Executive

Elections:

Star Campaigners 

• Context:
  • The Election Commission (EC) revoked the status of Congress leader and former Madhya Pradesh Chief Minister Kamal Nath as a star campaigner for the party in the ongoing State Assembly by-polls for “repeated violation of Model Code of Conduct” and for completely disregarding the advisory issued to him.
• Star Campaigners:
  • They can be described as persons who are nominated by the parties to campaign in a given set of Constituencies.
  • There are no specific definitions according to law or the Election of the commission of India.
  • A recognised political party can have 40-star campaigners and an unrecognised (but registered) political party can have 20. 
• Advantages: 
  • The expenditure incurred on campaigning by such campaigners is exempt from being added to the election expenditure of a candidate. However, this only applies when a star campaigner limits herself to a general campaign for the political party she represents.

NRI Voting

• Context:
  • The Election Commission (EC) approached the Law Ministry to permit NRIs to cast their votes from overseas through postal ballots. 
  • The EC told the government it had received representations from the Indian diaspora about facilitating voting through postal votes since traveling to India only for this purpose is a costly affair.
  • The Commission informed the government that it is technically and administratively ready to extend the Electronically Transmitted Postal Ballot System (ETPBS) to voters abroad for elections next year in Assam, West Bengal, Kerala, Tamil Nadu, and Puducherry.
• About:
  • According to a UN report of 2015, India’s diaspora population is the largest in the world at 16 million people.
  • Registration of NRI voters, in comparison, has been very low, a little over one lakh overseas Indians registered as voters in India, according to the EC.
  • In last year’s Lok Sabha elections, roughly 25,000 of them flew to India to vote. 
• The current process of voting for NRIs:
• Voting rights for NRIs were introduced only in 2011, through an amendment to the Representation of the People Act 1950.
• An NRI can vote in the constituency in which her place of residence, as mentioned in the passport, is located.
• An NRI can only vote in person and will have to produce her passport in original at the polling station for establishing identity.
• Proxy voting rights to Overseas Citizens: 
  • Proxy voting allows a registered elector to delegate his voting rights to a representative he nominates. This was introduced in 2003. Notably, only “classified service voter” serving in the armed forces or paramilitary forces is allowed to avail of these benefits. The proxy, too, must be a registered voter of the same constituency. 
  • The Union Cabinet passed the proposal on proxy voting rights for NRIs in 2017.
  • The government then brought a Bill amending the Representation of the People Act 1950.
  • The Bill was passed by Lok Sabha and was awaiting Rajya Sabha’s approval when it lapsed with the dissolution of the 16th Lok Sabha. This proposal hasn’t been revived yet.
• Electronically Transmitted Postal Ballot System (ETPBS): 
  • ETPBS is developed by the Election Commission of India with the help of the Centre for Development of Advanced Computing (C-DAC), for the use of the Service Voters.
  • It is a fully secured system, having two layers of security. Secrecy is maintained through the use of OTP and PIN and no duplication of casted Electronically Transmitted Postal Ballot (ETPB) is possible due to the unique QR Code.
  • OTP is required to download an encrypted Electronically Transmitted Postal Ballot file. The PIN is required to decrypt, print, and deliver ETPB.
  • Persons working in paramilitary forces and the military and government officials deployed in diplomatic missions outside India are classified as Service Voters.
  • This  System is implemented in line with the existing Postal Ballot System. A postal ballot will be transmitted through electronic means to the voters.
  • It enables the voters to cast their vote on an electronically received postal ballot from their preferred location, which is outside their originally assigned voting constituency.
  • This system would be an easier option for facilitating voting by the electors as the time constraint for dispatch of the postal ballot has been addressed using this system.
• The opinion of Political Parties:
  • The 12-member committee appointed by the EC had consulted national political parties and the Ministry of External Affairs (MEA) on the options being considered for NRIs to cast their vote abroad.
  • Among parties, only the NCP has expressed complete support to the EC for postal voting for NRIs. According to the BSP, BJP, and CPI, postal ballots were not a viable option due to time constraints. Congress was not in favor of sending the postal ballot paper electronically.
  • The MEA expressed strong reservations over attesting the declaration that NRI voters will have to send along with their marked ballot papers. The MEA had said that the diplomatic missions do not have the logistical wherewithal to handle attestation for a large number of overseas electors and that they would have to seek the permission of the host country for organizing such activity, which may be difficult in non-democratic countries.
• How Other Countries operate:
  • Many countries allow expatriates to vote, but the eligibility criteria and the voting procedure differ from one nation to another.
    • The UK:
      • A British citizen living abroad can register as an overseas voter for up to 15 years after leaving the UK, as long as he is a British or Irish citizen and was a registered voter in the UK in the last 15 years.
      • Those who were minors at the time of leaving the country can also vote as long as their parent or guardian was registered to vote in the UK. Overseas electors can either travel back to the UK to vote in person or vote by post or nominate a proxy to do so.
    • The USA:
      • American expatriates enjoy voting rights in the US irrespective of how long they have been living abroad.
      • They can vote for federal office candidates in the primary and general elections.
      • Adults can exercise absentee voting by submitting a completed Federal Post Card Application or FPCA to their local election officials.
      • Once registered, an overseas American voter will receive a ballot paper by email, fax, or internet download, depending on the state they are eligible to vote in. The ballot paper has to be sent back the same way before a designated deadline.

Model code of conduct

• Context:
  •  The Election Commission (EC) revoked the status of Congress leader and former Madhya Pradesh Chief Minister Kamal Nath as a star campaigner for the party in the ongoing State Assembly by-polls for “repeated violation of Model Code of Conduct” and for completely disregarding the advisory issued to him.
• About:
  • The Model Code of Conduct is a set of guidelines issued by the Election Commission to regulate political parties and candidates prior to elections, to ensure free and fair elections.
  • This is in keeping with Article 324 of the Constitution, which gives the Election Commission the power to supervise elections to the Parliament and State legislatures.
  • It is operational from the date that the election schedule is announced till the date results are announced.
  • It is not statutory but political parties, Candidates and Polling agents are expected to observe the norms, on matters ranging from the content of election manifestos, speeches and processions, to general conduct etc.
  • The Model Code of Conduct is not enforceable by law.

Allocation of party symbols

• Context:
  • Upholding the decision of the Election Commission of India (ECI), the Kerala High Court confirmed the allocation of the “two leaves” election symbol to the Kerala Congress (M) faction.
  • The Court said it cannot, in the exercise of the jurisdiction under Article 226 of the Constitution of India, interfere with the finding of the Commission.
• About:
  • Allocation of election symbols is intended to maintain purity in elections.
• 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 decides on assigning the symbol.
• Powers of Election Commission:
  • As there is no statutory provision regulating the allocation of symbols to political parties and candidates in elections, the duty and power to regulate the allocation of symbols vested with the ECI.
  • The Election Symbols (Reservation and Allotment) Order, 1968 empowers the EC to recognise political parties and allot symbols.
  • EC 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.
  • A decision taken by the ECI on the symbol is not tentative, but final.

State Election Commission

• Context:
  • The Supreme Court ruled that serving bureaucrats must not be appointed as election commissioners to ensure that the independence of the office of the election commissioner is not compromised.
• Background:
  • A Bench of the Supreme Court was hearing an appeal by the Goa government against an order of the Bombay High Court.
  • The Bombay High Court had earlier castigated the State Election Commission (SEC) for not acting independently to ensure that the mandate of the Constitution was followed before issuing an election schedule.
  • Also, the Court had issued a stay on certain municipal election notifications issued by the Goa State Election Commission.
  • The territorial jurisdiction of Bombay High Court extends to Maharashtra, Goa, Dadra, and Nagar Haveli, and Daman and Diu.
  • During the proceedings, it came to notice that the law secretary of the Goa state was given ‘additional charge’ of the State Election Commission.
• Supreme Court’s Ruling:
  • Independent persons and not government employees should be appointed Election Commissioners.
  • Giving government employees additional charges as Election Commissioners is a mockery of the Constitution.
  • The Directed States to comply with the constitutional scheme of independent and fair functioning of election commissions.
  • If they hold any such office (under the state government), then they have to resign before taking charge of the office of the election commissioner.
  • Ordered all state governments to appoint whole-time election commissioners who will act independently and fairly.
• About State Election Commissions (SECs):
  • The State Election Commission has been entrusted with the function of conducting free, fair, and impartial elections to the local bodies in the state.
  • Article 243K(1):
  • It states that the superintendence, direction, and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats (Municipalities under Article 243ZA) shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor.
  • Article 243K(2):
  • It states that the tenure and appointment will be directed as per the law made by the state legislature.
  • However, State Election Commissioner shall not be removed from his/her office except in the like manner and on the like grounds as a Judge of a High Court.

Electrol Bond Scheme

• Context:
  • The Supreme Court flagged the possibility of misuse of money received by political parties through electoral bonds for ulterior objects like funding terror or violent protests.
• Background:
  • The Electoral Bond Scheme acts as a check against traditional under-the-table donations as it insists on cheque and digital paper trails of transactions, however, several key provisions of the scheme make it highly controversial.
• Misuse of Electoral Bonds as Pointed Out in the Supreme Court:
  • 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.
  • Asymmetrically Opaque:
  • Because the bonds are purchased through the State Bank of India (SBI), the government is always in a position to know who the donor is.
  • This asymmetry of information threatens to color the process in favor of whichever political party is ruling at the time.
  • Black money:
    • Elimination of a cap of 7.5% on corporate donations, elimination of the 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.

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 authorized 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. 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. The donor’s name is not mentioned on the bond.

Criminal law reforms

• Context:
  • A group of retired judges, former bureaucrats, and others have written to the newly constituted Committee for Reforms in Criminal Laws, questioning the lack of diversity in the committee and asking for more transparency in its functioning.
• Cause of Contention?
  • The line-up of the Committee’s members “lacks diversity, both in terms of the social identity of the members, as well as their professional background and experience.”
  • Unlike previous committees that had been assigned reforms of such magnitude, this one did not even have full-time members.
• Brief:
  • This committee was first announced by home minister Amit Shah in parliament in December 2019.
  • The panel would look into required amendments to the Indian Penal Code and Code of Criminal Procedure to deal with the issue of mob lynching.
  • The Committee was constituted through a Ministry of Home Affairs notification on May 4, 2020. The chairperson is Ranbir Singh (vice-chancellor, National Law University Delhi).
• Background:
  • The Criminal law in India is contained in a number of sources – The Indian Penal Code of 1860, the Protection of Civil Rights Act, 1955, Dowry Prohibition Act, 1961, and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
  • The Criminal Justice System can impose penalties on those who violate the established laws.
  • Criminal law and criminal procedure are in the concurrent list of the seventh schedule of the constitution.
  • Lord Thomas Babington Macaulay is said to be the chief architect of codifications of criminal laws in India.
• Need for reforms:
  • Colonial-era laws.
  • Ineffectiveness.
  • Pendency of cases.
  • Huge undertrials.
• Previous committees:
  • Madhav Menon Committee:
    • It submitted its report in 2007, suggesting various recommendations on reforms in the Criminal Justice System of India (CJSI).
  • Malimath Committee Report:
    • It submitted its report in 2003 on the Criminal Justice System of India (CJSI).

Criminalization of Politics

• Context:
  • A February 2020 Supreme Court judgment on Criminalisation in politics may have far-reaching consequences for Indian democracy.
  • It will first be implemented in the coming Bihar elections in October 2020.
• What was the case all about?
  • The judgment was passed in contempt of court case filed against the Chief Election Commissioner of India.
  • The petition claimed the ECI had failed to take any steps to ensure the implementation of a 2018 judgment of the bench, which had made it mandatory for political parties to declare and publish all criminal cases pending against their candidates.
  • The petitioners argued that parties were “circumventing” the 2018 judgment by publishing the details of their candidates’ criminal background in “obscure and limited circulation newspapers” and “making the webpages on their websites difficult to access”.
• The judgment:
  • The court had asked the particle parties to state “The reasons for such selection, as also as to why other individuals without criminal antecedents could not be selected as candidates.”
  • If a political party fails to comply, it would be in contempt of this court’s orders/ directions.
• Directions issued by the Court:
  1. It is mandatory for all political parties to publish all details regarding pending criminal cases against their chosen candidates, not only in local newspapers but also on party websites and social media handles.
  2. Along with the details of pending cases, the parties will also have to publish “the reasons for such selection, as also as to why other individuals without criminal antecedents could not be selected as candidates”.
  3. The “reasons” given for the selection of the candidates have to be “with reference to the qualifications, achievements, and merit of the candidate concerned, and not mere ‘winnability’ at the polls”.
• What does the RPA say on this?
  • Currently, under the Representation of the Peoples (RP) Act, lawmakers cannot contest elections only after their conviction in a criminal case.
  • Section 8 of the Representation of the People (RP) Act, 1951 disqualifies a person convicted with a sentence of two years or more from contesting elections. But those under trial continued to be eligible to contest elections.

Defamation

• Context:
  • The Delhi High Court has asked Delhi Police and Zee News to respond to a plea by Trinamool Congress MP Mahua Moitra challenging the summons and framing of charges against her in a defamation case filed by the news channel and its editor.
• What’s the issue?
  • The case relates to Ms Moitra’s June 25, 2019 speech in Parliament on the ‘Seven Signs of Fascism’ and a TV show run by the news channel and other subsequent developments.
  • Zee News has filed a defamation complaint against Ms Moitra for allegedly making statements against the channel to the media.
• What is defamation?
  • Defamation is the communication of a false statement that harms the reputation of an individual person, business, product, group, government, religion, or nation.
  • In India, defamation can both be a civil wrong and a criminal offence.
  • The difference between the two lies in the objects they seek to achieve.
  • A civil wrong tends to provide for redressal of wrongs by awarding compensation and a criminal law seeks to punish a wrongdoer and send a message to others not to commit such acts.
• Legal provisions:
  • Criminal defamation has been specifically defined as an offence under section 499 of the Indian Penal Code (IPC).
  • Civil defamation is based on tort law (an area of law that does not rely on statutes to define wrongs but takes from an ever-increasing body of case laws to define what would constitute a wrong).
  • Section 499 states defamation could be through words, spoken or intended to be read, through signs, and also through visible representations.
  • Section 499 also cites exceptions. These include “imputation of truth” which is required for the “public good” and thus has to be published, on the public conduct of government officials, the conduct of any person touching any public question, and merits of the public performance.
  • Section 500 of IPC, which is on punishment for defamation, reads, “Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.”
• Misuse of the law and concerns associated:
  • The criminal provisions have often been used purely as a means of harassment.
  • Given the cumbersome nature of Indian legal procedures, the process itself turns into punishment, regardless of the merits of the case.
  • Critics argue that defamation law impinges upon the fundamental right to freedom of speech and expression and that civil defamation is an adequate remedy against such wrongs.
  • Criminal defamation has a pernicious effect on society: for instance, the state uses it as a means to coerce the media and political opponents into adopting self-censorship and unwarranted self-restraint.
• What has the Supreme Court said?
  1. In the Subramanian Swamy vs Union of India case 2014, the Court approved the Constitutional validity of sections 499 and 500 (criminal defamation) in the Indian Penal Code, underlining that an individual’s fundamental right to live with dignity and reputation “cannot be ruined solely because another an individual can have his freedom”.
  2. In August 2016, the court also passed strictures on Tamil Nadu Chief Minister J Jayalalithaa for misusing the criminal defamation law to “suffocate democracy” and, the court said, “public figures must face criticism”.

Central and state executive:

President's Pardoning Power

• Context:
  • In the dying hours of his presidency, Donald Trump exercised his power under the US Constitution to pardon or commute sentences of 143 individuals.
• US president's pardoning powers:
  • The US President has the constitutional right to pardon or commute sentences related to federal crimes. The Supreme Court has held that this power is “granted without limit” and cannot be restricted by Congress.
  • Clemency is a broad executive power that is discretionary — meaning the President is not answerable for his pardons and does not have to provide a reason for issuing one. But there are a few limitations.
  • For instance, the President cannot issue a pardon in cases of impeachment of officials. Art II, Sec 2 of the Constitution says Presidents “shall have the power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment”.
  • Also, as stated above, the power is not available for state crimes. This means that those who have been pardoned by the President can still be tried under the laws of individual states.
• Indian President's Pardoning powers:
  • Unlike the US President, whose powers to grant pardons are almost unfettered, the President of India has to act on the advice of the Cabinet.
  • Under Article 72 of the Constitution, “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 where the sentence is a sentence of death”.
  • Under Article 161, the Governor has pardoning powers, but these do not extend to death sentences.
  • The President cannot exercise his power of pardon independent of the government. Rashtrapati Bhawan forwards the mercy plea to the Home Ministry, seeking the Cabinet’s advice. The Ministry in turn forwards this to the concerned state government; based on the reply, it formulates its advice on behalf of the Council of Ministers.
  • Although the President is bound by the Cabinet’s advice, Article 74(1) empowers him to return it for reconsideration once. If the Council of Ministers decides against any change, the President has no option but to accept it. 

President's Address in the House

• Context:
  • This year's first Parliament session began with President Ram Nath Kovind's address.
• History & precedent:
  • In India, the practice of the President addressing Parliament can be traced back to the Government of India Act of 1919. This law gave the Governor-General the right of addressing the Legislative Assembly and the Council of State. 
  • After the Constitution came into force, President Rajendra Prasad addressed members of Lok Sabha and Rajya Sabha for the first time on January 31, 1950.
  • The President’s address is one of the most solemn occasions in the Parliamentary calendar. It is the only occasion in the year when the entire Parliament, i.e. the President, Lok Sabha, and Rajya Sabha come together. 
• Constitutional Provisions:
  • The Constitution gives the President the power to address either House or a joint sitting of the two Houses of Parliament. Article 87 provides two special occasions on which the President addresses a joint sitting:
    1. The first is to address the opening session of a new legislature after a general election.
    2. The second is to address the first sitting of Parliament each year. A session of a new or continuing legislature cannot begin without fulfilling this requirement. 
  • When the Constitution came into force, the President was required to address each session of Parliament. So during the provisional Parliament in 1950, President Prasad gave an address before every session.
  • The First Amendment to the Constitution in 1951 changed this position and made the President’s address once a year.
• President's Speech:
  • The speech that the President reads is the viewpoint of the government and is written by it. Usually, in December, the Prime Minister’s Office asks the various ministries to start sending in their inputs for the speech.
  • A message also goes out from the Ministry of Parliamentary Affairs asking ministries to send information about any legislative proposals that need to be included in the President’s address.
  • All this information is aggregated and shaped into a speech, which is then sent to the President.
  • The government uses the President’s address to make policy and legislative announcements.
• The motion of Thanks:
  • In the days following the President’s address, a motion is moved in the two Houses thanking the President for his address.
  • This is an occasion for MPs in the two Houses to have a broad debate on governance in the country.
  • The Prime Minister replies to the motion of thanks in both Houses and responds to the issues raised by MPs.
  • The motion is then put to vote and MPs can express their disagreement by moving amendments to the motion.
  • The Motion of Thanks must be passed in the House. Otherwise, it amounts to the defeat of the government. It is one of the ways through which the Lok Sabha can also express a lack of confidence in the government.

Governors of States in India

• Context:
  • President of India has appointed Anandiben Patel, Governor of Uttar Pradesh to discharge the functions of the Governor of Madhya Pradesh, in addition to her own duties.
• Governors of States in India:
  • A governor is a nominal head of a state, unlike the Chief Minister who is the real head of a state in India.
  • According to the 7th Constitutional Amendment Act 1956, the same person can be the Governor of two or more states.
• Appointment:
  • The governors and lieutenant-governors are appointed by the president.
• Removal:
  • The term of the governor’s office is normally 5 years but it can be terminated earlier by Dismissal by the president (usually 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 the pleasure of the president.
  • There is no provision of impeachment, as it happens for the president.
• Some discretionary powers are as follows:
  • Can dissolve the legislative assembly if the chief minister advised him to do following a vote of no confidence. Following this, it is up to the Governor what he/ she would like to do.
  • Can recommend the president about the failure of the constitutional machinery in the state.
  • Can reserve a bill passed by the state legislature for president’s assent.
  • Can appoint anybody as chief minister If there is no political party with a clear-cut majority in the assembly.
  • 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.
  • Can seek information from the chief minister with regard to the administrative and legislative matters of the state.
  • Can refuse to sign an ordinary bill passed by the state legislature.
• 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 and the object of the Central government in politically charged circumstances.

Rajasthan crisis puts governors’ powers in the spotlight

• Context:
  • A governor’s powers and role in the state legislature’s affairs are back in focus amid the political crisis in Rajasthan.
  • Congress legislators backing Rajasthan chief minister Ashok Gehlot have accused the Governor of acting under pressure.
  • But, Is the Governor bound by the advice of the chief minister-led council of ministers when it comes to convening the assembly session and to what extent can the governor exercise his discretion?
• What does the Constitution say?
  • The Constitution’s Articles 163 and 174 are relevant in the context of the governor’s powers to convene the state assembly.
    1. Article 163 says there shall be a CM-led council of ministers to aid and advise the governor except when he is required, under the Constitution, to exercise functions in his/her discretion.
    2. Article 174 says the governor “shall from time to time summon the House of the state…as he thinks fit but six months shall not intervene between its last sitting in one session and the date appointed for first sitting in the next session”.
• What has the Supreme Court said in this regard?
  • The 2016 Supreme Court judgment in the Nabam Rebia v Deputy Speaker held that the governor’s power to summon, prorogue and dissolve the House should be only on the advice of the council of ministers. And not on his own.
  • The judgment, however, also held that if the governor has reasons to believe the council of ministers has lost the confidence of the House, he can ask the chief minister to prove the majority.
• Conclusion:
  • The Governor has no discretionary powers in summoning a session of the Assembly, and he or she is bound to act according to the aid and advice of the CM and the Council of Ministers.
  • But, the Governor can require the CM and the Council of Ministers to seek a trust vote if he or she has reasons to believe that they have lost the confidence of the Assembly.

