Category: State Legislature

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

Why in News?

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

What is the Background?

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

What are the Points in Favour of Contesting two Seats?

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

What are the Recommendations of the Election Commission?

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

What are the procedures and timelines for effecting this?

Lok Sabha and Rajya Sabha:

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

Elected on two Lok Sabha seats:

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

State Assembly and Lok Sabha:

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

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.

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.

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.

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.

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.

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.

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.

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.

ANDHRA PRADESH TO SCRAP LEGISLATIVE COUNCIL

Why in News?

  • The Andhra Pradesh (AP) assembly has passed a resolution to abolish the state’s Legislative Council.

About Andhra Legislative Council:

  • Since, the Andhra Pradesh government has passed a resolution to abolish the state legislative council, further it has to send the resolution to the Governor for his approval and then to the Parliament.
  • Once the Parliament passes the law to give effect for the resolution, the state legislative council will be dissolved.
  • Andhra Pradesh’s Legislative Council was initially set up in 1958 but then abolished in 1985. It was then reconstituted in the year 2007.

States having State Legislative Councils:

  • Besides Andhra Pradesh, the other states having Legislative Councils are Telangana, Uttar Pradesh, Bihar, Maharashtra and Karnataka.
  • Legislative assemblies of Rajasthan, Assam and Odisha have passed resolutions for the formation of the Council

About State Legislative Council:

Basis for Formation:

  • India has a bicameral system of legislature. Just as the Parliament has two Houses, the states can also have a Legislative Council (LC) in addition to the Legislative Assembly through Article 169 of the Constitution.

Abolition and Creation – Article 169:

  • The Parliament can abolish a Legislative Council (where it already exists) or create it (where it does not exist) by a simple majority, if the legislative assembly of the concerned state, by a special majority, passes a resolution to that effect.
  • Special Majority Implies:
  • A majority of the total membership of the assembly
  • A majority of not less than two-thirds of the members of the assembly present and voting.

Is Legislative council really beneficial?

  1. 1.Arguments in Favour of the Formation of the Council:
  • The Legislative Council also enables non-elected individuals to contribute to the legislative process.
  • An Upper House provides a forum for academicians and intellectuals, who are arguably not suited for the rough and tumble of electoral politics.
  • It provides a mechanism for a more sober and considered appraisal of legislation that a State may pass. A Legislative Council can help check hasty actions by the directly elected House.
  • Legislative Councils make the governments more accountable.
  • The members of Legislative Council through their experience can act as the friend, philosopher and guide of the Legislative Assembly.
  1. 2.Arguments Against
  • The Legislative Council can delay legislation.
  • It strains state finances and an unnecessary drain on the exchequer.
  • The absence of Legislative council in every state itself suggests the lack of any real advantage, apart from the absence of a broad political consensus on the issue.
  • Rather than fulfilling the lofty objective of getting intellectuals into the legislature, the forum is likely to be used to accommodate party functionaries who fail to get elected.
  • Another issue is that graduates are no longer a rare breed; also, with dipping educational standards, a graduate degree is no guarantee of any real Intellectual Heft.

Way Forward:

  • There has to be a national policy on having an Upper House in State legislatures to be framed by the Union government, so that a subsequent government doesn’t abolish it. There has to be a uniformity and strong policy for its creation, revival and abolishment.
  • It argued that the status of Legislative Councils cannot be of temporary in nature depending on the mood of the Government of the day nor can be abolished once created, only at the whims and fancy of a newly elected Government in the State.
  • A national consensus must be evolved on the establishment of Legislative Councils.
  • The provision in the law for Councils to have seats for graduates and teachers needs to be reviewed.

GUJARAT CONTROL OF TERRORISM AND ORGANISED CRIME (GCTOC) BILL

Why in News?

  • Our honourable President Ram Nath Kovind has given his assent to the ‘Gujarat Control of Terrorism and Organised Crime (GCTOC) Bill’, a controversial anti-terror legislation which was passed by Gujarat assembly in 2015.

