Category: Polity & Governance

Disqualification of MPs

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

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

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

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

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

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

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

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

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

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’

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

  • 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

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)

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

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

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

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

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

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

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

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

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

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 32nd Indian Chief Justice of the High Court and 43rd 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

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

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

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

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

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

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

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

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.
  • 82nd 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

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

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

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

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

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

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 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.

Sedition Law

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

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

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

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

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

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

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

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.’

8 Lakh Income reasonable cap for EWS Quota, Centre tells SC

Why in News?

  • A Government Committee Report in the Supreme Court has said that “income” is a “feasible criterion” for Defining the “Economical Weaker Sections” (EWS) in society and the annual family income of ₹8 lakh is a “reasonable” threshold to determine EWS in order to extend reservation in Admissions and Jobs.

About the News:

  • The committee report as part of a government affidavit concluded that a feasible criterion for defining EWS can be based on income [family income]. A threshold of ₹8 lakh of annual family income, in the current situation, seems reasonable for determining EWS.
  • The committee did not agree with the notion that the Centre had “mechanically adopted” ₹ 8 lakh as a number because it was also used for the OBC creamy layer cut-off. It said the Income Criterion for EWS was “more stringent” than the one for the OBC creamy layer.

What is the Issue?

  • The report is the result of the Supreme Court’s repeated grilling of the government, since October, to explain how it zeroed in on the figure of ‘₹8 lakh’ as the annual income criterion to identify EWS among forward classes of society for grant of 10% reservation in NEET medical admissions under the All India Quota (AIQ) category.
  • The court was hearing a batch of petitions filed by NEET aspirants challenging a July 29 notification of the Centre announcing 27% quota to OBCs and 10% reservation to EWS in AIQ.
  • The Supreme Court’s query was significant as the One Hundred and Third Constitutional Amendment of 2019, which introduced the 10% EWS quota, is itself under challenge before a larger Bench.
  • The Amendment is under question for making economic criterion as the sole ground for grant of Reservation Benefits.
  • On November 25, the Centre had informed the court that it had taken a considered decision to revisit the criteria for determining EWS.
  • The Centre had then formed an expert committee comprising Ajay Bhushan Pandey, former Finance Secretary; professor V.K. Malhotra, Member Secretary, ICSSR; and Sanjeev Sanyal, Principal Economic Adviser to the Government of India. The committee had submitted its report on December 31.

What does the Committee’s Report Says?

  • The Current Gross Annual Family Income limit for EWS of ₹8 lakh or less may be retained. In other words, only those families whose annual income is up to ₹8 lakh would be eligible to get the benefit of EWS reservation.
  • The committee said the ₹8 lakh criterion struck a “fine balance” between over-inclusion and inclusion errors.
  • The figure ensures that most low-income people who are not required to pay income tax are not excluded and are covered in EWS and at the same time it should not be so high that it becomes over-inclusive by including many incomes tax-paying middle-and high-income families into EWS.
  • Though we may not completely eliminate yet we can try to minimise both exclusions as well as inclusion errors. Therefore, considering that the currently effective income tax exemption limit is around ₹8 lakh for individuals, the committee is of the view that the gross annual income limit of ₹8 lakh for the entire family would be reasonable for inclusion into EWS.

What are the Centre’s Argument?

  • Firstly, EWS’s criteria relates to the financial year prior to the year of application whereas the income criterion for the creamy layer in OBC category is applicable to gross annual income for three consecutive years.
  • Secondly, in case of OBC creamy layer, income from salaries, agriculture and traditional artisanal professions are excluded from the consideration whereas the ₹8 lakh criteria for EWS includes all sources, including farming. So, despite being the same cut-off number, their composition is different and hence, the two cannot be equated.
  • It found no fault in the uniform application of the ₹8-lakh criteria across the country.
  • The desirability of a uniform income-based threshold has been upheld by the Supreme Court, and it can be adopted across the country as a matter of Economic and Social Policy.

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.

Trinamool’s Derek O’Brien suspended for Unruly Behaviour

Why in News?

  • Trinamool Congress floor leader Derek O’Brien was suspended from Rajya Sabha recently for the remaining days of the winter session for ‘unruly behaviour’ of hurling rule book at the Chair.

About Rule 256 of the General Rules of Procedure of the Rajya Sabha

  • The Chairman invoked rule 256 to suspend them.
  • Under Rule 256 (‘Suspension of Member’) “The Chairman may, if he deems it necessary, name a member who disregards the authority of the Chair or abuses the rules of the Council by persistently and willfully obstructing the business thereof.
  • If a member is so named by the Chairman he shall forthwith put the question on a motion being made, no amendment, adjournment or debate being allowed, that the member (naming him) be suspended from the service of the Council for a period not exceeding the remainder of the Session:
  • Provided that the Council may, at any time, on a motion being made, resolve that such suspension be terminated.
  • A member suspended under this rule shall forthwith quit the precincts of the Council.

 How is suspension under Rule 256 different from Suspension under Rule 255?

  • Rule 255 provides for ‘Withdrawal of Member’; whereas Rule 256 provides for Suspension of a Member.
  • Under Rule 255, “of the General Rules of Procedure of the Rajya Sabha, “The Chairman may direct any member whose conduct is in his opinion grossly disorderly to withdraw immediately from the Council and any member so ordered to withdraw shall do so forthwith and shall absent himself during the remainder of the day’s meeting.”

Differences in Powers of Speaker and Chairman of Rajya Sabha:

  • Like the Speaker in Lok Sabha, the Chairman of Rajya Sabha is empowered under Rule Number 255 of its Rule Book to “direct any Member whose conduct is in his opinion grossly disorderly to withdraw immediately” from the House.
  • Unlike the Speaker, however, the Rajya Sabha Chairman does not have the power to suspend a Member. The House has to adopt a motion suspending the Member from the service of the House for a period not exceeding the remainder of the session.

What is the Additional Power in Lok Sabha?

  • Similar rules for the withdrawal (Rule 373) and suspension (Rule 374) are in place for Lok Sabha as well. Under Rule 374A, however, there is an additional provision for “automatic suspension” of an errant member: “Notwithstanding anything contained in Rules 373 and 374, in the event of grave disorder occasioned by a member coming into the well of the House or abusing the Rules of the House persistently and wilfully obstructing its business by shouting slogans or otherwise, such member shall, on being named by the Speaker, stand automatically suspended from the service of the House for five consecutive sittings or the remainder of the session, whichever is less.”

Procedure to be followed for suspension of Rajya Sabha MPs:

  • The Chairman may “name a Member who disregards the authority of the Chair or abuses the rules of the Council by persistently and wilfully obstructing” business.
  • In such a situation, the House may adopt a motion suspending the Member from the service of the House for a period not exceeding the remainder of the session.
  • The House may, however, by another motion, terminate the suspension.

Efforts to bring Order in the House:

  • As Chairman of Rajya Sabha, Vice-President Ansari had attempted several steps to bring order to the House. In 2013, he mooted a number of radical solutions to maintain decorum. This included:
  • Naming and shaming MPs in the Rajya Sabha bulletin for stepping outside House rules. Those named were to include members who came into the Well, or indulged in other grossly disorderly behaviour. The telecast of proceedings to be deferred to prevent visuals of disorder from being made public.

 How can Suspension of MPs be Justified?

  • The solution to unruly behaviour has to be long-term and consistent with democratic values.There can be no question that the Enforcement of the supreme authority of the Presiding Officer is essential for smooth conduct of Proceedings.
  • However, a balance has to be struck. It must be remembered that the job of the Presiding Officer is to run the House, not to lord over it.

Six Additional Seats for Jammu and one for Kashmir Proposed

Why in News?

  • The Draft Paper of the Delimitation Commission has proposed seven additional Assembly seats for Jammu and Kashmir — six in Jammu division and one in Kashmir valley.

About the News:

  • For the first time, the commission proposed reserving nine seats for Scheduled Tribes (STs) on the basis of population. Seven seats are proposed for the Scheduled Caste (SC) community.
  • With the proposed addition, the total Assembly constituencies in Jammu and Kashmir has risen to 90 — in Jammu, the number of seats has gone up to 43 from 37, and in Kashmir, by one seat to 47.
  • An additional 24 seats are proposed to be reserved for Pakistan-occupied Kashmir (PoK).
  • Of the seven additional Assembly constituencies in the Union Territory, one each has been proposed in the districts of Kathua, Samba, Rajouri, Reasi, Doda and Kishtwar in Jammu division, and Kupwara in the Kashmir valley.

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.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.

 

Lok Sabha passes Bill to Link Electoral Rolls with Aadhaar

Why in News?

  • The Election Laws (Amendment) Bill, 2021 that seeks to link electoral rolls to Aadhaar number has been passed by the Lok Sabha recently.

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.

SC to hear Pleas on Vanniyar QUOTA LAW

Why in News?

  • The Supreme Court recently took on board a batch of petitions, including one by the Tamil Nadu Government, challenging a Madras High Court decision to quash a State quota law which provided 10.5% special reservation to Vanniyars, a most backward community.

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.

CBI files Chargesheet against Former Allahabad HC judge

Why in News?

  • The CBI has filed its chargesheet against retired Allahabad High Court Judge Justice S.N. Shukla in a corruption case for allegedly favouring a private medical college in his orders.

Historical Background of the Issue:

  • The agency had sought the High Court’s approval to prosecute the retired judge earlier this year. Following the grant of sanction, it can now file a charge sheet for further legal proceedings.
  • The case was registered in December 2019 on the basis of a preliminary enquiry initiated by the CBI on September 8, 2017, into the alleged commission of gross misconduct by Justice Shukla and others.
  • As alleged, the Medical Council of India (MCI) had barred the Prasad Institute of Medical Sciences in May 2017 from admitting students for two years due to sub-standard facilities and non-fulfilment of the requisite criteria. Similar action had been taken against 46 other medical institutions.
  • The Trust challenged the order in the Supreme Court. Subsequently, it is alleged, a conspiracy was hatched and the petition withdrawn with the Court’s permission. Then, another petition was filed before a Division Bench of the Allahabad High Court in Lucknow on August 24, 2017.
  • The next day, Mr. Quddusi and the institute’s chairman met Justice Shukla at his residence and “delivered illegal gratification”. According to the CBI, the petition was heard later that day by the Division Bench comprising Justice Shukla and a favourable order was passed.
  • The MCI challenged the order in the Supreme Court. During the hearing, the Trust did not claim any benefit from the High Court order, but requested that its bank guarantee not be encashed, which was permitted.
  • The agency alleged that the institute’s chief then attempted to get back the illegal Gratification from Justice Shukla and a part of it was returned.

Stipulated guidelines by the SC in the K. Veeraswami case:

  • The majority held that no criminal case shall be registered under Section 154 of the Criminal Procedure Code (an FIR) against a judge of the High Court, Chief Justice of the High Court or a judge of the Supreme Court unless the government first “consults” the Chief Justice of India.
  • The justification given was that the CJI’s assent was imperative as he was a “participatory functionary” in the appointment of judges.
  • The Veeraswami case specifically dealt with the Prevention of Corruption Act in judiciary, but the majority judgment had extended its ambit to “any criminal case”.
  • “Due regard must be given by the government to the opinion expressed by the Chief Justice. If the Chief Justice is of opinion that it is not a fit case for proceeding under the Act, the case shall not be registered,” the majority judgment held.
  • The verdict held that if the Chief Justice of India himself is the person against whom the allegations of criminal misconduct are received, the government shall consult any other judge or judges of the Supreme Court.
  • If the CJI allows the FIR to be registered, the government shall, for the second time, consult him on the question of granting sanction for prosecution.
  • The Veeraswami judgment holds that “it shall be necessary and appropriate that the question of sanction be guided by and in accordance with the advice of the Chief Justice of India”. The majority in the Constitution Bench classifies a judge as a “public servant”.
  • Consultation with the CJI while registering a criminal case against a judge, whether of the High Court or the Supreme Court, has been made mandatory to protect the independence of judiciary.
  • Similarly, the Supreme Court has also laid down guidelines for the arrest of a judicial officer of the subordinate judiciary.

What’s next if FIR is Filed?

  • The Delhi Judicial Service Association versus State of Gujarat judgment of the Supreme Court was the product of the notorious treatment meted out to the Nadiad Chief Judicial Magistrate by a few Gujarat police officials.
  • It had the country’s legal and judicial bodies in an uproar, compelling the Supreme Court to issue directions of the procedure to be followed while arresting a judicial officer. Primarily, the court held that a judicial officer “should be arrested for any offence under intimation to the District Judge or the High Court”.
  • The immediate arrest shall only be a “technical or formal arrest”, after which it should be immediately communicated to the District and Sessions Judge of the district concerned and the Chief Justice of the High Court.
  • The arrested judicial officer shall not be taken to a police station without the prior orders of the District Judge and no statements shall be recorded from him or her except in the presence of a counsel. He or she will not be handcuffed.
  • Section 3 of the Judges (Protection) Act of 1985 protects judges and former judges of the Supreme Court and the High Courts from “any civil or criminal proceedings” for any act, thing or word committed, done or spoken by him in the course of their judicial duty or function. No court shall entertain such complaints.
  • Section 77 of the Indian Penal Code exempts judges from criminal proceedings for something said or done during judicial duties.
  • However, the government can initiate criminal proceedings against a sitting or former judge of a superior court under sub section (2) of Section 3 of Judges (Protection) Act, 1985 if it can produce material evidence to show that a judgment was passed after taking a bribe.

SC SETS UP PANEL TO LOOK INTO J&K INTERNET CURBS

Why in News?

  • The Supreme Court has directed that a special committee should be constituted to look into whether 4G internet services should be restored in the Union Territory of Jammu and Kashmir.

About the News:

  • The central government had imposed a complete internet shutdown in the erstwhile state of Jammu and Kashmir in August 2019, after scrapping Article 370 which gave J&K its special status. Eight months later, it restored internet services partially, to allow 2G speed for mobile users.
  • The court heard arguments by the Jammu and Kashmir government, which focussed on the need for slow internet speed to curb instances of terrorism and violence in the region.
  • The administration also submitted that the right to internet access is not a fundamental right and the state can curtail the freedom of speech and right to trade through the internet. It called the internet speech curbs reasonable and asserted that these were necessary to protect the sovereignty, integrity and security of the country.
  • The petitioner highlighted the need for maintaining the fundamental right to access of healthcare in times of a pandemic.It is also said that the impact of slow internet on education, contending that students cannot attend classes through video conferencing because of the slow speed of the internet.

What did SC said?

  • The Supreme Court said that a special committee led by the Ministry of Home Affairs secretary should be constituted to look into whether 4G internet services should be restored in the Union Territory of Jammu and Kashmir.
  • The committee will also include the Department of Communications Secretary of the Union Ministry of Communications and the Chief Secretary of the Union Territory of Jammu and Kashmir.
  • This committee has been asked to look into the petitioners’ contention, as well as examine the alternatives suggested by them, on allowing faster internet on a trial basis in areas wherever possible.
  • This court has to ensure national security and human rights are balanced. We do recognise that the UT has plunged into a crisis. At the same time the court is cognizant to the concerns Related to Ongoing Pandemic and Hardships.
  • The SC also referred to the judgment in the Anuradha Bhasin case, popularly known as the Kashmir internet Shutdown Case.

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 are the Criticisms Made?

  • Restrictions have virtually abrogated the fundamental rights and paralyzed the lives of seven million people in the region.
  • These restrictions have been imposed under the garb of public tranquillity, public order and national security, but national security does not appear in the order imposing Section 144 of the Criminal Procedure Code in the region.
  • The shutdown of internet services has severe consequences on business, trade and heavily affects the common people in the region.

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 ON RIGHT TO RELIGION

Why in News?

  • A Nine-judge Bench of the Supreme Court declared that Superior Courts enjoy untrammelled power to take up any cause to do Complete Justice.

About the News:

  • On November 14 last year, a five-judge Bench led by then Chief Justice Ranjan Gogoi did not complete its assigned task of reviewing the apex court’s original Sabarimala judgment of 2018, which allowed women of every age to enter and worship at the temple.
  • Instead, it had framed “larger issues” concerning essential religious practices of various religions and clubbed other pending cases on subjects as varied as female genital mutilation among Dawoodi Bohras to entry of Parsi women who married inter-faith into the fire temple and Muslim women into mosques and referred them all to a larger Bench.
  • Chief Justice Bobde, who succeeded Justice Gogoi as top judge, set up a nine-judge Bench to hear the reference.

