Category: Institutional Reforms

Chandigarh’s Proposal to Amend Article 80 of the Constitution

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.

RS debates use of private bills to amend Preamble to Constitution

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.

CHIEF OF DEFENCE STAFF (CDS)

Context:

  • In his Independence Day address, Prime Minister announced the creation of the post of Chief of Defence Staff to provide “effective leadership at the top level” to the three wings of the armed forces, and to help improve coordination among them.

What is the office of the Chief of Defence Staff (CDS)?

  • The CDS is a high military office that oversees and coordinates the working of the three Services, and offers seamless tri-service views and single-point advice to the Executive (in India’s case, to the Prime Minister) on long-term defence planning and management, including manpower, equipment and strategy, and above all, “jointsmanship” in operations.
  • In most democracies, the CDS is seen as being above inter-Service rivalries and the immediate operational preoccupations of the individual military chiefs.
  • The role of the CDS becomes critical in times of conflict.
  • Most countries with advanced militaries have such a post, albeit with varying degrees of power and authority.
  • The United States Chairman Joint Chiefs of Staff Committee (CJCSC), for example, is extremely powerful, with a legislated mandate and sharply delineated powers.
  • He is the most senior military officer and military adviser to the President, and his remit extends to the National Security Council, the Homeland Secuirty Council, and the Defence Secretary.

In US:

  • The Chiefs of the United States Army, Navy, Air Force, Marine Corps, and National Guard too, are members of the JCSC.
  • All, including the CJCSC, are four-star officers, but by statute only the CJCSC is designated as the “principal military adviser”.
  • However, the CJCSC is barred from exercising any operational authority over combat commanders in varied theatres; this authority rests exclusively with the US President.

So, why had India not appointed a CDS until now?:

  • India has had a feeble equivalent known as the Chairman, Chiefs of Staff Committee (CoSC); but this is a toothless office, given the manner in which it is structured.
  • The seniormost among the three Service Chiefs is appointed to head the CoSC, an office that lapses with the incumbent’s retirement.

Issue with Chiefs of Staff Committee (CoSC):

  • In 2015, then Defence Minister Manohar Parrikar had described the CoSC arrangement as “unsatisfactory”, and its Chairman as a “figurehead”. The post did not further tri-service integration, resulting in inefficiency and an expensive duplication of assets,
  • The CoSC system is a leftover from the colonial era, with only minor changes being carried out over the years.Apprehensions in the political class about a powerful military leader, along with inter-Services bickering, have long worked to disincentivise the upgrade of the post.

Kargil Review Committee (KRC):

  • The first proposal for a CDS came from the 2000 Kargil Review Committee (KRC), which called for a reorganisation of the “entire gamut of national security management and apex decision-making and structure and interface between the Ministry of Defence and the Armed Forces Headquarters”.
  • The Group of Ministers Task Force that studied the KRC Report and recommendations, proposed to the Cabinet Committee on Security that a CDS, who would be five-star officer, be created.In preparation for the post, the government created the Integrated Defence Staff (IDS) in late 2002, which was to eventually serve as the CDS’s Secretariat.
  • However, over the past 17 years, this has remained yet another nebulous department within the military establishment.

But what happened to the proposal?

  • No consensus emerged among the Services, with the IAF especially opposed to such a move.The UPA, then in opposition, was against the idea of concentrating too much military power in the CDS’s post.
  • The Ministry of Defence (MoD) too, opposed it subtly for the same reasons, and because it could disrupt civil-military ties in the latter’s favour.

What is the case for having a CDS?

  • Although the KRC did not directly recommend a CDS — that came from the GoM — it underlined the need for more coordination among the three Services, which was poor in the initial weeks of the Kargil conflict.
  • The KRC Report pointed out that India is the only major democracy where the Armed Forces Headquarters is outside the apex governmental structure.
  • It observed that Service Chiefs devote most of their time to their operational roles, “often resulting in negative results”.
  • Long-term defence planning suffers as day-to-day priorities dominate.
  • Also, the Prime Minister and Defence Minister do not have the benefit of the views and expertise of military commanders, in order to ensure that higher level defence management decisions are more consensual and broad-based.

Arguments Against?