Key Provisions of the Bill:

  • It defines ‘terrorist acts’, as including “an act committed with the intention to disturb law and order or public order or threaten the unity, integrity and security of the State”, apart from economic offences.
  • Inclusion of Economic offences: The economic offences under GCTOC include Ponzi schemes, multi-level marketing schemes, and organised betting. It also includes extortion, land grabbing, contract killings, cybercrimes, and human trafficking.
  • Special Courts: It also provides for the creation of a special court as well as the appointment of special public prosecutors.
  • Attachment of Properties: It provides for attachment of properties acquired through organised crimes. Transfer of properties can also be cancelled.

Provisions of the Bill considered to be Controversial:

  • The legislation makes offences under this Act as Non-Bailable.
  • The Bill provides for admissibility of evidence collected through interception of mobile calls of an accused or through confessions made before an investigating officer, in a court of law.
  • The bill empowers police to tap telephonic conversations and submit them in court as evidence.
  • The act also provides for making confessions before police officers admissible in court.
  • The Bill provides immunity to the State government from legal action.
  • It extends period of probe from stipulated 90 days to 180 days before filing of charge sheet.

Background:

  • The Bill was earlier named as the Gujarat Control of Organised Crime Bill.
  • It failed to get the presidential nod thrice since 2004.
  • So, GCTOC has finally become law after Sixteen years of first version of it was passed by the Gujarat Assembly.

BYE ELECTIONS TO THE LEGISLATIVE COUNCILS

Why in News?

  • There are casual vacancies created in the Legislative Council of Andhra Pradesh, Telangana, Rajasthan and Uttar Pradesh.

Casual Vacancy:

  • When the seat of a member elected to a legislative house becomes vacant, due to resignation, death, etc. Then this causes casual vacancy and a bye-election is held within six months from the date of the occurrence of the vacancy.

Legislative Councils:

  • Our constitution does not force a bicameral legislature on states.
  • It gives states the option of having a second House. As of today, seven states have Legislative Councils. These are Jammu and Kashmir, Bihar, Uttar Pradesh, Maharashtra, Karnataka, Andhra Pradesh and Telangana.
  • Under Article 169 of the constitution, Parliament may by law create or abolish the second chamber in a state if the Legislative Assembly of that state passes a resolution to that effect by a special majority.

Election to Legislative Councils:

  • Membership may vary, but the Legislative Council must not have more than a third of the total membership of the Assembly of that state, and in no case fewer than 40 members.
  • The exception is J&K, where the Legislative Council has 36 members vide Section 50 of the constitution of the state.
  • About 1/3rd of members are elected by members of the Assembly
  • another 1/3rd by electorates consisting of members of municipalities, district boards and other local authorities in the state
    1/12th by an electorate consisting of teachers and 1/12th by registered graduates
  • The remaining members are nominated by the Governor from among those who have distinguished themselves in literature, science, art, the cooperative movement, and social service.
  • Legislative Councils are permanent Houses, and like Rajya Sabha, one-third of their members retire every two years.

PRIVATE MEMBER’S BILL

Context: A private member’s bill to make voting in election compulsory was taken up for discussion in Lok Sabha.

Who Is A Private Member?

  • Any Member of Parliament (MP) who is not a Minister in the Union Cabinet is referred to as a private member.
  • A private member can be a member of either house of the Parliament (Lok Sabha or Rajya Sabha)

What Is A Private Member’s Bill?

  • Parliament’s key role is to debate and make laws. Both Ministers and private members contribute to the law-making process.
  • Bills introduced by Ministers are referred to as government bills. They are backed by the Government, and reflect its legislative agenda.
  • Private member’s bills are piloted by non-Minister MPs i.e. by a private member.
  • Their purpose 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.

Introduction and Discussion in The House:

  • The admissibility of a private member’s Bill is decided by the presiding officers of the Parliament (Speaker in case of Lok Sabha and Chairman in case of Rajya Sabha)
  • 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.
  • Up to 1997, private members could introduce up to three Bills in a week. This led to a piling up of Bills that were introduced but never discussed.
  • Therefore, in 1997 the number of private member’s Bills has been capped to three per session.
  • While government Bills can be introduced and discussed on any day, private member’s Bills can be introduced and discussed only on Fridays.
  • On the scheduled Friday, the private member moves a motion for introduction of the Bill, which is usually not opposed.
  • Only a fraction of private member’s bills that are introduced, are taken up for discussion.
  • A private member’s Bill that is introduced but not discussed, lapses when Member retires.
  • Upon conclusion of the discussion, the Member piloting the Bill can either withdraw it on the request of the Minister concerned, or he may choose to press ahead with its passage.
  • In the latter case, the Bill is put to vote and, if the private member gets the support of the House, it is passed.