What were the Issues?

Entry of Women into the Sabarimala Temple:

  • On 28thSeptember 2018, SC lifted the ban that prevented women and girls between the age of 10 and 50 (mainly menstruating women) from entering the famous Ayyappa shrine in Kerala by a majority verdict of 4:1.
  • It held that the centuries-old Hindu religious practice was illegal and unconstitutional (Article 14 and 25).
  • Temple custodians argue that women of menstrual age are prohibited from offering prayers as the deity there, Ayyappa, is a celibate.

Muslim Women’s Entry into Mosques:

  • In April 2019, the SC was moved to seek directions for allowing Muslim women to enter mosques through the main door, and to have the “Islamic right to visual and auditory access to the ‘musalla’ (main prayer area)”.
  • The petition said that “this act of prohibition is void and unconstitutional as such practices are not only repugnant to the basic dignity of a woman as an individual but also violative of the fundamental rights guaranteed under Articles 14, 15, 21 and 25 of the Constitution”.
  • The matter was last heard on November 5, 2019, by a Bench comprising CJI-designate Justice S A Bobde and Justices S Abdul Nazeer and Krishna Murari.

Female genital mutilation among Dawoodi Bohras:

  • On September 24, 2018, a Bench of SC referred the matter in ‘Sunita Tiwari vs Union of India and Ors’ to a larger Bench of the Supreme Court.
  • The petition, filed under Article 32 of the Constitution, had questioned the constitutionality of the practice of Female Genital Mutilation (FGM) or ‘khatna’, or Female Circumcision (FC) or ‘khafd’, which the petitioner said was carried out on every girl child in the Dawoodi Bohra community.
  • The petition relied on the UN Convention on the Rights of the Child and the Universal Declaration of Human Rights and urged that the practice is violative of Article 21 (right to life and personal liberty).The Bench submitted that the matter should be referred to a larger Bench, which the SC accepted.

Entry of Parsi Women Married to non-Parsis in the Agyari:

  • The Special Leave Petition in ‘Goolrukh Gupta vs Burjur Pardiwala’ arose out of a judgment passed by the Gujarat High Court in 2012.
  • The petitioner, Goolrukh Contractor Gupta, moved the High Court in 2010 after her friend who too, like her, was a Parsi married to a Hindu, was denied entry to the Tower of Silence during her mother’s last rites some years before.
  • In the court, Goolrukh Gupta’s counsel, argued that the question was, “in the case of marriage between a Hindu and Parsi, does it result in automatic conversion of religion?” The matter hence raised issues of gender justice.
  • In December 2017, a Constitution Bench observed that “DNA does not evaporate” after marrying outside one’s religion”, and that by marrying outside her religion, a woman does not “surrender her affection to her Father”.

What was the Apex Court’s Decision?

  • There is no fetter on the exercise of discretion of this court in referring questions of law to a larger Bench in review petitions.
  • Being a superior court of record, it is for this court to consider whether any matter falls within its jurisdiction or not.
  • Unlike a court of limited jurisdiction, the superior court of record is entitled to determine for itself questions about its own jurisdiction.
  • It invoked Article 142 of the Constitution “which enables this court to make any order as is necessary for doing complete justice in any cause or matter pending before it.”

What are the Concerns?

  • The questioned has now risen that how the nine-judge Bench would determine the law without knowledge of the facts of each individual case.
  • There are concerns within the court itself about clubbing these four issues together because this will lead to a situation where not everyone is equally content and a uniform verdict can give rise to religious conflicts.
  • In setting itself the task of defining this constitutional morality, the court will now have to go into the question of its limits and boundaries, of its possible clash with religious beliefs and faith.
  • The essentiality test impinges on the autonomy and freedom of religion which was meant to guarantee freedom to practice one’s beliefs based on the concept of “inward association” of man with God.
  • The Court is creating problems for itself as well as circumscribing individual freedoms and treading into the clergy’s domain.

Way Forward:

  • Each of these issues must be considered on their own ground with different redressal mechanisms. On essential religious practice, SC should go case by case rather than aim for a grand unified theory.
  • The court has been inconsistent in applying the essential religious practice doctrine and maybe it should be left like that only to avoid further tensions.
  • Court’s push for expanding its remit and for hard clarity on complex questions will prove difficult and maybe counterproductive so it should not dwell deeper into the religious matter after a Certain Point.
  • The court upheld ideas of freedom and equality and the constitutional promise of a pluralistic and inclusive society while redressing an injustice which should be upheld as a beacon of hope for a just and equal society.

PLEA CHALLENGING APPOINTMENT OF ADDITIONAL JUDGE REJECTED

Why in News?

  • The Supreme Court rejected a petition filed by a district judge challenging the appointment of a ‘junior’ judicial officer as an additional judge of the Karnataka High Court on the ground that it breaches the Seniority Rule.

What is the Issue?

  • In his plea, Shivamogga Principal District Judge RKGMM Mahaswamiji said: It is a case of superseding/passing over of a senior District judge (who was appointed on February 25, 2008, under reserve category ie., Scheduled Caste) by junior district judge and recommendation of Respondent No. 11 (P N Desai) by the collegium of Karnataka High Court.
  • It is unlawful, arbitrary and in clear violation of statutory rules / administrative instructions contained in the official memorandum dated October 9, 1985, and involved bias of malafide and it clearly violated the functional rights guaranteed to the petitioner under Articles 14 and 16 of the Indian Constitution.

Appointment of the Judges of High Courts:

  • The procedure of appointing the Judges of the High Courts in India is slightly different from the appointment of the Judges of the Supreme Court.
  • As per article 217, the chief Justice of the high court is appointed by the President in consultation with the Chief justice of India as well as the Governor of the state in question.
  • A collegium system has evolved over the years in which a Collegium headed by the CJI makes recommendation to the government for appointment of judges.
  • The Collegium recommends the names to the law ministry which after scrutinizing send the paper to the president.
  • The president either approves the names or returns the names for reconsideration of the Supreme Court.
  • If still the Supreme Court sends the same names president appoints the persons recommended.

Qualification to Become a High Court Judge:

  • A person to be appointed as a judge of a high court should be a citizen of India. Further,
  • He should have held a judicial office in the territory of India for ten years or
  • He should have been an advocate of high court(s) for ten years.
  • There is no minimum age fixed for high Court judges, and unlike in Supreme Court, there is no provision for appointment of a distinguished jurist as a judge of a high court.

Term and Salary of HC Judges:

  • A Judge of High Court holds the office until he completes the age of 62 years. (In Supreme Court it is 65 years).
  • The salaries and allowances of the Chief Justice of High Court and Judges of the High Court are decided by the parliament by law, time to time.
  • The salaries and other expenses of the judges and maintenance of the state high courts are charged from consolidated fund of the state.
  • Pension of retired high court judges comes from Consolidated Fund of India.

Removal of the Judge of a High Court:

  • A Judge of the High Court can be removed from office only for proven misbehaviour or incapacity and only in the same manner in which a Judge of the Supreme Court is removed.
  • The President of India can remove a Judge of the High Court, from his office only if each house of the parliament passes a resolution by a two third majority of its members present and voting in each house requesting him to remove the Judge.

How HC Judges are transferred?

  • Transfer of High Court Judges is done by the President in consultation with the following
    • Chief justice of India’ whose opinion is formed by senior most judges of the Supreme Court.
    • Chief Justice of the High court from where transfer is to take place.
    • Chief Justice of the High Court to where the transfer is to take place

Post retirement Jobs of HC Judges:

  • The retired permanent judges of a high court are prohibited from pleading or acting in any court or before any authority in India except the Supreme Court and the other high courts.
  • However, Government Generally uses the retired higher judiciary judges as heads of various Commissions.
  • There has been a demand from certain sections of the society that there should be a “cool off” period of two years for the Retired Judges before they are Installed in other offices.

CONSTITUTIONAL PROVISIONS REGARDING MINORITY EDUCATIONAL INSTITUTIONS

Why in News?

  • In a significant judgment, the Supreme Court has ruled that the National Eligibility cum Entrance Test (NEET) for admission to graduate and postgraduate medical and dental courses, does not violate the rights of minorities under the Constitution.

About the Issue:

  • The ruling came on a bunch of petitions originally filed in 2012 by the Christian Medical College, Vellore and others, challenging the notifications for NEET issued by the Medical Council of India (MCI) and the Dental Council of India (DCI).
  • NEET took away the right of the religious and linguistic minority institutions to administer their business, including the right to admit students from the minority community in terms of their own standards.

What are the observations made by the Court?

  • Rights of the minority institutions under Articles 19(1)(g) and 30 read with Articles 25, 26 and 29(1) do not come in the way of securing transparency and recognition of merits in matter of admissions.
  • State has the right to frame regulatory regime for aided/ unaided minority/private institutions, as mandated by the Constitution. There cannot be any other examination for admitting students.
  • NEET is a regulatory measure that is in the larger national interest.
  • The regulatory measures in no way interfere with the rights to administer the institution by the religious or linguistic minorities.
  • Besides, regulating academics and imposing reasonable restrictions to ensure educational standards, are in national and public interest.

What are the Constitutional Provisions?

  • Article 30(1) recognizes linguistic and religious minorities but not those based on race, ethnicity.
  • It recognizes the right of religious and linguistic minorities to establish and administer educational institutions, in effect recognizing the role educational institutions play in preserving distinct culture.
  • A majority community can also establish and administer educational institution but they will not enjoy special rights under Article 30(1)(a).

What are the Special Rights Enjoyed by Religious Minority Institutions?

  • Under Art 30(1)(a), MEI enjoy right to education as a Fundamental Right. In case the property is taken over by state, due compensation to be provided to establish institutions elsewhere
  • Under Article 15(5), MEIs are not considered for reservation
  • Under Right to Education Act, MEI not required to provide admission to children in the age group of 6-14 years up to 25% of enrolment reserved for economically backward section of society
  • In St Stephens vs Delhi University case, 1992, SC ruled that MEIs can have 50% seats reserved for minorities
  • In TMA Pai & others vs State of Karnataka & others 2002 case, SC ruled that MEIs can have separate admission process which is fair, transparent and merit based. They can also separate fee structure but should not charge capitation fee.

NDRF GEARS UP FOR TWIN CHALLENGES – PANDEMIC AND MONSOON

Why in News?

  • With monsoon around the corner, the National Disaster Response Force (NDRF) is preparing to face the twin challenge of coronavirus (COVID-19) and floods in different parts of the country.

About the News:

  • During the upcoming rainy season, managing the situation in areas that have been reporting COVID-19 cases, particularly in the hotspot and containment zones, will be an uphill task.
  • The NDRF has taken note of the latest IMD warning of the likely formation of a low pressure area over the south Andaman Sea and the neighbourhood, which is likely to intensify into a depression during the subsequent 48 hours, triggering moderate and heavy to extreme rainfall in isolated areas.

About NDRF:

  • The National Disaster Response Force (NDRF) is a specialised force constituted “for the purpose of specialist response to a threatening disaster situation or disaster” under the Disaster Management Act, 2005.
  • The responsibility of managing disasters India is that of the State Government. The ‘Nodal Ministry’ in the central government for management of natural disasters is the Ministry of Home Affairs (MHA).
  • National Disaster Response Force (NDRF) is under the National Disaster Management Authority.
  • National Disaster Response Force (NDRF) is a force of 12 battalions, organised on Para-military lines, and manned by persons on deputation from the Para-military forces of India: three each from the BSF and CRPF and two each from CISF, ITBP and SSB.
  • NDRF in addition to being able to respond to natural disasters has four battalions capable of responding to radiological, nuclear, biological and chemical disasters.
  • The Apex Body for Disaster Management in India is the National Disaster Management Authority (NDMA). The Chairman of the NDMA is the Prime Minister.

Why it was Created?

  • Two national calamities in quick succession in the form of Orissa Super Cyclone (1999) and Gujarat Earthquake (2001) brought about the realization of the need of having a specialist response mechanism at National Level to effectively respond to disasters. This realization led to the enactment of the DM Act on 26 Dec 2005.

What are the Roles and Mandate of NDRF?

  • Specialized response during disasters.
  • Proactive deployment during impending disaster situations.
  • Acquire and continually upgrade its own training and skills.
  • Liaison, Reconnaissance, Rehearsals and Mock Drills.
  • Impart basic and operational level training to State Response Forces (Police, Civil Defence and Home Guards).
  • Community Capacity Building Programme.
  • Organize Public Awareness Campaigns.

BASIC STRUCTURE AND THE KESAVANANDA BHARATI CASE

Why in News?

  • The concept of ‘basic structure’ came into existence in the landmark judgment in Kesavananda Bharati vs State of Kerala case (1973) 47 years ago on 24thApril 1973.

About the News:

  • Exactly forty-seven years ago, on April 24, 1973, Chief Justice Sikri and 12 judges of the Supreme Court assembled to deliver the most important judgment in its history.
  • The case of Kesavananda Bharati v State of Kerala had been heard for 68 days, the arguments commencing on October 31, 1972, and ending on March 23, 1973.
  • By a 7-6 verdict, a 13-judge Constitution Bench ruled that the ‘basic structure’ of the Constitution is inviolable, and could not be amended by Parliament.
  • The basic structure doctrine has since been regarded as a tenet of Indian constitutional law.

Background of the Case:

  • All this effort was to answer just one main question: was the power of Parliament to amend the Constitution unlimited?
  • In other words, could Parliament alter, amend, abrogate any part of the Constitution even to the extent of taking away all fundamental rights?
  • In the early 1970s, the government of then Prime Minister Indira Gandhi had enacted major amendments to the Constitution (the 24th, 25th, 26thand 29th) to get over the judgments of the Supreme Court in RC Cooper (1970), Madhavrao Scindia (1970) and the earlier mentioned Golaknath.
  • In RC Cooper, the court had struck down Indira Gandhi’s bank nationalisation policy, and in Madhavrao Scindia it had annulled the abolition of privy purses of former rulers.
  • All the four amendments, as well as the Golaknath judgment, came under challenge in the Kesavananda Bharati case– where relief was sought by the religious figure Swami Kesavananda Bharati against the Kerala government vis-à-vis two state land reform laws.

What Constitutes the Basic Structure?

  • The Constitutional Bench ruled by a 7-6 verdict that Parliament should be restrained from altering the ‘basic structure’ of the Constitution.
  • The court held that under Article 368, which provides Parliament amending powers, something must remain of the original Constitution that the new amendment would change.
  • The Court did not define the ‘Basic Structure’, and only Listed a Few PrinciplesFederalism, Secularism, Democracy — as being its part. Since then, the court has been adding new features to this concept.

Basic Structure’ Since Kesavananda Bharati Case:

  • The ‘basic structure’ doctrine has since been interpreted to include the supremacy of the Constitution, the rule of law, Independence of the judiciary, doctrine of separation of powers, Federalism, Secularism, Sovereign Democratic Republic, the Parliamentary system of government, the principle of free and fair elections, welfare state, etc.

Few Criticisms regarding the Verdict:

  • Critics of the doctrine have called it undemocratic, since unelected judges can strike down a constitutional Amendment.
  • At the same time, its proponents have hailed the concept as a safety valve against Majoritarianism and Authoritarianism.

What are the Outcomes and Implications of the Judgment?

  • If the majority of the Supreme Court had held (as six judges indeed did) that Parliament could alter any part of the Constitution, India would most certainly have degenerated into a totalitarian State or had one-party rule.
  • At any rate, the Constitution would have lost its supremacy.
  • The 39thAmendment prohibited any challenge to the election of the President, Vice-President, Speaker and Prime Minister, irrespective of the electoral malpractice. This was a clear attempt to nullify the adverse Allahabad High Court ruling against Indira Gandhi.
  • The 41stAmendment prohibited any case, civil or criminal, being filed against the President, Vice-President, Prime Minister or the Governors, not only during their term of office but forever. Thus, if a person was a governor for just one day, he acquired immunity from any legal proceedings for life.
  • If Parliament were indeed supreme, these shocking amendments would have become part of the Constitution.

ARTICLE 164(4) OF THE INDIAN CONSTITUTION

Why in News?

  • Maharashtra CM Uddhav Thackeray may end up losing his seat if he is not elected to the Legislative Council of the state before May 24th.

About the News:

  • He took the oath of his office on November 28, 2019 without being a member of either the State legislature or council.
  • But, he will have to get elected to either of the houses of the state legislature before May 24, as Article 164(4) of the Constitution stipulates.
  • However, the Election Commission has already postponed Rajya Sabha polls, by-elections and civic body elections in the wake of COVID-19 pandemic.

