimously Passed.
• In the Rajya Sabha, the deputy chairperson heads the committee of privileges, which consists of 10 Members.

Common Electoral Roll and Simultaneous Poll

09, Feb 2022

Why in News?

• The Centre has clarified that it is not planning on amending the Representation of the People Act, 1951 to enable a common electoral roll and simultaneous elections to all Electoral Bodies in the Country.

Background:

• While the Centre may not be planning to amend the Representation of the People Act, it has held meetings with various stakeholders, including the EC, on the possibility of States adopting the same electoral roll for local body polls. Prime Minister Narendra Modi has Spoken in favour of “One Nation, One Election one nation, one election” many times.

What is ‘?

• It refers to holding elections to Lok Sabha, State Legislative Assemblies, Panchayats and Urban local bodies simultaneously, once in five years.

But what are the Challenges Posed by Frequent Elections?

• Massive Expenditure.
• Policy paralysis that Results from the imposition of the Model Code of Conduct during election time.
• Impact on delivery of Essential Services.
• Burden on Crucial Manpower that is deployed during election time.
• Puts pressure on political Parties, Especially smaller ones, as elections are becoming Increasingly Expensive.

Benefits of Simultaneous Elections:

• Governance and consistency: The ruling parties will be able to focus on legislation and Governance rather than having to be in campaign mode forever.
• Reduced Expenditure of Money and Administration.
• Continuity in policies and programmes.
• Efficiency of Governance: Populist measures by governments will reduce.
• The Impact of Black Money on the voters will be reduced as all elections are held at a time.

Impact on Regional parties:

• There is always a tendency for voters to vote the same party in power in the state and at the Centre in case the Lok Sabha polls and the state elections are held together.
• For simultaneous elections to be implemented, Changes to be made in Constitution and Legislations:
• Article 83 which deals with the duration of Houses of Parliament need an amendment.
• Article 85 (on dissolution of Lok Sabha by the president).
• Article 172 (relating to the duration of state legislatures).
• The Representation of People Act, 1951 Act would have to be amended to build in provisions for stability of tenure for both parliament and assemblies. This should include the following crucial elements:
• Restructuring the powers and functions of the ECI to facilitate procedures required for simultaneous elections
• A definition of simultaneous election can be added to section 2 of the 1951 act.

What is the Common Electoral Roll?

• Under the Common Electoral Roll, only one voter list will be used for Lok Sabha, Vidhan Sabha and other elections.

How many Types of Electoral Rolls do we have in Our Country and why the Distinction?

• In many states, the voters’ list for the panchayat and municipality elections is different from the one used for Parliament and Assembly elections.
• The distinction stems from the fact that the supervision and conduct of elections in our country are with two constitutional authorities — the Election Commission (EC) of India and the State Election Commissions (SECs).

Significance:

• The preparation of a separate voters list causes duplication of the effort and the Expenditure.
• Therefore, a common electoral roll and Simultaneous elections as a way to save an Enormous Amount of Effort and Expenditure.

Home Ministry seeks More Time to frame CAA Rules

08, Feb 2022

Why in News?

• The Ministry of Home Affairs (MHA) sought has asked the parliamentary committee for more time to frame the rules of the Citizenship (Amendment) Act, 2019 (CAA), on the Grounds that Consultation process is on.

About the News:

• The MHA had sought another extension on January 9 from the parliamentary committees on subordinate legislation in the Rajya Sabha and Lok Sabha to frame the rules of the CAA.
• Besides the consultation process, MHA said that the construction of the rules had been delayed due to the COVID-19 pandemic. Without the rules being framed, the Act cannot be implemented.
• A senior government official said that MHA stated two grounds for seeking a three-months’ extension to notify the rules — consultation process and COVID-19.

About the CAA and Foreigners Tribunal:

• The Parliament passed the Citizenship Amendment Act (CAA), 2019 that seeks to give citizenship to refugees from the Hindu, Christian, Buddhist, Sikh and Zoroastrian communities fleeing religious persecution from Pakistan, Bangladesh and Afghanistan, who came to India before 31st December, 2014.
• Residential requirement for citizenship through naturalization from the above said countries is at least 5 years. Residential requirement for citizenship through naturalization for others is 11 years.
• The Act applies to all States and Union Territories of the country.
• The beneficiaries of Citizenship Amendment Act can reside in any state of the country.
• In 1964, the govt. brought in the Foreigners (Tribunals) Order.
• Advocates not below the age of 35 years of age with at least 7 years of practice (or) Retired Judicial Officers from the Assam Judicial Service (or) Retired IAS of ACS Officers (not below the rank of Secretary/Addl. Secretary) having experience in quasi-judicial works.
• The Ministry of Home Affairs (MHA) has amended the Foreigners (Tribunals) Order, 1964, and has empowered district magistrates in all States and Union Territories to set up tribunals (quasi-judicial bodies) to decide whether a person staying illegally in India is a Foreigner or Not.
• Earlier, the powers to constitute tribunals were vested only with the Centre.
• Typically, the tribunals there have seen two kinds of cases: those concerning persons against whom a reference has been made by the border police and those whose names in the electoral roll has a “D”, or “doubtful”, marked against them.

Who are Illegal Immigrants?

• According to the Citizenship Act, 1955, an illegal immigrant is one who enters India without a valid passport or with forged documents, or a person who stays beyond the visa permit.

What is NRC?

• The National Register of Citizens (NRC) is meant to identify a bona fide citizen.
• In other words, by the order of the Supreme Court of India, NRC is being currently updated in Assam to detect Bangladeshi nationals who might have entered the State illegally after the midnight of March 24, 1971.
• The date was decided in the 1985 Assam Accord, which was signed between the then Prime Minister Rajiv Gandhi and the AASU.
• The NRC was first published after the 1951 Census in the independent India when parts of Assam went to the East Pakistan, now Bangladesh.
• The first draft of the updated list was concluded by December 31, 2017.

Arguments against the Act:

• The fundamental criticism of the Act has been that it specifically targets Muslims. Critics argue that it is violative of Article 14 of the Constitution (which guarantees the right to equality) and the principle of secularism.
• India has several other refugees that include Tamils from Sri Lanka and Hindu Rohingya from Myanmar.
• They are not covered under the Act.
• Despite exemption granted to some regions in the North-eastern states, the prospect of citizenship for massive numbers of illegal Bangladeshi migrants has triggered deep anxieties in the states.
• It will be difficult for the government to differentiate between illegal migrants and those persecuted.

Arguments in Favour:

• The government has clarified that Pakistan, Afghanistan and Bangladesh are Islamic republic’s where Muslims are in majority hence they cannot be treated as persecuted minorities. It has assured that the government will examine the application from any other community on a case to case basis.
• This Act is a big boon to all those people who have been the victims of Partition and the subsequent conversion of the three countries into theocratic Islamic republics.
• Citing partition between India and Pakistan on religious lines in 1947, the government has argued that millions of citizens of undivided India belonging to various faiths were staying in Pakistan and Bangladesh from 1947.
• The constitutions of Pakistan, Afghanistan and Bangladesh provide for a specific state religion. As a result, many persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities have faced persecution on grounds of religion in those countries.
• Many such persons have fled to India to seek shelter and continued to stay in India even if their travel documents have expired or they have incomplete or no documents.
• After Independence, not once but twice, India conceded that the minorities in its neighbourhood is its responsibility. First, immediately after Partition and again during the Indira-Mujib Pact in 1972 when India had agreed to absorb over 1.2 million refugees. It is a historical fact that on both occasions, it was only the Hindus, Sikhs, Buddhists and Christians who had come over to Indian side.

Panel Redraws All Five J&K LS Seats

07, Feb 2022

Why in News?

• The J&K Delimitation Commission has changed the complexion of most of the 90 Assembly seats, while reconfiguring and renaming 28 new Assembly constituencies and deleting 19 Assembly Segments in its Interim Report.

About the News:

• The interim report, shared with the associate members two days ago, suggested that the Kashmir division will get an additional seat in Kupwara, while the Jammu division will have one additional seat in Kathua district, one in Samba, one in Doda, one in Rajouri, one in Udhampur and one in Kishtwar.
• Of the six seats, three Assembly segments are from the Muslim-majority Chenab Valley and Pir Panjal valleys, while four are in the Hindu Jammu-Samba-Kathua belt.
• Seventeen constituencies have been redrawn in the Jammu province while 11 have been reconfigured in the Kashmir division. Similarly, nine names of Assembly constituencies in the Jammu division have vanished due to the reconfiguration and 10 names disappear from the Kashmir division.
• The Shri Mata Vaishno Devi constituency has been identified as the smallest of all with just 73,648 votes in the Jammu region.
• The Commission has also proposed reframing of Lok Sabha constituencies, with J&K earlier having five which included three seats from Kashmir and two from Jammu. It has suggested to distribute 18 Assembly segments among the five Lok Sabha constituencies.
• The newly carved Lok Sabha seat will havesix of the nine Assembly segments reserved for the STs.
• The Srinagar Lok Sabha seat will now comprise Assembly segments spread over five districts of Srinagar, Budgam, Pulwama, Ganderbal and Shopian against the earlier three.
• North Kashmir’s Baramulla Lok Sabha seat will be spread over four districts, which includes parts of Budgam, Baramulla, Kupwara and Bandipora.
• The seats reserved for the Schedule Tribes included Darhal, Thannamandi in Rajouri district; Surankote, Mendhar and Poonch Haveli in Poonch district; and Mahore in Reasi district in the Jammu province’s Pir Panjal Valley.
• Larnoo in Anantnag, Kangan in Ganderbal, and Gurez are ST seats in the Kashmir province. The Commission has reserved nine seats for the STs and seven for the SCs.