Appointment of Government Servants as Gram Panchayat Administrator

• Context:
  • Recently, the Bombay High Court passed an interim order directing that a government servant of the local authority be appointed as an administrator of gram panchayats in Maharashtra.
• What’s the issue?
  • The High Court passed an interim order after two petitions were filed on the Maharashtra Village Panchayat (Amendment) Ordinance, 2020, and the government resolutions (GRs) issued by the State Rural Development Department.
  • The GRs and ordinance were challenged on various grounds and relate to the appointment of private individuals as administrators of gram panchayats.
  • A group of petitions also challenged an ordinance, which amended Section 151 of the Maharashtra Village Panchayats Act by allowing the appointment of administrators in case the State Election Commission (SEC) could not hold elections due to a natural calamity, pandemic emergency, financial emergency or administrative emergency.
• Petitioners’ arguments:
  • The appointments of private administrators are not warranted in law and such mass appointments will have a lasting adverse impact on the local governance.
  • There are enough officers from different departments of the State and local authorities to be appointed as administrators, and this excuse is only to achieve certain political ends.
• State government’s arguments:
  • There is an urgent need for administrators to run the panchayats as pandemic has halted the election process.
  • There are a large number of gram panchayats in the State and the government servants are already overburdened. So, it is difficult to appoint them as administrators.
• What has the Court ruled?
  • As an interim measure, the administrator to be appointed under the ordinance and resolutions should be a government servant or an officer from the local authority.
  • If not available and the appointment of a private individual is to be made, then each such order shall record the reasons because of which such officer was not available.
  • The criteria that administrators have to be “a resident of the village and on the voters’ list'' is a directory, not mandatory in nature.
  • Local authority offices should be the first choice for appointment as an administrator.

Governor's Role In Calling An Assembly Session

• Context:
  • The Governor of Kerala has turned down a request to summon a special sitting of the Assembly to debate the new three central farm laws.
  • The state government’s Cabinet had written to the Governor last week and, after the denial, is mulling approaching him again with the same request.
• About:
  • Governor's role in summoning the Assembly session: 
    • Article 174(1): The Governor shall from time to time summon the House or each House of the Legislature of the State to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session.
    • The provision also puts on the Governor of the state the responsibility of ensuring that the House is summoned at least once every six months.
    • Article 163(1): There shall be a council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this constitution required to exercise his functions or any of them in his discretion.
    • Although it is the Governor’s prerogative to summon the House, according to Article 163(1), the Governor is required to act on the “aid and advice” of the Cabinet. So when the Governor summons the House under Article 174, this is not of his or her own will but on the aid and advice of the Cabinet.
    • There are a few instances where the Governor can summon the House despite the refusal of the Chief Minister who heads the Cabinet.
      • When the Chief Minister appears to have lost the majority
      • When the members of the House propose a no-confidence motion against the Chief Minister, then the Governor can decide on his or her own on summoning the House.
  • Supreme Court's rulings:
    • A number of rulings by the Supreme Court have settled the position that the Governor cannot refuse the request of a Cabinet that enjoys the majority in the House unless it is patently unconstitutional.
    • In ordinary circumstances during the period when the Chief Minister and his council of ministers enjoy the confidence of the majority of the House, the power vested with the Governor under Article 174 to summon, prorogue and dissolve the house(s) must be exercised in consonance with the aid and advice of the chief minister and his council of ministers.
    • The court read the power to summon the House as a “function” of the Governor and not a “power” he enjoys.

Puducherry L-G

• Context:
  • President Kovind removes Kiran Bedi as Puducherry's Lieutenant Governor.
• Powers of Puducherry-LG
  • 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, which deals with the Council of Ministers and its working, 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 the power to make laws”.
  • The same clause also allows the LG to “act in his discretion” in the matter of lawmaking, even though the Council of Ministers has the task of aiding and advising him.
  • 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.
  • 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 organization 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”.
  • Section 23 of the Act also makes it 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.
  • 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.
  • The manner in which the LG functions vis-à-vis the elected government (Council of Ministers) is also spelled out in the Rules of Business of the Government of Pondicherry, 1963, issued on June 22, 1963.
  • Under Rule 47, which deals with persons serving in the UT government, the Administrator exercises powers regulating the conditions of service of such persons in consultation with the Chief Minister.
• Delhi-LG vs Puducherry-LG
  • The powers conferred on the legislatures of Puducherry and Delhi under Articles 239A and 239AA of the Constitution respectively.
  • Article 239AA imposes several restrictions on the legislature of Delhi, no such restrictions had been imposed explicitly in the case of Puducherry under Article 239A.
  • While the LG of Delhi is also guided by the Government of National Capital Territory of Delhi Act, 1991, and the Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993, the LG of Puducherry is guided mostly by the Government of Union Territories Act, 1963.

President rule in Puducherry

• Context:
  • The Union Cabinet has approved a proposal by the Home Ministry to dissolve the Puducherry Assembly and impose President’s Rule in the Union Territory.
• The provision in Case of Failure of Constitutional Machinery in Union Territory (as per the 1963 Act):
• If the President, on receipt of a report from the Administrator of (the Union territory) or otherwise, is satisfied
  • that a situation has arisen in which the administration of the Union territory cannot be carried on in accordance with the provisions of this Act, or
  • that for the proper administration of the Union territory it is necessary or expedient so to do,
• The President may, by order, suspend the operation of all or any of the provisions of this Act for such period as he thinks fit, and
  • Make such incidental and consequential provisions as may appear to him to be necessary or expedient for administering the Union territory in accordance with the provisions of Article 239.

Recommendations/Judgments on President's Rule 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 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. S.R. Bommai Judgment (1994) The Supreme Court enlisted the situations where the exercise of power under Article 356 could be proper. One such situation is that of ‘Hung Assembly’, i.e. where after general elections to the assembly, no party secures a majority. 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 (2007) recommended that these Articles 355 & 356 be amended. It sought to protect the interests of the States by trying to curb their misuse by the Centre.

Office of profit

• Context:
  • President Ram Nath Kovind has rejected a plea seeking disqualification of YSR Congress leader V Vijaisai Reddy as a Rajya Sabha member on the grounds of holding 'office of profit' as special representative of the Andhra Pradesh government in the national capital.
  • The order of the president is based on the Election Commission's unanimous opinion given in June.
• What's the issue?
  • A petition was filed seeking disqualification of Vijaysai Reddy as a member of the Upper House of Parliament alleging that the post of a special representative of the Andhra Pradesh government at the Andhra PradeshBhawan being held by the YSR Congress Party MP was an office of profit.
  • However, the EC had held that since no pecuniary gain was derived from the said office and Reddy was not entitled to any other perks or remuneration other than enjoying the status of a 'state guest' during his travels to Andhra Pradesh in connection with the performance of his duties as special representative, he did not incur disqualification under Article 102(1) (a) of the Constitution of India”.
• What are the basic criteria to disqualify an MP or MLA?
  • Basic disqualification criteria for an MP are laid down in Article 102 of the Constitution, and for an MLA in Article 191.
  • They can be disqualified for: a) Holding an office of profit under the Government of India or state government; b) Being of unsound mind; c) Being an undischarged insolvent; d) Not being an Indian citizen or for acquiring citizenship of another country.
• What is an ‘office of profit’?
  • If an MLA or an MP holds a government office and receives benefits from it, then that office is termed as an “office of profit”.
  • • A person will be disqualified if he holds an office of profit under the central or state government, other than an office declared not to disqualify its holder by a law passed by Parliament or state legislature.
• What is the underlying principle for including ‘office of profit’ as a criterion for disqualification?
  • Makers of the Constitution wanted that legislators should not feel obligated to the Executive in any way, which could influence them while discharging legislative functions.
  • In other words, an MP or MLA should be free to carry out her duties without any kind of governmental pressure. The intent is that there should be no conflict between the duties and interests of an elected member.
  • The office of profit law simply seeks to enforce a basic feature of the Constitution- the principle of separation of power between the legislature and the executive.
• Reason for controversies:
  • The expression “office of profit” has not been defined in the Constitution or in the Representation of the People Act, 1951.
  • It is for the courts to explain the significance and meaning of this concept. Over the years, courts have decided this issue in the context of specific factual situations.
  • But, articles 102 (1) and 191(1) which give effect to the concept of office of profit prescribe restrictions at the central and state level on lawmakers accepting government positions.
• Role of Judiciary in defining the ‘office of profit:
  • The Supreme Court in Pradyut Bordoloi vs Swapan Roy (2001) outlined the four broad principles for determining whether an office attracts constitutional disqualification.
    1. First, whether the government exercises control over appointment, removal, and performance of the functions of the office
    2. Second, whether the office has any remuneration attached to it
    3. Third, whether the body in which the office is held has government powers (releasing money, allotment of land, granting licenses, etc.).
    4. Fourth, whether the office enables the holder to influence by way of patronage.

Criminal Justice:

Police reform and the crucial judicial actor

• Context:
  • The death of a father and son due to alleged custodial torture in Sathankulam town near Thoothukudi in Tamil Nadu has brought into focus the topic “Police reforms and the role of Judiciary “.
• Such recurring incidents also raise one significant question:
  • How many more times must powerless citizens suffer the blows of a lathi or a baton, the kicks of patent leather boots, be violated by the “wooden rollers” around their private areas, not to mention spending hours inside a police lockup, all as a part of an “investigation” by police searching for “truth”.
• Role of judiciary:
  • As always, when the conversation veers in this direction it becomes natural to look towards the judiciary as the source of hope and action.
  • In this case, the Madurai High Court has taken notice on its own and is “closely” monitoring the situation.
• How has the Supreme Court handled this topic in the past?
  • Supreme Court has intervened multiple times in the 1990s through cases such as Joginder Kumar v. State of UP [AIR 1994 SC 1349] and D.K. Basu v. State of West Bengal [(1997) 1 SCC 416], where guidelines were passed to try and secure two rights in the context of any state action:
    1. A right to life.
    2. A right to know.
  • Through the guidelines, the Court sought to curb the power of arrest, as well as ensure that an accused person is made aware of all critical information regarding her arrest and also convey this to friends and family immediately in the event of being taken in custody.
  • The Code of Criminal Procedure (Amendment) Act, 2008 gave statutory backing to these judicial guidelines; it remains part of the law today.
  • Finally, in the Prakash Singh v. Union of India (2006) case, the Court pushed through new legislation for governing police forces to be passed by States across India.
  • A key component of the new legislation was a robust setup for accountability that contemplated a grievance redress mechanism.
• What else has been advised by the judiciary to reduce police violence?
  1. Support for “scientific” investigations.
  2. The fascination for techniques such as narcoanalysis, ensuring video recording of investigations.
  3. Passing orders for installing closed-circuit television cameras inside police stations.
• Why judicial interventions have failed to curb the violence?
  • The Judiciary’s approach of simply passing directions and guidelines has proven to be a failure.
  • For it is the ordinary magistrate, and not the constitutional court, who is the judicial actor wielding real power to realise the substantial change in police practices.
  • The gap between the highest court and the lowly police officer in India has been demonstrated through studies that show how despite criminal laws being struck down as unconstitutional, they continue to be enforced in various parts of the country by local police.
• What needs to be done?
  • Rather than expend energies in only passing more guidelines, constitutional courts must seriously contend with the concrete cases that come their way and expose how hard it is for a common man to get justice against police violence, either through compensation claims or prosecutions.
  • They must shed the institutional baggage which often leads to them protecting the supposedly vulnerable morale of the police.
  • It is time to consider sanctions at a larger scale and impose monetary penalties at the district level, to drive home the message that the erring actions of one officer must be seen as a failure of the force itself.
  • They could strike an inspired move by reorienting their guidelines to try and change the practices of magistrates, over whom they exercise powers of superintendence, as opposed to other non-judicial actors.

Kanpur Encounter case and policing issues

• Context:
  • All the staff of a police station in Kanpur, Uttar Pradesh — where 8 policemen were shot down by Vikas Dubey and his gang on Friday — are suspected of leaking information to the notorious criminal.
  • This incident bears the violent signature of a dysfunctional society and alarming emaciation of governance in India’s most populous state.
• What does this incident expose?
  • Gangster Vikas Dubey is the symbol of the nexus between politics, crime, and policing in many parts of the country.
  • The circumstances that went into the making of this incident and the response of the administration all point to the same morbid affliction that can be fatal to any democratic society — the collapse of the rule of law.
  • Criminal gangs shielded by politics and police forces that bend to caste, communal and political vested interests form a malevolent circuit that perpetuates itself and rewards its patrons.
• Reasons for the present crisis in policing:
  • The police force is the coercive arm of the state often in direct contact with ordinary citizens. The quality of policing therefore has an outsized impact on the overall quality of governance.
  • But, Poor training, an alienating and dehumanising work environment, corruption, and a lack of resources add to the crisis in policing.
  • Politicians in power often use the police the same way politicians out of power use gangsters.
  • Not surprisingly, there are times when the police mirror in character the criminal gangs they chase down.
  • Questionable coercive measures such as collective punishment and criminalisation of political protest and suppression of freedom of expression have also been mainstreamed as regular policing tools.
• Need of the hour- Smart policing:
  • ‘SMART’ police force is Strict and Sensitive, Modern and Mobile, Alert and Accountable, Reliable and Responsive; Techno-savvy, and Trained.
  • There is an urgent need to strengthen our Criminal Justice System and our grassroots level policing institutions; prepare our police to deal with the present and emerging challenges and Strengthen its investigative capabilities and emergency response infrastructure.
  • Considering the multiple causes and their complex interdependencies associated with today’s policing issues, there is a realization that these challenges require broader, more collaborative and innovative approaches and would involve a range of coordinated and interrelated responses.
• Directions of the Supreme Court in Prakash Singh vs Union of India:
  1. Constitute a State Security Commission in every state that will lay down policy for police functioning, evaluate police performance, and ensure that state governments do not exercise unwarranted influence on the police.
  2. Constitute a Police Establishment Board in every state that will decide postings, transfers, and promotions for officers below the rank of Deputy Superintendent of Police, and make recommendations to the state government for officers of higher ranks.
  3. Constitute Police Complaints Authorities at the state and district levels to inquire into allegations of serious misconduct and abuse of power by police personnel.
  4. Provide a minimum tenure of at least two years for the DGP and other key police officers within the state forces.
  5. Ensure that the DGP of state police is appointed from amongst three senior-most officers who have been empanelled for the promotion by the Union Public Service Commission on the basis of length of service, good record and experience.
  6. Separate the investigating police from the law and order police to ensure speedier investigation, better expertise and improved rapport with the people.
  7. Constitute a National Security Commission to shortlist the candidates for appointment as Chiefs of the central armed police forces.
• Besides, Various expert bodies have examined issues with police organisation and functioning over the last few decades. Its chronology is as follows:
  1. National Police commission 1977-81
  2. Rubeiro Committee 1998
  3. Padmanabhaiah committee 2000
  4. Malimath committee 2002-03
  5. Police Act drafting committee 2005
  6. Second ARC 2007
  7. Police Act drafting committee-II 2015.

The central bureau of investigation (CBI)

Context: A high-powered committee, headed by the Prime Minister and comprising Chief Justice of India (CJI) and Leader of the opposition in the Lok Sabha, met to finalize the choice of the next Director of the CBI.

More about CBI:

• The CBI was set up in 1963 by a resolution of the Ministry of Home Affairs. Later, it was transferred to the Ministry of Personnel and now it enjoys the status of an attached office. 
• The Special Police Establishment (which looked into vigilance cases) setup in 1941 was also merged with the CBI.
• The establishment of the CBI was recommended by the Santhanam Committee on Prevention of Corruption (1962-1964). 
• The CBI is not a statutory body. It derives its powers from the Delhi Special Police Establishment Act, 1946.
• The CBI is the main investigating agency of the Central Government. It plays an important role in the prevention of corruption and maintaining integrity in administration. 
• It also assists the Central Vigilance Commission (CVC)  and Lokpal.

Composition of CBI:

• The CBI is headed by a Director. He is assisted by a special director or an additional director. 
• Additionally, it has a number of joint directors, deputy inspector generals, superintendents of police, and all other usual ranks of police personnel.
• With the enactment of the CVC Act, 2003, the superintendence of Delhi Special Police Establishment vests with the Central Government saves investigations of offenses under the Prevention of Corruption Act, 1988, in which, the superintendence vests with the Central Vigilance Commission. 
• The Director of CBI has been provided security of two-year tenure in office by the CVC Act, 2003.

CBI vs State Police:

• The role of the Special Police Establishment (SPE) (a division of CBI) is supplementary to that of the state police forces. 
• Along with state police forces, the Special Police Establishment (SPE) enjoys the concurrent powers of investigation and prosecution for offenses under the Delhi Police Establishment Act, 1946.
• However, to avoid duplication and overlapping of cases between these two agencies, the following administrative arrangements have been made: 
  • The SPE shall take up such cases which are essentially and substantially concerned with the Central Government’s affairs or employees, even if they also involve certain state government employees. 
  • The state police force shall take up such cases which are substantially concerned with the state government’s affairs or employees, even if they also involve certain Central Government employees. 
  • The SPE shall also take up cases against employees of public undertakings or statutory bodies established and financed by the Central Government.

Sedition law 

• Context: Supreme Court in a recent judgment said that section 124A of the IPC need interpretation — especially on its application with regard to freedom of the press.

More about the news:

• The Andhra Pradesh police have taken coercive action against two TV news channels charged with sedition on allegations that the channel is broadcasting programmes in which a Lok Sabha MP and a rebel leader from the ruling YSR congress party, criticized the Andhra Pradesh government.

What is Sedition law?

• Section 124A of the Indian Penal Code (IPC) was introduced during the 1860s during colonial rule convict and sentence freedom fighters.
• Section 124A IPC states: “Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India shall be punished.
• This punishment includes imprisonment for life, to which a fine may be added; or, with imprisonment which may extend to three years, to which a fine may be added; or, with fine.
• Several freedom fighters including Mahatma Gandhi and Jawaharlal Nehru were booked under the sedition law. It was first used to prosecute Bal Gangadhar Tilak in 1897.
• But many times, this law is misused to suppress the voice raised against the government and silence the opposition in the country.

The Kedar Nath Singh vs State of Bihar case (1962)

• A five-judge Supreme Court constitutional bench laid down some guiding principles while dealing with offences under Section 124A of the IPC. 
• The court laid down the guidelines consistent with Article 19 (Freedom of Speech) of the constitution 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.

Merger Under Tenth Schedule

• Context:
  • The Rajasthan High Court has issued notices to the speaker and secretary of the state legislative assembly and six MLAs, who contested elections on BSP tickets and then defected to the Congress.
• Supporting Supreme Court judgments:
  • 1. 2006 ruling in Jagjit Singh v State of Haryana:
    • In this case, four legislators from single-member parties in the Haryana Assembly, who said their parties had split and later joined the Congress. The court upheld the Speaker’s decisions disqualifying them.
  • 2. 2007 ruling in Rajendra Singh Rana And Ors vs Swami Prasad Maurya:
    • In the 2002 Uttar Pradesh elections, 37 MLAs — one-third of the BSP strength — “split” from the party after its government fell, to support Samajwadi Party. The SC ruled that the split cannot be recognised primarily because not all these MLAs split at once.
• But, why these judgments cannot be relevant today?
  • The key aspect is that these cases deal with splits where when one-third of the members of a legislative party splits; they could not attract disqualification as per Paragraph 3 of the Tenth Schedule.
  • However, in 2003, through the 91st Constitutional Amendment, Paragraph 3 was deleted from the Tenth Schedule.
  • The amendment was made as the one-third split rule was grossly misused by parties to engineer divisions and indulge in horse trading.
  • One-third was regarded as an easy target to achieve and the law now exempts defection only when it is at two-thirds (in a merger).
• Firstly, is “merger” allowed under the constitution?
  • The Tenth Schedule of the Constitution prohibits defection to protect the stability of governments but does not prohibit mergers.
  • Paragraph 4(2) of the Tenth Schedule, dealing with mergers, says that only when two-thirds of the members agree to “merge” the party would they be exempt from disqualification.
  • The “merger” referred to in Paragraph 4(2) is seen as a legal fiction, where members are deemed to have merged for the purposes of being exempt from disqualification, rather than a merger in the true sense.
• Can a state unit of a national party be merged without the party being merged at the national level?
  • The tenth Schedule identifies this dichotomy between state units and national units.
  • As per Paragraph 4(2), the “merger” of a party means the merger of a legislative party of that House.
  • In Rajasthan’s case, it would be the Rajasthan Legislative unit of the BSP and not the BSP at the national level.
• What about the whip?
  • The whip issued by BSP national general secretary to the six MLAs would have no impact because such a direction has to necessarily be issued for voting on the floor of the House.
  • A national leader’s direction cannot be considered a whip in the context of the anti-defection law.
• Prelims Concept:
  • Anti-defection law lists situations for disqualification on the ground of defection:
    1. If an MP or an MLA “has voluntarily given up his membership of such political party” [clause 2(1)(a)], or
    2. If he/she votes or abstains from voting in the House contrary to any direction issued by his party, that is if he violates the party whip in the house [clause 2(1)(b)].
    3. If an independent candidate joins a political party after the election.
    4. If a nominated member joins a party six months after he becomes a member of the legislature.