PARLIAMENTARY STANDING COMMITTEES

What to study?

  • In the backdrop of a number of Bills having been passed without scrutiny, why are parliamentary standing committees necessary?

Background:

  • Eleven of the 22 Bills introduced in the ongoing session of Parliament have been passed, which makes it a highly productive session after many years.
  • But these Bills have been passed without scrutiny by Parliamentary Standing Committees, their purpose being to enable detailed consideration of a piece of legislation.
  • After the formation of the 17th Lok Sabha, parliamentary standing committees have not been constituted as consultations among parties are still under way.
  • Partly as a result of this, the Bills were passed without committee scrutiny. They were discussed in Parliament over durations ranging between two and five hours.

Why Are Parliamentary Committees Necessary?

  • In a parliamentary democracy, Parliament has broadly two functions, which are law-making and oversight of the executive branch of the government.
  • Committees are an instrument of Parliament for its own effective functioning.
  • Given the volume of legislative business, discussing all Bills under the consideration of Parliament in detail on the floor of the House is impossible.
  • In principle, the assumption is that 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.
  • Committee meetings are ‘closed door’ and members are not bound by party whips, which allows them the latitude for a more meaningful exchange of views as against discussions in full and open Houses where grandstanding and party positions invariably take precedence.
  • Disruptive changes in technology and the expansion of trade, commerce and economy in general throw up new policy challenges that require a constant reform of legal and institutional structures.
  • While law-making gets increasingly complex, lawmakers cannot infinitely expand their knowledge into ever expanding areas of human activities. For instance, we live in an era of metadata being generated by expanding connectivity.
  • The laws and regulations that are required to govern a digital society cannot be made without highly specialised knowledge and political acumen.
  • 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.

What Are the Types of Committees?

  • Broadly, they are of two kinds: ad hoc committees and the permanent committees.
  • Ad hoc committees are appointed for a specific purpose and cease to exist when they finish the task assigned to them and submit a report.
  • The principal ad hoc committees are the select and joint committees. There are some other ad hoc committees too, but they handle different issues such as privileges, ethics, security, government assurances and food management.
  • Besides, Parliament has permanent committees called the standing committees. Most Bills, after their introduction, get referred to department-related standing committees, which are permanent and regular bodies.
  • The idea behind these committees, first set up in 1993, is that with Parliament working for a limited day in a year, Bills, which deal with technical and policy matters, need to be discussed in detail, after taking the view of diverse stakeholders and experts.
  • While referring a Bill to a standing committee, the Chairman or the Speaker may specify the time within which it has to submit its report.
    The joint committees and standing committees become defunct after the dissolution of the Lok Sabha.

What Are Its Origins?

  • As is the case with several other practices of Indian parliamentary democracy, the institution of Parliamentary Committees also has its origins in the British Parliament.
  • The first Parliamentary Committee was constituted in 1571 in Britain.
  • The Public Accounts Committee was established in 1861. In India, the first Public Accounts Committee was constituted in April 1950.
  • According to P.D.T. Achary, former Secretary General of the Lok Sabha, “The practice of regularly referring bills to committees began in 1989 after government departments started forming their own standing committees.
  • Prior to that, select committees or joint committees of the houses were only set up to scrutinise in detail some very important bills, but this was few and far between.

WHAT IS A WHIP? WHAT DOES IT DO?

What is a WHIP?

  • A whip in parliamentary parlance is a written order that party members be present for an important vote, or that they vote only in a particular way.
  • The term is derived from the old British practice of “whipping in” lawmakers to follow the party line.
  • In India all parties can issue a whip to their members.
  • 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.