What is Delimitation?

• Delimitation literally means the process of fixing limits or boundaries of territorial constituencies in a state that has a legislative body.
• Bifurcation of J&K into two UTs has led to redrawing of Assembly constituency boundaries. While, the UT of Ladakh will not have its own legislature, J&K will. This would be similar to Puducherry or Delhi.
• Such delimitation was also necessitated in 2014 when Andhra Pradesh and Telangana were bifurcated.
• According to the Delimitation Commission Act, 2002, the Delimitation Commission appointed by the Centre has to have three members: a serving or retired judge of the Supreme Court as the chairperson, and the Chief Election Commissioner or Election Commissioner nominated by the CEC and the State Election Commissioner as ex-officio members.

How Delimitation Process is done?

• Under Article 82, the Parliament enacts a Delimitation Act after every Census.
• Under Article 170, States also get divided into territorial constituencies as per Delimitation Act after every Census.
• Once the Act is in force, the Union government sets up a Delimitation Commission.
• The new state assembly shall have 114 seats (currently 107), out of which only 90 will be open for elections, and the remaining 24 will be shadow seats reserved for the areas of the erstwhile state that have been occupied by Pakistan (PoJK).
• For the delimitation exercise, the population figures of 2011 census shall be taken as the basis.
• The J&K Representation of the People Act 1957 has now been invalidated and, instead, delimitation will be done as per the Representation of the People Act, 1950 (as amended from time to time) and provisions of Sections 59, 60 of Act 34 of 2019.

Who carry out the Exercise?

• Delimitation is undertaken by a highly powerful commission. They are formally known as Delimitation Commission or Boundary Commission.
• These bodies are so powerful that its orders have the force of law and they cannot be challenged before any court.
• Such commissions have been constituted at least four times in India — in 1952 under the Delimitation Commission Act, 1952; in 1963 under Delimitation Commission Act, 1962; in 1973 under Delimitation Act, 1972 and last in 2002 under Delimitation Act, 2002.
• The commissions’ orders are enforced as per the date specified by the President of India. Copies of these orders are laid before the Lok Sabha or the concerned Legislative Assembly. No Modifications are Permitted.

Why Delimitation is Needed?

• To provide equal representation to equal segments of a population.
• Fair division of geographical areas so that one political party doesn’t have an advantage over others in an election.
• To follow the principle of “One Vote One Value”.

What are the Problems with Delimitation?

• States that take little interest in population control could end up with a greater number of seats in Parliament. The southern states that promoted family planning faced the possibility of having their seats reduced.
• In 2008, Delimitation was done based on the 2001 census, but the total number of seats in the Assemblies and Parliament decided as per the 1971 Census that was not changed.
• The constitution has also capped the number of Lok Shaba & Rajya Sabha seats to a maximum of 550 & 250 respectively and increasing populations are being represented by a single Representative.

RS debates use of private bills to amend Preamble to Constitution

05, Feb 2022

Why in News?

• Rajya Sabha Deputy Chairman Harivansh recently said that there have been number of instances in the past when private member bills to amend the Preamble to the Constitution have been introduced in both the Houses of Parliament and its legislative competence is decided by Council and not the Chair.

About the News:

• Manoj Kumar Jha had previously opposed the motion moved by K.J. Alphons to introduce his private members bill -the Constitution (Amendment) Bill, 2021 (Amendment of Preamble)“.
• Jha had argued that Preamble is part of the basic structure of the Constitution and the Bill may not be allowed for introduction.
• Giving a ruling on this issue, Mr. Harivansh has recently said that, “on a request made by the Minister of State for Parliamentary Affairs and after taking the sense of the House, the introduction of the Bill was deferred.

What is the Issue?

• Preamble is part of the Constitution and as per Article 368 of the Constitution, Parliament may, in exercise of its constituent power, amend by way of addition, variation or repeal any provision of the Constitution and a Bill for the purpose can be introduced in either House of the Parliament.
• If the introduction of a Bill is opposed on the ground of legislative competence of the Council, the Council decides the same and not the Chair.
• There are a number of rulings given by the Chair in this House on this issue taking the same stand in the past.

About the Constitution (Amendment) Bill, 2021:

• It was introduced by BJP Member from Kerala K J Alphons.
• The Bill seeks to change the words in the Preamble “EQUALITY of status and of opportunity” to “EQUALITY of status and of opportunity to be born, to be fed, to be educated, to get a job and to be treated with dignity”.
• It also seeks to replace the word “socialist” with “equitable”.
• The Bill also proposes adding “access to information technology” and “happiness” as objectives.

What are the Four Important Aspects can be Ascertained from the above text of the Preamble?

• Source of authority of the constitution: It derives its authority from the people of India.
• Nature of Indian state: It declares India to be a sovereign, socialistic, secular democratic and republican polity.
• Objectives of the constitution: It specifies justice, liberty, equality and fraternity as the objectives.
• Date of adoption: Nov 26th, 1949.

Is Preamble a Part of the Constitution?

• In the Berubari Union Case (1960), the Supreme Court opined that the Preamble was not part of the constitution.
• The above opinion was reversed in Keshavananda Bharati case in 1973; the SC held that Preamble is part of the constitution. This opinion was further clarified by the SC in LIC of India case (1995).
• Though preamble is part of the constitution;
• It is a neither a source of power to legislature nor a prohibition upon the powers of legislature.
• It is a non-justiciable, that is, its provisions are not enforceable in any courts of law.

Preamble and its Amendability:

• In Keshavananda Bharati case, the court held that the basic elements or the fundamental features of the constitution as contained in the preamble cannot be altered by an amendment under article 368.
• The preamble has been amended only once. That is- 42nd constitutional amendment act, 1976 when three new terms were added- Socialist, secular and integrity.

Electoral Bonds Worth ₹1,213 Crore sold in January

03, Feb 2022

Why in News?

• According to a Right to Information reply Electoral bonds worth ₹1,213 crore were sold by the SBI in January, with most of them (₹84 crore) being encashed in the New Delhi branch, pointing towards national parties, while the Mumbai branch sold the most (₹489.6 crore worth).

What is an Electoral Bond?

• Electoral Bond is a financial instrument for making donations to political parties.
• The bonds are issued in multiples of Rs. 1,000, Rs. 10,000, Rs. 1 lakh, Rs. 10 lakh and Rs. 1 crore without any maximum limit.
• State Bank of India is authorised to issue and encash these bonds, which are valid for fifteen days from the date of issuance.
• These bonds are redeemable in the designated account of a registered political party.
• Every party that is registered under section 29A of the Representation of the Peoples Act, 1951 and has secured at least 1% of the votes polled in the most recent Lok Sabha or State election will be allotted a verified account by the Election Commission of India.
• Electoral bond transactions can be made only via this account.
• The bonds are available for purchase by any person (who is a citizen of India or incorporated or established in India) for a period of ten days each in the months of January, April, July and October as may be specified by the Central Government.
• A person being an individual can buy bonds, either singly or jointly with other individuals.
• Donor’s name is not mentioned on the bond.
• During general elections, the central government may specify an additional period of thirty days for sale of these bonds.
• There have been some occasions when the government has deviated from the specified periodicity for issuance of these bonds.
• For example, the sixth tranche of electoral bonds was issued from 1st-10th November 2018 and electoral bonds were sold in the months of March, April and May during 2019 general elections.

What are the Concerns?

• While the Scheme acts as a check against traditional under-the-table donations as it insists on cheque and digital paper trails of transactions, several key provisions of the scheme make it highly controversial.
• Anonymity:
• Neither the donor (who could be an individual or a corporate) nor the political party is obligated to reveal whom the donation comes from.
• In 2019, the Supreme Court held that all political parties who had received donations through electoral bonds must submit details to the Election Commission of India.
• This undercuts a fundamental constitutional principle, the freedom of political information, which is an integral element of Article 19(1) (a) of the Constitution.
• Defeating Transparency:
• It defeats the fundamental principle of transparency in political finance because it conceals from public scrutiny the identity of the corporates and moneybags.
• Asymmetric Opacity:
• The government is always in a position to know who the donor is because the bonds are purchased through the SBI.
• This asymmetry of information threatens to colour the process in favour of whichever political party is ruling at the time.
• Chanel of Black Money:
• Elimination of a cap of 7.5% on corporate donations, elimination of requirement to reveal political contributions in profit and loss statements and also the elimination of the provision that a corporation must be three years in existence, undercuts the intent of the scheme.
• Any troubled, dying or shell companies can donate an unlimited amount anonymously to a political party giving them a convenient channel for business to round-trip their cash parked in tax havens for a favour or advantage granted in return for something.

Way Forward:

• There is a need for fixing the governance system and effective regulation of political financing along with bold reforms to break the vicious cycle of corruption and erosion of quality of democratic polity. It is crucial to plug the loopholes in the current laws to make the entire governance machinery more accountable and transparent.
• Voters can help bring in substantial changes by demanding awareness campaigns. If voters reject candidates and parties that overspend or bribe them, democracy would move a step higher.

Collegium Recommends Bhandari for HC CJ Post

01, Feb 2022

Why in News?

• The Supreme Court collegium has recommended the elevation of Madras High Court Acting Chief Justice (ACJ) Munishwar Nath Bhandari as its Chief Justice.