 

Centre-State relations:

Centre allows five states to Borrow

• Context:
  • The Centre has permitted five States to borrow an additional ₹9,913 crore through open market borrowings to meet expenditure requirements amid falling revenues due to the COVID-19 crisis.
  • These States are A.P., Telangana, Goa, Karnataka, and Tripura.
• What's the issue now?
  • The permission was accorded after these States met the reform condition of implementation of the ‘One Nation One Ration Card’ system.
• Background:
  • The Centre had, in May, allowed an additional borrowing limit of up to 2% of Gross State Domestic Product to States for FY21 with certain conditions.
• Why do states need the centre's permission while borrowing? Is it mandatory for all states?
  • Article 293(3) of the Constitution requires states to obtain the Centre’s consent in order to borrow in case the state is indebted to the Centre over a previous loan.
  • This consent can also be granted subject to certain conditions by virtue of Article 293(4).
  • In practice, the Centre has been exercising this power in accordance with the recommendations of the Finance Commission.
  • Every single state is currently indebted to the Centre and thus, all of them require the Centre’s consent in order to borrow.
• Does the Centre have unfettered power to impose conditions under this provision?
  • Neither does the provision itself offer any guidance on this nor is there any judicial precedent that one could rely on.
  • Interestingly, even though this question formed part of the terms of reference of the 15th Finance Commission, it was not addressed in its interim report.
• So, when can the centre impose conditions?
  • The Centre can impose conditions only when it gives consent for state borrowing, and it can only give such consent when the state is indebted to the Centre.
• Why are such restrictions necessary?
  • One possible purpose behind conferring this power upon the Centre was to protect its interests in the capacity of a creditor.
  • A broader purpose of ensuring macroeconomic stability is also discernible since state indebtedness negatively affects the fiscal health of the nation as a whole.
• Conclusion:
  • This means that in the present case, the Centre was not justified in requiring states to join the One Nation One Ration Card scheme by exercising its power under Article 293(4).
  • After all, this has no direct bearing on a state’s fiscal health or on macroeconomic stability and encroaches upon the legitimate domain of states.
  • Given these limitations, if the Centre desired to extend its One Nation One Ration scheme throughout the country, it should have opted for building consensus with reluctant states instead of compelling them through this route.

Supplementary Demands for Grants

• Context:
  • The Centre has sought Parliament approval for a gross additional expenditure of ₹2.35 lakh crore, including ₹20,000 crores for recapitalisation of public sector banks, for 2020-21. These are Supplementary Demands for Grants.
• Constitutional provisions:
  • Supplementary, additional or excess grants and Votes on account, votes of credit, and exceptional grants are mentioned in the Constitution of India 1949.
  • Article 115: Supplementary, additional, or excess grants.
  • Article 116: Votes on account, votes of credit, and exceptional grants.
• Procedure to be followed:
  • When grants, authorised by the Parliament, fall short of the required expenditure, an estimate is presented before the Parliament for Supplementary or Additional grants.
  • These grants are presented and passed by the Parliament before the end of the financial year.
  • When actual expenditure incurred exceeds the approved grants of the Parliament, the Ministry of Finance presents a Demand for Excess Grant.
  • The Comptroller and Auditor General of India bring such excesses to the notice of the Parliament.
  • The Public Accounts Committee examines these excesses and gives recommendations to the Parliament.
  • The Demand for Excess Grants is made after the actual expenditure is incurred and is presented to the Parliament after the end of the financial year in which the expenses were made.
• Other grants:
  • Additional Grant: It is granted when a need has arisen during the current financial year for supplementary or additional expenditure upon some new service not contemplated in the Budget for that year.
  • Excess Grant: It is granted when money has been spent on any service during a financial year in excess of the amount granted for that year. The demands for excess grants are made after the expenditure has actually been incurred and after the financial year to which it relates, has expired.
  • Exceptional Grants: It is granted for an exceptional purpose which forms no part of the current service of any financial year.
  • Token Grant: It is granted when funds to meet proposed expenditure on a new service can be made available by re-appropriation, demand for the grant of a token sum may be submitted to the vote of the House and, if the House assents to the demand, funds may be so made available.

The tussle between Central vs Union Government

Context: Recently, a controversy erupted over the new DMK government referring to the government of the Prime Minister as the ‘Union government’ instead of ‘central government’.

Central v/s Union Government:

• More than 70 years after India's independence, Justice (retd) K Chandru pointed out that there is no official Tamil translation of the Indian Constitution.
• The nature of the Indian state is at issue in the ‘union or centre' dispute.
• Provinces had more power under the Government of India Act of 1935, while the Viceroy had just the bare minimum. However, the Indian constitution reversed this equation, giving the federal government more power.
• In every way, genuine power is vested in the Union of India.
• According to the Tamil Nadu government, the Constitution refers to India as a “Union of States,” hence the best term for the Centre is “Union Government.”

Constitutional Provisions for Central or Union Government:

• Article 1(1) of the Constitution of India says that India, that is Bharat, shall be a Union of States.
• The Preamble demonstrates the federal form, spirit, and content of the Indian Constitution with an open acknowledgement of the centralizing tendencies and the quasi-federal characteristics in the actual working of the Constitution.
• The ‘Central government’ is a term not used in the original Constitution as passed by the Constituent Assembly.
• The head of the Indian Constitution's drafting committee used the word “union” because:
  • The Indian federation was not the result of a unit's consent, and the constituent units had no right to secede from it.
  • The word “Union” is used frequently throughout the Indian Constitution to designate both the entire country and the government that governs it.
• The Union's executive power is vested in the President, according to Article 53.
• The Constitution's seventh schedule (Article-246) has the Union List, which has 97 items, the State List, which has 66 things, and the Concurrent List, which has 47 items.

Reasons for use of Central or Union Government:

 

• The Regulating Act was approved by the British Parliament, which appointed a governor-general to manage all of British India.
• The governor-administration generals were referred to as the “Central Government” to distinguish it from the “provincial governments.”
• In India, the Government of India Act of 1919 established a rudimentary form of self-government and federalism, with powers divided between “central” and “provincial” subjects.
• The Government of India Act of 1935, which envisaged a merger of British India with the princely states, was the first time the phrase “Federation of India” was used.
• The Cabinet Mission Plan was the first to use the contemporary term “union” in 1946.

Sutlej Yamuna Link (SYL) Canal

• Context:
  • At a recent meeting, the Punjab Chief Minister asked the Central government to be cautious about the contentious Sutlej-Yamuna Link (SYL) canal issue, saying it has the potential to disturb the nation’s security.
  • The meeting was convened following the Supreme Court’s direction to the Centre on July 28 to mediate between the two States to resolve the issue.
• How this issue could disturb the nation’s security?
  • Pakistan has been making continuous attempts to foment trouble and to try and revive the separatist movement through the banned Sikhs for Justice organisation. The water issue could further destabilise the State.
• Punjab’s demands:
  • Suitable amendments should be made to the proposed Inter-State River Water Disputes Act to set up a new tribunal, to ensure that Punjab gets adequate water “in a just and equitable manner in keeping with its total demand and securing the livelihood of future generations.”
• What is the Sutlej Yamuna Link (SYL) Canal, and the controversy over it?
  • Historical background:
    1. The creation of Haryana from the old (undivided) Punjab in 1966 threw up the problem of giving Haryana its share of river waters.
    2. Punjab was opposed to sharing waters of the Ravi and Beas with Haryana, citing riparian principles, and arguing that it had no water to spare.
    3. However, Centre, in 1976, issued a notification allocating to Haryana 3.5 million-acre feet (MAF) out of undivided Punjab’s 7.2 MAF.
    4. The Eradi Tribunal headed by Supreme Court Judge V Balakrishna Eradi was set up to reassess the availability and sharing of water. The Tribunal, in 1987, recommended an increase in the shares of Punjab and Haryana to 5 MAF and 3.83 MAF, respectively.
• The canal:
  • To enable Haryana to use its share of the waters of the Sutlej and its tributary Beas, a canal linking the Sutlej with the Yamuna, cutting across the state was planned.
  • A tripartite agreement was also negotiated between Punjab, Haryana, and Rajasthan in this regard.
  • The Satluj Yamuna Link Canal is a proposed 214-kilometer long canal to connect the Sutlej and Yamuna rivers. However, the proposal met obstacles and was referred to the Supreme Court.
• What is Haryana’s demand?
  • Haryana has been seeking the completion of the SYL canal to get its share of 3.5 million acre-feet of river waters. It has maintained that Punjab should comply with the 2002 and 2004 Supreme Court orders in this regard. Haryana is getting 1.62 million acre-feet of the Ravi-Beas waters.

Karnataka to move SC against Tamil Nadu Project

• Context:
  • Karnataka is readying itself to wage a legal battle in the Supreme Court against Tamil Nadu's ambitious Cauvery-Vellaru-Vaigai-Gundar river linking project.
• Inter-State River Water Disputes Act, 1956:
• According to its provisions, if a State Government makes a request regarding any water dispute and the Central Government is of opinion that the water dispute cannot be settled by negotiations, then a Water Disputes Tribunal is constituted for the adjudication of the water dispute.
• The act was amended in 2002, to include the major recommendations of the Sarkaria Commission.
• The amendments mandated a one-year time frame to set up the water disputes tribunal and also a 3-year time frame to give a decision.
• Provisions related to interstate river water disputes:
  • Entry 17 of the State List deals with water i.e. water supply, irrigation, canal, drainage, embankments, water storage, and water power.
  • Entry 56 of Union List empowers the Union Government for the regulation and development of inter-state rivers and river valleys to the extent declared by Parliament to be expedient in the public interest.
  • Article 262: In the case of disputes relating to waters, it provides
  • Clause 1:Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution, or control of the waters of, or in, any inter-State river or river valley.
  • Clause 2:Parliament may, by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as mentioned above.

Water Dispute Between Andhra Pradesh and Telangana

Context: Andhra Pradesh alleges that Telangana has been drawing Krishna water from four projects for hydropower generation without approvals from the Krishna River Management Board (KRMB).

More about the news:

• Andhra government claims that the water that is used for power generation, is being wasted by releasing it into the Bay of Bengal.
• Telangana countered that it would continue with the hydropower generation to meet its requirements of power and at the same time, it has claimed that Rayalaseema Lift Irrigation Project (RLIP) is illegal.
• After Telangana was carved out of Andhra Pradesh, the two states agreed to split the water share 66:34 on an ad hoc basis until the Krishna Water Disputes Tribunal (KWDT) -2 decided the final allocation.

Interstate water dispute:

• Article 262 of the Constitution provides for the adjudication of interstate water disputes. It makes two 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 this provision, the Parliament has enacted two laws [the River Boards Act (1956) and the Inter-State Water Disputes Act (1956)].
• The Inter-State Water Disputes Act empowers the Central government to set up an ad hoc tribunal for the adjudication of a dispute between two or more states in relation to the waters of an inter-state river or river valley.
• So far (2019), the Central government has set up nine inter-state water dispute tribunals.
• Krishna water Dispute: States involved are Maharashtra, Karnataka, and Andhra Pradesh. The first Krishna water tribunal was established in 1969 and the second one in 2004.

Mekedatu Project

Context: The Karnataka government has decided to come up with an action plan to start the Mekedatu drinking water project amidst opposition from Tamil Nadu (TN).

About Mekedatu Project:

• Mekedatu, meaning goat’s leap, is a deep gorge situated at the confluence of the rivers Cauvery and Arkavathi, about 100 km from Bengaluru.
• In 2013, the Karnataka Government announced the construction of a multi-purpose balancing reservoir project over the Mekedatu. 
• The project aims to alleviate the drinking water problems of the Bengaluru and Ramanagara districts of Karnataka. 
• It is also expected to generate hydroelectricity around 400 MW to meet the power needs of the state.

Why does TN objects to the move?

• TN claims that it will affect the natural flow of the Cauvery River and also the irrigation in the State.
• The State also points out that the Government of Karnataka should not be allowed to unilaterally execute a scheme without the consent of the lower riparian State according to the final order of the Cauvery Water Disputes Tribunal (CWDT).

About River Cauvery:

• The Cauvery basin extends over states of TN, Karnataka, Kerala, and the Union Territory of Puducherry.
• It rises at Talakaveri on the Brahmagiri range of Karnataka. 
• The total length of the river from origin to outfall into the Bay of Bengal is 800 km.
• Left Bank Tributaries: Harangi, Hemavati, Shimsha, and Arkavati.
• Right Bank Tributaries: Lakshmantirtha, Kabani, Suvarnavati, Bhavani, Noyil, and Amaravati.

Cauvery River Water Dispute- A Timeline:

• The Cauvery water sharing dispute began in 1892 between the Madras Presidency and the princely state of Mysore.
• British presided over the issue of water sharing and in 1924, the Madras Presidency and Mysore state signed an agreement where the rules regarding the water usage of Krishna Raja Sagar (KRS) dam were listed out.
• The agreement gave Madras Presidency and the Mysore state the right to use surplus water from river Cauvery and TN and Puducherry would get 75% of the surplus water, while Karnataka would get 23% and 2% to Kerala.
• The issue of water sharing became a real problem after the re-organization of the states in 1956.
• Between 1960 and the late 1980s, Karnataka built four dams on Cauvery – Hemavati, Harangi, Kabini, and Suvarnavathy and it claimed the validity of the 1924 agreement ceased after 50 years.
• CWDT formed in 1990 as per the directions of the Supreme Court (SC) calculated the water inflow to Tamil Nadu between 1980 and 1990. In 1991, the tribunal in its interim order directed Karnataka to ensure that 205 thousand million cubic feet (tmcft) of water reach Tamil Nadu per annum. 
• In 1998, the Cauvery River Authority (CRA) was formed for implementing the interim order of the CWDT and is comprised of the Prime Minister as the Chairperson and the Chief Ministers of the four states/UTs as its members.
• The CWDT gave out its final award in 2007. Of the total available 740 tmcft water, this was the allocation made: Tamil Nadu – 419 tmcft Karnataka – 270 tmcft Kerala – 30 tmcft Puducherry – 7 tmcft.
• TN appealed against the verdict in SC and subsequently, the final verdict of the SC came in 2018. It declared the Cauvery a national asset and also reduced the allocation of water from Karnataka to Tamil Nadu. 
• It also directed the Centre to have a Cauvery Management Scheme and also noted that no State could claim full rights over its waters.

 

Three capitals for Andhra Pradesh

• Context:
  • The Andhra Pradesh high court has stayed the notifications issued by the YSR Congress government on the formation of three capitals for the state till August 14.
• What’s the issue?
  • Various petitions were filed opposing the three capitals move and demanding a stay on the two new acts.
  • In response, the Court has granted a stay on the implementation of the gazette notifications and asked the state government to file a counter within 10 days.
• Three- capitals:
  • Andhra Pradesh Assembly, in January 2020, passed The Andhra Pradesh Decentralisation and Equal Development of All Regions Bill, 2020.
  • On July 31 the state government notified the AP Decentralisation and Inclusive Development of All Regions Act, 2020, and the AP Capital Region Development Authority (Repeal) Act, 2020.
    • This law paves the way for three capitals for the state.
    • 1. Amaravati– legislative capital.
    • 2. Visakhapatnam– executive capital.
    • 3. Kurnool– judicial capital.
• Need for three capitals:
  • The government says it is against building one mega capital while neglecting other parts of the state. Three capitals ensure equal development of different regions of the state.
  • Decentralisation has been the central theme in recommendations of all major committees that were set up to suggest a suitable location for the capital of Andhra Pradesh. These include Justice BN Srikrishna Committee, K Sivaramakrishnan Committee, G N Rao Committee etc.
• Why implementing this idea will be difficult?
  • Coordination and logistics fear: Coordinating between seats of legislature and executive in separate cities will be easier said than done, and with the government offering no specifics of a plan, officers and common people alike fear a logistics nightmare.
  • Time and costs of travel: Executive capital Visakhapatnam is 700 km from judicial capital Kurnool, and 400 km from the legislative capital Amaravati. The Amaravati-Kurnool distance is 370 km. The time and costs of travel will be significant.
• Which other Indian states have multiple capitals?
  1. Maharashtra has two capitals– Mumbai and Nagpur (which holds the winter session of the state assembly).
  2. Himachal Pradesh has capitals at Shimla and Dharamshala (winter).
  3. The former state of Jammu & Kashmir had Srinagar and Jammu (winter) as capitals.

Special areas and schedule:

Anglo Indian community wants to be designated a separate minority

• Context: 
  • The Anglo Indian community has urged the central government to grant them the status of a separate minority and take steps to restore and extend the special reservation for the nomination of the community's members to Parliament and State Assemblies.
  • Parliament passed the Constitution (126th Amendment) Bill, extending reservation for SC/ST but doing away with the provision for the nomination of Anglo Indians to Lok Sabha and some state assemblies.
• About:
  • The Anglo Indian community in India traces its origins to an official policy of the British East India Company to encourage marriages of its officers with local women.
  • The term Anglo Indian first appeared in the Government of India Act, 1935.
  • In the present context, Article 366(2) of the Constitution of India states, “An Anglo Indian means a person whose father or any of whose other male progenitors in the male line is or was of European descent but who is domiciled within the territory of India and is or was born within such territory of parents habitually resident therein and not established there for temporary purposes only”.
  • Provision for the nomination of two Anglo Indians to Lok sabha was made under Article 331 of the Constitution. It says,” Notwithstanding anything in Article 81, the President may if he is of opinion that the Anglo- Indian community is not adequately represented in the House of the People, nominate not more than two members of that community to the House of the People”.
  • Article 333 deals with the representation of the Anglo-Indian Community in Legislative Assemblies. It says, “Notwithstanding anything in Article 170, the Governor of a State may if he is of opinion that the Anglo-Indian community needs representation in the Legislative Assembly of the State and is not adequately represented”.
  • Currently, some assemblies have one Anglo Indian member each: Andhra Pradesh, Bihar, Chhattisgarh, Jharkhand, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Tamil Nadu, Telangana, Uttar Pradesh, Uttarakhand, and West Bengal. 
  • According to the 10th schedule of the Constitution, Anglo-Indian members of Lok Sabha and State Assemblies can take the membership of any party within six months of their nomination. But once they do so, they are bound by their party whip. The Anglo-Indian members enjoy the same powers as others, but they can not vote in the Presidential election because they are nominated by the President.

Sub categorization of OBCs

• Context:
  • The Centre has extended the tenure of the Commission to Examine Sub-categorisation of Other Backward Classes (OBCs) headed by Justice G Rohini, former Chief Justice of Delhi High Court. The commission now has until July 31 to submit its report.
• Background:
  • OBCs are granted 27% reservation in jobs and education under the central government.
  • Last year, a Constitution Bench of the Supreme Court reopened the legal debate on sub-categorization of Scheduled Castes and Scheduled Tribes for reservations.
  • The debate arises out of the perception that only a few affluent communities among the over 2,600 included in the Central List of OBCs have secured a major part of this 27% reservation.
  • The argument for sub-categorization — or creating categories within OBCs for reservation — is that it would ensure “equitable distribution” of representation among all OBC communities.
  • To examine this, the Rohini Commission was constituted on October 2, 2017.
  • Commission’s terms of reference:
    • It was originally set up with three terms of reference:
    • To examine the extent of inequitable distribution of benefits of reservation among the castes or communities included in the broad category of OBCs with reference to such classes included in the Central List;
    • To work out the mechanism, criteria, norms, and parameters in a scientific approach for sub-categorization within such OBCs;
    • To take up the exercise of identifying the respective castes or communities or sub-castes or synonyms in the Central List of OBCs and classifying them into their respective sub-categories.
    • The fourth term of reference was added on January 22, 2020, when the Cabinet granted it an extension:
    • To study the various entries in the Central List of OBCs and recommend correction of any repetitions, ambiguities, inconsistencies, and errors of spelling or transcription.
  • Findings so far:
    • In 2018, the Commission analyzed the data of 1.3 lakh central jobs given under OBC quota over the preceding five years and OBC admissions to central higher education institutions, including universities, IITs, NITs, IIMs, and AIIMS, over the preceding three years.
    • The findings were: 97% of all jobs and educational seats have gone to just 25% of all sub-castes classified as OBCs;
    • 24.95% of these jobs and seats have gone to just 10 OBC communities;
    • 983 OBC communities — 37% of the total — have zero representation in jobs and educational institutions;
    • 994 OBC sub-castes have a total representation of only 2.68% in recruitment and admissions.