Kinds of WHIPS:

  • The importance of a whip can be inferred from the number of times an order is underlined.
  • A one-line whip, underlined once, is usually issued to inform party members of a vote, and allows them to abstain in case they decide not to follow the party line.
  • A two-line whip directs them to be present during the vote.
  • A three-line whip is the strongest, employed on important occasions such as the second reading of a Bill or a no-confidence motion, and places an obligation on members to toe the party line.

Defiance of WHIP:

  • The penalty for defying a whip varies from country to country.
  • In the UK, MPs can lose membership of the party, but can keep their House seats as Independents.
  • In India, rebelling against a three-line whip can put a lawmaker’s membership of the House at risk. The anti-defection law allows the Speaker/Chairperson to disqualify such a member
  • The only exception is when more than a third of legislators vote against a directive, effectively splitting the party.

Drug Menance In Punjab

  • Studies point out that the number of women addicted to drugs is rising “alarmingly” in the State of Punjab.

About:

  • The national survey on drug abuse happened around 15 years back, where there was no mention of females, but now their numbers are figuring in surveys, which itself is indicative of the rising problem of drug abuse.
  • The figure of females was 10,658, which the experts believe is “alarming” and needs to be addressed urgently.
  • Women overall may be less likely than men to develop drug-use disorders and dependence. Nevertheless, once they have initiated substance use, women tend to increase their rate of consumption of alcohol, cannabis, opioids and cocaine more rapidly than men.

Gender Impact on Drug:

  • Women with drug report more interpersonal conflicts in the family than their male counterparts, particularly issues related to parenting and exposure to childhood and adult trauma.
  • The impact of drug use tends to be greater on women, because women lack access to care for drug dependence.
  • “Economic independence, changing roles in society, entry of women into male dominated areas, economic and social emancipation, greater acceptability of social drinking and easy availability of alcohol have strongly contributed to rising incidence of alcohol consumption in women.
  • State of denial and lack of exclusive facilities are the key reasons why women are not seeking help.
  • Amid fear of stigma most women do not come forward for treatment, which means the actual numbers are likely to be higher.
  • State government has been providing various treatment options for the youth, which primarily focused only on males.

Background:

  • Punjab once known as the “Sone di Chiri”, the golden crescent is presently passing through the phase of drug abuse and drug trafficking which has rendered most of its youth to live a miserable life.
  • It has not only affected the economy of the highly prosperous state but shattered the lives of many.
  • In Punjab, in recent years, there has also been a sharp increase in the rate of HIV infections in the state. This is because the rate of injecting drug users (IDUs) is far higher here than in other states.
  • It’s paving the way for the spread of HIV and other communicable disease.

Way Forward:

  • Village Panchayats should be encouraged to implement the drug abuse prevention programmes by giving them incentives.
  • Educational institutes must depute counsellors to identify the vulnerable youth.
  • Governments must take necessary measures to check the drug trafficking across the borders.
  • Prevention is a major goal in adolescents with programs such as providing normative education and competence enhancement.
  • Centre meant exclusively for women rehabilitation, which can offer them privacy must be established.

Assam Rejected Move to Shrink area Under AFSPA

  • The Centre wanted to reduce the areas under the Armed Forces Special Power Act (AFSPA) in Assam but the State government did not concur.

Reason

  • The parliamentary panel report said there was some difference of opinion between the Government of India and the State government with regard to the areas to be declared “disturbed areas.”
  • The Committee is unable to comprehend the divergent perceptions of the situation in Assam.
  • The Ministry has asserted that there has been an improvement in the security situation in Assam.
  • On the other hand, the area declared as disturbed area under the AFSPA has been increased on the plea that it is not the appropriate time to reduce the area.

Why AFSPA Needed?

  • Violence became the way of life in north-eastern States of India. State administration became incapable to maintain its internal disturbance.
  • Armed Forces (Assam and Manipur) Special Powers Ordinance was promulgated by the President on 22nd May of 1958.
  • In which some special powers have been given to the members of the armed forces in disturbed areas in the State of Assam and Union Territory of Manipur.

What does AFSPA Mean?