What does the Constitution Say?

  • Article 164of the Constitution allows a non-legislator to occupy a post in the council of ministers, including the office of the Chief Minister for Six Months.

What’s the Alternative Available Now?

  • Article 171of the Constitution says the governor can nominate eminent persons from the field for literature, science, art, cooperative movement and social service.
  • Uddhav Thackeray does not directly fit into any of the criteria mentioned but social service has a wider scope. And, if governor nominates somebody to the legislative council, his/her decision cannot be challenged in the court, at least as of the precedent right now.
  • The Maharashtra legislative council has two vacancies to be filled by governor’s nominations.

What is the Issue Now?

  • Section 151A of Representation of the People Act 1951puts a bar on the governor’s discretionary power to nominate a person to the legislative council.
  • It says election or nomination to vacant seats in the legislative council cannot be done “if the remainder of the term of a member in relation to a vacancy is less than one year”.
  • The tenure of the two vacancies that arose on the account of resignations by members recently ends in June. So, the remainder of the term is less than a Year.

What’s the Scope Now?

  • Uddhav Thackeray cannot continue unless elected to any of the houses of Maharashtra legislature after May 28.
  • Technically, he can be reappointed as the Maharashtra chief minister again after he resigns on May 27 or 28 and takes oath afresh.
  • But, if Uddhav decides to resign and takes oath afresh, there could be another obstacle. This relates to a case in Punjab, where Tej Parkash Singh of the Congress was appointed a minister in 1995 and was reappointed at the expiry of six months’ period in 1996 without getting elected to state assembly.
  • Litigation followed in 2001, the Supreme Court declared the resign-and-reappoint bid as “improper, undemocratic, invalid and unconstitutional”.
  • This judgment did not have a bearing on Tej Parkash Singh but may come in the way of Uddhav Thackeray if he takes the Same Route.

TUSSLE BETWEEN CONSTITUTIONAL POWERS OF CHIEF MINISTER AND GOVERNOR

Why in News?

  • Tensions between West Bengal Chief Minister Mamata Banerjee and Governor Jagdeep Dhankhar reached a flashpoint, after the CM’s accusation of the Governor over violating the constitutional powers.

What are the Powers of the Governor?

  • The Governor’s appointment, his powers and everything related to the office of Governor have been discussed under Article 153 to Article 162 of the Indian Constitution.
  • The role of the Governor is quite similar to that of the President of India. The Governor performs the same duties as of President, but for the State. Governor stands as executive head of a State and the working remains the same as of the office of President of India. Under the Constitution of India, the governing machinery is the same as that of the Central Government.
  • It is stated that the Governor has a dual role.
  • He is the constitutional head of the state, bound by the advice of his council of ministers.
  • He functions as a vital link between the Union Government and the State Government.
  • 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 council of minister headed by the prime minister of the country.
  • Dismissal of governors without a valid reason is not permitted. However, it is the duty of the President to dismiss a governor whose acts are upheld by courts as unconstitutional and malafide.
  • Resignation by the Governor.

What are the Issues?

  • There are numerous examples of the Governor’s position being abused, usually at the behest of the ruling party at the Centre. The process of appointment has generally been the cause behind it.
  • In several cases, politicians and former bureaucrats identifying with a particular political ideology have been appointed as the Governors by the Governments. This goes against the constitutionally mandated neutral seat and has resulted in bias, as appears to have happened in Karnataka, Goa and now in West Bengal.
  • A year before, the Governor of Rajasthan was charged with the violation of the model code of conduct. His support of the ruling party is against the spirit of non-partisanship that is expected from the person sitting on constitutional posts.
    • Due to such incidents, negative terms like an agent of the Centre, Puppet and rubber stamps are used to describe a governor of the state.
  • Governor’s discretionary powers to invite the leader of the largest party/alliance, post-election, to form the government has often been misused to favour a particular political party.
  • The Governors Committee (1971) laid down the responsibility on the governor to see that the administration of the State does not breakdown due to political instability and he must send a regular report about the political situation of the State.
    • However, the imposition of President’s rule (Article 356) in case of breakdown of constitutional machinery in a State has been frequently misused by the central government.
  • Governor’s work is bound by the aid and advice of his council of ministers; this has brought down the significance of the office to a mere rubber stamp.
    • This is reflected in TB. Pattabhi Sitaramayya (a former Governor of Madhya Pradesh) observation that he had no public function to perform except making the fortnightly report to the President.
  • The arbitrary removal of the Governor before the expiration of his tenure has also been an important issue in the recent past.
    • The Governor cannot be removed on the ground that he is out of sync with the policies and ideologies of the Union government or the party in power at the Centre. Nor can he be removed on the ground that the Union government has lost confidence in him.

What did S.R. Bommai Judgement Said?

  • In R. Bommai case (1994), following the Sarkaria Commission’s recommendations, the Supreme Court underlined that the breakdown of constitutional machinery implied a virtual impossibility, and not a mere difficulty, in carrying out governance in a State.
  • SC said that while the subjective satisfaction of the President regarding such a breakdown was beyond judicial scrutiny, the material on which such satisfaction was based could certainly be analysed by the judiciary, including the Governor’s report.
  • The Court reinstated the governments in Arunachal Pradesh and Uttarakhand which were suspended after the arbitrary imposition of the President’s Rule.
  • The Supreme Court classified the instances of failure of constitutional machinery into four heads:
  1. 1.Political crises.
  2. 2.Internal subversion.
  3. 3.Physical breakdown.
  4. 4.Non-compliance with constitutional directions of the Union Executive.

Other Cases and Recommendation:

  • The Supreme Court in the Nabam Rebia judgment (2016) ruled that the exercise of Governor’s discretion Article 163 is limited and his choice of action should not be arbitrary or fanciful. It must be a choice dictated by reason, actuated by good faith and tempered by caution.
  • The Administrative Reforms Commission (1968) recommended that the report of the governor regarding the president’s rule has to be objective and also the governor should exercise his own judgment in this regard.
  • The Rajamannar Committee (1971) recommended the deletion of Articles 356 and 357 from the constitution of India. The necessary provisions for safeguards against arbitrary action of the ruling party at the Centre under Article 356 should be incorporated in the constitution.
  • The Rajamannar Committee emphasised that the governor of the state should not consider himself as an agent of the centre but play his role as the constitutional head of the State.
  • The Sarkaria Commission (1988) recommended that Article 356 should be used in very rare cases when it becomes unavoidable to restore the breakdown of constitutional machinery in the State.
  • The commission recommended that before taking action under Article 356, a warning should be issued to the state government that it is not functioning according to the constitution.
  • Justice V. Chelliah Commission” (2002) recommended that Article 356 must be used sparingly and only as a remedy of the last resort after exhausting all actions under Articles 256, 257 and 355.
  • The “Punchhi commission” recommended that this Articles 355 & 356 be amended. It sought to protect the interests of the States by trying to curb their misuse by the Centre.

Way Forward:

  • For the smooth Functioning of a democratic government, it is equally important that the governor must act judiciously, impartially and efficiently while exercising his discretion and personal judgment.
  • In the current political climate examples being Goa (2017), Meghalaya (2018), Manipur (2017) and Karnataka (2018), point to the need to ensure proper checks and balances to streamline the functioning of this office.
  • In order to enable the Governor to Successfully discharge his functions under the constitution, an agreed ‘Code of Conduct’ approved by the state governments, the central government, the parliament, and the state legislatures should be evolved.
  • ‘Code of Conduct’ should lay down certain ‘norms and principles’ which should guide the exercise of the governor’s ‘discretion’ and his powers which he is entitled to use and exercise on his personal judgment.
  • The ‘procedure for appointment of governors should be clearly laid down’ and conditions of appointment must also be laid down and must assure a fixed tenure for the governor so that the Governor is not under the constant threat of removal by the central government.
  • It is necessary to invest the office of the Governor with the requisite independence of action and to rid them of the bane of ‘instructions’ from the Central Government.
  • It is suggested that the exercise of ‘discretionary powers’ by the Governors should be ‘guided by the healthy and democratic conventions’.
  • The Bommai verdict allows the Supreme Court to investigate claims of malafide in the Governor’s report; a similar extension to cover malafide in the invitation process could be a potential solution.
  • The role of governor is indispensable for the successful working of the constitutional democracy. He must refrain from aligning himself to any political ideology. The virtue of impartiality must be withheld to ensure a free and fair election in a democracy.

NO 100% QUOTA FOR TRIBAL TEACHERS, SAYS SC

Why in News?

  • The Supreme Court held it unconstitutional to provide 100% reservation for tribal teachers in schools located in Scheduled Areas across the country.

Observations of SC:

  • It is an obnoxious idea that tribals only should teach the tribals. When there are other local residents, why they cannot teach is not understandable.
  • The action defies logic and is arbitrary. Merit cannot be denied on the whole by providing reservation.
  • Citizens have equal rights, and the total exclusion of others by creating an opportunity for one class is not contemplated by the founding fathers of the Constitution of India
  • The court held that 100% reservation is discriminatory and impermissible. The opportunity of public employment is not the prerogative of few.
  • A 100% reservation to the Scheduled Tribes has deprived Scheduled Castes and Other Backward Classes also of their due representation.
  • The court referred to the judgment, which caps reservation at 50%.

What does the Indira Sawhney Judgement says?

  • In the famous Mandal case (Indra Sawhney v. Union of India 1992), the scope and extent of Article 16(4), which provides for reservation of jobs in favour of backward classes, has been examined thoroughly by the Supreme Court.
  • Though the Court has rejected the additional reservation of 10% for poorer sections of higher castes, it upheld the constitutional validity of 27% reservation for the OBCs with certain conditions, viz,
  • The advanced sections among the OBCs (the creamy layer) should be excluded from the list of beneficiaries of reservation.
  • No reservation in promotions; reservation should be confined to initial appointments only. Any existing reservation in promotions can continue for five years only (i.e., upto 1997).
  • The total reserved quota should not exceed 50% except in some extraordinary situations. This rule should be applied every year.
  • The ‘carry forward rule’ in case of unfilled (backlog) vacancies is valid. But it should not violate 50% rule.
  • A permanent statutory body should be established to examine complaints of over-inclusion and under-inclusion in the list of OBCs.
  • However, it is also to be noted that the Parliament has passed the 124th Constitution Amendment Bill (10% Quota Bill) to provide for 10% reservation for economically weaker sections (EWS) among the general category candidates in higher education and government employment in the year 2019.

What are the Key Features of the 124th Constitution Amendment Act?

  • The act amended Articles 15 and 16of the constitution to provide for 10% reservation to economically weaker sections (EWS) among the general/unreserved category over and above the existing 49.5% quota in place for SC, ST, and OBCs.
  • It seeks to insert a separate clause in article 16 after clause (5) as follows:
  • “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of 10% of the posts in each category”
  • It seeks 10% reservation for the economically weaker sections of society in higher educational institutions, private institutions (aided or unaided by the state) except minority educational institutions under Article 30.
  • It also provides reservation in posts for initial appointment in services under the state.

What are the Qualifying Criteria for 10% Quota?

  • All members of whose family together earn less than Rs. 8 lakh per annum.
  • Have less than 5 acres of agricultural land.
  • Do not possess a residential flat of area 1000 sq. ft. or larger.
  • Do not possess a residential plot of area 100 yards or more in notified municipalities and 200 yards or more in areas other than notified municipalities.

NATIONAL LEGAL SERVICES AUTHORITY (NALSA)

Context:

  • Recently, The National Legal Services Authority (NALSA) has reported that around 11,077 under trials have been released from prisons nationwide as part of the mission to decongest jails following the COVID-19 pandemic.

About NALSA:

  • It has been constituted under the Legal Services Authorities Act, 1987, to provide free legal services to weaker sections of society.
  • It aims to ensure that opportunities for securing justice are not denied to any citizen by reasons of economic or other disabilities. The ‘Nyaya Deep’ is the official newsletter of NALSA.
  • It has also been providing assistance to prisoners who were eligible to be released on parole or interim bail under the relaxed norms, through its panel lawyers.

Composition of NALSA:

  • The Chief Justice of India shall be the Patron-in-Chief, as per section 3(2) of Legal Service Authorities Act.
  • The Second senior-most judge of Supreme Court of India is the Executive-Chairman.
  • About the functions performed by NALSA:
  • It organise Lok Adalat for amicable settlement of disputes.
  • It Identify specific categories of the marginalised and excluded groups and formulates various schemes for the implementation of preventive and strategic legal service programmes.
  • It provides free legal aid in civil and criminal matters for the poor and marginalised people who cannot afford the services of a lawyer in any court or tribunal.

About State Legal Services Authorities:

  • It has been constituted to give effect to the policies and directions of the NALSA and to give free legal services to the people and conduct Lok Adalat in the State.
  • It is headed by Hon’ble the Chief Justice of the respective High Court who is the Patron-in-Chief of the State Legal Services Authority.

About District Legal Services Authority:

  • It has been constituted to implement Legal Services Programmes in the District.
  • It is situated in the District Courts Complex in every District and chaired by the District Judge of the Respective District.

About Constitutional Basis of Legal System:

  • Article 39Aof the Constitution of India provides that State shall secure that the operation of the legal system promotes justice on a basis of equal opportunity, and shall in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disability.
  • Articles 14 and 22(1)also make it obligatory for the State to ensure equality before law and a legal system which promotes justice on a basis of equal opportunity to all.
  • Legal aid strives to ensure that constitutional pledge is fulfilled in its letter and spirit and equal justice is made available to the poor, downtrodden and weaker sections of the Society.

NHRC ASKS CENTRE TO ISSUE AN ADVISORY ON PUBLIC’S RIGHTS TO STATES

Why in News?

  • The National Human Rights Commission (NHRC) has advised the Centre to issue an advisory to all States and Union Territories to implement the ongoing lockdown without violating the human rights of the public.

Key Points:

  • The NHRC through an advisory wants to ensure that the public servants behave in a sensible manner with the people, particularly belonging to vulnerable sections, respecting human rights relating to their life, liberty and dignity.
  • In order to effectively implement the lock down guidelines, the public servants, sometimes under tremendous pressure, tend to deal with the people, especially the ill-informed poor labourers, in a very harsh manner undermining their rights.
  • It has said that In the meantime necessary directions may be issued by the Ministry to all the States and Union Territories, to ensure that
    • Persons suffering from any kind of mental ailments under their jurisdiction are provided with proper counselling towards
    • Necessary precautions for their personal care and protection from the virus
    • People not deprived of basic amenities like food, shelter and medical care etc.

About National Human Rights Commission:

  • NHRC was established on 12th October, 1993. The statute under which it is established is the Protection of Human Rights Act (PHRA), 1993 as amended by the Protection of Human Rights (Amendment) Act, 2006.
  • Composition:The commission is a multi-member body consisting of a chairman and four members. The chairman is a retired Chief Justice of India.
  • Appointment:The chairman and members are appointed by the President on the recommendations of a six-member committee consisting of the Prime Minister as its head, the Speaker of the Lok Sabha, the Deputy Chairman of the Rajya Sabha, leaders of the Opposition in both the Houses of Parliament and the Union Home Minister.
  • Tenure:The chairman and members hold office for a term of five years or until they attain the age of 70 years, whichever is earlier. After their tenure, the chairman and members are not eligible for further employment under the Central or a state government.
  • Watchdog of Human Rights in the country: The NHRC is an embodiment of India’s concern for the promotion and protection of human rights.

Role and Function of NHRC:

  • It has all the powers of a civil court and its proceedings have a judicial character.
  • It can look into a matter within one year of its occurrence, i.e the Commission is not empowered to inquire into any matter after the expiry of one year from the date on which the act constituting violation of human rights is alleged to have been committed.
  • It is empowered to utilise the services of any officer or investigation agency of the Central government or any state government for the purpose of investigating complaints of human rights violation.
  • The functions of the commission are mainly recommendatory in nature. It has no power to punish the violators of human rights, nor to award any relief including monetary relief to the victim.
  • Its recommendations are not binding on the concerned government or authority. But, it should be informed about the action taken on its recommendations within one month.

GOVERNOR’S RIGHT IN ORDERING FLOOR TEST

Why in News?

  • The Supreme Court has upheld Madhya Pradesh Governor Lalji Tandon’s March decision asking the then Congress government to prove majority by holding a floor test in the Legislative Assembly after the resignation of 22 Congress MLAs.

What is a Floor Test?