National Commission for Backward Classes (NCBC) 102nd Constitution Amendment Act, 2018 provides constitutional status to the National Commission for Backward Classes (NCBC).  It has the authority to examine complaints and welfare measures regarding socially and educationally backward classes.  Previously NCBC was a statutory body under the Ministry of Social Justice and Empowerment. Background Two Backward Class Commissions were appointed in the 1950s and 1970s under Kaka Kalelkar and B.P. Mandal respectively.  In the Indra Sawhney case of 1992, Supreme Court had directed the government to create a permanent body to entertain, examine and recommend the inclusion and exclusion of various Backward Classes for the purpose of benefits and protection.  In pursuant to these directions parliament passed National Commission for Backward Classes Act in 1993 and constituted the NCBC.  Composition: The Commission consists of five members including a Chairperson, Vice-Chairperson, and three other Members appointed by the President by warrant under his hand and seal.  The conditions of service and tenure of office of the Chairperson, Vice-Chairperson and other Members is determined by President.  Constitutional Provisions: Article 340 deals with the need to identify those “socially and educationally backward classes”, understand the conditions of their backwardness, and make recommendations to remove the difficulties they face.  102nd Constitution Amendment Act inserted new Articles 338 B and 342 A.  The amendment also brings about changes in Article 366.  Article 338B provides authority to NCBC to examine complaints and welfare measures regarding socially and educationally backward classes.  Backward classes: The Constitution Amendment Bill states that the President may specify the socially and educationally backward classes in the various states and union territories. He may do this in consultation with the Governor of the concerned state. However, a law of Parliament will be required if the list of backward classes is to be amended. (Article 342 A)

Rules for administration in the Union Territory of Jammu and Kashmir

• Context:
  • The Ministry of Home Affairs (MHA) has notified new rules for administration in the Union Territory of Jammu and Kashmir that specify the functions of the Lieutenant Governor (LG) and the Council of Ministers.
• Overview of the new rules:
  • Roles and powers of LG:
    1. Police, public order, All India Services and anti-corruption, will fall under the executive functions of the LG, implying that the Chief Minister or the Council of Ministers will have no say in their functioning.
    2. Proposals or matters which affect or are likely to affect the peace and tranquility of the UT or the interest of any minority community, the Scheduled Castes, the Scheduled Tribes and the Backward Classes “shall essentially be submitted to the Lieutenant Governor through the Chief Secretary, under intimation to the Chief Minister, before issuing any orders.”
    3. In case of difference of opinion between the LG and a Minister when no agreement could be reached even after a month, the “decision of the Lieutenant Governor shall be deemed to have been accepted by the Council of Ministers.
• Role of the President:
  • In case of difference of opinion between the Lieutenant Governor and the Council with regard to any matter, the Lieutenant Governor shall refer it to the Central Government for the decision of the
  • President and shall act according to the decision of the President.
  • The LG of J&K has been empowered to pass directions in such situations that action taken by the Council of Ministers will be suspended for as long as it takes the President of India to decide on the cases referred to her.
• Role of Council of Ministers, led by the Chief Minister:
  • 1. They will decide service matters of non-All India Services officers, proposal to impose a new tax, land revenue, sale grant or lease of government property, reconstituting departments or offices, and draft legislations.
  • 2. Any matter which is likely to bring the Government of the Union territory into controversy with the Central Government or with any State Government, shall, as soon as possible, be brought to the notice of the LG and the Chief Minister by the secretary concerned through the Chief Secretary.
• Role of the Central Government:
  • The Lieutenant Governor shall make a prior reference to the Central government with respect to proposals of the following kinds:
    1. those affecting the relations of the Centre with any state government, the Supreme Court of India, or any other high court;
    2. proposals for the appointment of Chief Secretary and Director General of Police;
    3. important cases which affect or are likely to affect the peace and tranquility of the Union Territory; and
    4. cases that affect or are likely to affect the interests of any minority community, Scheduled Castes, or the Backward Classes.
• Background:
  • On August 6, 2019, Parliament read down Article 370 of the Constitution revoking the special status of J&K and bifurcated and downgraded the State into Union Territories of J&K and Ladakh; J&K with a legislative assembly. J&K has been without a chief minister since June 2018.
  • According to the requirements of the J&K Reorganisation Act, 2019, fresh elections will be held after the delimitation exercise is completed next year.
• Implications of the new rules:
  • In the erstwhile state of Jammu and Kashmir, when it had a special status, the chief minister was the most powerful person in the decision-making process.
  • With the new rules, CM has been reduced to an ornamental figure. He would not even have the power to transfer a constable of the Jammu & Kashmir Police.

J&K New Land Law

• Context:
  • People, including investors, outside Jammu and Kashmir, can now purchase land in the Union Territory as the Centre notified new land laws for the region, ending the exclusive rights enjoyed by the local population over land under the now-diluted Article 370.
• J&K land law:
  • The newly notified land laws for the Union Territory of Jammu and Kashmir and explicitly omitted the protection earlier available to its 'permanent residents.
  • It amendment act open up urban or non-agricultural land for purchase by outsiders, permit contract, farming on agricultural lands, provide for setting up of an industrial development corporation, and also insulate zones identified for development from the application of various laws that earlier ensured ownership remained with 'permanent residents'.
  • Land acquired by the Government for industrial or commercial purposes can now be allowed to be disposed of or sold to anyone. Earlier, only 'permanent residents' of Jammu and Kashmir could purchase such land.
  • The Government can also decide to transfer agricultural land in favour of “a person or an institution for the purpose of promotion of healthcare or senior secondary or higher or specialised education”.

Durbar Move

• Context:
  • A tradition of a century and a half is set to be broken in Jammu and Kashmir, with only “sensitive records” being taken from Jammu to Srinagar this summer, unlike in previous years when the entire administration and records would be shifted during “Durbar Move”.
• Durbar move:
  • Durbar Move is a bi-annual shifting of the Civil Secretariat and other offices of the state government from Jammu to Srinagar in summer, and vice versa in winter.
  • This is done as Jammu & Kashmir has two capitals: Srinagar during summer and Jammu during winter.
• The reasons for Durbar move:
  • Durbar Move is a tradition started 149 years ago started by the erstwhile Dogra rulers who hailed from Jammu but had expanded their boundaries to Kashmir including what is now Pakistan-occupied Kashmir, and Ladakh.
  • Jammu, Kashmir, and Ladakh are very different from one another geographically, linguistically, and culturally, and in those days were poorly connected by road.
  • Durbar Move was started to take the administration to the doorstep of the people of Kashmir which is closer to Ladakh.
  • During summer, ruling from Kashmir also helped in ensuring adequate supplies to Ladakh, which is closer to Kashmir than Jammu, before the winter snowfall would cut off Ladakh.
  • The practice also enabled greater interaction and bonding among the people of Jammu, Kashmir, and Ladakh.
• The criticism of the Durbar move:
  • Voices of protest started during the late 1980s, over the amount of money and time spent on the exercise.
  • However, the practice also enjoyed public support.
  • In recent years, many criticized the government for spending nearly Rs 200 crore on this exercise every year when it did not have enough funds even to pay salary to its employees.
  • Last year, the Jammu & Kashmir High Court observed that there was no legal justification or constitutional basis for the Darbar Move tradition.
  • It observed that valuable resources of the state (financial and physical) cannot be diverted to completely non-essential usage when the Union Territory is unable to provide even essentials to its people.
• Recent decision:
  • The UT government has decided to switch to e-governance, while all official records are converted into digital format.
  • As a result, while the Secretariat employees and some offices will move from Jammu to Srinagar, as usual, this year, only sensitive records will be shifted from one place to another.

Delimitation in Jammu and Kashmir

• Context:
  • Delimitation of constituencies is being carried out in the union territory of Jammu and Kashmir. Recently, the Prime Minister of India chaired a meeting with the political parties of Jammu and Kashmir.  
• What is Delimitation? 
  • Delimitation is the redrawing of boundaries of an assembly or Lok Sabha constituency to reflect changes in the population of a region.  
• Conducted by:
  • The Parliament enacts a Delimitation Act under Article 82 of the Constitution and an independent high-powered panel known as the Delimitation Commission is constituted by the President of India to carry out the exercise. 
• Composition:
  • Retired Supreme Court judge, Chief Election Commissioner and Respective State Election Commissioners. 
• Associate members:
  • Members of Parliament and Legislative Assemblies of states for which the Delimitation Commission is set up are nominated as associate members to help the commission in its task.  
• Powers:
  • The Delimitation Commission is a high power body whose orders have the force of law and cannot be called in question before any court. 
• Delimitation in J&K: 
  • Delimitation in J&K had followed a slightly different trajectory than in the rest of the country due to the special status it was accorded under Article 370.  
  • While the delimitation of Lok Sabha seats in J&K was governed by the Constitution of India, Assembly seat allocation was governed under the Jammu and Kashmir Representation of the People Act, 1957. 
  • The last Delimitation exercise was conducted in J&K in 1995 based on the 1981 census. There was no census in the state in 1991. And after the 2001 census, the J&K assembly had passed a law putting on hold delimitation till 2026. 
  • However, following the abrogation of Article 370 in 2019 Jammu and Kashmir lost their special status and became a Union Territory. Hence, a delimitation commission has been constituted to carve out Assembly and Parliament seats.

Dismissal of J&K government employees

Context:  Lt Governor of J&K has dismissed 11 government employees for alleged terror links under provisions of Article 311(2)(c) of the Constitution. 

About the news:

• To screen the cases of employees suspected of involvement in activities requiring action under this provision of the Constitution, the Jammu and Kashmir government had in April this year constituted a Special Task Force.
• It was headed by the Additional Director General of Jammu and Kashmir Police as its chairman, and having members representing the Departments of Home, Law, Justice, and Parliamentary Affairs.
• The Special Task Force was tasked with compiling a record of such employees wherever necessary and referring it to a committee constituted by the government by an order dated July 30, 2020.
• The charges against the sacked staffers range from propagating and promoting the secessionist ideology of Jamat-e-Islami, Dukhtaran-e-Millat, and their sponsors in Pakistan, to informing militants about the movement of security forces, harbouring militants, and hawala transactions.
• The employees include two sons of Hizbul Mujahideen chief Syed Salahuddin.

Constitutional provision :

• Article 311 of the Constitution deals with ‘Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State’.
• Under Article 311(2), no civil servant can be “dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges and given a reasonable opportunity of being heard in respect of those charges’’.

Cases in which the safeguards do not apply:

• Exceptions to Article 311(2):
  • 2(a): It says that if a government employee is convicted in a criminal case, he can be dismissed without a Departmental Enquiry (DE).
  • 2(b): It says that the government employee can be dismissed if the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, it is not reasonably practicable to hold inquiry or
  • 2(c): It says that the government employee can be dismissed when the President or the Governor is satisfied that in the interest of the security of the state.  It is not required to hold such an inquiry. 
  • Note: Section 126 of the constitution of the erstwhile state of Jammu and Kashmir too, while providing safeguards to civil servants/government employees like in Article 311 of the Indian Constitution, laid down exceptions under which a person could be dismissed without holding an inquiry.
  • Remedy: The only available remedy to a terminated employee is to challenge the government’s decision in the High Court.

Arunachal groups push for 6th Schedule status

• Context:
  • The revival of the demand for two autonomous councils has made political parties and community-based groups call for bringing the entire Arunachal Pradesh under the ambit of the Sixth Schedule or Article 371 (A) of the Constitution.
• What’s the demand?
  • Currently, Arunachal Pradesh is under the Fifth Schedule that “does not provide special rights for the indigenous communities” unlike the Sixth Schedule.
  • Many political parties have been demanding the inclusion of Arunachal Pradesh in the 6th Schedule for making the Arunachalees owner of all-natural resources instead of being protectors only.
  • Inclusion of the state under the Sixth Schedule would enable the state to own the legitimate ownership rights over its own natural resources and make it self sufficient without having to depend too much on central grants.
• What is the 6th Schedule?
  • The Sixth Schedule currently includes 10 autonomous district councils in four northeastern States — Assam, Meghalaya, Mizoram, and Tripura.
  • Passed by the Constituent Assembly in 1949, it seeks to safeguard the rights of the tribal population through the formation of Autonomous District Councils (ADC).
  • This special provision is provided under Article 244(2) and Article 275(1) of the Constitution.
• Key provisions:
  • The governor is empowered to organise and re-organise the autonomous districts:
    1. If there are different tribes in an autonomous district, the governor can divide the district into several autonomous regions.
    2. Composition: Each autonomous district has a district council consisting of 30 members, of whom four are nominated by the governor and the remaining 26 are elected on the basis of adult franchise.
    3. Term: The elected members hold office for a term of five years (unless the council is dissolved earlier) and nominated members to hold office during the pleasure of the governor.
    4. Each autonomous region also has a separate regional council.
    5. Powers of councils: The district and regional councils administer the areas under their jurisdiction.
       • They can make laws on certain specified matters like land, forests, canal water, shifting cultivation, village administration, the inheritance of property, marriage, and divorce, social customs, and so on. But all such laws require the assent of the governor.
    6. Village councils: The district and regional councils within their territorial jurisdictions can constitute village councils or courts for trial of suits and cases between the tribes. They hear appeals from them. The jurisdiction of the high court over these suits and cases is specified by the governor.
    7. Powers and functions: The district council can establish, construct, or manage primary schools, dispensaries, markets, ferries, fisheries, roads, and so on in the district. It can also make regulations for the control of money lending and trading by non-tribals. But, such regulations require the assent of the governor.
       • The district and regional councils are empowered to assess and collect land revenue and to impose certain specified taxes.
• Exceptions:
  • The acts of Parliament or the state legislature do not apply to autonomous districts and autonomous regions or apply with specified modifications and exceptions.
  • The governor can appoint a commission to examine and report on any matter relating to the administration of the autonomous districts or regions. He may dissolve a district or regional council on the recommendation of the commission.
• What about Nagaland?
  • Nagaland is governed by Article 371 (A), which says that no Act of Parliament shall apply in the State in several areas unless the Nagaland Assembly so decides by a resolution.
  • These include administration of civil and criminal justice involving decisions according to Naga customary law and ownership and transfer of land and its resources.

Sixth Schedule of the Constitution of India 

• Context:
  • Recently, elections were held to the Tripura’s Tribal Areas Autonomous District Council (TTAADC).
• About:
  • The Sixth Schedule of the Constitution — Articles 244(2) and 275(1) —applies to the Tribal Areas of Assam, Meghalaya, Tripura, and Mizoram.
  • It provides for autonomy in the administration of these areas through Autonomous District Councils (ADCs) and the Regional Councils.
  • These are empowered to make laws in respect of areas under their jurisdiction, which cover the land, forest, cultivation, inheritance, indigenous customs and traditions of tribals, etc., and also to collect land revenues and certain other taxes. 
  • ADCs are like miniature states having specific powers and responsibilities in respect of all the three arms of governance: Legislature, executive, and judiciary.
• Tripura’s Tribal Areas Autonomous District Council (TTAADC):
  • Formed on January 18, 1982, TTADC governs areas that enjoy a set of protective constitutional safeguards for people from 19 tribal communities.
  • These include statutory protection of tribal land.
  • One-third of the state’s population lives here, a large majority of them still depending on slash-and-burn cultivation and traditional livelihood for sustenance.
  • The TTADC has 30 seats, of which 28 are elected.

 

Clause 6 of the Assam Accord

• Context:
  • In February, a government-appointed committee had submitted its recommendations for implementation of Clause 6 of the Assam Accord, a key provision that has been contentious for decades. The government made the report public recently.
• Background:
  • The committee was set up by the Home Ministry in 2019.
  • Headed by retired High Court judge Biplab Kumar Sarma.
  • Its brief was to define the “Assamese people” and suggest measures for the safeguard of their rights.
• What does Clause 6 say?
  • Clause 6 of the Assam Accord, which was signed in 1985 after the Assam Agitation of 1979-85, envisages that appropriate “constitutional, legislative and administrative safeguards should be provided to protect, preserve and promote the cultural, social, linguistic identity and heritage of the people of Assam.”
  • This Clause was inserted to safeguard the socio-political rights and culture of the “indigenous people of Assam”.
• What is the Assam Accord?
  • It was a Memorandum of Settlement (MoS) signed between representatives of the Government of India and the leaders of the Assam Movement in New Delhi on 15 August 1985.
  • For recognition as citizens, the Accord sets March 24, 1971, as the cutoff.
• Key recommendations made by the committee:
  • The committee has proposed that the following be considered Assamese people for the purpose of Clause 6:
  • All citizens of India who are part of:
    1. Assamese community, residing in the Territory of Assam on or before January 1, 1951; or
    2. Any indigenous tribal community of Assam residing in the territory of Assam on or before January 1, 1951; or
    3. Any other indigenous community of Assam residing in the territory of Assam on or before January 1, 1951; or
    4. All other citizens of India residing in the territory of Assam on or before January 1, 1951; and
    5. Descendants of the above categories.
• Implications and impacts of these recommendations:
  • Clause 6 is meant to give the Assamese people certain safeguards, which would not be available to migrants between 1951 and 1971.
  • If the recommendation is accepted, those who migrated between 1951 and 1971 would be Indian citizens under the Assam Accord and NRC, but they would not be eligible for safeguards meant for “Assamese people”.
• What are these safeguards?
  1. 80 to 100% reservation in the parliamentary seats of Assam, Assembly seats and local body seats be reserved for the “Assamese people”.
  2. 80 to 100% of Group C and D level posts (in Assam) in central government/semi-central government/central PSUs/private sector
  3. 80 to 100% of jobs under Government of Assam and state government undertakings; and 70 to 100% of vacancies arising in private partnerships
  4. Land rights, with restrictions imposed on transferring land by any means to persons other than “Assamese people”.
  5. Several other recommendations deal with language and cultural and social rights.

Kongu Nadu

Context: Recently, there is a debate in Tamil Nadu over an alleged attempt to bifurcate the state, after some political handles were seen supporting the idea of 'Kongu Nadu'.

About Kongu Nadu:

• It is neither a place with a PIN code nor a name given formally to any region but is a commonly used name for part of western Tamil Nadu. 
• In Tamil literature, it was referred to as one of the five regions of ancient Tamil Nadu. It is also mentioned in Sangam literature as a separate territory.
• The name Kongunadu draws its origin from the term Kongu, meaning nectar or honey. It is also said that it was derived from Kongu Vellala Gounder, a community with a significant presence in the area.
• It was ruled over by the Chera, Pandya, Chola, Hoysala, Muslim rulers, and finally the British.
• In 942 C.E., Parantaka I appointed his relative and general Veerachozha Mahimalaya Irukkuvel as ruler of Kongu Nadu and gave him the title of Kongu Chola.
• Raja Raja is called Ganga Nadu kavvi and  Konga Nadu velipadittaruli. This means that while Raja Raja seized Ganga Nadu, he granted autonomy to Kongu Nadu.
• For almost 300 years from 1,004 C.E., the Kongu Cholas ruled autonomously and they even adopted the names of the Imperial Cholas —Vikrama Chola, Kulottunga Chola, etc.
• The Kongapadai festival in the Chittur Bhagavati temple in Palghat, Kerala recalls the attack by the Kongu army in the region.
• The region includes prominent businesses and industrial hubs at Namakkal, Salem, Tirupur, and Coimbatore.

How States are Formed/Bifurcated?

• To protect the unity and integrity of India, Article 3 of the Constitution vests the power to form new States in Parliament, which may pass the law on the subject.
• The State has to move a resolution in the Assembly and once passed by the House, it will forward it to the Centre.
• There is no requirement that Parliament shall consider the Assembly resolution, though it is mandatory that the President initiate the procedure and it ends with Parliament passing the relevant Bill.
• If the Centre accepts the State's recommendation, a Bill can be introduced in either House of Parliament on the recommendation of the President.
• Before drafting the Bill, it is open to the Centre to appoint a Commission to fix boundaries and for sharing waters, providing other guarantees and location of capitals, High Courts, and all other requirements of the States to be formed.

NSCN-IM 2015 Naga framework agreement

• Context:
  • The National Socialist Council of Nagaland-IM has for the first time released the details of the 2015 framework agreement.
  • It has also accused interlocutor R.N. Ravi of deleting a keyword from the original document and sharing the modified version with other Naga groups.
• What’s the issue?
  • The agreement released by the NSCN-IM stated “sharing the sovereign power” and provide for an “enduring inclusive new relationship of peaceful co-existence of the two entities”.
  • However, it is alleged that Mr Ravi, also Nagaland Governor, “craftily deleted the word new from the original” and circulated it to the other Naga groups including the Naga National Political Groups (NNPGs).
• What are the demands?
  1. The NSCN claimed that the word ‘new’ is politically sensitive as it goes to define the meaning of peaceful co-existence of the two entities (two sovereign powers) and it strongly indicates outside the purview of the Constitution.
  2. It has demanded that the Centre should come out with an undertaking that the framework agreement is still alive in its original form and “to be handled by somebody other than RN Ravi” who is sensitive enough to understand and respect what has been achieved during the past 23 years.
• Background:
  • Naga talks have hit rough weather as the NSCNIM has demanded that the present interlocutor be removed from the position.
  • • The NSCN-IM has been fighting for ‘Greater Nagaland’ or Nagalim — it wants to extend Nagaland’s borders by including Naga-dominated areas in neighbouring Assam, Manipur, and Arunachal Pradesh, to unite 1.2 million Nagas.
  • • The Centre has said there will be no disintegration of Assam, Arunachal Pradesh, and Manipur to merge the Naga inhabited areas with Nagaland.
• How old is the Naga political issue?
  • Pre-independence:
    • The British annexed Assam in 1826, and in 1881, the Naga Hills too became part of British India. The first sign of Naga resistance was seen in the formation of the Naga Club in 1918, which told the Simon Commission in 1929 “to leave us alone to determine for ourselves as in ancient times”.
    • In 1946 came the Naga National Council (NNC), which declared Nagaland an independent state on August 14, 1947.
    • The NNC resolved to establish a “sovereign Naga state” and conducted a “referendum” in 1951, in which “99 percent” supported an “independent” Nagaland.
  • Post-independence:
    • On March 22, 1952, the underground Naga Federal Government (NFG) and the Naga Federal Army (NFA) were formed. The Government of India sent in the Army to crush the insurgency and, in 1958, enacted the Armed Forces (Special Powers) Act.
• When did the NSCN come into being?
  • A group of about 140 members led by Thuingaleng Muivah, who were at that time in China, refused to accept the Shillong Accord and formed the National Socialist Council of Nagaland in 1980.
  • As per the accord, NNC and NFG agreed to give up arms.
  • In 1988, the NSCN split into NSCN (IM) and NSCN (K) after a violent crash.