About the News:

• ACJ Bhandari, hailing from Rajasthan, assumed office in the Madras High Court on November 22, following his transfer from Allahabad High Court, where he had served as its ACJ.
• At the time of his transfer, two senior judges, Justices Raghvendra Singh Chauhan and Mohammad Rafiq, from his parent High Court (Rajasthan), were already serving as Chief Justices.
• Since Justice Chauhan retired on December 23, the Supreme Court collegium passed resolutions recommending the elevation of Justice Bhandari as the Chief Justice of Madras High Court.
• He would take oath after the issuance of a Presidential notification.

What is Collegium System?

• It is the system of appointment and transfer of judges that has evolved through judgments of the SC, and not by an Act of Parliament or by a provision of the Constitution.
• The SC collegium is headed by the CJI and comprises four other senior most judges of the court.
• A HC collegium is led by its Chief Justice and four other senior most judges of that court.
• Names recommended for appointment by a HC collegium reaches the Government only after approval by the CJI and the SC collegium.
• Judges of the higher judiciary are appointed only through the Collegium system and the government has a role only after names have been decided by the Collegium.
• The government’s role is limited to getting an inquiry conducted by the Intelligence Bureau (IB) if a lawyer is to be elevated as a judge in a High Court or the Supreme Court.
• Intelligence Bureau (IB): It is a reputed and established intelligence agency. It is authoritatively controlled by the Ministry of Home Affairs.
• It can also raise objections and seek clarifications regarding the collegium’s choices, but if the collegium reiterates the same names, the government is bound, under Constitution Bench judgments, to appoint them as judges.

Evolution of the Collegium System:

• First Judges Case (1981):
• It declared that the “primacy” of the Chief Justice of India (CJI)s recommendation on judicial appointments and transfers can be refused for “cogent reasons.”
• The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.
• Second Judges Case (1993):
• SC introduced the Collegium system, holding that “consultation” really meant “concurrence”.
• It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC.
• Third Judges Case (1998):
• SC on President’s reference expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

Procedure for Various Judicial Appointments:

• For CJI:
• The President of India appoints the CJI and the other SC judges.
• As far as the CJI is concerned, the outgoing CJI recommends his successor.
• In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
• For SC Judges:
• For other judges of the SC, the proposal is initiated by the CJI.
• The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
• The consultees must record their opinions in writing and it should form part of the file.
• The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.
• For Chief Justice of High Courts:
• The Chief Justice of High Court is appointed as per the policy of having Chief Justices from outside the respective States.
• The Collegium takes the call on the elevation.
• High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
• The proposal, however, is initiated by the outgoing Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
• The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.

Criticism of the Collegium System:

• Opaqueness and a lack of transparency.
• Scope for nepotism.
• Embroilment in public controversies.
• Overlooks several talented junior judges and advocates.

Attempts to reform the Appointment System:

• The attempt made to replace it by a ‘National Judicial Appointments Commission’ was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.

Related Constitutional Provisions:

• Article 124(2) of the Indian Constitution provides that the Judges of the Supreme Court are appointed by the President after consultation with such a number of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose.
• Article 217 of the Indian Constitution states that the Judge of a High Court shall be appointed by the President consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.

Way Forward:

• Filling up of vacancies is a continuous and collaborative process involving the executive and the judiciary, and there cannot be a time frame for it. However, it is time to think of a permanent, independent body to institutionalize the process with adequate safeguards to preserve the judiciary’s independence guaranteeing judicial primacy but not judicial exclusivity.
• It should ensure independence, reflect diversity, demonstrate professional competence and integrity.
• Instead of selecting the number of judges required against a certain number of vacancies, the collegium must provide a panel of possible names to the President to appoint in order of preference and other valid criteria.

States must Decide on SC/ST Quota in Promotions, says SC

29, Jan 2022

Why in News?

• The Supreme Court recently refused to lay down the “Yardstick” for determining the inadequacy of representation for Granting Reservation in promotions for Scheduled Caste/Scheduled Tribe candidates in Government Jobs.

About the News:

• The court stuck firm by its Constitution Benches decisions in Jarnail Singh and M. Nagaraj cases that the question of Adequate Representation of an SC/ST communities ought to be left to the respective States to determine.

What did the SC Observe?

• It held ‘cadre’ and not class, group or the entire service as the unit for purpose of collection of quantifiable data for giving promotion quotas.
• It said that, in the light of Jarnail Singh and Nagaraj, we cannot lay down any yardstick for determining the inadequacy of representation.
• In respect of the unit of collection of quantifiable data, the court held that the State was “obligated to collect quantifiable data on the inadequacy of representation of Scheduled Castes and Scheduled Tribes.
• The court, however, noted that the “collection of information on inadequacy of representation of SC/ST communities cannot be with reference to the entire service or class/group, but should be relatable to the grade/category of posts to which the promotion is Sought.”

Significance of the Case:

• With the recognition of ‘cadre’ as the unit for collection of quantifiable data, the court set aside its earlier judgment in the B.K. Pavithra case.
• The court Further left it to the State to assess the Inadequacy of the representation of SCs and STs for promotional posts by taking into account the relevant factors.
• A review had to be conducted regarding the data for the purpose of determining the inadequacy of representation in promotions, the court ordered.
• The court left it to the Union government to fix a “reasonable” time for the States to conduct the review.

M. Nagaraj Case (2006):

• Reversed the stance in the Indra Sawhney case: In this case applying the creamy layer concept in SC/ST reservation in promotions, the Supreme court reversed its earlier stance in the Indra Sawhney case (1992), in which it had excluded the creamy layer concept on SCs/STs (that was applicable on OBCs).
• Directives to the states: The five-judges Bench in Nagaraj case upheld the constitutional validity of all 77th, 81st, 82nd, and 85th constitutional amendments enabling reservation of SC/ST communities in promotions, but made certain directives for the states:
• State is not bound to make reservations for SC/ST in the matter of promotions.
• If a State wants to provide reservation to the SC/ST communities in promotions:
• It has to collect quantifiable data showing backwardness of the class.
• Show inadequacy of representation of that class in public employment in addition to compliance of Article 335.
• State needs to ensure that its reservation provision does not lead to excessiveness- breaching the ceiling-limit of 50%, or destroying the creamy layer principle.

Other Related Judgements:

• In Jarnail Singh v L.N. Gupta (2018) case, SC refused to refer the Nagaraj judgment to a higher bench but later altered the decision by saying that states will not be required to present quantifiable data of backwardness of SC/ST communities.

Reservation in Promotions is not a Fundamental Right:

• Reaffirming its stand in Nagraj case, the Supreme Court in 2020 ruled that reservation in the matter of promotions in public posts is not a fundamental right, and a state cannot be compelled to offer the quota if it chooses not to.
• Current Demand by the Centre: The Centre asked the Court to review its stance of introducing the concept of creamy layer in SC/ST promotions on various issues:
• Could deprive Backward Classes from Reservation: The government believes that the ‘creamy layer’ will become a trick to deprive the backward classes of the benefit of reservation.
• Redundancy of proving Backwardness Again: It is presumed that once they are added in the Presidential List under Articles 341 and 342 of the Constitution of India, there is no question of proving backwardness of the SCs and STs all over again.
• The said List cannot be altered by anybody except Parliament under Articles 341 and 342- defining who will be considered as SCs or STs in any state or Union Territory.

Constitutional Provisions for Promotion in Reservation

• Article 16 (4): Provides that the State can make any provision for the reservation of appointments or posts in favour of any backward class of citizens who, in the opinion of the state, are not adequately represented in the services under the State.
• Article 16 (4A): Provides that the State can make any provision for reservation in matters of promotion in favour of the Scheduled Castes and the Scheduled Tribes if they are not adequately represented in the services under the State.
• It was inserted by the 77th Constitutional Amendment Act, 1995.
• Article 16(4B): Added by the 81st Constitutional Amendment Act, 2000 which enabled the unfilled SC/ST quota of a particular year to be carried forward to the next year.
• Article 335: It recognises that special measures need to be adopted for considering the claims of SCs and STs to services and posts, in order to bring them at par.
• 82^nd Constitutional Amendment Act, 2000 inserted a condition at the end of Article 335 that enables the state to make any provision in favour of the members of the SC/STs for relaxation in qualifying marks in any Examination.

SC Quashes One-Year Suspension of 12 Maharashtra MLAs

29, Jan 2022

Why in News?

• The Supreme Court recently revoked the one-year suspension of 12 Maharashtra BJP legislators, calling it an “irrational” act that would impact the democratic set-up, leave constituencies unrepresented and help “thin majority” Governments Manipulate Numbers.

About the Issue:

• During the recent hearing, the Supreme Court observed that the suspension of MLAs for a full year is prima facie Unconstitutional, and “Worse than Expulsion”.
• The MLAs were suspended for misbehaviour in the Assembly pertaining to disclosure of data regarding OBCs.

What did the SC Ruled?

• A suspension beyond the remainder period of the ongoing session would not only be grossly irrational measure, but also violative of the basic democratic values owing to Unessential Deprivation of the member concerned, and more importantly, the constituency would Remain Unrepresented in the Assembly.
• It would also impact the democratic set-up as a whole by permitting the thin majority government [coalition government] of the day to manipulate the numbers of the Opposition party in the House in an undemocratic manner.

Procedure to be followed for Suspension of MLAs:

• Under Rule 53 of the Maharashtra Legislative Assembly Rules, the power to suspend can only be exercised by the Speaker, and it cannot be put to vote in a resolution.
• Rule 53 states that the “Speaker may direct any member who refuses to obey his decision, or whose conduct is, in his opinion, grossly disorderly, to withdraw immediately from the Assembly”.
• The member must “absent himself during the remainder of the day’s meeting”.
• Should any member be ordered to withdraw for a second time in the same session, the Speaker may direct the member to absent himself “for any period not longer than the remainder of the Session”.