  • A floor test is the determination on the floor of the House (in this case, the Maharashtra Vidhan Sabha) whether the Chief Minister commands the support of the majority of the MLAs.
  • This can be done by means of a voice vote, or by recording the vote of each MLA in the House. This determination of majority is done in a sitting of the legislature, for which the legislature has to be convened.

How Floor Test Takes Place?

  • This voting process happen in the state’s Legislative Assembly or the Lok Sabha at the central level.
  • Technically, the chief minister of a state is appointed by the Governor. The appointed chief minister usually belongs to the single largest party or the coalition which has the ‘magic number’. The magic number is the total number of seats required to form a government, or stay in power. It is the half-way mark, plus one. In case of a tie, the Speaker casts the deciding vote.
  • However, at times, a government’s majority can be questioned. The leader of the party claiming majority has to move a vote of confidence.
  • If some MLAs remain absent or abstain from voting, the majority is counted on the basis of those present and voting. This effectively reduces the strength of the House and in turn brings down the majority-mark.
  • The voting process can happen orally, with electronic gadgets or a ballot process.
  • The Governor can also ask the Chief Minister to prove his or her majority in the House if the stability of the government comes into question.

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.

What are the Observations made by the Court?

  • In a situation where the governor has reasons to believe that the council of ministers headed by the chief minister has lost the confidence of the House, constitutional propriety requires that the issue be resolved by calling for a floor test.
  • The governor in calling for a floor test cannot be construed to have acted beyond the bounds of constitutional authority. This means, while directing a trust vote, the Governor should not favour a particular political party.
  • A Governor’s power to call for a floor test is not restricted only before the inception of a State government immediately after elections, but continues throughout its term.
  • The Governor’s requirement to have a trust vote does not “short-circuit” any disqualification proceedings pending before the Speaker. A Governor need not wait for the Speaker’s decision on the resignation of rebel MLAs before calling for a trust vote.

SUPREME COURT ORDERS TO RELEASE PRISONERS

Why in News?

  • Supreme Court has recently passed orders in a suo-motu hearing on measures taken to decongest prisons, correction homes and detention centres due to the outbreak of pandemic Covid-19 outbreak.

Highlights of the Judgement:

  • The Bench had already passed orders to the States and the Union Territories to set up special committees in order to examine the cases of prisoners and shortlist those who could be granted bail or parole.
  • The Court ordered that appropriate tests for Covid-19 should be conducted on prisoners scheduled for release.
  • The court directed that transportation of prisoners would be done in full compliance of the rules and norms of social distancing.
  • In case a prisoner who has been released is suffering from coronavirus after the release, he/she shall be put in an appropriate quarantine facility by the concerned Authorities.

Judgement regarding Foreigners’ Detention Centres:

  • The court ordered to release prisoners or detenus who have been under detention for two years in the foreigners’ detention centres in Assam on account of the Coronavirus pandemic.
  • The court modified its earlier order to allow these detenus to furnish a bond of Rs. 5,000 instead of Rs. 1 lakh. The Court also asked them to furnish two Indian citizens as sureties.
  • But the central government has  objected to their release on the grounds that they will mix with the local population again.

VIRTUAL COURTS AND WAY FORWARD

Context:

  • Recently, the Supreme Court passed a slew of directions for all courts across the country to extensively use video-conferencing for judicial proceedings. A bench headed by Chief Justice S A Bobde said that the recent outbreak of the COVID-19 has necessitated social distancing and it is necessary to ensure that court premises do not contribute to the spread of coronavirus.

Key Highlights:

  • The Supreme court, which has restricted its functioning and is conducting hearing through video conferencing of extremely urgent matters during the lockdown period since March 25.
  • The bench, also comprising Justices D.Y Chandrachud and L.Nageswara Rao, made it clear that no evidence would be recorded via video-conferencing.
  • It said, if recording of evidence is must in the courts, then the concerned judge would ensure that distance is maintained inside the courtroom.
  • Attorney General K.K.Venugopal said the National Informatics Centre, NIC must look into efficient and cheap applications across the country.
  • The Director General of NIC told the bench that three things are required for video-conferencing — good broadband connection, good devices and conduct of people

Benefits of Virtual Courts

Cost-Effective Technique:

  • When compared to litigation, Virtual Courts are extremely profitable as it cuts down on the costs associated with manpower and paperwork.
  • It also cuts down on the vast travelling expenses during the process of resolving cases Manually.

Convenient Technique:

  • Virtual Courts can cover a wide range of geographical areas.
  • This guarantees quality service to all the people of different regions.

Better Court Management:

  • Virtual courts would help in the computerization of workflow management in courts.
  • Thus, it would help to create a better court and case management. Video conferencing facilities would be installed in every court complex.
  • Evidence of eyewitnesses, who are unable to attend the court can be recorded through this method.

Security of the witnesses:

  • In many cases, the witnesses are not able to come to the court and make their statement as the other party is too strong and scares them of the consequences. e-Courts can help in dealing with such cases

Drawbacks of Virtual Courts:

Impersonal:

  • Due to the virtual process of Virtual Courts, the emotional state of the disputed parties and the resultant body language and tone are not expressed to the judges.
  • This poses a hindrance to forming any personal relationship with the dispute resolver.
  • Also the judges have no control over the temper and tone of the disputed parties. This may sometimes lead to contempt of courts.

Knowledge of Computers:

  • The essential preliminary requirement is to have a basic knowledge of computers and operation of the internet. Digital literacy in India being significantly low, this might be a roadblock for such. Even those who do have digital literacy, lack the trust required to avail Virtual courts. Thus, there is not only ignorance about computers, but also the reluctance of the usage of them.

Breach of Confidentiality:

  • Often in the virtual courtroom processes, confidential information regarding the parties themselves or the parties whom they represent is revealed.
  • Sensitive information is particularly more crucial in corporate negotiation in which often trade secrets are revealed.
  • Cyberspace is prone to cybercrime. If not properly secured, confidential information can be easily leaked out, having a detrimental effect on the parties concerned.

Way Forward:

  • Techno Legal Expertise:
    • Adequate techno-legal expertise should be imparted to both the advocates and the judges to handle these virtual courtroom proceedings.

Funds for Infrastructure:

  • Digital devices and internet connectivity needs physical and digital infrastructure, for which initial costs are slightly heavy.
  • Government should allocate adequate funds to ensure provisioning of these.

Cybersecurity and Confidentiality:

  • Key ingredient to induce trust among the litigants is by providing security to them and their valuable data.
  • Cybersecurity should be an important component of virtual courtroom procedures.

DISPUTE BETWEEN KARNATAKA AND KERALA ON HIGHWAY BLOCKADE

Why in News?

  • Karnataka has refused to lift the blockade despite the Supreme Court (SC) has asked the governments of Kerala and Karnataka to amicably settle the dispute over the closure of roads linking Kasaragod district (Kerala) to Mangaluru (Karnataka).

Highlights of the SC Judgement:

  • On Kerala High Court’s Order: The bench did not stay the Kerala High Court order but asked the states not to precipitate matters.
  • Centre Mediation:The Supreme Court asked the Centre to discuss the matter with the states and formulate parameters for passage of patients for urgent medical treatment.

Kerala High Court’s Order:

  • The Kerala High Court had directed the Centre to ensure that blockades put up by Karnataka on national highways connecting it to Kerala are removed forthwith in order to facilitate free movement of vehicles carrying people for urgent medical treatment between the two states.
  • The Kerala HC asked the Union government to intervene as the arterial roads that connect Mangalore to Kasaragod are part of the national highway network. Hence, it is the duty of the central government to ensure that roads are blockade- free.
  • Denial of health services amounts to infringement of right to life under Article 21 and also affects the right to freedom of movement under Article 19(1) (d) of the Constitution.

Court’s Territorial Jurisdiction:

  • Before the High Court Order, Karnataka contended that the court would be exceeding its territorial jurisdiction if it issues any direction.
  • But the court rejected this and said that when a High Court of a state finds and declares the actions of the government of another State to be illegal and unconstitutional, the said state government would be obliged to defer to the said declaration of law by a Constitutional Court of this country, notwithstanding that the said court is situated beyond the territorial limits of the said state.
  • The Court held that the Karnataka government cannot therefore be heard to contend that it is not obliged to respect the fundamental right of a citizen who resides outside its territorial limits.

RESTRICTIONS ON COURT HEARINGS LAWFUL, SAYS SUPREME COURT

Why in News?

  • The Supreme Court recently deemed all restrictions imposed on people from entering, attending or taking part in court hearings as lawful in the wake of the COVID-19 pandemic.

Highlights:

  • The court said that restrictions were in tune with the social distancing norms and best public health practices advocated to contain the contagion.
  • Invoking its extraordinary Constitutional powers: The court invoked its extraordinary Constitutional powers under Article 142 to step away from the convention of open court hearings. The open court system ensures transparency in administration of justice.

Videoconferencing:

  • The apex court bench assembled to suo motu streamline the videoconferencing guidelines for courts.
  • In a series of directions, the apex court allowed the High Courts to decide the modalities for the temporary transition to the use of videoconferencing technologies in their respective States.
  • District courts in each State would adopt the mode of videoconferencing prescribed by the respective High Courts.
  • Helplines would be set up to receive and rectify technical complaints.

Article 142 of the Constitution:

  • Article 142 provide a unique power to the Supreme Court, to do “complete justice” between the parties, i.e., where at times law or statute may not provide a remedy, the Court can extend itself to put a quietus to a dispute in a manner which would befit the facts of the case.
  • Article 142(1) states that “The Supreme Court 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, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe”.

COVID-19: A TEST FOR POLITICAL SYSTEMS

Context:

  • Any crisis would test the existing political arrangements. COVID-19 is one such crisis, which may test the existing political constellations in India as well as the world. This COVID-19 crisis may test India’s two distinctive Features — Democracy and Federalism.

How does it Test Democracy?

  • A democratic system means that the flow of information is free and open and that there is a constant feedback loop.
  • In a democracy, criticisms from the Opposition and media and public interventions from domain experts can be included in making and refining policy.
  • The government must see this as a strength and be open to inputs from all sources.
  • At the same time, a democratic system also, by its very nature, is slower and more deliberative.
  • It is difficult to enforce decisions (including the national lockdown); any curtailment of rights can only be through due process and temporary; and finding quick solutions to structural problems (a weak health system in this case) is not easy.

How does it Test Federalism?

  • The crisis response will require both the Centre and the states to work together.
  • There is a complex division of powers envisaged in the Constitution.
  • But it is clear that broad policies to deal with Covid-19 can be framed at the Centre; the power of implementation lies largely with state governments, which also have room to innovate. To their credit, political parties across the divide are seeking to work together.
  • At the same time, the rift between different units has been apparent during the exodus of migrant workers from Delhi — with differences between the Centre and the Delhi government, and the Delhi, Uttar Pradesh and Bihar Governments.

The Global Political Viewpoint:

  • When the coronavirus disease (Covid-19) broke out in China, observers were keen to understand whether an authoritarian system was better equipped to deal with a crisis of this magnitude or the system’s deficiencies would impede recovery.
  • The initial suppression of the news about the virus pointed to the failures of an authoritarian system, but the subsequent lockdown of Hubei and ramping up of health infrastructure in quick time also showed the strengths of the Chinese system.
  • China’s efforts to project its success in dealing with the pandemic is as much an effort to shore up the legitimacy of its domestic political system as to regain international credibility.
    • India has to beat back the pandemic, not just to save lives and preserve its economy, but also to safeguard its fundamental political features. The stakes are extraordinarily high.

PARLIAMENTARY STANDING COMMITTEES DEFER MEETINGS

Why in News?

  • All meetings of parliamentary standing committees have been deferred indefinitely because of the lockdown to curb the spread of COVID-19.

What are the Different Types of Committees?

  • ‘Standing’ committees: Their existence is uninterrupted and usually reconstituted on an annual basis. Some standing committees are departmentally related.
  • ‘Select’ committees formed for a specific purpose, for instance, to deliberate on a particular bill. Once the Bill is disposed of, that select committee ceases to exist.
  • 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.

Constitutional Backing:

  • 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).

What is their Significance?

  • 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.
  • However, Parliament is not bound by the recommendations of committees.

Why have Parliamentary Committees?

  • Parliament is the embodiment of the people’s will. Committees are an instrument of Parliament for its own effective functioning.
  • The smaller cohort of lawmakers, assembled on the basis of the proportional strength of individual parties and interests and expertise of individual lawmakers, could have more open, intensive and better-informed discussions.
  • Members of Parliament may have great acumen but they would require the assistance of experts in dealing with such situations. It is through committees that such expertise is drawn into law making.
  • Executive accountability to the legislature is enforced through questions in Parliament also, which are answered by ministers. However, department standing committees go one step further and hear from senior officials of the government in a closed setting, allowing for more detailed discussions.
  • This mechanism also enables parliamentarians to understand the executive processes closely.

Way Forward:

  • Parliamentary committees don’t have dedicated subject-wise research support available. The knowledge gap is partially bridged by expert testimony from government and other stakeholders.
  • Their work could be made more effective if the committees had full-time, sector-specific research staff.
  • Currently, the rules of Parliament don’t require every bill to be referred to a parliamentary committee for scrutiny. While this allows the government greater flexibility and the ability to speed up legislative business, it comes at the cost of ineffective scrutiny by the highest law-making body. Mandatory scrutiny of all bills by parliamentary committees would ensure better planning of legislative business.

SECTION 188 IPC

Why in News?

  • Delhi and many other states took the Centre’s advice to enforce a full lockdown in districts to contain the spread of COVID-19 by imposing Epidemic Diseases Act, 1897.

Epidemic Diseases Act, 1897:

  • The orders issued to curb the spread of the coronavirus have been framed under the Epidemic Diseases Act, 1897, which lays down punishment as per Section 188 of the
  • Indian Penal Code, 1860, for flouting such orders –leading to imprisonment of up to 6 months or fine up to Rs 1000 or both.
  • In the past, the Act has been routinely enforced across the country for dealing with outbreaks of diseases such as swine flu, dengue, and cholera.
  • Its penal provisions are currently being invoked by states to contain the COVID-19 pandemic.

Section 188 of the Indian Penal Code:

  • Section 3 of the Epidemic Diseases Act, 1897, provides penalties for disobeying any regulation or order made under the Act.
  • These are according to Section 188 of the Indian Penal Code (Disobedience to order duly promulgated by public servant).
  • Section 188, which comes under the Code’s Chapter X, ‘Of Contempt of the Lawful

Authority of Public Servants’, Reads:

Disobedience to order duly promulgated by public servant

  • Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction,
  • shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any persons lawfully employed, be punished
  • with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both;
  • and if such disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

What happens if you Violate the Lockdown Orders?

  • Under Section 188, there two offences:
  • Disobedience to an order lawfully promulgated by a public servant, If such disobedience causes obstruction, annoyance or injury to persons lawfully employed.
  • Punishment: Simple Imprisonment for 1 month or fine of Rs 200 or both
  • If such disobedience causes danger to human life, health or safety, etc.
  • Punishment: Simple Imprisonment for 6 months or fine of Rs 1000 or both
  • According to the First Schedule of the Criminal Procedure Code (CrPC), 1973, both offences are cognizable, bailable, and can be tried by any magistrate

ELECTIONS TO 18 RAJYA SABHA POLLS DEFERRED DUE TO PANDEMIC

Why in News?

  • Elections to 18 Rajya Sabha seats that were scheduled to take place have been deferred due to the Coronavirus pandemic by the Election Commission of India (ECI).

Composition of Rajya Sabha:

  • Article 80 of the Constitution lays down the maximum strength of Rajya Sabha as 250, out of which 12 members are nominated by the President and 238 are representatives of the States and of the two Union Territories.
  • The members nominated by the President are persons having special knowledge or practical experience in respect of such matters as literature, science, art and social service.
  • The Vice-President is the ex-officio chairperson of the Rajya Sabha.
  • The Deputy Chairman, who is elected from amongst the house’s members, takes care of the day-to-day matters of the house in the absence of the Chairman.

Allocation of Seats to Rajya Sabha:

  • The Fourth Schedule to the Constitution provides for the allocation of seats to the States and Union Territories in Rajya Sabha.
  • The allocation of seats is made on the basis of the population of each State.
  • Consequent on the reorganization of States and formation of new States, the number of elected seats in the Rajya Sabha allotted to States and Union Territories has changed from time to time since 1952.
  • Every Rajya Sabha MP has tenure of six years and elections to one-third seats are held every two years.
  • According to Section 154 of the Representation of the People Act 1951, a member chosen to fill a casual vacancy will serve for the remainder of his predecessor’s term of office.