Naga Peace Accord

• Context:
  • The National Socialist Council of Nagaland and the seven Naga National Political Groups (NNPGs) that are in talks with the Governments of India for signing the final peace deal have not been invited to the meeting.
• Naga Peace Talk:
  • The Naga PeaceTalk refers to talks undertaken between the Indian Government and the various stakeholders in Nagaland to resolve decades-old disputes.
  • One of the main demands of the Naga group has been a Greater Nagalim that would cover not only the state of Nagaland but parts of neighbouring states (parts of Manipur, Assam, Arunachal Pradesh), and even of Myanmar.
  • The incumbent government and the National Socialist Council of Nagalim had signed a Naga Peace Accord in August 2015 which was claimed a historic achievement at that time. But a final accord has remained elusive since then.
• Naga Peace Accord:
  • Does not change the boundary of states.
  • Provides autonomous Naga territorial councils for Arunachal and Manipur
  • A common cultural body for Naga Across states
  • The removal of the Armed Forces Special Powers Act.

Freeze Assam ST list for good, says Tribal Body

• Context:
  • An Umbrella organisation of tribal bodies have advised the Assam Government to freeze the list of Scheduled Tribes (Plains) “for good” and satisfy six communities demanding tribal status in a way that does not infringe up the rights of existing tribes.
  • The six communities are Chutia, Koch-Rajbongshi, Matak, Moran, Tai-Ahom and 'Tea Tribes'.
• Constitutional Provisions:
  • The Scheduled Tribes are officially disadvantaged groups of historically disadvantaged people in India.
  • India can be proudly called the largest TRIBAL population in the world.
  • Article 46 of the Constitution provides that the State shall promote with special care the educational and economic interests of the weaker sections of the society and in particular, of the Scheduled Castes and Scheduled Tribes and shall protect them from social injustice and all forms of exploitation.
  • Article 243D provides reservation of seats in Scheduled Tribes in Panchayats.
  • Article 330 provides reservation of seats for Scheduled Tribes in the House of the People.
  • Article 332 provides reservation of seats for Scheduled Tribes in the Legislative Assembly of the States.

Bodo land territorial council

• Context:
  • The BJP is eyeing the Bodoland Territorial Council (BTC) where elections, deferred due to the COVID -19 pandemic, are expected to be held in December.
• Bodos:
  • Bodos are the single largest tribal community in Assam. They have controlled large parts of Assam in the past.
  • Bodos are part of Bodo-kachari and constitute about 5-6% of Assam's population.
• Bodoland Territorial Council:
  • The Bodo Territorial Council (BTC) is an autonomous district council for the Bodoland Territorial Region in India.
  • The BTC has 40 elected members and an additional six members that are appointed by the Governor of Assam.
  • The area under the BTC jurisdiction is officially called the Bodoland Territorial Region (BTR).
  • The BTR consists of four districts-Kokrajhar, Baksa, Udalguri and Chirang- carved out of seven existing districts – comprising various protected tribal belts and blocks in Assam.

Settlement of Bru tribals

• Context:
  • Parts of North Tripura have witnessed violent protests recently over the proposed resettlement of Bru tribals.
• About:
  • In 1997, 37,000 people of the Bru (or Reang) tribe fled to Tripura from Mizoram, on account of ethnic clashes there.
  • Since then, 5,000 have returned to Mizoram while 32,000 remain in camps in Tripura.
  • In January this year, an agreement was signed by the Centre, the two-state governments and Bru representatives to allow the remaining 32,000 to permanently settle in the state.
  • This led to protests from Bengali and Mizo groups in Tripura.
  • They claim that settling thousands of migrants permanently would lead to demographic imbalance, exert pressure on local resources and potentially lead to law and order problems.
• Who are the Brus?
  • They are a community indigenous to the Northeast, living mostly in Tripura, Mizoram, and Assam.
  • In Tripura, they are recognised as a Particularly Vulnerable Tribal Group.

Bengal Eastern Frontier Regulation (BEFR) of 1873

• Context: 
  • Assam is at the centre of a fresh inter state border row in the Northeastern Region. The Mizoram Government has sought the revision of the boundary with Assam, based on the Bengal Eastern Frontier Regulation (BEFR) of 1873 and the inner line of the Lushai Hills Notification of 1993.
• Border dispute:
  • Mizoram shares a 123 km border with Southern Assam and has been claiming a 509 square mile stretch “occupied” by the neighbouring state.
  • Mizoram used to be the Lushai Hills district of Assam before being made a Union Territory in 1972 and a state in 1987.
  • Both states have been disputing an extensive stretch of this boundary.
• Bengal Eastern Frontier Regulation (BEFR) of 1873:
  • The Inner Line Regulations, commonly referred to as the Inner Line Permit system (ILP), first gained legal effect through the Bengal Eastern Frontier Regulation, 1873.
  • At present, the BEFR continues to apply, but only in present-day Arunachal Pradesh, Nagaland and Mizoram.
  • It has been lifted in the whole Assam, as well as the entirety of present-day Meghalaya.
  • The effect of this regulation was to restrict the entry of persons who were non-native to the areas covered under it.

NO SEPARATE FLAG FOR NAGALAND

• Context:
  • The Centre has ruled out a separate flag and Constitution for the Nagas as demanded by the NSCN-IM and made it clear that the endless negotiations with the insurgent group under the shadow of guns are not acceptable.
• About:
  • State and Union Territory Flags and Constitutions and Emblems:
    • At present, there are no officially recognized flags for individual states in India.
    • The state of Jammu and Kashmir had a separate constitution and an officially recognized state flag between 1952 and 2019 under the special status granted to the state by Article 370 of the Constitution of India. With the annulment of the special status, the separate flag and the Constitution of Jammu and Kashmir cease to exist.
    • State flags have been proposed for Tamilnadu(1970) and Karnataka (2018).
  • The legality of having a State Flag and Constitution:
    • There is no prohibition under the Constitution to hoist any flag other than the national flag.
    • Parliament has framed legislation regulating the hoisting of the national flag. 
    • Under The Prevention of Insults to National Honour Act, 1971, there is no prohibition against any State hoisting its own flag. What is prohibited under this Act is insulting the national flag by burning it, mutilating it, defacing it, etc.
    • Even the Flag Code of India, 2002 does not impose prohibitions on a State flag.  The Code expressly authorizes the flying of other flags under the condition that they should not be hoisted from the same masthead as the national flag or placed higher than it. By implication, the Code provides space for a State flag as long as it does not offend the dignity and honor of the national flag. 
    • There is one single constitution for the whole of India. Unlike the USA, the states of India don't have a separate constitution.
  • Reasons for demanding a separate flag for states:
    • In India, State boundaries are demarcated mostly on the basis of linguistic homogeneity.
    • This has naturally generated aspirations in the States for promoting their own languages and cultures. It is, therefore, natural for them to have symbols to recognize, protect, and promote their own languages and cultures. A flag serves this purpose better than any other symbol.

Statehood Day of Sikkim

• Context: Prime Minister recently wished the people of Sikkim a happy Statehood Day.

More about Sikkim:

• Till 1947, Sikkim was an Indian princely state ruled by Chogyal. In 1947, after the lapse of British paramountcy, Sikkim became a ‘protectorate’ of India, whereby the Indian Government assumed responsibility for the defense, external affairs, and communications of Sikkim. 
• In 1974, Sikkim expressed its desire for greater association with India. Accordingly, the 35th Constitutional Amendment Act (1974) was enacted by the parliament. 
• This amendment introduced a new class of statehood under the constitution by conferring on Sikkim the status of an ‘associate state’ of the Indian Union. 
• For this purpose, a new Article 2A and a new schedule (Tenth Schedule containing the terms and conditions of association) were inserted in the Constitution. This experiment, however, did not last long as it could not fully satisfy the aspirations of the people of Sikkim. 
• In a referendum held in 1975, they voted for the abolition of the institution of Chogyal and Sikkim becoming an integral part of India. 
• Consequently, the 36th Constitutional Amendment Act (1975) was enacted to make Sikkim a full-fledged state of the Indian Union (the 22nd state). This amendment amended the First and the Fourth Schedules to the Constitution and added a new Article 371-F to provide for certain special provisions with respect to the administration of Sikkim. 
• It also repealed Article 2A and the Tenth Schedule that were added by the 35th Amendment Act of 1974.

More about Article 371-F:

• The Sikkim Legislative Assembly is to consists of not less than 30 members.
• One seat is allotted to Sikkim in the Lok Sabha and Sikkim forms one Parliamentary constituency. 
• For the purpose of protecting the rights and interests of the different sections of the Sikkim population, the Parliament is empowered to provide for the: 
• number of seats in the Sikkim Legislative Assembly which may be filled by candidates belonging to such sections; and 
• delimitation of the Assembly constituencies from which candidates belonging to such sections alone may stand for election to the Assembly.
• The Governor shall have special responsibility for peace and for an equitable arrangement for ensuring the social and economic advancement of the different sections of the Sikkim population. 
• In the discharge of this responsibility, the Governor shall act in his discretion, subject to the directions issued by the President.
• The President can extend (with restrictions or modifications) to Sikkim any law which is in force in a state of the Indian Union.

Inner Line Permit

• Context:
  • On 11th December 2020, the President signed the order extending ILP to Manipur, which became the fourth state where the ILP regime is applicable.
• About:
  • ILP: 
    • Implemented under the Bengal Eastern Frontier Regulation (BEFR) 1873, the ILP is an official travel document that allows inward travel of an Indian citizen into a protected/restricted area for a limited period.
    • This Act was enacted during the British era to protect the Crown's commercial interests by preventing 'British subjects' (Indians) from trading within these regions.
    • In 1950, the Indian government replaced British subjects with citizens of India.
    • An imaginary line known as the inner line was created to divide between the two communities so that neither party could go beyond the line without a permit from the appropriate authorities.
    • Under Section 2 of the Regulation of 1873, the ILP was previously, only applicable to the three North-Eastern States viz. Mizoram, Arunachal Pradesh, and Nagaland.
    • It is a special permit obligatorily required by “outsiders” from other regions of the country to enter the notified states.
    • It is issued by the concerned State Government and can be issued for travel purposes solely.

Domicile-based job quota

• Context:
  • The Madhya Pradesh government’s recent decision to reserve all government jobs for “children of the state” raises questions relating to the fundamental right to equality.
• What’s the issue now?
  • Reservation solely based on place of birth would raise constitutional questions.
• What does the Constitution say?
  • Article 16 of the Constitution, which guarantees equal treatment under the law in matters of public employment, prohibits the state from discriminating on grounds of place of birth or residence.
  • Article 16(2) states that “no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State”. The provision is supplemented by the other clauses in the Constitution that guarantee equality.
• Enabling provisions:
  • However, Article 16(3) of the Constitution provides an exception by saying that Parliament may make a law “prescribing” a requirement of residence for jobs in a particular state. This power vests solely in the Parliament, not state legislatures.
• Why does the Constitution prohibit reservations based on domicile?
  • When the Constitution came into force, India turned itself into one nation from a geographical unit of individual principalities and the idea of the universality of Indian citizenship took root.
  • As India has common citizenship, which gives citizens the liberty to move around freely in any part of the country, the requirement of a place of birth or residence cannot be a qualification for granting public employment in any state.
• What has the Supreme Court said about reserving jobs for locals?
  • The Supreme Court has ruled against reservation based on place of birth or residence.
    1. In 1984, ruling in Dr Pradeep Jain v Union of India, the issue of legislation for “sons of the soil” was discussed. The court expressed an opinion that such policies would be unconstitutional but did not expressly rule on it as the case was on different aspects of the right to equality.
    2. In a subsequent ruling in Sunanda Reddy v State of Andhra Pradesh (1995), the Supreme Court affirmed the observation in Pradeep Jain to strike down a state government policy that gave 5% extra weightage to candidates who had studied with Telugu as the medium of instruction.
    3. In 2002, the Supreme Court invalidated the appointment of government teachers in Rajasthan in which the state selection board gave preference to “applicants belonging to the district or the rural areas of the district concerned”.
    4. In 2019, the Allahabad High Court struck down a recruitment notification by the UP Subordinate Service Selection Commission prescribed preference for women who are “original residents” of the UP alone.
• How do some states then have laws that reserve jobs for locals?
  • Exercising the powers it has under Article 16(3), Parliament enacted the Public Employment (Requirement as to Residence) Act, aimed at abolishing all existing residence requirements in the states and enacting exceptions only in the case of the special instances of Andhra Pradesh, Manipur, Tripura, and Himachal Pradesh.
  • Constitutionally, some states also have special protections under Article 371.
  • Andhra Pradesh under Section 371(d) has powers to have “direct recruitment of local cadre” in specified areas.
  • In Uttarakhand, class III and class IV jobs are reserved for locals.
  • Some states have gone around the mandate of Article 16(2) by using language.
  • States that conduct official business in their regional languages prescribe knowledge of the language as a criterion. This ensures that local citizens are preferred for jobs. For example, states including Maharashtra, West Bengal, and Tamil Nadu require a language test.

Official Languages Act for good governance: CJI

• Context:
  • Chief Justice of India Sharad A. Bobde has said that the government should consider amending the Official Languages Act of 1963 to include more vernacular languages in governance, and not just confine it to Hindi and in English.
• Background:
  • The court was hearing an appeal filed by the Union of India challenging the legality of a Delhi High Court the judgment of June 30 to translate the draft Environment Impact Assessment (EIA) notification of 2020 into all 22 vernacular languages in the Eighth Schedule of the Constitution.
• What does the Constitution say?
  • Article 348 (1) of the Constitution of India provides that all proceedings in the Supreme Court and in every High court shall be in the English Language until Parliament by law otherwise provides.
  • Under Article 348 (2), the Governor of the State may, with the previous consent of the President, authorize the use of the Hindi language or any other language used for any official purpose of the State, in the proceedings of the High Court having its principal seat in that State provided that decrees, judgments or orders passed by such High Courts shall be in English.
• Other legal provisions:
  • Section 7 of the Official Languages Act, 1963, provides that the use of Hindi or the official language of a State in addition to the English language may be authorized, with the consent of the President of India, by the Governor of the State for purpose of judgments, etc. made by the High Court for that State.

Power of states under the Disaster Management Act to override UGC

• Context:
  • The Supreme Court has held that States are empowered under the Disaster Management Act to override the University Grants Commission (UGC) exam guidelines in order to protect human lives amid the COVID-19 pandemic.
• What’s the issue?
  • UGC had on July 6 issued guidelines based on the recommendations of the R.C. Kuhad Expert Committee.
  • They provided three modes of examination – pen and paper, online and blended (both physical and online).
  • A “special chance” was also given to students unable to take the exams.
  • Following this, a batch of petitions was filed in the court against the direction to hold exams as per the UGC guidelines.
  • The petitioners also contended that the revised guidelines violate Article 14 on two counts — by fixing a date for the completion of exams for the entire country irrespective of the situation in different parts and discriminating between final and first/second-year students.
• The judgment:
  • Universities and other institutions of higher education will have to conduct the final-year exams and “cannot” promote students on the basis of internal assessment or other criteria.
  • However, states and Union Territories, which may have postponed the exams in view of the COVID outbreak, can approach the University Grants Commission (UGC) for an extension of the September 30 deadline.
• Powers of states under the DM Act:
  • In case of a disaster, the priority of all authorities under the Disaster Management Act, 2005 is to immediately combat the disaster and contain it to save human life.
  • Therefore, under the DM Act, states can countermand the revised UGC guidelines of July 6 to conduct the final year and terminal semester examinations by September 30.
  • However, the powers of the States under the Disaster Management Act do not extend to promoting students on the sole basis of their internal assessment without taking exams.
• Do these guidelines discriminate against final year students?
  • The court said the July 6 guidelines did not discriminate against final year students by compelling them to take exams while their juniors were promoted on their internal assessment marks.
  • The final year exam is an opportunity for a student to show his optimum calibre. It paves his future career both in academics and employment.
• What next?
  • In future, if any State found it impossible to conduct the exams by September 30 and wanted to postpone them, it could apply to the UGC, which would consider the request and decide at the earliest, the court directed.
• The relevance of the DM Act in this pandemic:
  • Under the Act, the States and district authorities can frame their own rules on the basis of broad guidelines issued by the Home Ministry.
    1. The legal basis of the DM Act, is Entry 23, Concurrent List of the Constitution “Social security and social insurance”.
    2. Entry 29, Concurrent List “Prevention of the extension from one State to another of infectious or contagious diseases or pests affecting men, animals or plants,” can also be used for specific lawmaking.
• About the Disaster Management Act, 2005:
  • The stated object and purpose of the DM Act is to manage disasters, including the preparation of mitigation strategies, capacity-building, and more.
  • It came into force in India in January 2006.
  • The Act provides for “the effective management of disasters and for matters connected therewith or incidental thereto.”
  • The Act calls for the establishment of the National Disaster Management Authority (NDMA), with the Prime Minister of India as chairperson.
  • The Act enjoins the Central Government to Constitute a National Executive Committee (NEC) to assist the National Authority.
  • All-State Governments are mandated to establish a State Disaster Management Authority (SDMA).
• How does DMA empower the governments?
  1. The law authorises the NDMA’s chairperson, the Prime Minister, to take decisions to deal with the pandemic, including deciding on relief for victims and special measures for the needy.
  2. The state chief minister may also invoke special powers under the law for dealing with the pandemic.

Governance

National Population Register (NPR)

• Context:
  • The first phase of the Census and the exercise to update the National Population Register (NPR), scheduled for this year but deferred due to the coronavirus outbreak, may be delayed by a year as there is no sign of the slowdown of the pandemic.
• What is the National Population Register (NPR)?
  • It is a Register of usual residents of the country.
  • It is being prepared at the local (Village/sub-Town), sub-District, District, State, and National level under provisions of the Citizenship Act 1955 and the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003.
  • It is mandatory for every usual resident of India to register in the NPR.
• Objectives:
  • To create a comprehensive identity database of every usual resident in the country.
• Who is a usual resident?
  • A usual resident is defined for the purposes of NPR as a person who has resided in a local area for the past 6 months or more or a person who intends to reside in that area for the next 6 months or more.
• What is the controversy around it?
  1. Comes in the backdrop of the NRC excluding lakhs of people in Assam.
  2. It intends to collect a much larger amount of personal data on residents of India.
  3. There is yet no clarity on the mechanism for the protection of this vast amount of data.

States Told To Update Census Register

• Context:
  • The Registrar General of India (RGI), which is responsible for carrying out the decennial census exercise, has communicated to all state coordinators to update the names of area, locality, colony, building in the “charge register”.
  • The charge register is an important census document that will help enumerators to collect details during the first phase of Census-House Listing and Housing Census and the National Population Register (NPR).
• About:
  • The census exercise was suspended indefinitely owing to the COVID-19 pandemic. The communication from RGI may be an indication that the census exercise may take off in the near future.
  • The charge register gives a picture of the structure of workflow, delegation, and distribution of work among enumerators.
  • It also marks the House Listing Blocks (HLB) to be visited by each official.
  • Each HLB is a primary unit of collection of data.
  • The register will also be used for the fieldwork with respect to the updating of NPR, as the same functionaries will be deployed for both exercises.
• National Population Register:
  • The NPR is a register of the usual residents of the country. It is prepared at the local (village and sub-town), sub-district, district, state, and national levels under provisions of the Citizenship Act, 1955 and the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003.
  • NPR was first collected in 2010 and then updated in 2015.

Jammu and Kashmir Integrated Grievance Redress and Monitoring System (JK-IGRAMS)

• Context:
  • Launched recently.
• About:
  • Launched on a pilot basis for Jammu, Srinagar, and Reasi districts.
  • The system will replace the current portal launched by the government in 2018.
  • This is the first UT that will be linked to the central government system—CPGRAMS.
• The mechanism:
  • Deputy Commissioners have been placed at the primary level for receiving, disposing of, and monitoring grievances, the J&K administration.
  • All SPs and DCs will be made available at designated times five days a week. They will be available in their offices and anyone can go and meet them.
• Significance:
  • The move comes at a time when a sense of disconnection and alienation has been growing among the people, especially in the Kashmir Valley, which has remained on edge ever since J&K’s special status was revoked last year.