How does the State Government defended its Move?

• Under Article 212, courts do not have jurisdiction to inquire into the proceedings of the legislature.
• Article 212 (1) states that “The validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure”.
• Under Article 194, any member who transgresses the privileges can be suspended through the inherent powers of the House.
• Thus, the state government has denied that the power to suspend a member can be exercised only through Rule 53 of the Assembly.

Concern expressed by the Supreme Court over the Length of the Suspension:

• The basic structure of the Constitution would be hit if the constituencies of the suspended MLAs remained unrepresented in the Assembly for a full year.
• Article 190 (4) of the Constitution says, “If for a period of sixty days a member of a House of the Legislature of a State is without permission of the House absent from all meetings thereof, the House may declare his seat vacant.”
• Under Section 151 (A) of The Representation of the People Act, 1951, “a bye-election for filling any vacancy shall be held within a period of six months from the date of the occurrence of the vacancy”. This means that barring exceptions specified under this section, no constituency can remain without a representative for more than six months.
• Therefore, the one-year suspension was prima facie unconstitutional as it went beyond the six-month limit, and amounted to “not Punishing the member but punishing the Constituency as a Whole”.

What are the rules on the Length of Suspension of a Member of Parliament?

• Rules of Procedure and Conduct of Business in Lok Sabha provide for the withdrawal of a member whose conduct is “grossly disorderly”, and suspension of one who abuses the rules of the House or willfully obstructs its business.The maximum suspension as per these Rules is “for five consecutive sittings or the remainder of the session, whichever is less”.The Maximum Suspension for Rajya Sabha under Rules 255 and 256 also does not exceed the Remainder of the session. Several recent suspensions of members have not continued beyond the Session.
• Similar Rules also are in place for state legislative assemblies and councils which prescribe a Maximum Suspension not exceeding the remainder of the session.

Recognition/Derecognition of political parties

27, Jan 2022

Why in News?

• A petition has been filed in the Supreme Court seeking a direction to the Election Commission of India (ECI) to seize the election symbol or de-register a political party that promises or distributes “irrational freebies” from public funds before elections.

About the News:

• It said there should be a total ban on such populist measures to gain undue political favours from the voters as they violate the Constitution and the ECI should take suitable Deterrent Measures.

Why it is Needed?

• The plea urged the court to declare that the promise of irrational freebies from public funds before elections unduly influences the voters, disturbs the level playing field and vitiates the purity of the poll Process.
• This unethical Practice is just like giving bribes to the electorate at the cost of the exchequer to stay in power and must be avoided to preserve democratic principles and practices.

Registration of Political Parties:

• Registration of Political parties is governed by the provisions of Section 29A of the Representation of the People Act, 1951.
• A party seeking registration under the said Section with the Election Commission has to submit an application to the Commission within a period of 30 days following the date of its formation as per guidelines prescribed by the Election Commission of India in exercise of the powers conferred by Article 324 of the Commission of India and Section 29A of the Representation of the People Act, 1951.

Eligibility for a ‘National Political Party of India:

• It secures at least six percent of the valid votes polled in any four or more states, at a general election to the House of the People or, to the State Legislative Assembly.
• In addition, it wins at least four seats in the House of the People from any State or States.
• It wins at least two percent seats in the House of the People (i.e., 11 seats in the existing House having 543 members), and these members are elected from at least three different States.

Eligibility for a ‘State Political Party:

• It secures at least six percent of the valid votes polled in the State at a general election, either to the House of the People or to the Legislative Assembly of the State concerned.
• In addition, it wins at least two seats in the Legislative Assembly of the State concerned.
• It wins at least three percent (3%) of the total number of seats in the Legislative Assembly of the State, or at least three seats in the Assembly, whichever is more.

What are its Benefits?

• If a party is recognised as a State Party’, it is entitled for exclusive allotment of its reserved symbol to the candidates set up by it in the State in which it is so recognised, and if a party is recognised as a `National Party’ it is entitled for exclusive allotment of its reserved symbol to the candidates set up by it throughout India.
• Recognised `State’ and `National’ parties need only one proposer for filing the nomination and are also entitled for two sets of electoral rolls free of cost at the time of revision of rolls and their candidates get one copy of electoral roll free of cost during General Elections.
• They also get broadcast/telecast facilities over Akashvani/Doordarshan during general Elections.
• The travel expenses of star campaigners are not to be accounted for in the election expense Accounts of Candidates of their Party.

Consent of AG to initiate contempt proceedings

25, Jan 2022

Why in News?

• Attorney General K K Venugopal has recently granted consent to initiate contempt proceedings against ‘Dharam Sansad’ leader Yati Narsinghanand over his alleged remarks against the Constitution and the Supreme Court.

Need for Consent:

• As per Section 15 of the Contempt of Courts Act, the nod of the Attorney General or the Solicitor General is a Condition precedent to set the criminal contempt proceedings in motion before the Apex Court.

What is the law on Contempt of courts?

• The Contempt of Courts Act 1971 defines civil and criminal contempt, and lays down the powers and procedures by which courts can penalise contempt, as well as the penalties that can be given for the offence of contempt.
• Contempt of court is the offense of being disobedient to or disrespectful toward a court of law and its officers in the form of behavior that opposes or defies the authority, justice and dignity of the court.

Why is the consent of the Attorney General required to Initiate Contempt proceedings?

• The objective behind requiring the consent of the Attorney General before taking cognizance of a complaint is to save the time of the court.
• This is necessary because judicial time is squandered if frivolous petitions are made and the court is the first forum for bringing them in.
• The AG’s consent is meant to be a safeguard against frivolous petitions, as it is deemed that the AG, as an officer of the court, will independently ascertain whether the complaint is Indeed Valid.

Under what circumstances is the AG’s consent not needed?

• The AG’s consent is mandatory when a private citizen wants to initiate a case of contempt of court against a person.
• However, when the court itself initiates a contempt of court case the AG’s consent is not required.
• This is because the court is exercising its inherent powers under the Constitution to punish for contempt and such Constitutional powers cannot be restricted because the AG declined to Grant Consent.

What happens if the AG Denies Consent?

• If the AG denies consent, the matter all but ends.
• The complainant can, however, separately bring the issue to the notice of the court and urge the court to take suo motu cognizance.
• Article 129 of the Constitution gives the Supreme Court the power to initiate contempt cases on its own, independent of the motion brought before it by the AG or with the consent of the AG.

Central Deputation of IAS Officials

23, Jan 2022

Why in News?

• The Centre has proposed amendments to the IAS (Cadre) Rules in order to exercise Greater Control in Central Deputation of IAS officials.

What is the issue?

• Central deputation has often been at the centre of tussles between the Centre and the states.

What is the Current Rule on Deputation?

• Central deputation in the Indian Administrative Service is covered under Rule-6 (1) of the IAS (Cadre) Rules-1954, inserted in May 1969.
• As per the rule:
• A cadre officer may, with the concurrence of the State Governments concerned and the Central Government, be deputed for service under the Central Government or another State Government or under a company, association or body of individuals, whether incorporated or not, which is wholly or substantially owned or controlled by the Central Government or by another State Government.

What happens in Case of Disagreement?

• In case of any disagreement, the matter shall be decided by the Central Government and the State Government or State Governments concerned shall give effect to the decision of the Central Government.
• However, Existing Rules did not mention any time limit for deciding on such disagreement.

What are the Proposed Amendments?

• The proposal will give greater say to the Centre.
• The amendments enable the Union government to seek the services of an Indian Administrative Service (IAS), Indian Police Service (IPS) and Indian Forest Service (IFoS) officer posted in a State even without the State Government’s Consent.
• The Centre will be able to relieve an officer from their cadre if the State government does not give effect to the Central Government’s Decision within the specified time.
• In case of any Disagreement, the matter shall be decided by the central government and the State Government or State Governments concerned shall give effect to the decision of the Central Government “within a specified time”.
• Services of an AIS officer with a specific domain expertise may be required for any important time-bound flagship programme or project.

What Necessitated these Amendments?

• Various state/joint cadres are not sponsoring adequate numbers of officers for central deputation, as part of the Central Deputation Reserve.
• As a result of this, the number of officers available for central deputation is not sufficient to meet the requirement at Centre.

How many officers are Working Under Deputation?

• Only 10% mid-level IAS officers were posted with the Union government in 2021, a sharp fall from 19% in 2014.
• The decrease in central deputation of IAS officers becomes even more stark as the total pool of such officers at this level expanded from 621 in 2014 to 1130 in 2021, an increase of around 80%.
• According to data available with the Department of Personnel and Training (DoPT), the number of central deputation reserve of IAS officers has gone down from 309 in 2011 to 223.

SC upholds validity of OBC quota in NEET admissions

21, Jan 2022

Why in News?

• The Supreme Court recently upheld the constitutional validity of quota for Other Backward Classes candidates in National Eligibility cum Entrance Test’s (NEET) All India Quota seats for undergraduate and postgraduate medical and dental courses, noting that “Reservation is not at odds with merit” in open competitive examinations.

What was the Apex Court’s ruling?