What are the Eligibilities to become a Member of Rajya Sabha?

  • A member of the Rajya Sabha must:
  • Be a citizen of India;
  • Be at least 30 years old;
  • Possess such other qualifications as may be prescribed in that behalf by or under any law made by Parliament.

Process of Rajya Sabha Election:

  • The representatives of the States and of the Union Territories in the Rajya Sabha are elected by the method of indirect election.
  • The representatives of each State and two Union territories are elected by the elected members of the Legislative Assembly of that State and by the members of the Electoral College for that Union Territory, as the case may be, in accordance with the system of proportional representation by means of the single transferable vote.
  • 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.

FINANCE BILL PASSED IN LOK SABHA WITHOUT DEBATE

Why in News?

  • The Lok Sabha passed the Finance Bill, by voice vote without discussion, amid ruckus in the House with opposition parties seeking a fiscal stimulus package in the wake of the Coronavirus outbreak.

Key Features of the Bill:

  • In the Union Budget 2020-2021, the government proposed to spend Rs 30, 42,230 crore in the next financial year, 12.7% higher than the revised estimate of 2019-20. By passing the Bill, these financial proposals have been given effect.
  • The government has assumed a nominal Gross Domestic Product (GDP) growth rate of 10% in 2020-21, versus the nominal growth estimate at 12% for 2019-20. It expects that receipts will increase by 16.3% to Rs 22, 45,893 crore, owing to higher estimated revenue from divestment.
  • While several amendments were passed, finance minister withdrew some affecting non-resident Indians.
  • In the passed Bill, NRIs having income above Rs 15 lakh from business in India will fall under the tax net, but their global income will not be taxed in India.
  • Further, the tax deducted at source (TDS) rate on payment of dividend to non-resident and foreign company has been set at 20%.
  • The finance minister had introduced the new system of optional income tax slabs for individual taxpayers, where deductions and exemptions cannot be claimed, which was also passed by the Upper House of Parliament.
  • The proposal for taxing dividends in the hands of shareholders by abolishing the dividend distribution tax (DDT) was also passed. While the new rule kicks into effect from April 1, 2020, the government has clarified that shareholders will have no tax liability if the company issuing the dividend has paid the DDT before April 1.

What is the Finance Bill?

  • The Finance Act is an act of Parliament by which the Union Government of India gives effects to the financial proposals given by the government for the following financial year.
  • The finance bill is introduced to the Lower House after the Union Budget is presented by the Finance Minister. Once the proposals are passed by the parliament and assented to by the President, it becomes the Finance Act of that year.
  • There is a new Finance Act every financial year which makes this act an act that renews itself every year. This act basically is an umbrella act that includes all the government’s financial policies.

How is the Finance Bill Passed?

  • The Finance Bill is introduced in Lok Sabha. Rajya Sabha can recommend amendments in the bill. However, the bill has to be passed by the Parliament within 75 days of introduction.

What is the difference between a money bill and Finance bill?

  • While all Money Bills are Financial Bills, all Financial Bills are not Money Bills.
  • For example, the Finance Bill which only contains provisions related to tax proposals would be a Money Bill. However, a Bill that contains some provisions related to taxation or expenditure, but also covers other matters would be considered as a Financial Bill.
  • The Compensatory Afforestation Fund Bill, 2015, which establishes funds under the Public Account of India and states, was introduced as a Financial Bill.
  • Finance Bill has the provision of including recommendations from Rajya Sabha, however, in case of a Money Bill, it is not mandatory.
  • In case of a Money Bill, Lok Sabha has the right to reject the recommendations of the Upper house or Rajya Sabha.

THE COMPANIES (AMENDMENT) BILL, 2020

Context:

  • Recently, the bill to amend the Companies Act 2013 and decriminalise various offences under it was introduced in Lok Sabha. The Bill also offers greater flexibility to companies in meeting their corporate social responsibility obligations. The government says the amendments in the existing Companies Act will help reduce the burden on the National Company Law Tribunal.

Key Highlights of the Bill:

  • The Companies (Amendment) Bill, 2020 provides for the following:
  • Decriminalize:decriminalise certain offences under the Act in case of defaults which can be determined objectively and which otherwise lack any element of fraud or do not involve larger public interest.
  • Empowering the Central Government:empower the Central Government to exclude, in consultation with the Securities and Exchange Board, certain classes of companies from the definition of “listed company”, mainly for listing of debt securities.
  • Jurisdictions:clarify the jurisdiction of trial court on the basis of place of commission of offence under section 452 of the Act for wrongful withholding of property of a company by its officers or employees, as the case may be.
  • Producer Companies:Incorporate a new chapter in the Act relating to Producer Companies, which was earlier part of the Companies Act, 1956.
  • NCLAT Benches: Set up Benches of the National Company Law Appellate Tribunal.
  • Remuneration to the executives:make provisions for allowing payment of adequate remuneration to non-executive directors in case of inadequacy of profits, by aligning the same with the provisions for remuneration to executive directors in such cases.
  • Relaxing the provisions:
    • relating to charging of higher additional fees for default on two or more occasions in submitting, filing, registering or recording any document, fact or information.
    • exempt any class of persons from complying with the requirements relating to declaration of beneficial interest in shares
    • Reduce timelines for applying for rights issues so as to speed up such issues.
    • extend exemptions to certain classes of non-banking financial companies and housing finance companies from filing certain resolutions.
    • provide for a window within which penalties shall not be levied for delay in filing annual returns and financial statements in certain cases.
    • provide for specific classes of unlisted companies to prepare and file their periodical financial results;
    • allow direct listing of securities by Indian companies in permissible foreign jurisdictions as per rules to be prescribed.
  • Corporate Social Responsibility :the companies which have spending obligation up to fifty lakh rupees shall not be required to constitute the Corporate Social Responsibility Committee
    • to allow eligible companies to set off any amount spent in excess of their Corporate Social Responsibility spending obligation in a particular financial year towards such obligation in subsequent financial years;

Concerns:

  • The Bill proposed 72 changes to the Companies Act, 2013. Almost 23 offences would be recategorized out of 66 compoundable offences under the Act, to be dealt with an in-house adjudication framework. Besides, seven compoundable offences would be omitted.
  • Raising concerns about the Yes Bank crisis, some Opposition leaders alleged that the bill was aimed to appease corporates and demanded that it should be referred to the Parliamentary Standing Committee on Finance.

SUPREME COURT INVOKES SPECIAL POWERS IN DEFECTION CASE

Why in News?

  • Recently, the Supreme Court invoked its special powers under Article 142 of the Constitution to remove a minister belonging to Manipur Cabinet.

Highlights of the Judgement:

  • The Supreme Court removed a minister from the state cabinet and restrained him “from entering the Legislative Assembly till further orders”.
  • It has to be notes that a disqualification petition against the minister was pending before the Speaker since 2017 but the Speaker failed to take the decision within a reasonable time period.
  • The Speaker even failed to take any decision within the stipulated time period of 4 weeks as provided by the Supreme Court in the earlier order passed in the month of January 2020.

Invoking Art 142:

  • Article 212of the Constitution bars courts from inquiring into proceedings of the Legislature. In this case, however, prompted by the fact that the Speaker’s conduct has been called into question on several occasions, the Court said it was “constrained” to invoke the court’s extraordinary powers under Article 142 of the Constitution.
  • Article 142: It provides discretionary power to the Supreme Court as it states that the Supreme Court 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.

Previous Court Judgements regarding Anti-defection Laws:

  • The court in general said that “the Speaker, in acting as a Tribunal under the Tenth Schedule, is bound to decide disqualification petitions within a reasonable period”, which “will depend on the facts of each case.”
  • The Supreme Court also held that disqualification petitions under the tenth schedule should be adjudicated by a mechanism outside Parliament or Legislative Assemblies.
  • The Court has suggested a permanent tribunal headed by a retired Supreme Court judge or a former High Court Chief Justice as a new mechanism. However, this would require an amendment to the Constitution.
  • Currently, disqualification of members of a House/Assembly is referred to the Speaker of the House/Assembly.
  • Rationale behind Court’s suggestion was to ensure that such disputes are decided both swiftly and impartially, thus giving real teeth to the provisions contained in the Tenth Schedule.

About Tenth Schedule:

  • The Anti-Defection Law was passed in 1985 through the 52nd amendment to the Constitution. It added the Tenth Schedule to the Indian Constitution. The main intent of the law was to combat political defections.
  • According to it, a member of a House belonging to any political party becomes disqualified for being a member of the House, if
  1. 1.he voluntarily gives up his membership of such political party; or
  2. 2.he votes or abstains from voting in such House contrary to any direction issued by his political party without obtaining prior permission of such party and such act has not been condoned by the party within 15 days.

Powers of Speaker with regard to Anti-Defection Law:

  • Any question regarding disqualification arising out of defection is to be decided by the presiding officer of the House.
  • After the Kihoto Hollohan case (1993), the Supreme Court declared that the decision of the presiding officer is not final and can be questioned in any court. It is subject to judicial review on the grounds of malafide, perversity, etc.

MEDICAL TERMINATION OF PREGNANCY (AMENDMENT) BILL, 2020

Why in News?

  • The Lok Sabha has passed a Bill to extend the upper limit for permitting abortions from 20 weeks to 24 under special circumstances.

The Medical Termination of Pregnancy (MTP) Act 1971:

  • It is a law that legalized abortion in India up to 20 weeks of pregnancy, based on certain conditions and when provided by a registered medical practitioner at a registered medical facility.
  • As per the provisions of the MTP Act, only the consent of woman whose pregnancy is being terminated is required.
  • In case of below the age of 18 years, or a mentally ill woman, consent of guardian (MTP Act defines guardian as someone who has the care of the minor. This does not imply that only parent/s are required to consent) is required for termination.

Provision of Medical Termination of Pregnancy (MTP) Bill, 2020:

  • The draft Bill proposes requirement of opinion of one registered medical practitioner (RMP) for termination of pregnancy up to 20 weeks of gestation.
  • Similarly, it also provides for the requirement of opinion of two RMPs for termination of pregnancy of 20 to 24 weeks.
  • The Bill also seeks to increase the upper gestation limit from 20 to 24 weeks for survivors of rape, victims of incest and other vulnerable women. It will also include minor girls.
  • The Bill seeks to relax the contraceptive-failure condition for “any woman or her partner” from the present provision for “only married woman or her husband”, allowing them to medically terminate the pregnancy.

Significance of Bill:

  • The Bill will provide greater reproductive rights to women as abortion is considered an important aspect of the reproductive health of women.
  • Deaths and injuries from unsafe abortions are largely preventable provided services are performed legally by trained practitioners.
  • This will help in decreasing maternal morbidity and mortality and may also help in preventing wastage of resources invested in a pregnancy.
  • The special categories of women include rape survivors, victims of incest, the differently abled and minors.

NO MEETINGS OF SCS AND STS PANEL HELD FOR 3 YEARS

Why in News?

  • According to the information provided by the Union Social Justice and Empowerment Ministry to Parliament, the State-level committees had not met even once in three years — 2016, 2017 and 2018.

About the News:

  • The State-level committees meant to monitor the implementation of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989of 25 States and Union Territories had not met even once in three years.
  • The 1995 rules formed under the Act mandate the setting up of State and district-level vigilance and monitoring committees.
  • The State-level committees, headed by the respective Chief Ministers, are supposed to meet twice a year, according to the rules.

What are the constitutional provisions against SC/ST Atrocities?

  • Article 17  of the constitution prohibits the practice of untouchability.
  • Article 46 promotes the educational and economic interests of SCs, STs, and other weaker sections of the society and protects them from social injustice and exploitation.
  • Article 338– National Commission for Scheduled Castes
  • Investigate and monitor all matters relating to the constitutional and other legal safeguards for the SCs and to evaluate their working.
  • Inquire into specific complaints with respect to the deprivation of rights and safeguards of the SCs.
  • 338-A– National Commission for Scheduled Tribes
  • Its functions are the same as that of NCSC, but with respect to ST instead of SC.

About the Act:

  • Creation of new types of offences that are neither present in the Indian Penal Code (IPC) nor in the Protection of Civil Rights Act 1955.
  • It punishes crimes against people belonging to Scheduled Castes and Tribes.
  • It vests special protections and rights with the victims.
  • It creates Special Courts and special public prosecutor for speedier completion of cases.
  • Commission of offences only by particular persons (by non-SCs on SCs and non-STs on STs).
  • Punishment for public servant (non-SC/ST) in case of neglect of duties.
  • Denial of anticipatory bail.
  • Gives compensation, relief, and rehabilitation for victims of atrocities or their legal heirs.
  • Mandatory and periodic monitoring system at District, State, and National level.
  • Identification of atrocity prone zones.
  • Ministry of Social Justice is the nodal ministry to enforce the provisions of the Act.

What are the states that did not met?

  • The State-level committees in 25 States and Union Territories — Andhra Pradesh, Arunachal Pradesh, Bihar, Goa, Himachal Pradesh, Jharkhand, Madhya Pradesh, Manipur, Meghalaya, Mizoram, Nagaland, Odisha, Punjab, Rajasthan, Sikkim, Tamil Nadu, Telangana, Tripura, Uttar Pradesh, Uttarakhand, Andaman and Nicobar Islands, Dadra & Nagar Haveli, Daman & Diu, Delhi and Lakshadweep — had not held any meetings in the three years.

Measures to be Taken:

  • Minimising the duration of trials.
  • SC/ST commission should start a national helpline number for any harassment on the basis of caste.
  • Improving the training of police officers in dealing with POA cases so that they can solve the cases without any pressure or prejudice.
  • Increasing awareness about several legal remedies and different rights available to the marginalized community.
  • Use of audio-video recording to collect evidence.
  • Better forensics.
  • State Protection of a witness.
  • The government should take proactive measures to improve the participation of people from SC/ST community in decision making and government functioning.

Way Forward:

  • The most crucial thing for ending discrimination and improving fraternity is a consistent societal action to change the entrenched caste rigidity.
  • SC/ST Prevention of Atrocities Act (PoA act) only serves as a tool in this endeavour rather than an end in itself.

EPIDEMIC DISEASES ACT

Context:

  • All states and Union Territories have been directed to invoke provisions of Section 2 of the Epidemic Diseases Act, 1897, so that Health Ministry advisories are enforceable. The deadly COVID-19 has claimed over 5,000 lives across the world, to combat the pandemic, the Centre has invoked a 123-year-old Epidemic Diseases Act, which has been historically used to contain the spread of various diseases — Swine Flu, Cholera, Malaria and Dengue.

COVID-19 Outbreak:

  • Currently, India is fighting the deadly virus, which has claimed two lives in the country and more than 70 COVID-19 cases have tested positive.
  • According to reports, across the world more than 119,100 people have been infected.
  • And the deadly COVID-19 has claimed over 5,000 lives across the world.

Epidemic Diseases Act, 1897:

  • Health is a State subject, but by invoking Section 2 of the Epidemic Diseases Act, advisories and directions of the Ministry of Health & Family Welfare will be enforceable.
  • It is routinely enforced across the country for dealing with outbreaks of diseases such as swine flu, dengue, and cholera.
  • It was introduced by the colonial government to tackle the epidemic of bubonic plague that had spread in the erstwhile Bombay Presidency in the 1890s.
  • The Epidemic Diseases Act consists of four sections and aims to provide for better prevention of the spread of Dangerous Epidemic Diseases.

Provisions of the 1897 Epidemic Diseases Act:

  • It Empowers State Governments/UTs to take special measures and formulate regulations for containing the outbreak.
  • It also empowers the state to prescribe such temporary regulations to be observed by the public or by any person or class of persons as it shall deem necessary to prevent the outbreak of such disease or the spread thereof.
  • The state may determine in what manner and by whom any expenses incurred (including compensation if any) shall be defrayed.
  • The State Government may take measures and prescribe regulations for the inspection of persons travelling by railway or otherwise, and the segregation, in hospital, temporary accommodation or otherwise, of persons suspected by the inspecting officer of being infected with any such disease.
  • It also provides penalties for disobeying any regulation or order made under the Act. These are according to section 188 of the Indian Penal Code (Disobedience to order duly promulgated by public servant).
  • It also gives legal protection to the implementing officers acting under the Act.