Centralized Public Grievance Redress and Monitoring System (CPGRAMS)

• About:
  • Developed by the National Informatics Centre (Ministry of Electronics & IT [MeitY]), in association with the Directorate of Public Grievances (DPG) and Department of Administrative Reforms and Public Grievances (DARPG).
  • The underlying idea was to receive, redress, and monitor the grievances of the public.
  • Launched by the Department of Administrative Reforms & Public Grievances (DARPG) under the Ministry of Personnel, Public Grievances & Pensions.
• Key features:
  • The CPGRAMS provides the facility to lodge a grievance online from any geographical location.
  • It enables the citizen to track online the grievance being followed up with Departments concerned and also enables DARPG to monitor the grievance.
  • The procedure includes designating a senior officer as the Director of Grievances/Grievance officer in every office to ensure that the system remains accessible, simple, quick, fair, and responsive, and fixing the time limit for disposal of work relating to public grievances and staff grievances.

Mission Karmayogi- National Programme for Civil Services Capacity Building (NPCSCB)

• Context:
  • The Union Cabinet has approved the Mission Karmayogi – National Programme for Civil Services Capacity Building (NPCSCB).
• About Mission Karmayogi:
  • It is a nationwide programme to lay the foundation for capacity building of civil servants so that they remain entrenched in Indian Culture while they learn the best practices across the world.
• Aim:
  • To prepare Indian civil servants for the future by making them more creative, constructive, imaginative, proactive, innovative, progressive, professional, energetic, transparent, and technology-enabled.
• How will Mission Karmayogi unfold?
  • iGOT Karmayogi: The mission will be delivered by the Integrated Government Online TrainingiGOT Karmayogi Platform. It will act as a launchpad to enable a comprehensive reform of the capacity building apparatus at the individual, institutional, and process levels.
  • Human Resources Council: It will be set up under the Chairmanship of the Prime Minister comprising select Union Ministers, Chief Ministers who will provide strategic direction to the task of Civil Services Reform and capacity building.
  • Coordination Unit: It will be headed by a Cabinet Secretary consisting of select secretaries and cadre controlling authorities.
  • Capacity Building Commission: It will include experts in related fields and global professionals.
    • This commission will prepare and monitor annual capacity building plans and audit human resources available in the government.
  • Special Purpose Vehicle (SPV): It will be a “not-for-profit” company under Section 8 of the Companies Act, 2013. It will own and manage the iGOT-Karmayogi platform to create and operationalise the content, marketplace, and manage key business services of iGOT platform.
  • Funding: To cover around 46 lakh, central employees, a sum of Rs 510 crore will be spent over a period of 5 years from 2020-21 to 2024-25. The expenditure is partly funded by multilateral assistance to the tune of $50 million.

Aadhar and Public distribution system (PDS)

• Context:
  • The Supreme Court recently asked the Centre to respond to allegations made in a PIL by a Dalit woman from Jharkhand that 3 crore ration cards have been canceled in the country because of the insistence on Aadhaar linkage and biometric authentication
• Arguments in favor of Aadhar-PDS linkage:
  • The main policy rationale for requiring Aadhaar to access benefits is to reduce leakage and corruption, and advocates have claimed large fiscal savings from doing so. 
  • The PDS has historically suffered from high rates of leakage (often exceeding 50%) as grains are diverted to the open market.
  • Starting in 2015, the government began rolling out electronic Point-of-Sale (ePOS) devices at fair-price ration shops (FPS) and requiring that beneficiaries use the Aadhaar-based biometric authentication (ABBA) to collect their benefits.
  • Subsequently, states began using the historical authenticated transaction data from ePOS devices to determine monthly grain disbursals.
• Criticisms:
  • Critics worry that this requirement will lead to an increase in exclusion errors, denying genuine beneficiaries their entitlements
  • Ever since Aadhaar-based biometric authentication was introduced in PDS, there have been numerous reports about:
    • People’s fingerprints not getting confirmed by the e-PoS device at the ration shop
    • Iris scanners not being there as a backup
    • Poor Internet connection

International Covenant on Civil and Political Rights

• Context:
  • The International Commission of Jurists (ICJ) has said civil rights lawyer Prashant Bhushan’s conviction for criminal contempt of court by the Supreme Court seemed to be inconsistent with the freedom of expression law guaranteed by the International Covenant on Civil and Political Rights that India was a party to.
• What is the International Commission of Jurists (ICJ)?
  • It is an international human rights non-governmental organization.
  • Composition: It is a standing group of 60 eminent jurists—including senior judges, attorneys, and academics.
  • Functions: To develop national and international human rights standards through the law.
  • Headquarters: Geneva, Switzerland.
• What has the ICJ said on Prashant Bhushan’s case?
  • The conviction appears to be inconsistent with international standards on freedom of expression and the role of lawyers.
  • The judgment risked having a “chilling effect on the exercise of protected freedom of expression in India”.
  • While some restrictions of freedom of expression are permitted by international standards, a particularly wide scope must be preserved for debate and discussion about such matters as the role of the judiciary, access to justice, and democracy, by members of the public, including through public commentary on the courts.
• What is International Covenant on Civil and Political Rights?
  • It is a multilateral treaty adopted by the United Nations General Assembly (UNGA).
  • Monitored by the United Nations Human Rights Committee.
  • The covenant commits its parties to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights, and rights to due process and a fair trial.
  • The ICCPR is part of the International Bill of Human Rights, along with the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Universal Declaration of Human Rights (UDHR).
  • It became effective in 1976. Article 49 allowed that the covenant would enter into force three months after the date of the deposit of the thirty-fifth instrument of ratification or accession.
  • India is a party to this treaty.

Committee on Content Regulation in Government Advertising (CCRGA)

• Context:
  • The 19th meeting of the Supreme Court-mandated Committee on Content Regulation in Government Advertising (CCRGA) was held recently.
• What is CCRGA? When was it set up?
  • As per the directions of the Supreme Court in 2015, the Government of India had set up a three-member body in 2016 to look into content regulation of government-funded advertisements in all media platforms.
  • As per directions of the Hon’ble Supreme Court, states are mandated to set up their respective three-member committees on the Content Regulation of Government Advertisements.
  • Karnataka, Goa, Mizoram, and the Nagaland States have already constituted state-level Three Member Committees.
• What are its powers?
  • It is empowered to address complaints from the general public and can also take suo-moto cognizance of any violation of the Supreme Court guidelines and recommend corrective actions.
  • The Committee may, if necessary, also decide to summon the concerned official of the Govt. agencies dealing with the release of advertisements in the event of undue delay in responding to the Committee’s notices.
• Supreme Court Guidelines:
  • The content of government advertisements should be relevant to the government’s constitutional and legal obligations as well as the citizen’s rights and entitlements.
  • The advertisement materials should be designed to meet the objectives of the campaign and to ensure maximum reach in a cost-effective way.
  • It should be accurate and not presenting pre-existing policies and products as new. The advertisement content should also not promote the political interests of the ruling party.

GovTech- Thon

• Context:
  • Ministry of Electronics and Information Technology (MeitY), National Informatics Centre (NIC), IEEE Computer Society, and Oracle have come together to announce Gov Tech-Thon 2020, to incubate new ideas, boost innovation and use technology in agriculture and allied sectors.
  • It will help increase the use of technology, reduce the digital divide in agriculture, transportation, and education, and will help in delivering better governance.
  • Gov Tech-Thon 2020, a pan India 36 hours virtual Hackathon, to be organised from 30 October to 1st November 2020. The Hackathon will be facilitated by IEEE.
  • The virtual hackathon is open to students, working professionals, startups, freelance technologists, faculty, and other IT service firms in India. During the hackathon, participants will receive mentorship and advice from technical experts from NIC, IEEE, and Oracle, as well as senior domain experts from the Ministries of Agriculture, Education, and Transport Departments.
  • Participating teams will have access to the latest tools from Oracle, Oracle Autonomous Database, built-in and easy-to-use cloud security, and compute – to help them develop prototypes that are practical and scalable.
  • Additionally, they will be able to leverage open source technologies that bring benefits of high performance, reliability, and data security.
• About the National Informatics Centre (NIC):
  • National Informatics Centre (NIC) is the attached office of the Ministry of Electronics and Information Technology (MeitY). NIC was established in 1976 and helps to provide ICT and e-Governance support.
  • It has emerged as a promoter of digital opportunities for sustainable development. NIC spearheaded “Informatics-Led-Development” by implementing ICT applications in social and public administration and facilitates electronic delivery of services to the government (G2G), business (G2B), citizen (G2C), and government employee (G2E). NIC, through its ICT Network, “NICNET”, has institutional linkages with all the Ministries /Departments of the Central Government, 37 State Governments/ Union Territories, and about 720+ District Administrations of India.
  • NIC has been closely associated with the Government in different aspects of Governance besides establishing a Nationwide State-of-the-Art ICT Infrastructure, it has also built a large number of digital solutions to support the government at various levels, making the last-mile delivery of government services to the citizens.
• About the IEEE Computer Society:
  • IEEE is the world’s largest technical professional organization dedicated to advancing technology for the benefit of humanity. IEEE and its members inspire a global community to innovate for a better tomorrow through its more than 419,000 members in over 160 countries.
  • The IEEE Computer Society is the source of information, inspiration, and collaboration in computer science and engineering. Connecting members worldwide, the Computer Society empowers the people who advance technology by delivering tools for individuals at all stages of their professional careers.
• About Oracle
  • The Oracle Cloud offers a complete suite of integrated applications for Sales, Service, Marketing, Human Resources, Finance, Supply Chain, and Manufacturing, plus Highly Automated and Secure Generation 2 Infrastructure featuring the Oracle Autonomous Database.

National Program And Project Management Policy Framework

• Context:
  • Recently, NITI Aayog and Quality Council of India (QCI) launched the National Program and Project Management Policy Framework (NPMPF).
• About NPMPF:
  • It provides an action plan to:
    • Adopt a program and project management approach to infra development.
    • Institutionalize and promote the profession of program and project management and build a workforce of such professionals.
    • Enhance institutional capacity and capability of professionals
    • It envisages radical reforms in the way infrastructure projects are executed in India.
    • It will help in developing good quality infrastructure, robust governance, and reducing costs and waste material, without compromising on the environment and ecology.
• Why needed?
  • Poor project management costs the Government: Crowds out funding for more deserving projects, creates a culture of acceptance of delays and avoidable costs, economic burden due to delayed return in investments.
• An effective response to changing project requirements:
  • It will bring in synergies, integration, and a common language to complex program initiatives like Sagarmala, Bharatmala, Smart Cities Mission etc.
  • It is estimated that approx. 304 lakh crore of investment is required in the Indian infrastructure sector till 2040.
  • To minimize time and cost overrun due to some key challenges faced during project delivery including uncertainties in the land acquisition process and regulatory approvals, lack of comprehensive upfront planning and risk management, etc.
  • It will provide a coherent execution approach that forms a crucial link between the portfolios of projects and their component strategic disciplines to ensure smooth execution of the projects.
• Program and Project Management:
  • It integrates the individual elements of a project in order to achieve a common objective.
  • It is cross-functional in its approach, managing across various disciplines of constituent projects such as engineering, designing, planning, procurement, construction, and finance as well as various components like power, water, highways, waste management, etc.
  • Program Management is strategic in nature, while project management is tactical in nature.
  • Program Management focuses on the achievement of intended objectives through the coordination of multiple projects. Project management focuses on tactics of planning and execution of work output.

National Crisis Management Committee

• Context:
  • Recently, Cabinet Secretary chaired National Crisis Management Committee meeting to review the status of the cyclone.
• About:
  • It is set up for effective coordination and implementation of relief measures and operations in the wake of natural calamities.
  • Cabinet Secretary is its Chairman.
  • Other members: Secretaries of all the concerned Ministries /Departments as well as organizations are the members of the Committee.
• Key functions:
  • Oversee the Command, Control and Coordination of the disaster response;
  • Give direction to the Crisis Management Group (CMG) as deemed necessary.

Enforcement Directorate

• Context: 
  • The Enforcement Directorate (ED) had recently issued orders for the attachment of several properties belonging to former Jammu and Kashmir Chief Minister Dr Farooq Abdullah in connection with its investigation into alleged money laundering in the Jammu and Kashmir Cricket Association case.
• About:
  • Provisional attachment orders issued by the ED do not lead to immediate sealing of a property.
  • The ED order would be valid for 180 days, during which time it must be confirmed by the Adjudicating Authority under the Prevention of Money Laundering Act (PMLA).
  • If it is not confirmed, the property would be automatically released from the attachment. And if it is, the accused can challenge the confirmation in the Appellate Tribunal within 45 days, and subsequently in the concerned High Court and the Supreme Court.
  • Purpose of attachment:
    • The purpose of attachment is to deprive an accused of the benefits of the attached asset. The law also provides for the property to remain out of bounds for the accused until the trial is complete.
    • However, properties that are in use are generally not sealed until the case reaches its logical conclusion. Usually, the accused secures release of the property in appellate tribunals or High Courts or is able to get a stay and continue to enjoy it while the matter remains pending in the courts.
    • Also, running businesses are not shut down. Therefore, a running hotel can, for example, be attached under the PMLA, and still continue its business.
  • Prevention of Money Laundering Act (PMLA):
    • Under PMLA, proceeds of crime — money generated out of criminal activity — is attached to the directions of the ED Director. However, if that wealth is not available, the agency can attach property equivalent to that value.
    • The PMLA defines “proceeds of crime” as “any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property, or where such property is taken or held outside the country, then the property equivalent in value held within the country or abroad”.
    • While the idea of attachment of property equivalent to proceeds of crime has been contested, various court orders in the past have ruled in favour of ED’s interpretation of the term “the value of any such property” to mean that the agency can attach any property of equivalent value with the accused.
    • The law also has a provision for the attachment of local property of equivalent value if investigations reveal that the accused has parked proceeds of crime abroad, and the same cannot be attached there.

New rule for social media and OTT platform

• Context:
  • For the first time, the government, under the ambit of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, has brought in detailed guidelines for digital content on both digital media and Over The Top (OTT) platforms.
• Guidelines implication:
  • The guidelines also make it mandatory for platforms such as Twitter and WhatsApp to identify the originator of a message that authorities consider to be anti-national and against the security and sovereignty of the country.
  • The rules about digital media and OTT focus more on in-house and self-regulation mechanisms whereby a robust grievance redressal mechanism has been provided while upholding journalistic and creative freedom.
• Salient features:

  
  

• New rules for social media, Social media norms:  To be administered by IT Ministry
  • Intermediaries will have to remove content containing nudity, sexual act or impersonation including morphed images, within 24 hours of receipt of complaints.
  • Intermediaries will have to appoint a grievance officer to deal with complaints, and this office has to acknowledge the complaint within 24 hours and resolve it within 15 days of receiving the complaint.
  • An intermediary, after receiving court or government order, should not host or publish any information that is prohibited in relation to the interest of the sovereignty of India and public order.
  • Two categories of social media intermediaries have been classified on the basis of user numbers:
  • Social media intermediaries and
  • Significant social media intermediaries.
  • User threshold for determining significant social media intermediaries to be announced soon.
  • Additional due diligence is mandated for significant social media intermediaries.
• The significant social media intermediaries have to follow few additional measures like:
  • Significant social media intermediaries will have to appoint a chief compliance officer, a nodal contact person, and a resident grievance officer. All three officials will have to reside in India.
  • Significant social media intermediaries to publish a monthly compliance report on complaints received, action taken, and content removed proactively.
  • Significant social media intermediary will need to have a physical contact address in India published on its website or mobile app or both.
• Messaging platforms asked to enable identification of the “first originator” of the information that undermines the sovereignty of India, security of the state, or public order. The intermediary will not be required to disclose the content of the message.
• Users who want to get their accounts verified voluntarily should be provided with the mechanism to do so.
• In case a social media platform removes content on its own, it will have to provide prior intimation for the same to the user and explain reasons for such action.
• Users to be given the opportunity to dispute the action taken by the intermediary.
• OTT and Digital Media norms: To be administered by Information and Broadcasting Ministry:
  • Code of Ethics prescribed for OTT platforms, online news, and digital media entities.
  • OTT platforms to self-classify content into five age-based categories- U (Universal), U/A 7, U/A 13, U/A 16, and A (Adult).
  • Platforms need to implement parental locks for content classified as U/A 13 or higher and deploy reliable age verification mechanisms for content classified as A.
  • The publisher of online curated content will have to prominently display the classification rating specific to each program together along with a content descriptor.
  • This will enable users to make an informed decision before watching the program.
  • Publishers of news on digital media would be required to observe Norms of Journalistic Conduct of the Press Council of India, and the Programme Code under the Cable TV Networks Regulation Act to ensure a level playing field between offline and digital media.
  • A three-level grievance redressal mechanism has been established with different levels of self-regulation under the rules. These are:
  • Self-regulation by the publishers;
  • Self-regulation by the self-regulating bodies of the publishers; and
  • Oversight mechanism.
  • The publisher shall appoint a grievance redressal officer based in India, who will have to take a decision on complaints within 15 days.
  • There may be one or more self-regulatory bodies of publishers. Such a body will have to be headed by a retired judge of the Supreme Court, a High Court or independent eminent person and have not more than six members.
  • This body, which will have to register with the I&B Ministry, will oversee that the publisher adheres to the Code of Ethics and addresses those grievances not resolved within the stipulated timeframe.
  • I&B Ministry will formulate an oversight mechanism and publish a charter for self-regulating bodies, including Codes of Practices.
  • An inter-departmental committee will be established for hearing grievances.

Watsapp privacy policy violates IT rules

• Context:
  • The Ministry of Electronics and Information Technology has asked the Delhi High Court to step in and restrain WhatsApp from rolling out its new privacy policy.
• What is the policy about?
  • The controversy relates to WhatsApp’s decision in January 2021 to enforce a new privacy policy.
  • The policy will allow it to share some data about users’ interactions with business accounts with its parent company Facebook.
  • The users will not have an option but to consent to the sharing if they want to keep using the application.
  • The privacy policy also does not provide the opportunity to review or amend the full information submitted by a user.
• What is the reason for IT Ministry’s demand?
  • The IT Ministry cited several Supreme Court judgments.
  • The Supreme Court has placed a responsibility upon the Ministry to come out with a “regime on data protection and privacy.”
  • In effect, this would “limit the ability of entities” such as WhatsApp to issue “privacy policies which do not align with appropriate standards of security and data protection.”
  • Given this, WhatsApp must be stopped from rolling out the services.
  • Thus, in a counter-affidavit, the IT Ministry has listed five major violations of the current IT rules that the policy of WhatsApp, if rolled out, could entail.
• What are the violations listed by the IT Ministry?
  • WhatsApp failed to specify the type of sensitive data being collected by it.
  • This is a violation of Rule 4 (1) (ii) of the IT Rules of 2011.
  • It mandates a company to provide a privacy policy for handling of or dealing with personal information including sensitive personal data or information.
  • It also mandates specifying the types of sensitive data being collected.
  • The second violation is with respect to the collection of information.
  • Rule 5 (3) of the IT Rules says that any person or corporate collecting information shall notify the user if it is collecting any sensitive information.
  • It should also inform the purpose for which it is being collected, and the intended recipients of the said information.
  • Besides these, the policy has also failed to provide the user an option to review or amend the users’ information being collected by it.
  • The changes allowed to be made are limited to the name, picture, mobile number, and “about” information.
  • For the policy to be compliant with the recent IT Rules 2021, it must allow the users to exercise this option for all kinds of data collected by WhatsApp.
  • The policy also fails to provide users with an option to withdraw consent on data sharing retrospectively and fails to guarantee non-disclosure by third parties.
  • These again violate Rule 5 (7) and Rule 6 (4) of the IT Rules of 2011.

Censorship

Context: The Information and Broadcasting Ministry has proposed a new Cinematograph (Amendment) Bill, 2021. It allows the Union government to order a ‘re-examination’ of an already certified film if there are complaints against it.

What is censorship?

• The suppression or control of ideas, public communication, and information circulated within a society is termed censorship.
• The freedom of speech guaranteed by the Constitution of India can be suppressed if it is considered objectionable, harmful, or necessary to maintain communal harmony.

Current scenario:

• Even after 70 years after Independence, freedom of speech still occupies a fragile and tenuous place in the Republic.
• Censorship is prevalent in India because it is both simple and effective to implement.
• This is due to two allied reasons:
  • Firstly, the Indian legal system is set up in such a way that attaining censorship through the legal system is an almost costless endeavor for anyone willing to attempt.
  • Second, the only thing that could effectively offset this is a strong, judicial commitment to free expression, which does not exist at all levels of the judiciary.
• Together, these two elements create an environment in which the freedom of speech is in almost constant peril, with writers, artists, and publishers.