  • Theoretically, the appointment of a CDS is long overdue, but there appears to be no clear blueprint for the office to ensure its effectiveness.
  • India’s political establishment is seen as being largely ignorant of, or at best indifferent towards, security matters, and hence incapable of ensuring that a CDS works.
  • Militaries by nature tend to resist transformation.
  • In the US, the 1986 Goldwater-Nichols Act elevated the Chairman from first among equals to the “principal military advisor” to the President and the Secretary of Defence.
  • In the Indian context, critics fear, the absence of foresight and understanding might end up making the CDS just another case of “jobs for the boys”.

Who at present advises India’s Prime Minister on military matters?

  • In effect it is the National Security Adviser.
  • This has been especially so after the Defence Planning Committee was created in 2018, with NSA Ajit Doval as its chairman, and the foreign, defence, and expenditure secretaries, and the three Service Chiefs as members.

WATER DISPUTES TRIBUNAL

Context: Lok Sabha gave its approval to a proposal to set up a permanent tribunal to adjudicate on inter-state disputes over sharing of river waters.

Background:

Water and Constitution of India

  •  Water is a State subject
  • Entry 17 of State List deals with water i.e. water supply, irrigation, canal, drainage, embankments, water storage and water power.
  • Entry 56 of Union List gives power to the Union Government for the regulation and development of inter-state rivers and river valleys to the extent declared by Parliament to be expedient in the public interest.

Article 262:

  • Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-State river or river valley.
  •  Parliament may, by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint Get a fair cash offer for your Norcross house, regardless of its condition, at https://www.cash-for-houses.org/north-carolina/cash-for-my-house-elizabeth-city-nc/.

What Inter-State River Waters Disputes Act of 1956 says about Tribunal:

  •  Inter-State River Waters Disputes Act of 1956 provides for setting up of a separate tribunal every time a dispute arises.

New Amendment:

  •  The amendment will ensure the transfer of all existing water disputes to the new tribunal.
  •  All five existing tribunals under the 1956 Act would cease to exist.

Why the Change?

  •  The main purpose is to make the process of dispute settlement more efficient and effective.

Issues with Old Tribunals:

  •  Under the 1956 Act, nine tribunals have so far been set up. Only four of them have given their awards.
  •  One of these disputes, over Cauvery waters between Karnataka and Tamil Nadu, took 28 years to settle.
  •  The Ravi and Beas Waters Tribunal was set up in April 1986 and it is still to give the final award.
  •  The minimum a tribunal has taken to settle a dispute is seven years, by the first Krishna Water Disputes Tribunal in 1976.
  • Time Limit-The amendment is bringing a time limit for adjudicating the disputes. All disputes would now have to be resolved within a maximum of four-and-a-half years.

Duplication of work:

  •  The multiplicity of tribunals has led to an increase in bureaucracy, delays, and possible duplication of work.

Money Saved:

  •  The replacement of five existing tribunals with a permanent tribunal is likely to result in a 25 per cent reduction in staff strength, from the current 107 to 80, and a saving of Rs 4.27 crore per year.

Disputes Resolution Committee (DRC):

  •  The current system of dispute resolution would give way to a new two-tier approach.
  •  The states concerned would be encouraged to come to a negotiated settlement through a Disputes Resolution Committee (DRC).
  •  Only if the DRC fails to resolve the dispute will the matter be referred to the tribunal.

How it will work?

  •  In the existing mechanism, when states raise a dispute, the central government constitutes a tribunal. Under the current law, the tribunal has to give its award within three years, which can be extended by another two years.
  •  In practice, tribunals have taken much longer to give their decisions. Under the new system, the Centre would set up a DRC once states raise a dispute.
  •  The DRC would be headed by a serving or retired secretary-rank officer with experience in the water sector and would have other expert members and a representative of each state government concerned.
  •  The DRC would try to resolve the dispute through negotiations within a year and submit a report to the Centre. This period can be extended by a maximum of six months.

If DRC fails:

  •  If the DRC fails to settle the dispute, it would be referred to the permanent tribunal, which will have a chairperson, a vice-chairperson and a maximum of six members — three judicial and three expert members.
  •  The chairperson would then constitute a three-member bench that would consider the DRC report before investigating on its own.
  •  It would have to finalise its decision within two years, a period that can be extended by a maximum of one more year — adding up to a maximum of four-and-a-half years.

Judgment Validity:

  •  The decision of the tribunal would carry the weight of an order of the Supreme Court.

Appeal:

  •  There is no provision for appeal.
  •  However, the Supreme Court, while hearing a civil suit in the Cauvery dispute, had said the decision of that tribunal could be challenged before it through a Special Leave Petition under Article 136 of the Constitution.