  • AFSPA gives armed forces the power to maintain public order in “disturbed areas”.
  • They have the authority to prohibit a gathering of five or more persons in an area.
  • can use force or even open fire after giving due warning if they feel a person is in contravention of the law.
  • If reasonable suspicion exists, the army can also arrest a person without a warrant
  • Enter or search a premise without a warrant
  • ban the possession of firearms.
  • Any person arrested or taken into custody may be handed over to the officer in charge of the nearest police station along with a report detailing the circumstances that led to the arrest.

Disturbed area:

  • A disturbed area is one which is declared by notification under Section 3 of the AFSPA.
  • An area can be disturbed due to differences or disputes between members of different religious, racial, language or regional groups or castes or communities.

Declaration of Disturbed Area:

  • The Central Government, or the Governor of the State or administrator of the Union Territory can declare the whole or part of the State or Union Territory as a disturbed area.
  • A suitable notification would have to be made in the Official Gazette.
  • As per Section 3 , it can be invoked in places where “the use of armed forces in aid of the civil power is necessary”.
  • The Ministry of Home Affairs would usually enforce this Act where necessary, but there have been exceptions where the Centre decided to forego its power and leave the decision to the State governments.

States under AFSPA:

  • Assam
  • Nagaland
  • Manipur (except the Imphal municipal area)
  • Arunachal Pradesh (some districts plus a 20-km belt bordering Assam)
  • Jammu and Kashmir

Critical Analysis:

  • This law gives immunity to the armed forces against any legal proceeding. To institute any legal proceeding against an armed force official consent of the Central Government is to be sought.
  • The Act does not define or even lay down precisely the grounds for declaring an area as a disturbed area. This has vested an uncontrolled power with the Government on which no limitation is prescribed. The law also doesn’t even allow judicial review with regards an area being declared as disturbed.
  • The Act authorizes an uncontrolled use of force which is considered to be a violation of the right to life guaranteed under Article 21 of the Constitution of India. the Act not only authorizes the use of force but also allows the use of force to the extent of causing death and the power to even fire. This is regarded as a violation of the human rights and infringing the right to life of the people which is not only a fundamental right but also a human right.
  • Comparing AFSPA with the Code of Criminal Procedure it is said that this draconian law overrides the Code of Criminal Procedure and does not lay safeguards for the implementation. As the Code of Criminal Procedure lays down a proper procedure which is to be followed by the police personnel while dealing with the law and order problem. AFSPA does not provide for any procedure which is to be followed by the armed forces it simply gives them an uncontrolled power an authority to deal with the law and order problem.
  • The Act has not been able to achieve its objectives as the law and order situations are said to have worsened in the areas where this draconian law is in force. This Act has further also created a rift between the people of the area and the armed forces due to the abuse of the power by the forces. The prime purpose for enacting such a law was to maintain law and order and protect the life of the innocent. But the abuse of the power has further threatened the life of the innocent and resulted in various atrocities
  • Lastly, the abuse of power by the forces has also paved way for the insurgents to motivate people against the Government and increased the demand for autonomy by the people. This has ultimately resulted in the increase of the agitations as the people lose faith in the Government. The victims not having any remedy available against the armed forces further get disappointed by the Government and seek other measures for achieving justice.

Way Forward:

  • AFSPA should be made compliant with international and national norms of human rights and humanitarian law.
  • Greater transparency in communicating the status of existing cases to include its display on the army and government’s web sites.
  • Proactive feedback to petitioners on action taken by the government in past human rights cases.
  • Create committees at the district level with representatives of army, police, civil administration and the public to report, assess and track complaints in the area.
  • There is a need to keep detailed records of operations, to ensure suitable proof of conduct of forces and operational imperatives. The provision of technological capability for facilitating the same should be considered.

Urban Naxals

Urban Naxals are the “Invisible enemies” of India, some of them have been caught or those who are “under the police radar on the charge of spreading insurgency against the Indian state. One common thread amongst all of them is that they are all urban intellectuals, influencers or activists of importance. A quick look into the accomplishments of all the urban naxals suggests that they have indoctrinated the youth by pretending to be concerned about social issues.

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