Cable Television Network Rules

• Context:
  • The Information and Broadcasting Ministry has amended the Cable Television Network Rules, 1994 regulating Cable TV networks, providing for a “statutory” mechanism for complaints raised by citizens regarding any content broadcast.
• Overview of Cable Television Networks (Amendment) Rules, 2021:
  • It provides for a three-level grievance redressal mechanism — self-regulation by broadcasters, self-regulation by the self-regulating bodies of the broadcasters, and oversight by an Inter-Departmental Committee at the level of the Union government.
• Procedure for grievance redressal:
  • A viewer can file a complaint directly to the broadcaster, who will have to respond within 15 days.
  • If the complainant is not satisfied with the response, the complaint can be escalated to the self-regulating bodies set up by TV channels, which should deal with the case in 60 days.
  • If the complainant is not satisfied with the decision of the self-regulating body, he may, within 15 days of such decision, prefer an appeal to the Central Government for its consideration under the Oversight Mechanism.
  • Such appeals will be dealt with by the Inter-Departmental Committee set up under the Oversight Mechanism.
• Composition of the committee:
  • The committee will be headed by the Additional Secretary in the Ministry of Information and Broadcasting, and have members from various ministries.
• Powers of the committee:
  • Recommend the Centre to advise, issue a warning, censure, admonish or reprimand a broadcaster, or seek an apology.
  • Ask the broadcaster to include a warning card or a disclaimer, or to delete or modify content, or take the channel or a programme off-air for a specified time period, where it is satisfied that such action is warranted.
• Present Grievance redressal mechanism:
  • At present, there is an institutional mechanism by way of an Inter-Ministerial Committee to address the grievances of citizens relating to the violation of the Programme/Advertising Codes under the Rules, but it does not have statutory backing.
• Significance of the new rules:
  • It paves the way “for a strong institutional system for redressing grievances.
  • It places accountability and responsibility on the broadcasters and their self-regulating bodies.
• About the Cable Television Networks (Regulation) Act, 1995:
  • The law prescribes imprisonment up to two years or fine up to ₹1,000 or both for the first offence, and imprisonment up to five years and with fine up to ₹5,000 if any media governed under the CTN Act violates the provisions and the “Programme Code”.
  • The code, which contains an elaborate list of don’ts for cable TV channels, states that no programme should be aired that contains anything obscene, defamatory, false, and suggests innuendos and half-truths.

Outlines of Migrant policy

• Context:
  • A NITI Aayog policy draft has proposed the contours of a national policy on migrant workers. 
• Background:
  • Spurred by the exodus of 10 million migrants (as per government estimates) from big cities during the Covid-19 lockdown, NITI Aayog, along with a working subgroup of officials and members of civil society, has prepared a draft national migrant labour policy.
• NITI Aayog’s Approaches
• There were two approaches put forward by NITI Aayog.
  • Handout Approach– This means usage of all the facilities provided by the Indian Government to migrants
  • Rights-based approach– This approach means the rights must be ensured in all states
• This policy would include the migrant into the political system too. 
• As per NITI Aayog, the Government's goal must be to provide a limited approach. This means 'Don't give the boy a fish, rather teach him fishing'.
• The Government must not provide permanent or social aids to migrant workers rather create opportunities for them.
• Migration must be acknowledged as a process and an integral part of development. Moreover, Government policies must be such that they do not hinder migration. 
• Specific recommendations
  • The draft asks the Ministries of Panchayati Raj, Rural Development, and Housing and Urban Affairs to use Tribal Affairs migration data to help create migration resource centres in high migration zones. It asks the Ministry of Skill Development and Entrepreneurship to focus on skill-building at these centers.
  • The Ministry of Education should take measures under the Right to Education Act to mainstream migrant children’s education, map migrant children, and provide local-language teachers in migrant destinations.
  • The Ministry of Housing and Urban Affairs should address issues of night shelters, short-stay homes, and seasonal accommodation for migrants in cities.
  • The National Legal Services Authority (NALSA) and Ministry of Labour should set up grievance handling cells and fast track legal responses for trafficking, minimum wage violations, and workplace abuses and accidents for migrant workers.

Election Commission Rolls Out Digital Voter Identity Card

• Context:
  • The Election Commission rolled out the electronic version of the voters' photo identity card which can be stored on mobile phones and downloaded on personal computers.
• About:
  • The e-voter card, available in PDF format which cannot be edited, can be self-printed and laminated by the voter when required.
  • With its formal launch electors in poll-bound West Bengal, Tamil Nadu, Assam, Kerala, and Puducherry can use e-voter cards on polling days. Elections are due in these states and the union territory in April-May.
  • The conventional ''PV'' physical voter card would continue to be in use.
  • The e-elector photo identity card is a non-editable digital version of the elector photo identity card and can be saved in facilities such as a digital locker as well as can be printed in PDF format.
  • The physical card takes time to print and reach the voter, and the idea is to provide faster delivery and easy accessibility to the document.
  • The Aadhaar card, Permanent Account Number (PAN) card, and driving license are available in digital mode.
  • Introduced in 1993, the elector photo identity cards are accepted as proof of identity and address.
  • The online digital radio service will stream voter awareness programmes. It will be accessible through a link on the Election Commission of India website.
• Radio Hello Voters:
  • The programming style of Radio Hello Voters has been envisaged to match that of popular FM radio services.
  • It will provide information and education on the electoral processes through songs, drama, discussions, sports, stories of elections in Hindi, English, and regional languages from all over the country, an official statement said.
• Election Commission:
  • The EC came into being on January 25, 1950, a day before India became a republic.
  • For the past few years, January 25 is also observed as National Voters' Day.
  • Article 324 of the Constitution provides the Election Commission of India with the power of direction, superintendence, and control of elections to parliament, state legislatures, the office of president of India, and the office of vice-president of India.
  • The Election Commission is an all-India body that is common to both the Central government and the State governments.
  • The commission does not deal with the elections to the Municipalities and Panchayats in the states. A separate State Election Commission is provided by the Constitution of India for the same.
  • Since its inception in 1950 and till 15 October 1989, the election commission was a one-member body with only the Chief Election Commissioner (CEC) as its sole member.
  • On 16 October 1989, the voting age was changed from 21 to 18 years. So, two more election commissioners were appointed by the president in order to cope with the increased work of the election commission.
  • Since then, the Election Commission was a multi-member body that consisted of 3 election commissioners.
  • The chief and the two other election commissioners have the same powers and emoluments including salaries, which are the same as a Supreme Court judge.
  • In case of a difference of opinion amongst the Chief Election Commissioner and/or two other election commissioners, the matter is decided by the Commission by a majority.
  • The office is held by them for a term of 6 years or until they attain 65 years, whichever happens first. They can also be removed or can resign at any time before the expiry.

Lateral Entry in Bureaucracy

• Context:
  • Earlier this month, the UPSC issued an advertisement seeking applications for the posts of Joint Secretary and Director in central government Departments.
  • These individuals, who would make a “lateral entry” into the government secretariat, would be contracted for three to five years.
  • These posts were “unreserved”, meaning were no quotas for SCs, STs and OBCs.
• What is ‘Lateral Entry’ into government?
  • NITI Aayog, in 2017 had recommended the induction of personnel at middle and senior management levels in the central government.
  • These ‘lateral entrants’ would be part of the central secretariat which in the normal course has only career bureaucrats from the All India Services/ Central Civil Services.
• What are the ranks invited for this entry?
  • A Joint Secretary, appointed by the Appointments Committee of the Cabinet (ACC), has the third-highest rank (after Secretary and Additional Secretary) in a Department.
  • It functions as the administrative head of a wing in the Department.
  • Directors are a rank below that of Joint Secretary.
• What is the government’s reasoning for lateral entry?
  • Lateral recruitment is aimed at achieving the twin objectives of bringing in fresh talent as well as augments the availability of manpower.
  • Government has, from time to time, appointed some prominent persons for specific assignments in government, keeping in view their specialized knowledge and expertise in the domain area.
  • Indeed, the first ARC had pointed out the need for specialization as far back as 1965.
  • The Surinder Nath Committee and the Hota Committee followed suit in 2003 and 2004, respectively, as did the second ARC.
  • In 2005, the Second Administrative Reforms Commission (ARC) recommended an institutionalized, transparent process for lateral entry at both the Central and state levels.
• Why is lateral entry sometimes criticized?
  • Groups representing SCs, STs, and OBCs have protested the fact that there is no reservation in these appointments.
  • Some argue that the government is opening back doors to bring its own lobby openly.

Legislature

Central and state legislature:

New Parliament Building

• Context:
  • Recently, the foundation stone of the new Parliament building was laid by the Prime Minister 
• About:
  • The building, to be constructed by Tata Projects Ltd. would have a built-up area of 64,500 square meters over four floors and would be built adjacent to the existing building over 22 months.
  • Artisans and sculptors from across the country would contribute to the new building, showcasing the diversity and making it a symbol of “Atmanirbhar Bharat”.
  • The building would have modern equipment, be earthquake-safe, and accommodate up to 1,224 MPs during joint sessions in the Lok Sabha chamber.
  • The Lok Sabha and the Rajya Sabha chambers themselves would accommodate 888 and 384 MPs respectively.
• Issues with the Old Parlament:
• The existing British-built Parliament building, built in the 1920s, was designed for the Imperial Legislative Council and not for a bicameral Parliament.
• The building has been modified over the years, including in 1956 when two floors were added.
• While the number of Lok Sabha seats has remained 545 based on delimitation carried out on the basis of the 1971 Census, it is likely to increase after 2026 as the number of seats has been frozen till then.
• The sources said the Lok Sabha and the Rajya Sabha halls are packed and would not be able to accommodate additional seats when the number of seats goes up.
• Information about the Existing parliament building:
  • The existing building draws inspiration from Ekattarso Mahadeva Temple (in M.P.) and was built under the British empire for its Imperial Legislative Council in 1927.
  • The opening ceremony, which then housed the Imperial Legislative Council, was performed on 18 January 1927 by Lord Irwin, Viceroy of India.
  • Following the end of British rule in India, it was taken over by the Constituent Assembly of India which was succeeded by the parliament of India once the Constitution of India came into force in 1950.
  • Originally called the House of Parliament, it was designed by the British architects Edwin Lutyens and Herbert Baker in 1912-1913.

Convening The Parliament

• Context:
  • In response to a letter from the Congress leader in Lok Sabha Adhir Ranjan Chowdhury seeking a short session of Parliament to discuss the new farm laws, Parliamentary Affairs Minister Pralhad Joshi has said that some opposition parties have expressed concerns about the ongoing pandemic and opined of doing away with winter session.
• About:
  • The power to convene a session of Parliament rests with the government. The decision is taken by the Cabinet Committee on Parliamentary Affairs.
  •  The decision of the Committee is formalized by the President, in whose name MPs are summoned to meet for a session.
  • Article 85: Sessions of Parliament, prorogation and dissolution
    • The President shall from time to time summon each House of Parliament to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session.
    • The President may from time to time:
      • prorogue the Houses or either House;
      • dissolve the House of the People
  • Parliament's Sessions:
    • India does not have a fixed parliamentary calendar. By convention, Parliament meets for three sessions in a year.
    • Budget Session: The longest session, starts towards the end of January and concludes by the end of April or the first week of May. The session has a recess so that Parliamentary Committees can discuss the budgetary proposals.
    • Monsoon Session: The second session is the three-week which usually begins in July and finishes in August. The parliamentary year ends with a three-week-long Winter Session, which is held from November to December.
    • Winter Session: The parliamentary year ends with a three-week-long Winter Session, which is held from November to December.
  • Constituent Assembly debate on Parliamentary sessions:
    • During the debate, members of the Constituent Assembly highlighted three issues:
    • the number of sessions in a year
    • the number of days of sitting and
    • who should have the power to convene Parliament?
  • • Prof K T Shah from Bihar was of the opinion that Parliament should sit throughout the year, with breaks in between.
    • Others wanted Parliament to sit for longer durations and gave examples of the British and American legislatures which during that time were meeting for more than a hundred days in a year.
    • Prof Shah also wanted the presiding officers of the two Houses to be empowered to convene Parliament in certain circumstances.
    • These suggestions were not accepted by Dr Ambedkar.
  • Reasons for Moving, delaying, or stretching the sessions:
    • To accommodate political and legislative exigencies:
      • In 2017, the Winter Session was delayed on account of the Gujarat Assembly elections.
      • In 2011, political parties agreed to cut short the Budget Session so they could campaign for Vidhan Sabha elections in five states.
    • To allow the government to issue Ordinances: Sessions have also been cut short or delayed to allow the government to issue Ordinances.
      • For example, in 2016, the Budget Session was broken up into two separate sessions to enable the issuance of an Ordinance.
    • To prevent the moving of another no-confidence motion:
      • For example, in 2008, the two-day Monsoon Session (in which a no-confidence motion was moved against the UPA-I government over the India-US nuclear deal) was extended until December. The ostensible reason was to prevent the moving of another no-confidence motion. It meant that there were only two sessions that year.
  • Fewer House sittings:
    • Over the years, there has been a decline in the sittings days of Parliament. During the first two decades of Parliament, Lok Sabha met for an average of a little more than 120 days a year. This has come down to approximately 70 days in the last decade.
    • One institutional reason given for this is the reduction in the workload of Parliament by its Standing Committees, which, since the 1990s, have anchored debates outside the House.
    • However, several Committees have recommended that Parliament should meet for at least 120 days a year.
    • Congress leader Pawan Kumar Bansal, during his tenure as a member of Rajya Sabha, made this proposal in his private member Bill.
    • Sitting Rajya Sabha MP Naresh Gujral, in his 2017 private member Bill, suggested that Parliament should meet for four sessions in a year, including a special session of 15 days for debating matters of urgent public importance.
    • This year, Parliament has met for 33 days. The last time it met for fewer than 50 days was in 2008, when it met for 46 days.

The motion of thanks to President’s Address

• Context:
  • Recently, a debate on Motion of Thanks to the President’s Address was held in Lok Sabha during the Budget session.
• Background:
  • President’s Address:
  • Article 87 provides for the special address by the President. It provides two special occasions on which the President addresses a joint sitting.
  • At the commencement of the first session after each general election to the House of the People and
  • At the commencement of the first session of each year.
  • The President shall inform Parliament of the causes of its summons.
  • Such an Address is called a 'special address', and it is also an annual feature.
  • No other business is transacted till the President has addressed both Houses of Parliament assembled together.
  • Regarding Joint Session:
  • This Address has to be to both Houses of Parliament assembled together.
  • However, at the commencement of the first session of the year, if Lok Sabha is not in existence and has been dissolved, then Rajya Sabha has to meet. And Rajya Sabha can hold its session without the President's Address.
  • In the case of the first session after each general election to Lok Sabha, the President addresses both Houses of Parliament assembled together after the members have made and subscribed the oath or affirmation and the Speaker has been elected.
• The motion of Thanks:
  • Article 87 (2) of the Constitution requires that provision shall be made by the rules regulating the procedure of either House for the allotment of time for discussion of the matters referred to in the President's Address.
  • Under Rule 15 of Rules of Procedure and Conduct of Business in Rajya Sabha, discussion on the matters referred to in the President's Address takes place on a Motion of Thanks moved by a member and seconded by another member.
  • Members who are to move and second the Motion are selected by the Prime Minister and the notice of such a Motion is received through the Ministry of Parliamentary Affairs.
  • It is available to the members of Parliament to raise discussions and debates to examine and criticize the government and administration for its lapses and failures.
  • Generally, three days are allotted for the discussion on the Motion of Thanks.
  • If any of the amendments are put forward and accepted then the Motion of Thanks is adopted in the amended form.
  • Amendments may refer to matters contained in the Address as well as to matters which, in the opinion of the member, the Address has failed to mention.
  • At the end of the discussion, the motion is put to vote.
• Significance:
  • The Motion of Thanks must be passed in the House. Otherwise, it amounts to the defeat of the government. It is one of the ways through which the Lok Sabha can also express a lack of confidence in the government.

Rajya Sabha elections

• Context:
  • The Kerala High Court has directed the Election Commission (EC) to hold elections to three Rajya Sabha seats from Kerala before the term of the current Assembly ends. 
• About Rajya Sabha election:
  • Rajya Sabha is a permanent House and is not subject to dissolution.
  • However, one-third of Members of the Rajya Sabha retire after every second year.
  • 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.
  • It is done following the system of proportional representation (single transferable vote).
  • A member who is elected for a full term serves for six years.
  • A member elected in a bye-election remains a member for the remainder of the term of the member who had resigned or died or disqualified to be a member of the House under the Tenth Schedule.
• On what legal principles did the court based its order?
  • Referring to provisions in the Representation of People’s Act, read with provisions in Article 80 (4) of the Constitution, the court said: the intention is not to keep the seats unfilled but to complete the process of the election before the retirement of the members, to have the full strength of members in the Upper House to represent the State. 
  • A different view is warranted only when there is any law-and-order situation or any practical impossibility. 
• Given the EC’s powers to decide the calendar of elections, where does the High Court come in?
  • Under Article 324 of the Constitution, deciding the calendar of an election is the exclusive domain of the EC and can’t be subject to any law framed by the Parliament.
  • Once a schedule is announced, courts do not have the jurisdiction to make changes to it.
  • However, the EC’s powers are not unbridled.
  • In 1993, the Supreme Court had ruled that EC’s power is “judicially reviewable ” and the review can be done depending on the facts and circumstances of each case.

Election of Speakers and Deputy Speakers

Context: The Maharashtra Legislative Assembly has been without a Speaker for most of this year. Recently, it concluded its two-day Monsoon Session without electing a Speaker.

Election of Speaker and Deputy Speaker :

• Article 93 for Lok Sabha and Article 178 for state Assemblies state that these Houses “shall,  as soon as may be”, choose two of its members to be Speaker and Deputy Speaker.
• The Constitution neither sets a time limit nor specifies the process for these elections. It leaves it to the legislatures to decide how to hold these elections.
• The Office of the Speaker of Legislative Assembly is a constitutional one.
• Under Article 178 of the Indian Constitution, every Legislative Assembly of a State shall choose one of its Members as Speaker.
• The Speaker is elected by the Lok Sabha from amongst its members.
• The Lok Sabha elects another member to fill the vacancy whenever the office of the Speaker falls vacant.
• In Lok Sabha and state legislatures, the President/Governor sets a date for the election of the Speaker, and it is the Speaker who decides the date for the election of the Deputy Speaker. The legislators of the respective Houses vote to elect one among themselves to these offices.
• The Constitution provides that the office of the Speaker should never be empty. So, he continues in office until the beginning of the next House, except in the event of death or resignation.
• The rules also specify that if a vacancy in these offices happens subsequently, then the election for these should occur within seven days of the legislature’s next session.

Tenure of Speaker:

• The Speaker remains in office during the life of the Lok Sabha.
• The Speakers has to vacate his office earlier in any of the following three cases:
• If he ceases to be a member of the Lok Sabha;
• If he resigns by writing to the Deputy Speaker;
• If he is removed by a resolution passed by a majority of all the members of the Lok Sabha.
• When a resolution for the removal of the Speaker is under consideration of the House, he cannot preside at the sitting of the House.
• It is noted that whenever the Lok Sabha is dissolved, the Speaker does not vacate his office and continues till the newly-elected Lok Sabha meets.

Role of Speaker and Deputy Speaker:

• The Speaker is the head of the Lok Sabha and its representative.
• He is the guardian of powers and privileges of the members, the House as a whole, and its committees.
• The Speaker is “the principal spokesman of the House, he represents its collective voice and is its sole representative to the outside world”, and his decision in all Parliamentary matters is final.
• He derives his powers and duties from three sources i.e. the Constitution of India, the Rules of Procedure and Conduct of Business of Lok Sabha, and Parliamentary Conventions.
• The Speaker presides over the House proceedings and joint sittings of the two Houses of Parliament.
• The Deputy Speaker is independent of the Speaker, as both are elected from among the members of the House.
• Since Independence, the Lok Sabha Deputy Speaker’s position has grown in importance. In addition to presiding over the House in the absence of the Speaker, the Deputy Speaker chaired committees both inside and outside of Parliament.
• The Deputy Speaker ensures the continuity of the Speaker's office by acting as the Speaker when the office becomes vacant (by death or because of resignation).
• In addition, when a resolution for removal of the Speaker is up for discussion, the Constitution specifies that the Deputy Speaker presides over the proceedings of the House.

Strength of M.P. Ministry exceeds Constitutional limit

• Context:
  • Congress is planning to move the court as the strength of the Council of Ministers in Madhya Pradesh reportedly exceeds the prescribed limit.
• Background:
  • Recently, 20 Cabinet Ministers and eight Ministers of State were included in the Council of Ministers, expanding it to 34.
  • This is more than 15% of the effective strength of the legislators at 206. The strength of the Council of Ministers shouldn’t have exceeded 30.
  • The Assembly strength of 228 dropped in March when 22 rebel Congress MLAs resigned and later switched over to the BJP. Two seats fell vacant earlier owing to deaths.
• What does the Constitution say?
  • Article 164 (1A) of the Constitution prescribed that the total number of Ministers, including the Chief Minister, in the Council of Ministers in a State shall not exceed 15% of the total number of members of the Legislative Assembly of that State.
  • This provision was introduced through the 91st Constitution (Amendment) Act, 2003.
• Exceptions:
  • Provided that the number of Ministers, including the Chief Minister in a State, shall not be less than twelve.
• Article 163: Council of Ministers to aid and advise Governor
  1. There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.
  2. If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.
  3. The question of whether any and if so what, the advice was tendered by Ministers to the Governor shall not be inquired into in any court.
     • Article 164 (2) provides that the Council of Ministers shall be collectively responsible to the State Legislative Assembly.
     • Article 164 (4) provides that a person can remain as Minister without being a member of the state legislature for a period of six consecutive months.