NATIONAL INVESTIGATION AGENCY (AMENDMENT) BILL, 2019

Why in News?

  • National Investigation Agency (Amendment) Bill, 2019 passed by Lok Sabha

Amendments:

  • The Bill amends the National Investigation Agency (NIA) Act, 2008. The Act provides for a national-level agency to investigate and prosecute offences listed in a schedule (scheduled offences). Further, the Act allows for creation of Special Courts for the trial of scheduled offences.
  • Scheduled offences: The schedule to the Act specifies a list of offences which are to be investigated and prosecuted by the NIA.
  • These include offences under Acts such as the Atomic Energy Act, 1962, and the Unlawful Activities Prevention Act, 1967.
  • The Bill seeks to allow the NIA to investigate the following offences, in addition:
    • Human trafficking,
    • Offences related to counterfeit currency or bank notes
    • Manufacture or sale of prohibited arms
    • Cyber-terrorism
    • Offences under the Explosive Substances Act, 1908.
  • Jurisdiction of the NIA: The Act provides for the creation of the NIA to investigate and prosecute offences specified in the schedule.
  • The officers of the NIA have the same powers as other police officers in relation to investigation of such offences, across India.
  • The Bill states that in addition, officers of the NIA will have the power to investigate scheduled offences committed outside India, subject to international treaties and domestic laws of other countries. The central government may direct the NIA to investigate such cases, as if the offence has been committed in India. The Special Court in New Delhi will have jurisdiction over these cases.
  • Special Courts: The Act allows the central government to constitute Special Courts for the trial of scheduled offences.
  • The Bill amends this to state that the central government may designate Sessions Courts as Special Courts for the trial of scheduled offences.
  • The central government is required to consult the Chief Justice of the High Court under which the Sessions Court is functioning, before designating it as a Special Court. When more than one Special Court has been designated for any area, the senior-most judge will distribute cases among the courts.
  • Further, state governments may also designate Sessions Courts as Special Courts for the trial of scheduled offences

CENTRAL DRUGS STANDARD CONTROL ORGANISATION

CDSCO:

  • Central Drugs Standard Control Organization (CDSCO) is the Central Drug Authority for discharging functions assigned to the Central Government under the Drugs and Cosmetics Act

Major functions of CDSCO:

  • Regulatory control over the import of drugs, approval of new drugs and clinical trials, meetings of Drugs Consultative Committee (DCC) and Drugs Technical Advisory Board (DTAB), approval of certain licenses as Central License Approving Authority is exercised by the CDSCO headquarters.

Strategies:

  • Initiate in framing of rules, regulations and guidance documents to match the contemporary issues in compliance with the requirements of Drugs & Cosmetics Act 1940 and Rules 1945.
  • Facilitate in Uniform implementation of the provisions of the Drugs & Cosmetics Act 1940 and Rules 1945. Function as Central license Approving Authority under the provisions of Drugs and Cosmetics Act 1940 and Rules 1945. Collaboration with other similar International agencies.
  • Providing training to the Indian regulatory personnel.

TAIWAN LEGALIZES SAME-SEX MARRIAGE IN HISTORIC FIRST FOR ASIA

Why in News:

  • Lawmakers in Taiwan have approved a bill legalizing same-sex marriage, a landmark decision that makes the self-ruled island the first place in Asia to pass gay marriage legislation.

Details:

  • Lawmakers comfortably passed part of a bill that would allow gay couples to enter into “exclusive permanent unions” and apply for marriage registration with government agencies.

What is Section 377?

  • Section 377 of the Indian Penal Code dating back to 1860, introduced during the British rule   of    India, criminalises    sexual    activities    “against    the    order    of nature”, including homosexual sexual activities. Prior to that, sexual activities, including amongst homosexuals, were not penalised in India.
  • Though it textually applies to all persons, homosexual and heterosexual, it has been targeted at Transgender men.

Courts judgement on Section 377

  • The Delhi High Court in Naz Foundation v. Government of NCT of Delhi (2009) rightly held that criminalising sexual activities with consent in private not only impairs the dignity of those persons targeted by the law, but it is also discriminatory and impacts the health of those people.
  • The top court had set aside a historic Delhi High Court judgment that had decriminalized homosexuality.
  • Supreme Court, in Suresh Kumar Koushal v. Naz Foundation (2013) case, set aside the Delhi High Court judgment and said that homosexuality or unnatural sex between two consenting adults under Section 377 of IPC is illegal and will continue to be an offense. The court said that Section 377 did not suffer from any “constitutional infirmity”.
  • The astounding claim made in Koushal case that there was no need to challenge Section 377 because the LGBT community constitutes only a minuscule minority has been completely discredited. It was unreasonable to advance the view that constitutional protection is available to a group based on its size.