• If open examinations present equality of opportunity to candidates to compete, reservations ensure that the opportunities are distributed in such a way that backward classes are equally able to benefit from such opportunities which typically evade them because of structural barriers.
• This is the only manner in which merit can be a democratising force that equalises inherited disadvantages and privileges.
• Otherwise claims of individual merit are nothing but tools of obscuring inheritances that underlie achievements.
• The court said an open competitive exam only ensures formal equality and does not end widespread ingrained inequalities in the availability of and access to educational facilities to certain classes of people, including the Other Backward Classes (OBC).

What is NEET?

• The National Eligibility-cum-Entrance Test (NEET) is the entrance examination for entry to all undergraduate (NEET-UG) and postgraduate (NEET-PG) medical and dental courses in the country.
• Until 2016, the All India Pre-Medical Test (AIPMT) was the national-level entrance Examination for Medical Colleges.
• State Governments used to hold separate entrance tests for seats that were not contested at an all-India level.
• NEET was held for the first time in 2003, but discontinued the following year.
• On April 13, 2016, the Supreme Court upheld the newly inserted section 10-D of the Indian Medical Council Act.
• This provided for a uniform entrance examination to all medical educational institutions at the undergraduate level and postgraduate level in Hindi, English and various other Languages.
• Since then, NEET has been the uniform entrance test for medical courses across the country.

What is the All-India Quota?

• Although the same examination is held across the country, a chunk of the seats in state medical/dental colleges is reserved for students domiciled in their respective states.
• The remaining seats —15% in UG and 50% in PG — are surrendered by the states to the All India Quota.
• The AIQ scheme was introduced in 1986 under the directions of the Supreme Court to provide for domicile-free, merit-based opportunities to students from any state to study in a good medical college in any other state.
• A student Domiciled in Uttar Pradesh, for example, may be eligible for admission to a seat in a state Government medical college in West Bengal, provided she scores high enough in the National Merit List.
• If her score is not high enough for AIQ, she may still hope for admission under the state quota in her home state.
• In deemed/central universities, ESIC, and Armed Forces Medical College (AFMC), 100% seats are Reserved under the AIQ.

What was the Reservation Policy followed so far?

• Until 2007, no reservation was implemented within the All-India Quota for medical admission.
• On January 31, 2007, in Abhay Nath v University of Delhi and Others, the Supreme Court directed that reservation of 15% for Scheduled Castes and 7.5% for Scheduled Tribes be introduced in the AIQ.
• The same year, the Government passed the Central Educational Institutions (Reservation in Admission) Act, 2007 providing for 27% reservation to OBC students in central Government Institutions.
• While state government medical and dental colleges provide reservations to OBCs in seats outside the All India Quota, this benefit was so far not extended to seats allocated under the AIQ in these State Colleges.
• The 10% EWS quota under the Constitution (One Hundred And Third Amendment) Act, 2019, too, has been implemented in central educational institutions, but not in the NEET AIQ for state Institutions.

What led to the Decision?

• The denial of OBC and EWS reservations has been the subject of protests for years.
• In July last year, the Madras High Court ruled that OBC students too can avail reservation in the AIQ.
• It held that the reservation could not be implemented for the then academic year for want of time, and can be implemented from 2021-22.

Way Forward:

• The privileges that accrue to forward classes are not limited to having access to quality schooling and access to tutorials and coaching centres to prepare for a competitive Examination but also includes their social networks and Cultural Capital (communication Skills, accent, books or Academic Accomplishments) that they inherit from their family.
• The cultural capital ensures that a child from the forward classes is trained unconsciously by the familial environment to take up higher education or high posts commensurate with their family‘s standing.
• This works to the disadvantage of individuals from social backward classes who are first-generation learners and come from communities whose traditional occupations do not result in the transmission of necessary skills required to perform well in open examination.
• Thus, merit is not solely of one’s own making. The rhetoric surrounding merit obscures the way in which family, schooling, fortune and a gift of talents that the society currently values aids in one‘s advancement.
• Thus, the exclusionary standard of merit serves to denigrate the dignity of those who face barriers in their advancement which are not of their own making.

Anti-Defection Law

21, Jan 2022

Why in News?

• Bahujan Samaj Party (BSP) chief Mayawati recently called for a more stringent anti-defection law amid a string of politicians switching parties ahead of the Uttar Pradesh Assembly Election Beginning Next Month.

What’s the Issue?

• The practice of politicians deserting Parties just ahead of elections is not unusual. And every time there are defections, the anti-defection law, which penalises individual Lawmakers for Switching Parties, comes into the Picture.

About Anti-Defection Law:

• The Tenth Schedule of Indian Constitution is popularly known as the Anti-Defection Act.
• Original constitution had no such provisions. It was included in the Constitution in 1985 by the Rajiv Gandhi government.
• The main intent of the law was to deter “the evil of political defections” by legislators motivated by the lure of office or other similar considerations.
• The grounds for disqualification under the Anti-Defection Law includes
• If an elected member voluntarily gives up his membership of a political party.
• If he votes or abstains from voting in such House contrary to any direction issued by his political party or anyone authorized to do so, without obtaining prior permission.
• Going against the Party Whip.
• As a pre-condition for his disqualification, his abstention from voting should not be condoned by his party or the authorized person within 15 days of such incident.
• Articles 102 (2) and 191 (2) deals with anti-defection.
• The law disallows MPs/ MLAs to switch parties after elections, make the members follow the whips issued by their party.It also applies to a nominated member if he/ she join a political party after 6 months of nomination and to an independent candidate if he/she joins a party after the election.

What is not a Defection?

• A split in a political party won’t be considered a defection if a complete political party merges with another political party.
• If a new political party is created by the elected members of one part.
• If he or she or alternative members of the party haven’t accepted the merger between the Two Parties and opted to perform as a separate group from the time of such a merger.

When does the 10^th schedule might not apply?

• The 10^th Schedule of the Indian Constitution commonly referred to as the Anti-defection Act says that disqualification on ground of defection will not apply in case of a split.
• Where a member of a House claims that he/she and any other members of his/her legislature party constitute the group representing a faction which has arisen as a result of a split in the original political party and such group consists of not less than two-thirds of the members of such legislature party, he/she shall not be disqualified.
• From the time of such split, the faction shall be deemed to be the political party to which he/she henceforth belongs.

What are the Loop-Holes?

• Resignation as MLA was not one of the conditions.
• Exploiting this loophole, the 17 rebel MLAs in Karnataka resigned, their act aimed at ending the majority of the ruling coalition and, at the same time, avoiding disqualification.
• However, the Speaker refused to accept the resignations and declared them disqualified. This was possible as the legislation empowers the presiding officer of the House (i.e. the Speaker) to decide on complaints of defection under no time constraint.
• The law originally protected the Speaker’s decision from judicial review.
• However, this safeguard was struck down in Kihoto Hollohan v. Zachillhu and Others (1992).
• While the SC upheld the Speaker’s discretionary power, it underscored that the Speaker functioned as a tribunal under the anti-defection law, thereby making her/his decisions subject to Judicial Review.
• This Judgment Enabled Judiciary to become the watchdog of the anti-defection law, instead of the Speaker, who increasingly had become a political character contrary to the expected neutral constitutional role.
• The same could be witnessed in Shrimanth Balasaheb Patel & Ors vs. Speaker Karnataka Legislative Assembly & Ors (2019), where the three-judge SC bench upheld the then Karnataka Speaker’s decision of disqualification of the 17 rebel MLAs.
• However, it struck down his ban on the MLAs from contesting elections till 2023, negating the only possible permanent solution to the problem.
• The Supreme Court played the role of a neutral umpire in this political slugfest.
• But, the spectacle of MLAs hoarded in a bus, and being sent to a resort, openly exposed not just the absence of ideological ties between a leader and his party, but also her/his weak moral character.
• It was also upsetting to see public acceptance of such malpractices as part of politics, with some even calling it Chanakya niti!

Is there Any Safeguard for Anti-Defection?

• The Anti-Defection Law provided a safeguard for defections made on genuine ideological Differences.
• It accepted “split” within a party if at least one-third of the members of the legislative party Defect, and allowed the formation of a new party or “merger” with other political party if not less than two-thirds of the party’s members commit to it.
• The 91^st Constitutional Amendment introduced in 2003 deleted the provision allowing split.
• The 91^st Amendment also barred the appointment of defectors as Ministers until their disqualification period is over or they are re-elected, whichever is earlier.
• But, obviously, such laws have not put to rest the trend of defections.

What Should be Done?

• The main issue, as witnessed in Karnataka, is that the defectors treat disqualification as a mere detour, before they return to the House or government by re-contesting.
• This can only be stopped by extending the disqualification period from re-contesting and appointment to Chairmanships/Ministries to at least six years.
• The minimum period limit of six years is needed to ensure that the defectors are not allowed to enter the election fray for least one election cycle, which is Five Years.
• Of course, MLAs can still be bought from the ruling dispensation to bring it to a minority by being paid hefty sums, simply to stay at home for six years.

Contradictory Reforms to the Law:

• Nowadays, no real democratic discussions happen inside political parties about major Issues affecting the country. Individual MPs and MLAs need to be empowered to think Independently.
• Anti-defection law should be applied only to confidence and no-confidence motions (Dinesh Goswami Committee on electoral reforms, 1990) or only when the Government is in danger (Law Commission (170th report, 1999).
• The rationale that a Representative is elected on the basis of the party’s programme can be extended to pre-poll alliances.
• Instead of making Speaker the authority for disqualification, the decision should be made by the president or the governor on the advice of the Election Commission. This would make the Process similar to the Disqualification procedure as given in Representation of Peoples Act (RPA).
• There can be Additional Penalties for defectors as well.