Arguments against the Colonial Act:

  • Historians have criticised the Act for its potential for abuse.
  • Using powers conferred by the Act, colonial authorities would search suspected plague cases in homes and among passengers, with forcible segregations, evacuations, and demolitions of infected places.
  • In 1897, the year the law was enforced, freedom fighter Bal Gangadhar Tilak was punished with 18 months’ rigorous imprisonment after his newspapers Kesari and Mahratta admonished imperial authorities for their handling of the plague epidemic.
  • Section 4 of the act; Protection to persons acting under Act: “No suit or other legal proceeding shall lie against any person for anything done or in good faith intended to be done under this Act (legal protection to implement the Act).

Arguments in favour of the Colonial Act:

  • Constitutional experts opine there is nothing wrong if the government is willing to implement a colonial-era law as it still exists in the statute, and maybe the governments over the time did not see the necessity to amend the Act.
  • There are many colonial laws which continue to exist, for example the Indian Penal Code (IPC), the Census which originated in pre-independence era still continues, and the Famine Act also originated before independence.
  • In 2009, to tackle the swine flu outbreak in Pune, Section 2 powers were used to open screening centres in civic hospitals across the city, and swine flu was declared a notifiable disease. The act was much resourceful as in this case

FOREIGNERS TRIBUNALS

Context:

  • Recently, Amnesty International has raised allegations over the functioning of the Foreigners Tribunals (FTs) in Assam.
  • It has asserted that the Supreme Court and Gauhati High Court had enabled the FTs to create a statelessness crisis in Assam, in a report titled ‘Designed to Exclude’.

Amnesty International:

  • It is an international Non-Governmental Organization (NGO) founded in London on 1961
  • It seeks to publicize violations by governments and other entities of rights recognized in the Universal Declaration of Human Rights (1948), especially freedom of speech and of conscience and the right against torture.
  • It also works with intergovernmental human rights bodies to expand and enforce human rights protections in international law.
  • In 1977 AI was awarded the Nobel Prize for Peace.

About:

  • The organization has observed that the FTs that determined the paramount right to citizenship in Assam were often dismissive, used derogatory language, controlled their own procedures and applied them in arbitrary ways.
  • It has also called for a review of the existing legislative regime governing the determination of nationality in India.

FTs – Assam:

  • It is a quasi-judicial bodies, to determine if a person staying illegally is a “foreigner” or not.
  • Every individual, whose name does not figure in the final National Register of Citizens (NRC), can represent his/her case in front of the appellate authority i.e. Foreigners Tribunals (FT).
  • It is set up in Assam, specifically to handle the cases of 19.06 lakh people left out of the updated NRC.
  • Under the provisions of Foreigners Act 1946 and Foreigners (Tribunals) Order 1964, only Foreigners Tribunals are empowered to declare a person as a foreigner.

FTs- Member:

  • Its members are appointed under the Foreigners Tribunal Act, 1941, and Foreigners Tribunal Order, 1984, as per the guidelines issued by the government from time to time.
  • The Members can be:
    • a retired judicial officer of the Assam Judicial Service,
    • a retired civil servant not below the rank of secretary and additional secretary with judicial experience, or
    • a practising advocate not below the age of 35 years and with at least seven years of practice.
    • The member also required to have a fair knowledge of the official languages of Assam (Assamese, Bengali, Bodo and English) as well as be conversant with the historical background to the foreigners’ issue.

NATIONAL CRIME RECORDS BUREAU (NCRB)

Why in News?

  • National Crime Records Bureau (NCRB) celebrated its 35th Inception Day, on March 12, 2020.

Highlights:

  • A Crime Multi Agency Centre (Cri-MAC) for sharing of information on heinous crime and other issues related to inter-state coordination was launched on the occasion.
  • A National Cybercrime Training Centre (NCTC) for professional quality e-Learning services on cyber-crime investigation on large scale to police officers, judges, prosecutors and other stakeholders was also launched.
  • National Fingerprint Identification System (NAFIS) being setup by NCRB is expected to be ab game changer for police.
  • The importance of capacity building in cyber-crime investigation and the Government’s resolve in tackling the menace of increasing cyber-crime was emphasized.
  • The Crime and Criminal Tracking Network and Systems (CCTNS) Hackathon & Cyber Challenge 2020 organised by NCRB in collaboration with Cyber Peace Foundation, which received overwhelming response from police, industry and academia was lauded.

Crime and Criminal Tracking Network and Systems (CCTNS):

  • Crime and Criminal Tracking Network and Systems (CCTNS) is a Mission Mode Project (MMP) under the National e-Governance Plan of Govt. of India.
  • CCTNS is a project initiated in June 2009 which aims at creating an integrated system for enhancing the efficiency of policing at the Police Station level.
  • The huge database of CCTNS will help investigators in solving crime cases faster.

Objective

  • Make the Police functioning citizen friendly by automating the functioning of Police Stations.
  • Improve delivery of citizen-centric services through effective usage of ICT.
  • Provide the Investigating Officers of the Civil Police with tools, technology and information to facilitate investigation of crime and detection of criminals.
  • Improve Police functioning in various other areas such as Law and Order, Traffic Management etc.
  • Facilitate interaction and sharing of information among Police Stations, Districts, State/UT headquarters and other Police Agencies.
  • Keep track of the progress of Cases, including in Courts.
  • Establishing a basic platform for an Inter-Operable Criminal Justice System (ICJS).

National Crime Records Bureau:

  • The National Crime Records Bureau is an Indian government agency responsible for collecting and analyzing crime data as defined by the Indian Penal Code (IPC) and Special and Local Laws (SLL).
  • NCRB is headquartered in New Delhi and is part of the Ministry of Home Affairs (MHA), Government of India.
  • NCRB was set-up in 1986 to function as a repository of information on crime and criminals so as to assist the investigators in linking crime to the perpetrators.

Mission:

  • To empower Indian Police with Information Technology and criminal Intelligence to enable them to uphold law and protect people.
  • To provide leadership and excellence in crime analysis particularly for serious and organized crime.

Objectives:

  • Create and maintain secure sharable National Databases on crimes and criminals for law enforcement agencies and promote their use for public service delivery.
  • Collect and process crime statistics at the national level and clearing house of information on crime and criminals both at National and International levels.
  • Lead and coordinate development of IT applications and create an enabling IT environment for Police organizations.
  • National repository of fingerprints of all criminals.
  • To evaluate, modernize and promote automation in State Crime Records Bureau and State Finger Print Bureau.
  • Training and capacity building in Police Forces in Information Technology and Finger Print Science.

ROLE OF L-G AND GOVERNMENT IS INTERTWINED: MADRAS HC

Why in News?

  • Madras High Court has set aside its own order restraining the L-G from interfering in the day-to-day affairs of the elected government of the union territory.

What is the Issue?

  • Previously, On March 2019, the Madras High Court had said that the L-G does not have the power to interfere in the day-to-day activities of the union territory.
  • LG also have doesn’t the right to seek any government documents from the Puducherry government.

What are the observations made by the High Court in its latest order?

  • The role of Puducherry’s Lieutenant Governor and that of an elected government in the Union Territory were intertwined as per law, and therefore they were expected to act in unison and not in division.
  • In the past judgment on this issue, the single judge had erred in holding that the Puducherry Legislative Assembly enjoys similar powers to that of a State legislature.
  • A government is “a trustee for the little man who should not have a perception that the running of the government is a gigantic conspiracy”.

What are the powers and sources of LG of Puducherry?

  • The Government of Union Territories Act, 1963 provides for a Legislative Assembly of Pondicherry (as Puducherry was then called), with a Council of Ministers to govern the “Union Territory of Pondicherry”.
  • The same Act says that the UT will be administered by the President of India through an Administrator (LG).
    • Section 44 of the Act, says the Council of Ministers headed by a Chief Minister will “aid and advise the Administrator in the exercise of his functions in relation to matters with respect to which the Legislative Assembly of the Union Territory has power to make laws”.
  • The same clause also allows the LG to “act in his discretion” in the matter of law making, even though the Council of Ministers has the task of aiding and advising him.

What happens if there is a Difference of Opinion?

  • In case of a difference of opinion between the LG and his Ministers on any matter, the Administrator is bound to refer it to the President for a decision and act according to the decision given by the President.
  • However, the Administrator can also claim that the matter is urgent, and take immediate action as he deems necessary.

When prior sanction of the Administrator is Required?

  • Under Section 22 of the Act, prior sanction of the Administrator is required for certain legislative proposals.
  • These include Bills or amendments that the Council of Ministers intends to move in the Legislative Assembly, and which deal with the “constitution and organisation of the court of the Judicial Commissioner”, and “jurisdiction and powers of the court of the Judicial Commissioner with respect to any of the matters in the State List or the Concurrent List”.
  • It is also obligatory on the part of the UT government to seek the “recommendation” of the LG before moving a Bill or an amendment to provide for “the imposition, abolition, remission, alteration or regulation of any tax”, “the amendment of the law with respect to any financial obligations undertaken or to be undertaken”, and anything that has to do with the Consolidated Fund of the UT.

 Powers of LG when a Bill is Passed:

  • Once the Assembly has passed a Bill, the LG can either grant or withhold his assent; or reserve it for the consideration of the President.
  • He can also send it back to the Assembly for reconsideration.

REVOCATION OF SUSPENSION OF MPS IN LOK SABHA

Why in News?

  • Seven Congress members were recently suspended for unruly behaviour in the Lok Sabha and their suspension has been revoked recently.

What is the reason for suspending an MP?

  • The general principle is that it is the role and duty of the Speaker of Lok Sabha to maintain order so that the House can function smoothly. This is a daunting task even at the best of times.
  • In order to ensure that proceedings are conducted in the proper manner, the Speaker is empowered to force a Member to withdraw from the House (for the remaining part of the day), or to place him/her under suspension.

What are the Rules under which the Speaker Acts

  • Rule Number 373 of the Rules of Procedure and Conduct of Business says: “The Speaker, if is of the opinion that the conduct of any Member is grossly disorderly, may direct such Member to withdraw immediately from the House, and any Member so ordered to withdraw shall do so forthwith and shall remain absent during the remainder of the day’s sitting.”
  • To deal with more recalcitrant Members, the Speaker may take recourse to Rules 374 and 374A. Rule 374 says:
  • “The Speaker may, if deems it necessary, name a Member who disregards the authority of the Chair or abuses the rules of the House by persistently and wilfully obstructing the business thereof.
  • “If a Member is so named by the Speaker, the Speaker shall, on a motion being made forthwith put the question that the Member (naming such Member) be suspended from the service of the House for a period not exceeding the remainder of the session:
  • Provided that the House may, at any time, on a motion being made, resolve that such suspension be terminated.
  • “A member suspended under this rule shall forthwith withdraw from the precincts of the House.”

What is the Procedure for Revocation of a Member’s Suspension?

  • While the Speaker is empowered to place a Member under suspension, the authority for revocation of this order is not vested in him/her. It is for the House, if it so desires, to resolve on a motion to revoke the suspension.

What happens in Rajya Sabha?

  • Like the Speaker in Lok Sabha, the Chairman of the Rajya Sabha is empowered under Rule Number 255 of its Rule Book to “direct any Member whose conduct is in his opinion grossly disorderly to withdraw immediately” from the House.
  • “Any Member so ordered to withdraw shall do so forthwith and shall absent himself during the remainder of the day’s meeting.”
  • The Chairman may “name a Member who disregards the authority of the Chair or abuses the rules of the Council by persistently and wilfully obstructing” business.
  • In such a situation, the House may adopt a motion suspending the Member from the service of the House for a period not exceeding the remainder of the session.
  • The House may, however, by another motion, terminate the suspension.
  • Unlike the Speaker, however, the Rajya Sabha Chairman does not have the power to suspend a Member.

Need of the Hour:

  • A balance has to be struck. There can be no question that the enforcement of the supreme authority of the Speaker is essential for smooth conduct of proceedings. However, it must be remembered that her job is to run the House, not to lord over it.
  • The solution to unruly behaviour has to be long-term and consistent with democratic values.
  • A step in that same direction could be to discontinue the practice of herding people out of the visitors’ gallery when the House witnesses chaos. It has been suggested that it may perhaps be a good idea to let them be — and to also reserve a few blocks in the gallery for schoolchildren, who could see for themselves the conduct of Members.

REMOVAL OF CONTROVERSIAL ‘NAME AND SHAME’ HOARDINGS

Why in News?

  • Allahabad High Court has directed the Lucknow administration to remove forthwith the controversial ‘name and shame’ hoardings of those arrested during protests against the Citizenship (Amendment) Act.

What is the Issue?

  • The Allahabad High Court had taken Suo motu notice of this act on which the police put up several hoardings across Lucknow identifying those accused of violence during the protests against the Citizenship (Amendment) Act in December triggering those named to fear for their safety.

What are the Observations Made by the Court?

  • The action of the State is nothing but an unwarranted interference in privacy of people. The same hence, is in violation of Article 21 of the Constitution of India.
  • The placement of personal data of selected persons “reflects colourable exercise of powers” by the government.
  • There are certain provisions empowering the investigating agencies or other Executives to take picture of accused for the purpose of their identification and record but that too is not open for publication. The only time these photographs be published is to have assistance in the apprehension of a fugitive from justice.
  • No power is available in the Code of Criminal Procedure, 1973 to police or the Executive to display personal records of a person to public at large.
  • On the issue of court taking the case Suo motu, it said “where there is gross negligence on part of public authorities and government, where the law is disobeyed and the public is put to suffering and where the precious values of the constitution are subjected to injuries, a constitutional court can very well take notice of that at its own.”

How the Administration Defended its move?

  • While accepting absence of any statute permitting executive authorities to put such banners, the government had opposed the petition by submitting that the object of displaying personal details of the individuals “is to deter the mischief mongers from causing damage to public and private property.”
  • The State has also questioned the territorial jurisdiction of the court in Allahabad and argued that the court “erred in invoking public interest jurisdiction in the instant matter, that being available to under privileged section of the society only.

CENTRE CANNOT BRAND ORGANISATIONS ‘POLITICAL’, SAYS SUPREME COURT

Why in News?

  • The Supreme Court recently held that the central government cannot brand an organisation political and deprive it of its right to receive foreign funds for using legitimate forms of dissent to aid a Public Cause.

Background:

  • This judgement comes in the background of a petition filed by the Indian Social Action Forum (INSAF) challenging certain provisions of the Foreign Contribution Regulation Act (FCRA), 2010 and the Foreign Contribution (Regulation) Rules of 2011.

Issues with the FCRA Act:

  • The FCRA 2010 prohibited acceptance and utilisation of foreign contribution or foreign hospitality for any activities detrimental to the national interest.
  • 1.Unbridled Powers to the Centre:
    • But both the Act and the rules confer the Centre with ‘unguided and uncanalised power’ to brand organisations political and shut down their access to foreign funds.
    • Section 5(1) of the FCRA was challenged for being vague as it allowed the Centre to decide freely whether a seemingly non-political organisation was actually political in nature. The Court said that the provision was expansive and not vague.
  • 2.No Proper Grievance Addressal:
    • Section 5(4) of the FCRA was also questioned as it did not exactly identify the authority before which an organisation could represent its grievance. This contention was dismissed by the apex court.
  • 3.Activities which are classified as “Political” in Nature
    • Various clauses of Rule 3 of the 2011 Rules were also challenged. This provision identified the various types of ‘political’ activities for which/organisations whose foreign funding could be stopped by the Government.

Highlights of the Judgement:

  • SC observed that an organisation, which supports the cause of a group of citizens agitating for their rights without a political goal or objective, cannot be penalised by being declared as an organisation of a political nature.
  • However, foreign funding could be stopped if an organisation took recourse to these forms of protest to score a political goal.
  • Organisations with political objectives in their memorandum of association or bye-laws cannot be permitted access to foreign funds because of their clear political nature.

Justifications behind the Move:

  • A prohibition from receiving direct or indirect foreign aid ensures that the values of a sovereign democratic republic are protected.
  • It is to make sure that the administration is not influenced by foreign-funded political organisations.
  • Foreign funding can continue for organisations of farmers, workers, students, youth based on caste, community, religion, language, etc as long as they work for the social and political welfare of society and not to further political interests.

RIGHT OF AN ACCUSED TO BE DEFENDED

Why in News?

  • Recently, the Karnataka High Court observed that it is unethical and illegal for lawyers to pass resolutions against representing accused in court.

What is the Issue?