CJI SEXUAL HARASSMENT CASE: HAVE A RIGHT TO COPY OF BOBDE PANEL REPORT, SAYS COMPLAINANT

Why in News:

  • The former apex court staffer wrote to the in-house panel, which found “no substance” in her sexual harassment allegations against the CJI.

Details:

  • If a copy of the report is being given to the CJI directly or indirectly, I am entitled to a copy thereof in any case,” the woman appealed to the committee.
  • The Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013, in Section 13 provides that both parties have a right to receive a copy of the report.
  • Not providing a copy to the complainant while holding her complaint to be unfounded would be a violation of the principles of natural justice and a complete travesty of justice,” the Supreme Court is relying on a judgment which pre-dates the Right to Information (RTI) Act of 2005 which mandates the fundamental right to information.

Under RTI:

  • The complainant she quoted a full-bench judgment of the Delhi High court in the case of disclosure of assets of judges, saying “the full bench had held that even assets of judges would be accessible under RTI to any citizen”
  • The complainant said she had been treated as an “outsider” from the very beginning of the inquiry process.

What were the earlier Vishaka guidelines?

  • The Vishaka guidelines were laid down by the Supreme Court in Vishakha and others v State of Rajasthan judgment in 1997.
  • It imposes three key obligations on employing institutions – prohibition, prevention, and redress. The institutions are mandated to establish a Complaints Committee.
  • This was to look into matters of sexual harassment of women at the workplace. These guidelines are legally binding

Sexual Harassment of Women at Workplace

  • Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Actwas passed in 2013. It broadens the Vishaka guidelines, which were already in place.
  • An aggrieved victim is a woman “of any age whether employed or not”, who “alleges to have been subjected to any act of sexual harassment”.
  • The Act thus covers the rights of all women working or visiting any workplace, in any capacity. Sexual harassment is any one or more of “unwelcome acts or behaviour”, committed directly or by implication.They include:
  • Physical contact & advances
  • A demand or request for sexual favours Sexually coloured remarks
  • Showing pornography
  • Any other unwelcome physical, verbal or non-verbal conduct of sexual nature

Student Police Cadet Programme

  • A country wide initiative called Student Police Cadet (SPC) programme was launched by home minister. • Which aim to build a bridge between the police and young students by educating them in crime prevention
  • Which aim to build a bridge between the police and young students by educating them in crime prevention

Features:

  • The programme focuses on students of class 8 & 9 and special care has been taken to ensure that it does not lead to increase in the workload of the students.
  • The programme does not have any prescribed text book nor is any exam envisaged. It is a class room programme and conducted once in a month.
  • The programme seeks to cover broadly two kinds of topics:
    • Crime prevention and control
    • Values and ethics
  • Under it, the following topics covered are – Community Policing, Road Safety, Fight against Social Evils, Safety of Women & Children, Fight against Corruption and Disaster Management, Values & Ethics, Respect for Elders, Empathy & Sympathy, Tolerance, Patience, Attitude, Team Spirit and Discipline.
  • A Handbook has been prepared by BPR&D (Bureau of Police Research and Development) for imparting instructions with the support of NCERT.
  • There is greater emphasis on field demonstrations and hands on learning of the functioning of the Police through visits to Women Police stations, Child Protection Homes including NGOs, Traffic Police and Fire Brigade Stations.
  • There will also be learning through group discussions, audio-visual mediums etc.
  • The programme shall be steered by a State level committee to be headed by the Principal Secretary, Home Department with the Principal Secretary, Education and Director General of Police as members.
  • There shall be a similar committee at the district level headed by the District Magistrate with the District Inspector of Schools and Superintendent of Police as members

BRDP

The Union Home Ministry has merged three-decade old National Crime Records Bureau (NCRB) with Bureau of Police Research and Development (BPRD) in order to improve administrative efficiency and optimal utilisation of resources for development works related to policing. It will also boost crime data collection and research efforts.

Now BPR&D will oversee all the data collection related to:

  • Crime in India,
  • Suicides and Accidental Deaths,
  • Prison Statistics and
  • Fingerprints

which was earlier done by NCRB. The BPRD Director General (DG) will be the head of the merged new entity

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