Sedition Law

20, Jan 2022

Why in News?

• Calling for abolishing the law on sedition, former Supreme Court judge Rohinton Nariman has expressed concern on booking critics of the Government for sedition.

What are his Concerns?

• While those Exercising free speech were being booked under the stringent sedition law, those giving hate Speech are not being dealt with by Authorities.
• He said, it is time to completely do away with sedition laws and allow free speech so long as it does not exhort somebody to Violence.

What is Sedition?

• Sedition, which falls under Section 124A of the Indian Penal Code, is defined as any action that brings or attempts to bring hatred or contempt towards the government of India and has been illegal in India since 1870.

Need for a Proper Definition:

• The sedition law has been in controversy for far too long. Often the governments are criticized for using the law — Section 124-A of the Indian Penal Code (IPC) — against vocal critics of their policies.
• Therefore, this Section is seen as a restriction of individuals’ freedom of expression and falls short of the provisions of reasonable restrictions on freedom of speech under Article 19 of the Constitution.
• The law has been in debate ever since it was brought into force by the colonial British rulers in 1860s. Several top freedom movement leaders including Mahatma Gandhi and Jawaharlal Nehru were booked under the sedition law.
• Mahatma Gandhi described it as the “prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen.”
• Nehru had described it as “highly objectionable and obnoxious” which “should have no place in any body of laws that we might pass”. Nehru said, “The sooner we get rid of it the better.”

Relevant Supreme Court judgements:

• Kedarnath Singh vs State of Bihar: Section 124A has been challenged in various courts in specific cases. The validity of the provision itself was upheld by a Constitution Bench in 1962, in Kedarnath Singh vs State of Bihar.
• That Judgment went into the issue of whether the law on sedition is consistent with the Fundamental right under Article 19 (1) (a) which guarantees each citizen’s freedom of Speech and Expression.
• The Supreme Court laid down that every citizen has a right to say or write about the Government, by way of criticism or comment, as long as it does not “incite people to Violence” against the Government established by law or with the intention of creating public Disorder.
• The Balwant Singh vs State of Punjab (1995) case: In this case, the Supreme Court had clarified that merely shouting slogans, in this case Khalistan Zindabad, does not amount to sedition. Evidently, the sedition law is being both misunderstood and misused to muzzle dissent.

What does the Data Shows?

• The National Crime Records Bureau (NCRB), though, has only been collecting separate data on sedition cases since 2014. In 2014, there were 47 cases of sedition but that number increased to 70 in 2018 (the latest year with available data).
• Compared to other offences, sedition remains a rare crime (it accounts for less than 0.01% of all IPC crimes).
• But within India, some parts are emerging as sedition hotspots. Assam and Jharkhand, for instance, with 37 sedition cases each, account for 32% of all sedition cases between 2014-2018.
• In 2018, there were 1,182 cases registered under UAPA (The Act gives special procedures to handle terrorist activities, among other things). And almost all these cases (92%) were concentrated in five states (Uttar Pradesh, Jammu and Kashmir, Assam, Jharkhand and Manipur).
• “There has been a dramatic jump in charging a person with the offence of sedition since 2016.
• In 2019, 93 cases were on the ground of sedition as compared to the 35 cases that were filed in 2016. The same constitutes a 165% increase. Of these 93 cases, charge sheets were filed in a mere 17% of cases and even worse, the conviction rate was an abysmally low 3.3%.

Why Sedition Law is a Hindrance?

• Sedition leads to a sort of unauthorised self-censorship, for it produces a chilling effect on free speech.
• It suppresses what every citizen ought to do in a democracy — raise questions, debate, disagree and challenge the government’s decisions.
• Sedition systematically destroys the soul of Gandhi’s philosophy that is, right to dissent which is the core principle of democracy.

Need of the Hour:

• The top court has observed that the “ambit and parameters of the provisions of Sections 124A, 153A and 505 of the Indian Penal Code, 1860 would require interpretation, particularly in the context of the right of the electronic and print media to communicate news, information and the rights, even those that may be critical of the prevailing regime in any part of the Nation”.

SC to consider hearing PIL challenging use of EVMs in polls

20, Jan 2022

Why in News?

• The Supreme Court recently agreed to consider listing a PIL challenging the constitutional validity of a provision of the Representation of People Act which had led to the Introduction of Electronic Voting Machines (EVMs) in elections.

What does the Petition Say?

• Section 61A of the Representation of People Act, which permitted the use of EVMs, was not passed by Parliament and hence cannot be imposed. The petition wants the provision to be declared null and void.

What is an EVM?

• The Electronic Voting Machine, also known as EVM, is an electronic device used for casting votes. The EVM aims to make the electoral process secure, fair and transparent.
• The voting in India is done using electronic voting machines since 1999 to simplify the voting Process and do Away with Paper Ballots.

Can EVMs be Tampered With?

• The EVM is a tamper-proof machine. It is made of a one-time programmable chip, which cannot be connected to any external device or network such as the internet, Wi-Fi, USB or Bluetooth. Hence, it cannot be corrupted or Modified in any way possible.

What is the Process of Allotment of EVMS to Polling Booths?

• The EVMS are allotted to the polling booths through an elaborated randomization process. This way, there is no prior knowledge on which unit will go to which polling booth almost until the polling date. The machines undergo mock polls at every stage to ensure that they are in the right working condition.

How do the EVMS work?

• An EVM is designed with two units: the control unit and the balloting unit. These units are joined together by a cable.
• While the control unit of the EVM is kept with the presiding officer or the polling officer, the balloting unit is kept within the voting compartment for electors to cast their votes. This is done to ensure that the polling officer verifies your identity.

How to use an EVM?

• In order to enable the voter to cast their vote, the polling officer instead of issuing a ballot paper presses the ballot button. The balloting unit of the machine will have a list of candidate names and party symbols with a blue button next to it. The voter can press the button next to the candidate’s name they wish to vote for.
• When the Voter presses a button of his/ her choice, the machine locks itself and a printed VVPAT slip is displayed for 7 seconds before it’s automatically cut and delivered to a sealed ballot compartment. The votes are stored in the VVPAT or Voter Verifiable Paper Audit Trail machine.
• The EVM can then be opened only with a new ballot number. This way, EVMs ensure that one person gets to vote only once.

About VVPATs:

• VVPAT is a slip generated in a printer-like machine attached to EVM and shows voter’s choice of candidate as well as the party. Generated slip is displayed for a few seconds to the voter to verify before it falls into a sealed drop box which can be opened during counting.
• Advantages: Initially, election results are announced based on the recording of votes given by EVMs. If the election results are disputed, then the votes recorded under VVPATs shall be counted and announced. If there is any mismatch between the two results, then the VVPAT’s result will prevail over the EVMs.
• Disadvantages: However, VVPATs address only the issues at the voting part and the counting part still stays an opaque operation.
• Furthermore, currently, the EC’s VVPAT auditing is limited to one randomly selected polling booth per constituency. But, this sample size will not detect faulty EVMs 98-99 percent of the time.
• VVPATs can be an effective deterrent to fraud, but, the detection of even one faulty EVM in a constituency is followed by the VVPAT auditing of all the EVMs (at all booths) in that constituency = poses a serious logistical challenge and hence VVPATs are not the solution to counting Level Failures.

Why are EVMs used in India?

• The electronic voting machine came in India as a replacement to ballot papers and was first used in No. 70 Parvur assembly constituency in Kerala in 1982.
• In a large scale, the machines have been in use in India since 1999. The machines have been credited with making the voting process simpler, as now vote can be registered with just a click on the button.
• The machines are also cost-effective in the long run. Although the initial cost of an EVM is between Rs 5,000 and Rs 6,000, the machine, on an average, lasts for 15 years.
• Further, the machines run on batteries and hence don’t require electricity. They are also lighter and easily portable compared to the huge ballot boxes.
• The machines also make vote counting process faster, delivering results within hours as against Manual Counting of votes which could take days.

Inter-State River Water Disputes Act, 1956

19, Jan 2022

Why in News?

• Karnataka CM has recently observed that the time has come to revisit the Inter-State River Water Disputes Act as it creates more disputes than resolving them.

About the News:

• The chief minister’s statement comes at a time when Karnataka has been involved in inconstant fight with neighbouring Tamil Nadu, Maharashtra, Goa and Andhra Pradesh regarding inter-state water disputes concerning Cauvery, Mahadayi and Krishna rivers.

Need of the Hour:

• The multifold levels of addressing the inter-state water disputes are removed at one Single Stage.
• The solution should be on the basis of Maximum utility of a river basin Capacity and using Technology, and giving away all Political Considerations.

About Inter-state Water Dispute:

• Art 262 provides for the adjudication of inter-state water disputes. It has two following provisions:
• Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution and control of waters of any inter-state river and river valley.
• Parliament may also provide that neither the Supreme Court nor any other court is to exercise jurisdiction in respect of any such dispute or complaint.
• Under the provisions of the act, the central government has enacted, River boards act (1956) and Inter-state water disputes act (1956).
• The river board act provides for the establishment of river boards for the regulation and Development of the Inter-state River and river valleys. Such a river board is established on the request of the State Governments Concerned.
• The inter-state water dispute act empowers the central government to set up an ad hoc tribunal for the adjudication of a dispute between the two or more states in relation to the water of an inter-state river. The decision of the tribunal would be final and binding. Furthermore, the act bars the SC and any other court to have jurisdiction in this matter.