  • This was after local bar associations had objected to four students arrested for sedition being defended in court.
  • This is not the first time that bar associations have passed such resolutions, despite a Supreme Court ruling that these are “against all norms of the Constitution, the statute and professional ethics”.

What does the Constitution say about the right of an Accused to be Defended?

  • Article 22(1) gives the fundamental right to every person not to be denied the right to be defended by a legal practitioner of his or her choice.
  • Article 14 provides for equality before the law and equal protection of the laws within the territory of India.
  • Article 39A, part of the Directive Principles of state policy, states that equal opportunity to secure justice must not be denied to any citizen by reason of economic or other disabilities, and provides for free legal aid.

What has the Supreme Court said about such Resolutions by Bar Associations?

  • Supreme Court observations in 2010A S Mohammed Rafi vs State of Tamil Nadu case:
    • Such resolutions are wholly illegal, against all traditions of the bar and against professional ethics.
    • Every person, however wicked, depraved, vile, degenerate, perverted, loathsome, execrable, vicious or repulsive he may be regarded by society has a right to be defended in a court of law and correspondingly, it is the duty of the lawyer to defend him.”
    • Such resolutions were “against all norms of the Constitution, the statute and professional ethics”, called these “a disgrace to the legal community”, and declared them null and void.

How are Professional Ethics of Lawyers Defined?

  • The Bar Council of India has Rules on Professional Standards, part of the Standards of Professional Conduct and Etiquette to be followed by lawyers under the Advocates Act.
  • An advocate is bound to accept any brief in the courts or tribunals, at a fee consistent with his standing at the Bar and the nature of the case. The Rules provide for a lawyer refusing to accept a particular brief in “special circumstances”.
  • Last year, The Uttarakhand High Court clarified that these special circumstances refer to an individual advocate who may choose not to appear in a particular case, but who cannot be prohibited from defending an accused by any threat of removal of his membership of the Bar Association.

Have lawyers faced action for Such Resolutions?

  • Uttarakhand High Court has previously held that, in such instances, the State Bar Council can initiate action against office-bearers of the Bar Association if such resolutions are passed.
  • It also said that action under Section 15(2) of the Contempt of Courts Act, 1971, can be considered against advocates who interrupt court proceedings.

PRESIDENT REJECTS MERCY PETITION OF CONVICT IN NIRBHAYA CASE

Why in News?

  • President Ram Nath Kovind has rejected the mercy petition of Pawan Gupta, one of the four death row convicts in the 2012 Nirbhaya gang-rape and murder case.

Highlights:

  • Gupta was the last convict to file a mercy petition.
  • This comes after a Delhi court stayed for the third time the death sentence of four convicts in the case observing that they cannot be executed while a mercy petition is pending before the President.

Mercy Petition:

  • There is no statutory written procedure for dealing with mercy petitions, but in practice, after extinguishing all the reliefs in the court of law, either the convict in person or his relative on his behalf may submit a written petition to the President.
  • The petitions are received by the President’s secretariat on behalf of the President, which is then forwarded to the Ministry of Home Affairs for their comments and recommendations.
  • A convict under the sentence of death is allowed to make the petition within a period of seven days after the date on which the Superintendent of jail informs him about the dismissal of the appeal or special leave to appeal by the Supreme Court.
  • The Home Ministry in consultation with the concerned State Government discusses the merits of the petition.
  • After the consultation, recommendations are made by the Home Minister and then, the petition is sent back to the President for his decision.

What happens when a convict moves a Mercy Petition?

  • In case, the petition is filed within seven days then it is the duty of the Jail Superintendent to stay the execution of the death sentence.
  • However, this does not mean that after the expiry of seven days a convict cannot file a mercy petition.
  • In such exceptional cases or intervening circumstances, it is the concerned state government that will decide the question of deferring the death sentence.
  • President’s pardoning power:

Article 72 of the Indian constitution provides:

  • The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence—
  1. in all cases where the punishment or sentence is by a Court Martial;
  2. in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;
  3. in all cases where the sentence is a sentence of death.
  • Thus, Article 72 empowers the President to grant pardons, etc., and to suspend, remit or commute sentences in certain cases.

President and Mercy Petition:

  • The President can either accept or reject the mercy plea as per the advice by the council of ministers
  • However, the Constitution doesn’t provide for a specified time limit to accept/reject the mercy petition.
  • He can keep the petition in hold for an indefinite period if he wishes to.

DELIMITATION PANEL FOR J&K AND NORTH EASTERN STATES

Why in News?

  • The union government has started the process of redrawing the Lok Sabha and assembly constituencies in the Union Territory of Jammu and Kashmir and the northeastern states of Assam, Arunachal Pradesh, Manipur and Nagaland.

Why initiated for these Areas Alone?

  • In 2002, the last delimitation was conducted across India but these states were left out due to various reasons.

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 of Jammu and Kashmir 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.

Way Forward:

  • Although the freeze on the number of seats in Lok Sabha and Assemblies should have been lifted after the 2001 Census, another amendment has postponed this until 2026.
  • This was justified on the ground that a uniform population growth rate would be achieved throughout the country by 2026.

EC MOOTS LINKING AADHAAR WITH VOTER IDS

Why in News?

  • Recently the Election Commission (EC) has proposed the Law Ministry to link the Aadhaar card with the Election Photo Identity Card (EPIC) to prepare an error free electoral roll.

What is the Issue?

  • The General Elections 2019 witnessed discrepancies in voter eligibility and rolls, and the resultant denial of voting rights of many.
  • Migrant labours and workers are unable to vote if they are away from their homes at the time of elections.
  • The disenfranchisement of voters is likely due to four factors which are discussed below, calling for Aadhaar as a solution to resolve them.

What are the Problems Faced?

1. Issues with Registration:

  • Several people are unable to register to vote.
  • The reasons for this range from not being aware of the registration methodology, to the process itself being inconvenient to not even knowing there is one.
  • Challenges – It is the responsibility of the Election Commission of India (ECI) to inform the eligible voters who have not registered yet.
  • The ECI does this via mass campaigns since it is not possible for it to exclusively identify unregistered adult citizens.
  • Currently, the easiest way to freshly apply to be registered as a voter is to fill out a Form 6 on the NVSP (National Voters’ Service Portal) or the ECI’s app.
  • However, this is an extremely cumbersome exercise and potentially an impediment to comprehensive voter registration efforts.
  • Way out – Aadhaar can significantly simplify the process, once the ECI has ascertained that a resident is eligible to vote.
  • This whole process could be replaced with a single step Aadhaar based e-KYC.

2. Problem in Voter Rolls:

  • Several government functionaries have discretionary powers that empower them to remove names from voter lists.
  • Additionally, the ECI has the right to disqualify citizens from voting under certain conditions as per the Constitution.
  • The ECI maintains and it is indeed mandated to publish a list of people disqualified from voting in each state.However, the reasons for their disqualifications are not included and likely not recorded either.
  • Concerns – There are people who have voted at a particular booth previously but have been omitted from the voter rolls.
  • In many cases, the ECI does not have the contact details (or updated ones) of voters to notify them before a deletion takes place.
  • The absence of contact information was due to the fact that up until recently, the ECI did not collect these details.
  • In cases where they have contact details, the changes in the same are not made by voters unless the Electors Photo Identity Card (EPIC) is their de facto ID.
  • Besides, the most disturbing factor is the political adventurism of parties (and politicians) and voters alike.
  • There have been cases reported of voters who are registered to vote in multiple booths and, thus, can vote multiple times.
  • Way Out– During registration, Aadhaar holders could give consent to the ECI to have their contact details shared.
  • In that case, they could be pre-emptively notified about an impending deletion.
  • The illegality of private and political actors in regards with voters roll needs to be checked.
  • Here, Aadhaar’s anti-fraud and de-duplication features can be put to use.

3. Discrepancies in Details:

  • Concern:Several people have been turned away from voting due to discrepancies between their details on the rolls and the ID documents they present for validation.
  • Generally, people who get married or have recently changed other demographic parameters might make the necessary changes to their Aadhaars and neglect other IDs.
  • Way Out –In such cases, reliance on Aadhaar will mitigate the risks of exclusion that are a consequence of demographic data mismatches.

4. Relocation:

  • The most easily addressable cause of disenfranchisement is relocation.
  • Concern:It is often the case that people who have made the requisite changes will feature both on the voter list of their new and previous residences.
  • Way Out:Here too, it is far more likely for people to update Aadhaar rather than their EPIC.

Way Forward:

  • Many of the exclusions discussed above can be remedied with Aadhaar.
  • It uniquely identifies every individual in the country through all of the same details as the EPIC.
  • Also, unlike EPIC, Aadhaar captures biometric data, which is useful in validating uniqueness.
  • Ironically, the EPIC does not guarantee a vote; if a name does not appear on the voter rolls, she will not be permitted to vote.
  • Even if a person’s name does appear on the voter rolls, the EPIC is not the only document that is accepted as proof of identity.
  • Therefore, the very existence of the EPIC is worth reconsidering today.
  • In this regard, the ECI publicly expressed its interest in seeding their databases with Aadhaar.
  • It also attempted a drive to voluntarily link Aadhaar to voter IDs but was halted by the Supreme Court in 2017.
  • There have been recent reports, however, suggesting that the ECI has been preparing to resume these activities.
  • Given that Aadhaar is the only universal, de-facto identification infrastructure in India today, the move could be taken further.

COURT DOCUMENTS ACCESSIBILITY TO THIRD-PARTY

Why in News?

  • The Supreme Court has recently ruled that court documents such as copies of judgments and pleadings can now be obtained by third-parties or those not party to a case.
  • The significance of the judgement is that it comes within months after a five-judge bench of SC opened the office of the Chief Justice of India to scrutiny under the RTI Act.

Highlights of the Judgement:

  • The information will be only available after the court rules permit it and not under the Right to Information (RTI) Act, 2005.
  • The judgement has upheld the Rule 151 of Gujarat High Court Rules, which allows access to certified copies of judgments, orders and pleadings to a third-party, or those not party to a case (Only under the order of an officer of the court).
  • High courts of Bombay, Himachal Pradesh, Karnataka, Madras etc have similar provisions.
  • The bench held that the High Court holds the information as a trustee for the litigants in order to adjudicate upon the matter and administer justice.
  • Third parties should not be permitted to have open and easy access to such personal information of the litigants or information given by the government in the proceedings because there would be a misuse of the court process and the information to an Unmanageable Level.

Means to obtain Information:

  • According to the rules, litigants are entitled to receive copies of documents/judgments, etc on filing of an application with prescribed court fees stamp.
  • Third parties are not given copies of judgments and other documents without the assistant registrar’s order.
  • The registrar, on being satisfied about the reasonable cause for seeking the information/certified copies of the documents, allows access to the documents.

LOKPAL COMPLAINT RULES

Context:

  • Almost a year after the country’s first Lokpal was appointed, the Ministry of Personnel, Public Grievances and Pensions has notified the Lokpal rules. The notification, under Section 59 of the Lokpal and Lokayuktas Act, lays down the rules called the Lokpal (Complaint) Rules, 2020.

Lokpal (Complaint) Rules, 2020:

  • The Department of Personnel and Training has issued a notification providing the rules and prescribed format for filing complaints with the Lokpal.
  • Identity Proof:
    • According to the complaint form, a complainant has to give a valid proof of identity, as specified therein.
    • Foreign nationals can also lodge complaints.However, only a copy of their passports will be accepted as proof of identity.
  • Mode of Complaint:
    • The complaint can be filed electronically, by post or in person.
    • In case the complaint is filed electronically, it’s hard copy has to be submitted to the Lokpal within 15 days.
    • No complaints can be filed against a public servant under the Army Act, Navy Act, Air Force Act and the Coast Guard Act.
  • Language:
    • A complaint may ordinarily be made in English, provided that the Lokpal may also entertain a complaint in any of the languages referred to in the Eighth Schedule to the Constitution.
    • The complaints, whose contents are illegible, vague or ambiguous, which are trivial or frivolous, do not contain any allegation, are not filed within the limitation period of seven years, or are pending before any other court, tribunal or authority, will have to be disposed of within 30 days.
  • Protection of Identity:
    • The identity of the complainant or the accused official will be protected by the Lokpal till the conclusion of inquiry or investigation.
    • However, the protection will not be applicable in cases where the complainant herself reveals her identity to any other office or authority while making the complaint to Lokpal.
  • Complaint filed against a sitting or former Prime Minister:
    • The entire lokpal bench will decide if an inquiry should be initiated.
    • It adds that if such a complaint is dismissed, records of the inquiry will neither be published nor made available to anyone.
  • Complaint filed against a Union minister or a Member of Parliament:
    • It has to be decided by a bench of not less than three members of the Lokpal.

Background:

  • The Lokpal and Lokayukta Act, 2013 provided for the establishment of Lokpal for the Union and Lokayukta for States.
  • These institutions are statutory bodies without any constitutional status.
  • They perform the function of an “ombudsman” and inquire into allegations of corruption against certain public functionaries and for related matters.

Lokpal:

  • Lokpal is an apex body to deal with cases of corruption at the national level.
  • Jurisdiction: The Prime Minister, Ministers, Members of Parliament and officers and officials of the Central Government.
  • The Act also incorporates provisions for attachment and confiscation of property acquired by corrupt means, even while the prosecution is pending.
  • Chairperson: The person who is to be appointed as the chairperson of the Lokpal should be either of the following:
  • Either the former Chief Justice of India Or the former Judge of Supreme Court Or an eminent person with impeccable integrity and outstanding ability, having special knowledge and expertise of minimum 25 years in the matters relating to anti-corruption policy, public administration, vigilance, finance including insurance and banking, law and management.
  • The following persons cannot become chairperson of Lokpal:
    • MPs and MLAs Persons convicted of any offense involving moral turpitude
    • Members of Panchayats or Municipality,
    • A person who was removed or dismissed from the public service,
    • A person who holds any office of trust / profit; if so, he would need to resign from Lokpal.
    • A person who is affiliated with a political party
  • Members:
    • Out of the maximum eight members, half will be judicial members.
    • Minimum fifty per cent of the Members will be from SC / ST / OBC / Minorities and women.
    • The judicial member of the Lokpal should be either a former Judge of the Supreme Court or a former Chief Justice of a High Court.
    • The non-judicial member should be an eminent person with impeccable integrity and outstanding ability, having special knowledge and expertise of minimum 25 years in the matters relating to anti-corruption policy, public administration, vigilance, finance including insurance and banking, law and management.
  • Term of Office:
    • The term of office for Lokpal Chairman and Members is 5 years or till attaining age of 70 years.
    • The salary, allowances and other conditions of service of chairperson are equivalent to Chief Justice of India and members is equivalent to Judge of Supreme Court.
    • If the person is already getting the pension (for being a former judge), the equivalent pension amount will be deducted from the salary.
    • The source of salary for Lokpal and Members is Consolidated Fund of India.
    • If the chairperson dies in office or has resigned from the post, the President can authorise the senior-most Member to act as the Chairperson until the new chairperson is appointed.
    • If the chairperson is not available for certain functions due to leave, his job will be done by the senior most member.
  • Powers:
    • The Lokpal will have the power of superintendence and direction over any investigation agency including CBI for cases referred to them by the ombudsman.
    • As per the Act, the Lokpal can summon or question any public servant if there exists a prima facie case against the person, even before an investigation agency (such as vigilance or CBI) has begun the probe.
    • Any officer of the CBI investigating a case referred to it by the Lokpal, shall not be transferred without the approval of the Lokpal.
    • An investigation must be completed within six months. However, the Lokpal or Lokayukta may allow extensions of six months at a time provided the reasons for the need of such extensions are given in writing.
    • Special courts will be instituted to conduct trials on cases referred by Lokpal.
  • Lokpal itself is also subjected to the Law:
    • The Act also includes the Lokpal’s own members under the definition of “public servant”.
    • The Chairperson, Members, officers and other employees of the Lokpal shall be deemed, when acting or purporting to act in pursuance of any of the provisions of this Act to be public servants.
    • It shall also apply to public servants in and outside India.
    • It clarifies that a complaint under this Act shall only relate to a period during which the public servant was holding or serving in that capacity.

SUKHNA LAKE

Why in News?

  • Recently, the Punjab and Haryana high court has declared Sukhna Lake a “living entity” or “legal person” with rights, duties and liabilities of a living person.