Issues Surrounding the Interstate Water Dispute Act, 1956:

• The Inter State Water Dispute Act, 1956 which provides the legal framework to address such disputes suffers from many drawbacks as it does not fix any time limit for resolving river water disputes.
• Delays are on account of no time limit for adjudication by a Tribunal, no upper age limit for the Chairman or the Members, work getting stalled due to occurrence of any vacancy and no time limit for publishing the report of the Tribunal.
• The River Boards Act 1956, which is supposed to facilitate inter-state collaboration over water resource development, remained a ‘dead letter’ since its enactment.
• Surface water is controlled by Central Water Commission (CWC) and ground water by Central Ground Water Board of India (CGWB).
• Both bodies work independently and there is no common forum for Common Discussion with state governments on water Management.

Suspension of 12 Maharashtra MLAs

19, Jan 2022

Why in News?

• 12 Maharashtra BJP MLAs have gone to the Supreme Court against their year-long suspension from the Assembly.

About the Issue:

• During the recent hearing, the Supreme Court observed that the suspension of MLAs for a full year is prima facie unconstitutional, and “worse than expulsion”.
• The MLAs were suspended for misbehaviour in the Assembly pertaining to disclosure of data Regarding OBCs.

What have the Suspended MLAs argued?

• In July 2021, Maharashtra Parliamentary Affairs Minister Anil Parab moved a resolution to suspend 12 BJP MLAs. The suspended MLAs argue that the suspension can only be made by the presiding officer under the rules of the house.
• The petition has Submitted that their suspension is “grossly arbitrary and Disproportionate”.
• The challenge relies mainly on grounds of denial of the principles of natural justice, and of violation of laid-down procedure.
• The 12 MLAs have said they were not given an opportunity to present their case, and that the suspension violated their fundamental right to equality before law under Article 14 of the Constitution.

Procedure to be Followed for suspension of MLAs:

• Under Rule 53 of the Maharashtra Legislative Assembly Rules, the power to suspend can only be exercised by the Speaker, and it cannot be put to vote in a resolution.
• Rule 53 states that the “Speaker may direct any member who refuses to obey his decision, or whose conduct is, in his opinion, grossly disorderly, to withdraw immediately from the Assembly”.
• The member must “absent himself during the remainder of the day’s meeting”.
• Should any member be ordered to withdraw for a second time in the same session, the Speaker may direct the member to absent himself “for any period not longer than the remainder of the Session”.

How does the State Government Defend its move?

• Under Article 212, courts do not have jurisdiction to inquire into the proceedings of the legislature.
• Article 212 (1) states that “The validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure”.
• Under Article 194, any member who transgresses the privileges can be suspended through the inherent powers of the House.
• Thus, the state government has denied that the power to suspend a member can be exercised only through Rule 53 of the Assembly.

Concern Expressed by the Supreme Court over the Length of the Suspension:

• The basic structure of the Constitution would be hit if the constituencies of the suspended MLAs remained unrepresented in the Assembly for a full year.
• Article 190 (4) of the Constitution says, “If for a period of sixty days a member of a House of the Legislature of a State is without permission of the House absent from all meetings thereof, the House may declare his seat vacant.”
• Under Section 151 (A) of The Representation of the People Act, 1951, “a bye-election for filling any vacancy shall be held within a period of six months from the date of the occurrence of the vacancy”. This means that barring exceptions specified under this section, no constituency can remain without a representative for more than six months.
• Therefore, the one-year suspension was prima facie unconstitutional as it went beyond the six-month limit, and amounted to “not punishing the member but punishing the constituency as a whole”.

What are the Rules on the Length of Suspension of a Member of Parliament?

• Rules of Procedure and Conduct of Business in Lok Sabha provide for the withdrawal of a member whose conduct is “grossly disorderly”, and suspension of one who abuses the rules of the House or wilfully obstructs its business.
• The maximum suspension as per these Rules is “for five consecutive sittings or the remainder of the session, whichever is less”.
• The maximum suspension for Rajya Sabha under Rules 255 and 256 also does not exceed the remainder of the session. Several recent suspensions of members have not continued beyond the session.
• Similar Rules also are in place for state legislative assemblies and councils which prescribe a maximum suspension not exceeding the remainder of the session.

Punjab Lok Congress receives its Party Symbol

12, Jan 2022

Why in News?

• Former Punjab CM Amarinder Singh’s newly formed party Punjab Lok Congress has received its party symbol – Hockey stick and ball.

Firstly, how are symbols allotted to political parties?

• As per the guidelines, to get a symbol allotted:
• A party/candidate has to provide a list of three symbols from the EC’s free symbols list at the time of filing nomination papers.
• Among them, one symbol is allotted to the party/candidate on a first-come-first-serve basis.
• When a recognised political party splits, the Election Commission takes the decision on assigning the symbol.

Powers of Election Commission:

• The Election Symbols (Reservation and Allotment) Order, 1968 empowers the EC to recognise political parties and allot symbols.
• Under Paragraph 15 of the Order, it can decide disputes among rival groups or sections of a recognised political party staking claim to its name and symbol.
• The EC is also the only authority to decide issues on a dispute or a merger. The Supreme Court upheld its validity in Sadiq Ali and another vs. ECI in 1971.

How many Types of Symbols are there?

• As per the Election Symbols (Reservation and Allotment) (Amendment) Order, 2017, party symbols are either:
• Reserved: Eight national parties and 64 state parties across the country have “Reserved” Symbols.
• Free: The Election Commission also has a pool of nearly 200 “free” symbols that are allotted to the thousands of unrecognised regional parties that pop up before Elections.

What are the Election Commission’s powers in a dispute over the election symbol when a Party Splits?

• On the question of a split in a political party outside the legislature, Para 15 of the Symbols Order, 1968, states: “When the Commission is satisfied that there are rival sections or Groups of a Recognised political party each of whom claims to be that party the Commission may decide that one such rival section or group or none of such rival sections or groups is that recognised political party and the decision of the Commission shall be binding on all such rival sections or groups.”
• This applies to disputes in recognised national and state parties (like the LJP, in this case). For splits in registered but unrecognised parties, the EC usually advises the warring factions to resolve their differences internally or to approach the court.
• Please note that before 1968, the EC issued notifications and executive orders under the Conduct of Election Rules, 1961.

SC to Urgently Hear Hate Speeches Case

11, Jan 2022

Why in News?

• The Supreme Court recently agreed to urgently hear a petition seeking the arrest and trial of people who made hate speeches, inciting violence towards Muslims, at the Haridwar Dharm Sansad.

What is Hate Speech?

• According to Law Commission of India (267th report), hate speech is “incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like”
• The report of the commission further clarifies that hate speech is “any word written or spoken, signs, visible representations within the hearing or sight of a person with the Intention to cause fear or alarm, or Incitement to Violence.

What are the Constitutional Provisions Regarding the Freedom of Speech?

• Article 19(1)(a) of the Indian Constitution guarantees freedom of speech and expression. Any restriction on this right shall only be permitted if the speech falls within one of the eight grounds set out in Article 19(2) of the Constitution.
• The freedom of speech under Article 19(1)(a) includes the right to express one’s views and opinions at any issue through any medium, e.g. by words of mouth, writing, printing, picture, film, movie, etc.
• It thus includes the freedom of communication and the right to propagate or publish an opinion.

Can Freedom of Speech be Curtailed?

• This right is subject to reasonable restrictions being imposed under Article 19(2). Out of the eight different grounds listed on Article 19(2) of the Constitution, the majority of hate speech laws are saved by the ‘public order’ exception. The eight different grounds are;
• Security of the State.
• Friendly relations with FOREIGN STATES.
• Public order.
• Decency and morality.
• Contempt of court.
• Incitement to an offence, and
• Sovereignty and integrity of India.
• Reasonable restrictions on these grounds can be imposed only by a duly enacted law and not by executive action.

Issues of Social Media Misuse:

• Rumour Mongering: Fake narratives on online platforms have real life implications. For example, recently in India, online rumours, regarding child traffickers, through popular messaging platform WhatsApp, led to a spate of lynching’s in rural areas.
• Facilitating Polarisation: It enables the Communalising agents to polarise people for Electoral Gains.
• For example, during the election campaign of recently conducted Delhi legislative assembly elections, a leader enticed crowds with the use of communalising and violence on social media platforms.
• Following this, a young man translated these words into reality by opening fire on protesters.
• This incident highlighted how the spread of hate speech through social media has real consequences.
• Social Media AI poorly adapted to local languages: Social media platforms’ Artificial Intelligence based Algorithms that filter out hate speeches are not adapted to local languages. Also, the companies have invested little in staff fluent in them. Due to this, it failed to limit the ultranationalist Buddhist monks using Facebook for disseminating hate speech which eventually led to Rohingya Massacres.

Way Forward:

• Harmonising the Laws: Harmonising the regulations to check misuse of social media are scattered across multiple acts and rules.
• Thus, there is a need to synchronise the relevant provisions under the Indian Penal Code, the Information Technology Act and Criminal Procedure Code.
• Obeying the regulation by Supreme Court: In Shreya Singhal v. Union of India (2015) case, Supreme Court gave a verdict on the issue of online speech and intermediary liability in India.
• It struck down the Section 66A of the Information Technology Act, 2000, relating to restrictions on online speech, on grounds of violating the freedom of speech guaranteed under Article 19(1)(a) of the Constitution of India.
• It also gave the direction on how hate content should be regulated and the government should follow this direction, where the user reports to the intermediary and the platforms then takes it down after following due process.
• Transparency obligation for Digital Platforms: Digital platforms can be made to publish the name and amount paid by the author in the event that content is sponsored.
• For example, with regard to fake news, France has an 1881 law that defines the criteria to establish that news is fake and being disseminated deliberately on a large scale.
• A legal injunction should be created to swiftly halt such news from being disseminated.
• Establishing Regulatory Framework: Responsible broadcasting and institutional arrangements should be made with consultations between social media platforms, media Industry bodies, civil society and law enforcement as an ideal regulatory framework.
• Even global regulations could be made to establish baseline content, electoral integrity, privacy, and data standards.
• Creating Code of Conduct: It can be framed without creating an ambiguous statutory structure that could leave avenues for potential legislative and state control.
• For example, the European Union has also established a code of conduct to ensure non-proliferation of hate speech under the framework of a ‘digital single market.’