About:

  • The Chandigarh administration has been directed to declare it a wetland within a period of three months.
  • It declared all citizens of Chandigarh as loco parentis (in the place of a parent) to save the lake from extinction.
  • It is passed in a 2009 Suo motu petition initiated amid depleting water level in the lake.
  • Chandigarh should ensure that the average capacity of the lake is increased by at least about 100-150 hectare by one-time large scale desilting.
  • Punjab, Haryana and Chandigarh have also been told to lower the storage capacity of the check dams to ensure regular flow of water into the lake.

About Polluter Pays Principle:

  • The States should have taken precautionary measures to save the catchment of Sukhna lake. It is the duty of the States of Punjab and Haryana to restore the catchment area. The State government has also failed to take precautionary measures to save the catchment area. The damage caused to the catchment area is enormous.
  • Legal Entity: It means entity which acts like a natural person but only through a designated person, whose acts are processed within the ambit of law.

About Sukhna Lake:

  • It is man-made lake which was built in 1958 by Le Corbusier, the architect of Chandigarh.
  • It is located in the foothills of the Shivalik Hills; it was designed to collect runoff water from the Hills.
  • It is in the process of being officially notified as a wetland, also has a nearby wildlife sanctuary that is home to sambar, pangolin, wild boars, red jungle fowl, cobras and other species.
  • In Uttarkhand high court, justice Sharma was part of a bench in 2017, which declared the Ganga and Yamuna as living entities, a verdict that was later stayed by the Supreme Court.
  • In 2018, a bench presided over by justice Sharma had accorded the status of “legal person or entity” to animals in Haryana.
  • In 2019, the Punjab and Haryana High Court had ruled that all animals, birds and aquatic life in Haryana would be accorded the status of legal persons or entities.

SUPREME COURT RULING ON CRYPTOCURRENCY

Why in News?

  • The Supreme Court set aside a ban by the Reserve Bank of India (RBI) on banks and financial institutions from dealing with virtual currency holders and Exchanges.

Highlights:

  • Virtual currency is the larger umbrella term for all forms of non-fiat currency being traded online. Virtual currencies are mostly created, distributed and accepted in local virtual networks.
  • The court held that the ban did not pass the “proportionality” test. The test of proportionality of any action by the government, the court held, must pass the test of Article 19(1)(g), which states that all citizens of the country will have the right to practise any profession, or carry on any occupation or trade and business.

Reasons for RBI to Ban Cryptocurrency:

  • Owing to the lack of any underlying fiat, episodes of excessive volatility in their value, and their anonymous nature which goes against global money-laundering rules.
  • Risks and concerns about data security and consumer protection on the one hand, and far-reaching potential impact on the effectiveness of monetary policy.
  • The RBI argues that owing to a significant spurt in the valuation of many virtual currencies and rapid growth in initial coin offerings, virtual currencies were not safe for use.

Cryptocurrency:

  • There is no globally accepted definition of what exactly is virtual currency. Some agencies have called it a method of exchange of value; others have labelled it a goods item, product or commodity.
  • Cryptocurrencies have an extra layer of security, in the form of encryption algorithms. Cryptographic methods are used to make the currency as well as the network on which they are being traded, secure.
  • Most cryptocurrencies now operate on the blockchain or distributed ledger technology, which allows everyone on the network to keep track of the transactions occurring globally. This essentially meant there would be no central regulator for virtual currencies as they would be placed in a globally visible ledger, accessible to all the users of the technology.
  • All users of such virtual currencies would be able to see and keep track of the transactions taking place.

NATIONAL INTERLINKING OF RIVERS AUTHORITY

Why in News?

  • The Central government is working on the establishment of an exclusive body named National Interlinking of Rivers Authority (NIRA) to implement projects for linking rivers.

What is River Interlinking?

  • The National River Linking Project (NRLP)formally known as the National Perspective Plan, envisages the transfer of water from water ‘surplus’ basins where there is flooding, to water ‘deficit’ basins where there is drought/scarcity, through inter-basin water transfer projects.
  • ‘Surplus’ means that it is the extra water available in a river after it meets the humans’ requirement of irrigation, domestic consumption and industries thereby underestimating the need of the water for the river itself.
  • The term ‘deficit’ has also been viewed in terms of humans only and not from the river’s perspective, which includes many other factors.

About the Proposal:

  • The proposed body is expected to take up both inter-State and intra-State projects.
  • It will also make arrangements for generating up funds, internally and externally.
  • An updated draft Cabinet note has been circulated to other Ministries in the Central government.On receipt of comments, the note will be finalised by the Ministry of Jal Shakti and sent to the Union Cabinet for approval.
  • The proposal for an apex body on river linking has been under discussion for the past 18 months. However, as of now, no specific timeline has been determined for the constitution of the Authority.
  • Once approved, the projects will be pursued as national projects, wherein the Centre will absorb 90% of the cost and the States concerned the rest.

Currently who is responsible for the Interlinking of Rivers?

  • The National Water Development Agency (NWDA) is responsible for the formulation of proposals of the linking of rivers.
  • NWDA is the agency of the Union Ministry of Water Resources. It was set up in July, 1982 as autonomous society under the Societies Registration Act, 1860.
  • It was established to carry out the water balance and other studies on a scientific and realistic basis for optimum utilisation of Water Resources of the Peninsular rivers system.
  • Besides it was tasked to prepare feasibility reports and give concrete shape to Peninsular Rivers Development Component of National Perspective.
  • In 1990, it was also entrusted with the task of Himalayan Rivers Development Component of National Perspectives.
  • Recently, the functions of NWDA have been further modified and the work of preparation of detailed Project Reports (DPR) of various link proposals and Pre-feasibility Reports.
  • It has been also entrusted to prepare feasibility reports of intra-State links as proposed by the States.

What are the Projects under Examination?

  • As of now, six ILR projects — the Ken-Betwa, Damanganga- Pinjal, Par-Tapi-Narmada, Manas-Sankosh-Teesta-Ganga, Mahanadi-Godavari and Godavari-Cauvery (Grand Anicut) — have been under examination of the authorities.
  • With regard to the peninsular rivers, the Centre has chosen to focus on the Godavari-Cauvery link than the earlier proposal to link the Mahanadi-Godavari-Krishna-Pennar-Cauvery Rivers. The latter has eluded consensus given reservations from Odisha.

What are the Benefits?

  • A national water grid aims to connect various surplus rivers with deficient rivers.
  • It aims to transfer excess water from water-rich to water-deficit regions.
  • This is to help improve irrigation, increase water for drinking and industrial use.
  • Mitigating drought and floods to an extent are also part of the objectives.

What are the Concerns?

  • There are significant environmental concerns associated with inter-basin transfer. The ecology of every river is unique. Letting the waters of two rivers mix may affect biodiversity.
  • Besides, it involves construction of a massive network of canals and dams, which would lead to large-scale displacement of people.
  • It may make changes to agricultural patterns, and affect livelihoods.
  • In addition, rainfall patterns are changing due to climate change.
  • So the basins now supposed to be surplus, might cease to be so in few years.
  • There are financial concerns as well, related to the projects. In 2001, the total cost for linking the Himalayan and peninsular rivers was estimated at Rs. 5,60,000 crores. The cost is now likely to be substantially higher.
  • Also, the cost-benefit ratio might no longer be favourable.

Way Forward:

  • The necessity and feasibility of river-interlinking should be seen on case to case basis, with adequate emphasis on easing out federal issues.
  • The government should alternatively consider the National Waterways Project (NWP) which “eliminates” friction between states over the sharing of river waters since it uses only the excess flood water that goes into the sea unutilized.
  • Local solutions (like better irrigation practice) and watershed management, should be focused on.

STATE FUNDING OF ELECTIONS

Why in News?

  • The Election Commission has informed the Government that it is not in favour of state funding of elections.

What is state or Public Funding of Elections?

  • This means that government gives funds to political parties or candidates for contesting elections. Its main purpose is to make it unnecessary for contestants to take money from powerful moneyed interests so that they can remain clean.
  • In some countries, state funding is extended to meeting some specific forms of spending by political parties, not confined to electioneering alone. Countries keep changing laws relating to state funding depending on experience and financial condition.

Why Public Funding is Good?

  • Political parties and candidates need money for their electoral campaigns, to keep contacts with their constituencies, to prepare policy decisions and to pay professional staff. Therefore, public funding is a natural and necessary cost of democracy.
  • Public funding can limit the influence of interested money and thereby help curb corruption.
  • Public funding can increase transparency in party and candidate finance and thereby help curb corruption.
  • If parties and candidates are financed with only private funds, economical inequalities in the society might translate into political inequalities in government.
  • In societies where many citizens are under or just above the poverty line, they cannot be expected to donate large amounts of money to political parties or candidates. If parties and candidates receive at least a basic amount of money from the State the country could have a functioning multi-party system without people having to give up their scarce resources.

 Arguments against State Funding:

  • There are divergent views on the efficacy of state funding of elections. Some have been dismissive of the idea.
  • Those against this idea wonder how a Government that is grappling with deficit budgets, can provide money to political parties to contest elections.
  • They also warn that state funding would encourage every second outfit to get into the political arena merely to avail of state funds.
  • Also, given that state expenditure on key social sectors such as primary healthcare is “pitifully small”, the very idea of the Government giving away money to political parties to contest polls, is revolting. Therefore, opponents ask the government to channelize public resources towards and not diverted from such essential services.

Earlier recommendations related to State Funding:

The Indrajit Gupta Committee (1998)

  • It  endorsed state funding of elections, seeing “full justification constitutional, legal as well as on ground of public  interest” in order to establish a fair playing field for parties with less money.
  • The Committee recommended two limitations to state funding.
    • Firstly, that state funds should be given only to national and state parties allotted a symbol and not to independent candidates.
    • Secondly, that in the short-term state funding should only be given in kind, in the form of certain facilities to the recognised political parties and their candidates.
  • The Committee noted that at the time of the report the economic situation of the country only suited partial and not full state funding of elections.

2. The 1999 Law Commission of India report

  • It concluded that total state funding of elections is “desirable” so long as political parties are prohibited from taking funds from other sources.
  • The Commission concurred with the Indrajit Gupta Committee that only partial state funding was possible given the economic conditions of the country at that time.
  • Additionally, it strongly recommended that the appropriate regulatory framework be put in place with regard to political parties (provisions ensuring internal democracy,  internal structures and maintenance of accounts, their auditing and submission to Election Commission) before state funding of elections is attempted.

3. “Ethics in Governance”: 2ndARC

  • A report of the Second Administrative Reforms Commission (2008) also recommended partial state funding of elections for the purpose of reducing “illegitimate and unnecessary funding” of Elections Expenses.

CURATIVE PETITION

Why in News?

  • Curative petition is the last to last resort in the line of due justice being given and the last opportunity of the unheard being heard.

Curative Petition:

  • A curative petition is the final and last option for the people to acquire justice as mentioned and promised by the Constitution of India.
  • The concept originated from the case of Rupa Ashok Hurra Vs. Ashok Hurra and others where the following question arose before the court of law- ‘whether an aggrieved person is entitled to any relief against the final judgment/order of the Supreme Court, after the dismissal of a review petition?’
  • The court used the Latin maxim “actus curiae neminem gravabit”, which means that an act of the court shall prejudice no one.
  • The maxim becomes applicable when the court is under an obligation to undo a wrong done to a party by the act of court itself.
  • This led to the creation of the concept of a curative petition by the Supreme Court and the reason given for such creation was preventing the abuse of the process of law and to cure the lapses in the existing system of justice.

How is Curative Petition Different?

  • A curative petition is a way to ask the court to review and revise their own decision even after a review petition is dismissed or used.
  • But, the court has been very cautious in the use of such a petition. The court clearly stated that such kind of petitions must be rare instead of regular.
  • To ensure it, the court in its guidelines to file the petition stated that to file such a petition a gross violation of a principle of natural justice by the court needs to be proved by the contending party, unlike other petitions.
  • Also to prove such violations, a senior advocate needs to certify and point out substantial grounds for the petition to be entertained.
  • The same would be reviewed by the three senior-most judges of the court alongside the judges who passed the judgement, and if the majority feels that there was a violation, the curative petition would be heard by the same bench.
  • Adding to the speciality, a curative petition is not governed by the provisions of the Limitations Act but the court made it clear that it needs to be filed within a reasonable time.

What does this mean for the Nirbhaya Convicts?

  • A curative petition is the last legal recourse available to the convicts.
  • Going by the procedure regarding pointing out substantial grounds, the lawyer of convict Vinay Sharma, has placed the argument that young age and the socio-economic background should be considered as mitigating factors.
  • Interestingly, the advocate challenged the reasoning given by the Supreme Court, pointing out reports and studies by law universities and National Crime Records Bureau which state that a death sentence won’t have any deterrent effect on the society, which is the reason on which the sentencing by SC was based.
  • With the existing media and political pressure on this case from the beginning, it’ll be interesting to see the fallout of the petition, which would, for sure, go down as one of the most landmark judgments in the history of this nation’s legal system.

NATIONAL INVESTIGATION AGENCY (NIA)

Context:

  • Recently, a petition filed to order the National Investigation Agency (NIA)to find out the “anti-national forces” behind the agitations and to probe the role of People’s Front of India (PFI).

About NIA:

  • It is constituted under the National Investigation Agency (NIA) Act, 2008.
  • It is to investigate and prosecute offences:
    • affecting the sovereignty, security and integrity of India, security of State, friendly relations with foreign States.
    • against atomic and nuclear facilities.
    • smuggling in High-Quality Counterfeit Indian Currency.
  • It implements international treaties, agreements, conventions and resolutions of the United Nations, its agencies and other international organisations.
  • Its objective is to combat terror in India. It acts as the Central Counter-Terrorism Law Enforcement Agency.
  • Its headquarters is at New Delhi and branches located at Hyderabad, Guwahati, Kochi, Lucknow, Mumbai, Kolkata, Raipur and Jammu.

About the Mandate of NIA:

  • The Central Government assign the cases in accordance with section VIof the NIA Act, 2008.
  • The investigation of the cases is done by the Agency independently and placed before the NIA Special Court.
  • The sanction is granted under the Unlawful Activities (Prevention) Act, 1967 UAPA based on the report of the ‘Authority’ constituted under section 45 (2) of the UAPA.
  • It is empowered to deal with terror-related crimes across states without special permission from the states.
  • To curb various aspects of terrorist financing, a Terror Funding and Fake Currency Cell (TFFC) has been created in the NIA.
  • TFFC maintains a database of terror financing and cases of Fake Indian Currency Notes (FICN). It also conducts a part investigation into terror financing aspects of regular cases investigated by the NIA. Its Cell conducts verifications of bank accounts of the suspects that are linked with Naxalite groups.
  • NIA also has an exclusive Left Wing Extremism (LWE)cell to effectively deal with cases related to terror financing aspects of Naxalite groups.
  • The Ministry of Home Affairs (MHA) reviews the manpower, financial and infrastructure requirements of NIA from time to time.

About the NIA (Amendment) Bill, 2019:

  • It was passed by Parliament amending the original Act of 2008.
  • It seeks to allow the NIA to investigate the following additional offences:
    • Human trafficking
    • Manufacture or sale of prohibited arms
    • Cyber-terrorism, and
    • Offences under the Explosive Substances Act, 1908

About Jurisdiction-NIA:

  • The officers have the same powers as other police officers in relation to the investigation of such offences, across India.
  • They 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.
  • Scheduled Offences are the list of offences specific to the acts such as the Atomic Energy Act, 1962, and h, which are to be investigated and prosecuted by NIA.

About Jurisdiction – Special Courts:

  • The Government for the trial of Scheduled Offences, constitute one or more Special Courts under Section 11 and 22 of the NIA Act 2008.
  • Composition: Special Court shall be presided over by a judge to be appointed by the Central Government on the recommendation of the Chief Justice of the High Court. The Central Government may, if required, appoint an additional judge or additional judges to the Special Court, on the recommendation of the Chief Justice of the High Court.
  • It has all powers of the court of sessions under the Code of Criminal Procedure, 1973.
  • Where any question arises as to the jurisdiction of any Special Court, it shall be referred to the Central Government whose decision in the matter shall be final.
  • The Supreme Court can transfer a case pending before a Special Court to any other Special Court within that State or any other State in some exceptional cases where it is not feasible to conduct a peaceful, fair, impartial and speedy trial.
  • Likewise, the High Court has the power to transfer a case pending before a Special Court in a State to any other Special Court within that State.

SEDITION CASES – A HINDRANCE FOR RIGHT TO DISSENT

Context:

  • Latest data from NCRB suggest that the sedition law remains as relevant as ever with sedition arrests increasing in recent years.

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.

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