Centre yet to notify rules of Citizenship Amendment Act

10, Jan 2022

Why in News?

• The Ministry of Home Affairs (MHA) did not notify the Citizenship (Amendment) Act, 2019 rules even the third extended deadline after the Act was passed.

About the News:

• The CAA was passed by the Lok Sabha in Dec 9, 2019, by the Rajya Sabha on Dec 11, 2019 and was assented by the President on December 12, 2019.
• The MHA issued a notification later that the provisions of the act will come into force from Jan 10, 2020.
• January 9 was the last day of an extension it sought from the two parliamentary committees in the Lok Sabha and the Rajya Sabha to frame the rules.
• But still the rules are not yet notified.
• The legislation cannot be implemented without the rules being notified.

About the CAA and Foreigners Tribunal:

• The Parliament passed the Citizenship Amendment Act (CAA), 2019 that seeks to give citizenship to refugees from the Hindu, Christian, Buddhist, Sikh and Zoroastrian communities fleeing religious persecution from Pakistan, Bangladesh and Afghanistan, who came to India before 31st December, 2014.
• Residential Requirement for citizenship through naturalization from the above said countries is at least 5 years. Residential requirement for citizenship through naturalization for others is 11 years.
• The Act applies to all States and Union Territories of the country.
• The beneficiaries of Citizenship Amendment Act can reside in any state of the country.
• In 1964, the govt. brought in the Foreigners (Tribunals) Order.
• Advocates not below the age of 35 years of age with at least 7 years of practice (or) Retired Judicial Officers from the Assam Judicial Service (or) Retired IAS of ACS Officers (not below the rank of Secretary/Addl. Secretary) having experience in quasi-Judicial Works.
• The Ministry of Home Affairs (MHA) has amended the Foreigners (Tribunals) Order, 1964, and has empowered district magistrates in all States and Union Territories to set up tribunals (quasi-judicial bodies) to decide whether a person staying illegally in India is a foreigner or not.
• Earlier, the powers to constitute tribunals were vested only with the Centre.
• Typically, the tribunals there have seen two kinds of cases: those concerning persons against whom a reference has been made by the border police and those whose names in the electoral roll has a “D”, or “doubtful”, marked against them.

Who are Illegal Immigrants?

• According to the Citizenship Act, 1955, an illegal immigrant is one who enters India without a valid passport or with forged documents, or a person who stays beyond the Visa Permit.

What is NRC?

• The National Register of Citizens (NRC) is meant to identify a bona fide citizen.
• In other words, by the order of the Supreme Court of India, NRC is being currently updated in Assam to detect Bangladeshi nationals who might have entered the State illegally after the midnight of March 24, 1971.
• The date was decided in the 1985 Assam Accord, which was signed between the then Prime Minister Rajiv Gandhi and the AASU.
• The NRC was first published after the 1951 Census in the independent India when parts of Assam went to the East Pakistan, now Bangladesh.
• The first draft of the updated list was concluded by December 31, 2017.

Arguments against the Act:

• The Fundamental Criticism of the Act has been that it specifically targets Muslims. Critics argue that it is violative of Article 14 of the Constitution (which guarantees the right to equality) and the principle of secularism.
• India has several other refugees that include Tamils from Sri Lanka and Hindu Rohingya from Myanmar. They are not covered under the Act.
• Despite exemption granted to some regions in the North-eastern states, the prospect of citizenship for massive numbers of illegal Bangladeshi migrants has triggered deep anxieties in the states.
• It will be difficult for the government to differentiate between Illegal Migrants and those Persecuted.

Arguments in Favour:

• The government has clarified that Pakistan, Afghanistan and Bangladesh are Islamic republic’s where Muslims are in majority hence they cannot be treated as persecuted minorities. It has assured that the government will examine the application from any other community on a case to case basis.
• This Act is a big boon to all those people who have been the victims of Partition and the subsequent conversion of the three countries into theocratic Islamic republics.
• Citing partition between India and Pakistan on religious lines in 1947, the government has argued that millions of citizens of undivided India belonging to various faiths were staying in Pakistan and Bangladesh from 1947.
• The constitutions of Pakistan, Afghanistan and Bangladesh provide for a specific state religion. As a result, many persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities have faced persecution on grounds of religion in those countries.
• Many such persons have fled to India to seek shelter and continued to stay in India even if their travel documents have expired or they have incomplete or no documents.
• After Independence, not once but twice, India conceded that the minorities in its neighbourhood is its responsibility. First, immediately after Partition and again during the Indira-Mujib Pact in 1972 when India had agreed to absorb over 1.2 million refugees. It is a historical fact that on both occasions, it was only the Hindus, Sikhs, Buddhists and Christians who had come over to Indian side.

Don’t indulge in Hate Speech, says Vice President

04, Jan 2022

Why in News?

• Vice President M Venkaiah Naidu recently expressed his strong disapproval of attempts to ridicule other Religions and create dissensions in the society, saying every person has the right to Practice and Preach his or her Faith in the Country.

What is Hate Speech?

• According to Law Commission of India (267th report), hate speech is “incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious Belief and the like”.
• The report of the Commission Further Clarifies that hate speech is “any word written or spoken, signs, visible representations within the hearing or sight of a person with the Intention to cause fear or alarm, or Incitement to violence.

What are the Constitutional Provisions regarding the Freedom of speech?

• Article 19(1)(a) of the Indian Constitution guarantees freedom of speech and expression. Any restriction on this right shall only be permitted if the speech falls within one of the eight grounds set out in Article 19(2) of the Constitution.
• The freedom of speech under Article 19(1)(a) includes the right to express one’s views and opinions at any issue through any medium, e.g. by words of mouth, writing, printing, picture, film, movie, etc.
• It thus includes the freedom of communication and the right to propagate or publish an opinion.

Can Freedom of speech be curtailed?

• This right is subject to reasonable restrictions being imposed under Article 19(2). Out of the eight different grounds listed on Article 19(2) of the Constitution, the majority of hate speech laws are saved by the ‘public order’ exception. The eight different grounds are;
• Security of the State.
• Friendly relations with foreign States.
• Public order.
• Decency and morality.
• Contempt of court.
• Incitement to an offence, and
• Sovereignty and integrity of India.
• Reasonable restrictions on these grounds can be imposed only by a duly enacted law and not by executive action.

Issues of Social Media Misuse:

• Rumour Mongering: Fake narratives on online platforms have real life implications. For example, recently in India, online rumours, regarding child traffickers, through popular messaging platform WhatsApp, led to a spate of lynching’s in rural areas.
• Facilitating Polarisation: It enables the communalising agents to polarise people for Electoral Gains.
• For example, during the election campaign of recently conducted Delhi legislative assembly elections, a leader enticed crowds with the use of communalising and violence on social media platforms.
• Following this, a young man translated these words into reality by opening fire on protesters.
• This incident highlighted how the spread of hate speech through social media has real consequences.
• Social Media AI poorly adapted to local languages: Social media platforms’ artificial intelligence based algorithms that filter out hate speeches are not adapted to local languages. Also, the companies have invested little in staff fluent in them. Due to this, it failed to limit the ultranationalist Buddhist monks using Facebook for disseminating hate speech which eventually led to Rohingya massacres.

Way Forward:

• Harmonising the Laws: Harmonising the regulations to check misuse of social media are scattered across multiple acts and rules.
• Thus, there is a need to synchronise the relevant provisions under the Indian Penal Code, the Information Technology Act and Criminal Procedure Code.
• Obeying the regulation by Supreme Court: In Shreya Singhal v. Union of India (2015) case, Supreme Court gave a verdict on the issue of online speech and intermediary liability in India.
• It struck down the Section 66A of the Information Technology Act, 2000, relating to restrictions on online speech, on grounds of violating the freedom of speech guaranteed under Article 19(1)(a) of the Constitution of India.
• It also gave the direction on how hate content should be regulated and the government should follow this direction, where the user reports to the intermediary and the platforms then takes it down after following due process.
• Transparency obligation for digital platforms: Digital platforms can be made to publish the name and amount paid by the author in the event that content is sponsored.
• For example, with regard to fake news, France has an 1881 law that defines the criteria to establish that news is fake and being disseminated deliberately on a large scale.
• A legal injunction should be created to swiftly halt such news from being disseminated.
• Establishing regulatory framework: Responsible broadcasting and institutional arrangements should be made with consultations between social media platforms, media industry bodies, civil society and law enforcement as an ideal regulatory framework.
• Even global regulations could be made to establish baseline content, electoral integrity, privacy, and data standards.
• Creating Code of Conduct: It can be framed without creating an ambiguous statutory structure that could leave avenues for potential legislative and state control.
• For example, the European Union has also established a code of conduct to ensure non-proliferation of hate speech under the framework of a ‘digital single market.’