Legislative Council

• Context: The West Bengal government will set up a Legislative Council (Vidhan Parishad), as per a decision taken up at the Cabinet meeting chaired by Chief Minister.

More about the Legislative council: 

• The State Legislative Council is the upper house of India's bicameral state legislatures, with the State Legislative Assembly serving as the lower house.
• West Bengal will become the seventh state to establish a Legislative Council once it is established.
• The remaining six are as follows: Uttar Pradesh, Bihar, Telangana, Andhra Pradesh, Karnataka, and Maharashtra.
• The Jammu and Kashmir Legislative Council was abolished after the state was split into J&K and Ladakh Union Territories.
• Composition of Council: Unlike the members of the legislative assembly, the members of the legislative council are indirectly elected. 
• The maximum strength of the council is fixed at one-third of the total strength of the assembly and the minimum strength is fixed at 40. 
• It means that the size of the council depends on the size of the assembly of the concerned state. This is done to ensure the predominance of the directly elected House (assembly) in the legislative affairs of the state. 
• Though the Constitution has fixed the maximum and the minimum limits, the actual strength of a Council is fixed by Parliament.

Manner of Election:

• 1/3 are elected by the members of local bodies in the state like municipalities, district boards, etc.,
• 1/12 are elected by graduates of three years standing and residing within the state, 
• 1/12 are elected by teachers of three years standing in the state, not lower in standard than secondary school, 
• 1/3 are elected by the members of the legislative assembly of the state from amongst persons who are not members of the assembly, and 
• The remainder is nominated by the governor from amongst persons who have special knowledge or practical experience of literature, science, art, cooperative movement, and social service. 
• Thus, 5/6 of the total number of members of a legislative council is indirectly elected and 1/6 are nominated by the governor. The members are elected in accordance with the system of proportional representation by means of a single transferable vote. 
• The bonafides or propriety of the governor’s nomination, in any case, cannot be challenged in the courts. This scheme of the composition of a legislative council as laid down in the Constitution is tentative and not final. 
• The Parliament is authorized to modify or replace the same. However, it has not enacted any such law so far.

Duration of Council:

• As the Rajya Sabha, the legislative council is a continuing chamber, that is, it is a permanent body and is not subject to dissolution. 
• But, one-third of its members retire on the expiration of every second year. So, a member continues as such for six years. 
• The vacant seats are filled up by fresh elections and nominations (by the governor) at the beginning of every third year. 
• The retiring members are also eligible for re-election and re-nomination any number of times.

Repromulgation of ordinance

• Context: The central government has recently repromulgated the ordinance that establishes the Commission for Air Quality Management in National Capital Region and Adjoining Areas Ordinance, 2020.

More about Repromulgation of the ordinance:

• Ordinances are laws that are promulgated by the President of India or State Governors on the recommendation of the Cabinet (not a discretionary power).
• They will have the same effect as an Act of Parliament or State legislature.
• Ordinance-making power is the most important legislative power of the executive.
• It can be retrospective. It cannot be issued to amend the Constitution.
• The ordinance was originally conceived as an emergency provision.

Constitutional Provisions: 

• Article 123 of the Constitution empowers the President to promulgate ordinances during the recess of Parliament.
• Article 213 Constitution of India: Power of Governor to promulgate Ordinances during recess of Legislature.

Cooper case (1970):

• The Supreme Court ruled that the President's satisfaction may be called into doubt in court if it is based on malfeasance. 
• This means that the President's decision to issue an ordinance may be challenged in court on the grounds that the President purposefully prorogued one or both Houses of Parliament to promulgate an ordinance on a contentious topic, bypassing parliamentary decision and thereby circumventing Parliament's authority. 
• The President's satisfaction became definitive and binding under the 38th Constitutional Amendment Act of 1975, and it was no longer subject to judicial review. 
• The 44th Constitutional Amendment Act of 1978, however, repealed this provision.

D.C. Wadhwa case (1987):

• The Supreme Court noted in this case that the Governor of Bihar promulgated 256 ordinances between 1967 and 1981, all of which were held in effect for periods ranging from one to fourteen years by promulgation from time to time. 
• The court ruled that successive repromulgation of ordinances of the same text without any effort to get the bills passed by the assembly would be a breach of the Constitution and that the ordinance would be struck down.
• It was decided that the extraordinary power of ordinance-making should not be used to replace the legislative power of the state legislature.

Krishnakumar Singh vs State of Bihar (2017):

• A 7-judge Constitution bench ruled by a 6:1 margin that repromulgation of ordinances is a “fraud” on the Constitution and a subversion of democratic legislative processes, particularly when the government refuses to put the ordinances before the legislature. 
• The Governor's position does not make him a parallel law-making authority; rather, the legislature is the constitutional repository of legislative power.
• In accordance with the principle of legislative supremacy, the authority to enact ordinances is subject to “legislative oversight,” according to the majority decision.

Fiscal council

• What is a fiscal council?
  • Fiscal councils are independent public institutions aimed at strengthening commitments to sustainable public finances through various functions, including public assessments of fiscal plans and performance, and the evaluation or provision of macroeconomic and budgetary forecasts.
  • Fiscal councils are now part of the institutional fiscal apparatus of over 50 countries, including several emerging and developing economies.
• Composition and How should they function? (Recommendations by 14th FC)
  • The 14th Finance Commission recommended that an independent Fiscal Council should be established through an amendment to the FRBM Act, by inserting a new Section mandating the establishment of an independent
  • Fiscal Council to undertake an ex-ante assessment of budget proposals and to ensure their consistency with fiscal policy and Rules.
  • The council is supposed to be appointed by, and report to, Parliament and should have its own budget.
  • The functions of the council include ex-ante evaluation of the fiscal implications of the budget proposals which includes evaluation of how real the forecasts are and their consistency with the fiscal rules and estimating the cost of various proposals made in the budget.
  • The ex-post evaluation and monitoring of the budget were left to the CAG.
• Why India needs a fiscal council?
  1. Various cesses and surcharges are becoming a disproportionate proportion of overall divisible revenue.
  2. There should be some mechanism to ensure that the basic spirit of the devolution process should not be undercut by clever financial engineering or taking recourse to traditions.
  3. There is a need for coordination between the finance committee as well as the GST Council.
  4. GST Council has no clue what the Finance Commission is doing and the Finance Commission has an even lesser clue of what the GST Council is doing.
  5. Also, for state government liabilities, Article 293 (3) provides a constitutional check over borrowings. But there is no such restriction on the Centre.
     • Therefore, it is time to have an alternative institutional mechanism like the Fiscal Council to enforce fiscal rules and keep a check on Centre’s fiscal consolidation.
• How COVID 19 pandemic has made it more relevant?
  • The government needs to borrow and spend more now in order to support vulnerable households and engineer an economic recovery.
  • But that will mean a steep rise in debt Which will jeopardise medium-term growth prospects, an issue prominently flagged by all the rating agencies in the recent evaluations.
• Expert committee recommendations on the fiscal council:
  • In India, two expert committees have advocated the institution of such a council in recent years.
  • In 2017, the N.K. Singh committee on the review of fiscal rules set up by the finance ministry suggested the creation of an independent fiscal council that would provide forecasts and advises the government on whether conditions exist for deviation from the mandated fiscal rules.
  • In 2018, the D.K. Srivastava committee on fiscal statistics established by the National Statistical Commission (NSC) also suggested the establishment of a fiscal council that could co-ordinate with all levels of government to provide harmonized fiscal statistics across governmental levels and provide an annual assessment of overall public sector borrowing requirements.
  • These recommendations follow similar recommendations from the 13th and 14th finance commissions, which also advocated the establishment of independent fiscal agencies to review the government’s adherence to fiscal rules and to provide independent assessments of budget proposals.

Tools and motion for discussion:

No-Confidence motion

• Context:
  • The no-confidence motion against the Pinarayi Vijayan government was defeated 87-40 in the Kerala Assembly on Monday. The Assembly has been adjourned sine-die.
• What is a no-confidence motion?
  • A no-confidence motion is a parliamentary motion that is moved in the Lok Sabha against the entire council of ministers, stating that they are no longer deemed fit to hold positions of responsibility due to their inadequacy in some respect or their failure to carry out their obligations. No prior reason needs to be stated for its adoption in the Lok Sabha.
• Procedure to move a “No Confidence Motion”:
  • A motion of “No Confidence Motion” against the Government can be introduced only in the Lok Sabha under rule 198.
  • The Constitution of India does not mention either a Confidence or a No-Confidence Motion. Although,Article 75 does specify that the Council of Ministers shall be collectively responsible to the Lok Sabha.
  • The motion of No Confidence can be admitted when a minimum of 50 members, support the motion in the house.
  • The Speaker then, once satisfied that the motion is in order, will ask the House if the motion can be adopted.
  • If the motion is passed in the house, the Government is bound to vacate the office.
  • A no-confidence motion needs a majority vote to pass the House.
  • If individuals or parties abstain from voting, those numbers will be removed from the overall strength of the House, and then the majority will be taken into account.

Trust vote

• Context:
  • The Congress government in Rajasthan led by chief minister Ashok Gehlot has ended the month-long uncertainty in the state by winning the trust vote in the assembly.
• Implications:
  • The development brings an end to the rebellion by former deputy chief minister Sachin Pilot and 18 other MLAs that had threatened the survival of the state government.
• Trust vote:
  • 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.
• Floor test:
  • The floor test is a term used for the test of the majority.
  • If there are doubts against the chief minister, the governor can ask him to prove his majority in the House.
  • In the case of a coalition government, the chief minister may be asked to move a vote of confidence and win a majority.
• What happens in the absence of the majority?
  • In the absence of a clear majority, when there is more than one individual staking claim to form the government, the governor may call for a special session to see who has the majority to form the government.
  • Some legislators may be absent or choose not to vote. The numbers are then considered based only on those MLAs who were present to vote.
• What is No-confidence motion?
  • 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.
• Constitutional provisions:
  • According to Article 75 (3) and Article 164 of the Constitution, the Council of Ministers are collectively responsible to the House of the People.

Anti-Defection Law-When nominated Rajya Sabha MP loses membership

• Context:
  • Nominated MP Swapan Dasgupta has resigned from Rajya Sabha, a year before the completion of his term.
• What’s the issue?
  • The opposition had raised the issue of his disqualification from Rajya Sabha under the anti-defection law because the BJP had fielded Dasgupta as its candidate for Tarakeswar constituency in the West Bengal Assembly elections.
• Who are Nominated members?
  • The Rajya Sabha has 12 nominated members from different walks of life.
  • The broad criterion for their nomination is that they should have distinguished themselves in fields like literature, science, art, and social service.
  • The President nominates such individuals as recommended by the Centre.
  • Nominated members have the same rights and privileges as elected members, with one notable difference — they cannot vote in the election of the President.
• Anti-defection law:
  • In 1985 the Tenth Schedule, popularly known as the anti-defection law, was added to the Constitution.
  • The purpose of the Amendment was to bring stability to governments by deterring MPs and MLAs from changing their political parties on whose ticket they were elected.
  • The penalty for shifting political loyalties is the loss of parliamentary membership and a bar on becoming a minister.
  • The law specifies the circumstances under which changing of political parties by MPs invite action under the law.
  • It covers three types of scenarios with respect to MP switching parties:
  • When an MP who has won his or her seat as an independent candidate after the election joins a political party.
  • When a member elected on the ticket of a political party “voluntarily gives up” membership of such a party or votes in the House contrary to the wishes of the party.
  • For nominated MPs, the law specifies that within six months of being nominated to the House, they can choose to join a political party. But, if they join a party thereafter, then they lose their seat in Parliament.

Whip

• Context:
  • Congress chief whip in the Rajasthan Legislative Assembly has moved the Supreme Court against a State High Court direction to the Speaker to maintain the status quo in the disqualification proceedings initiated against ousted MLAs under the anti-defection law.
• What’s the issue?
  • According to chief Whip, the High Court order on July 24 violated a Constitution Bench judgment of the Supreme Court in the Kihoto Hollohan of 1992.
  • The verdict had categorically held that courts should not intervene in disqualification proceedings prior to a final decision from the Speaker. The judicial review of disqualification proceedings was very limited.
  • In this case, the High Court, however, had intervened at the stage of notice in the disqualification action.
• What is a 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.
  • 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.
  • (Note: A whip in parliamentary parlance is also a written order that party members be present for an important vote, or that they vote only in a particular way.)
• Role of whips:
  • They try to ensure that their fellow political party legislators attend voting sessions and vote according to their party's official policy.
• What happens if a whip is disobeyed?
  • 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:
  1. There are three types of whips or instructions issued by the party
  2. One-line whip: Issued to inform members of a party about a vote. It allows a member to abstain in case they decide not to follow the party line.
  3. Two-line whip: Issued to direct the members to be present in the House at the time of voting.
  4. Three-line whip: Issued to members directing them to vote as per the party line.

Breach of legislature’s privilege

• Context:
  • The Houses in Maharashtra moved motions of breach of privilege against Arnab Goswami and Kangana Ranaut.
• What are the privileges?
  • Parliamentary privilege refers to the right and immunity enjoyed by legislatures, in which legislators are granted protection against civil or criminal liability for actions done or statements made in the course of their legislative duties.
• Constitutional provisions protecting the privileges of the legislature:
  • 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 constitutes a breach of this privilege?
  • There are no clear, notified rules to decide what constitutes a breach of privilege, and the punishment it attracts.
  • Generally, any act that obstructs or impedes either House of the state legislature in performing its functions, or which obstructs or impedes any Member or officer of such House in the discharge of his duty, or has a tendency, directly or indirectly, to produce such results is treated as a breach of privilege.
  • It is a breach of privilege and contempt of the House to make speeches or to print or publish libel reflecting on the character or proceedings of the House or its Committees or on any member of the House for or relating to his character or conduct as a legislator.
• The procedure followed in cases of an alleged breach of the legislature’s privilege:
  1. The Legislative Assembly Speaker or Legislative Council Chairman constitutes a Privileges Committee consisting of 15 members in the Assembly and 11 members in the Council.
  2. The members of the committee are nominated based on the party strength in the Houses.
  3. Speaker or Chairman first decides on the motions.
  4. If the privilege and contempt are found prima facie, then the Speaker or Chairman will forward it to the Privileges Committee by following the due procedure.
  5. The Committee will examine whether statements made by him had insulted the state legislature and its Members and whether their image was maligned before the public.
  6. The Committee, which has quasi-judicial powers, will seek an explanation from all the concerned, will conduct an inquiry, and will make a recommendation based on the findings to the state legislature for its consideration.
• Punishment for an individual who is found guilty of breaching the legislature’s privilege:
  • If the Committee finds the offender guilty of breach of privilege and contempt, it can recommend the punishment.
  • The punishment can include communicating the displeasure of the state legislature to the offender, summoning the offender before the House and giving a warning, and even sending the offender to jail.
  • In the case of the media, press facilities of the state legislature may be withdrawn, and a public apology may be sought.

Parliamentary Privileges

• Context: 
• The Speaker of the Kerala Legislative Assembly P. Sreeramakrishnan has referred a breach of privilege notice given by Congress legislator V.D. Satheesan against Finance Minister T.M. Thomas Isaac to the Privileges and Ethics Committee of the Assembly for scrutiny.
• About:
  • Satheesan had alleged that Dr. Isaac infringed on the rights of the House by disclosing the details of an audit report of the Kerala Infrastructure Investment Fund Board (KIIFB) for 2018-19 by the Comptroller and Auditor General (CAG), even before it was tabled in the Legislative Assembly.
  • The issue has been referred to a nine-member committee. It has been asked to look into the fundamental issues raised by Dr. Isaac on:
• The laying of the CAG report in the House
  • On the breach of privilege committed by the CAG.
• It is the first time in the history of the House that a breach of privilege notice against a Minister has been referred to the committee for scrutiny.
• Ministers assume office after taking the oath that they will not divulge any confidential information that comes to their notice except for official purposes.
• The Governor has the authority to expel those who violate this oath.
• The legislature has the right to know the details of the CAG report first. A CAG report has to remain a confidential document till it is tabled in the Legislative Assembly.
• Violating the rights of the Assembly can attract punishment.

• Parliamentary Privileges:
  • Parliamentary privileges are certain rights and immunities enjoyed by members of Parliament, individually and collectively, so that they can effectively discharge their functions.
  • Parliamentary privileges are defined in Article 105 of the Indian Constitution and those of State legislatures in Article 194.
  • When any of these rights and immunities are disregarded, the offense is called a breach of privilege and is punishable under the law of Parliament.
•  Privileges of Parliamentarians:
• Freedom of Speech: According to the Indian Constitution, the members of Parliament enjoy the freedom of speech and expression. No member can be taken to task anywhere outside the four walls of the House (e.g. court of law) or cannot be discriminated against for expressing his/her views in the House and its Committees.
• Freedom from Arrest: It is understood that no member shall be arrested in a civil case 40 days before and after the adjournment of the House (Lok Sabha or Rajya Sabha) and also when the House is in session. It also means that no member can be arrested within the precincts of the Parliament without the permission of the House to which he/she belongs.
• Exemption from attendance as witnesses: The members of Parliament also enjoy freedom from attendance as witnesses.

• Privileges of Parliament:
  • Right to publish debates and proceedings: Though by convention, the Parliament does not prohibit the press to publish its proceedings, yet technically the House has every such right to forbid such publication. Again, while a member has the privilege of freedom of speech in Parliament, he has no right to publish it outside Parliament. Anyone violating this rule can be held responsible for any libelous matter it may contain under the common law rules.
  • Right to exclude strangers: Each house of Parliament enjoys the right to exclude strangers (no-members or visitors) from the galleries at any time and to resolve to debate with closed doors.
  • Right to punish members and outsiders for breach of its privileges: In India, the Parliament has been given punitive powers to punish those who are adjudged guilty of contempt of the House. Such contempt can be committed by the members of any House or any outsider. When a member of the House is involved in parliamentary misbehaviour or commits contempt he can be expelled from the House.
  • Right to regulate the internal affairs of the House: The House has the right to regulate its internal affairs. A member of the House is free to say whatever he likes subject only to the internal discipline of the House or the Committee concerned.
• 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.
  • A similar committee is appointed by the speaker of a state legislative assembly for the state legislature.
• Ethics Committee:
  • The ethics committee is a standing committee of the parliament.
  • Ethics committees function to uphold the standards of the Parliament and thus its functions are :
  • Formulate a Code of Conduct for members and suggest amendments to it from time to time
  • To oversee the moral and ethical conduct of the Members
  • To examine the cases referred to it with reference to ethical and other misconduct of the Members.
  • While a certain form of code of conduct on speech, conduct, and behaviour of members of parliament has existed in most Parliaments in the world, recent years have seen a great thrust on the separation between the public and private interests of the MPs.
  • Central to this principle is the obligation of the MPs to declare their personal financial interest to the parliament and for such information to be made public in the form of ‘Registers of members’ interests.

Understanding Motions and Resolution Motions Simply put, motions are proposals with the aim of making the members of the meeting deliberated on the issue at hand. Motions are proposed by directors that, more often than not, need a “seconder” before the board can debate on the issue and consider voting for a decision. Moreover, it is not required that a motion be put down into writing, it can be done so verbally. Lastly, motions are well accepted as decisions of the board and do not reflect that of the whole organization. Resolutions A resolution, on the other hand, is a motion that has been passed by the members of the meeting of board of directors. Technically, a motion that is passed by the majority of the members present and voting becomes a resolution. It is a formal act that is implemented and is binding to the board members. Difference A motion is a proposal from a member of the meeting whereas a resolution reflects the general opinion of the board. Generally speaking, not all motions can be resolutions but all resolutions come from motions. Generally speaking, a motion can be put forward verbally whereas a resolution is written down and recorded.

Roles and limitations of Select Committees

• Context:
  • Recently, the government pushed through two crucial agriculture Bills in Rajya Sabha, rejecting Opposition demands that they are referred to a Select Committee of Rajya Sabha.
• What is a Select Committee?
  • This is formed for examining a particular Bill and its membership is limited to MPs from one House.
  • They are chaired by MPs from the ruling party.
  • Since Select Committees are constituted for a specific purpose, they are disbanded after their report.
  • Parliament scrutinises legislative proposals (Bills) in two ways:
    • By discussing it on the floor of the two Houses:
    • This is a legislative requirement; all Bills have to be taken up for debate.
    • By referring a Bill to a parliamentary committee:
    • But, since Parliament meets for 70 to 80 days in a year, there is not enough time to discuss every Bill in detail on the floor of the House. In such scenarios, the bill is referred to a parliamentary committee.
  • Referring to Bills to parliamentary committees is not mandatory.
• When does a committee examine a Bill?
  • Bills are not automatically sent to committees for examination.
  • There are three broad paths by which a Bill can reach a committee.
  • They are:
    • When the minister piloting the Bill recommends to the House that his Bill be examined by a Select Committee of the House or a joint committee of both Houses.
    • If the minister makes no such motion, it is up to the presiding officer of the House to decide whether to send a Bill to a departmentally related Standing Committee.
    • Also, a bill passed by one House can be sent by the other House to its Select Committee.
• What happens after the bill is referred to a committee?
  • The committee undertakes a detailed examination of the Bill.
  • It invites comments and suggestions from experts, stakeholders and citizens.
  • The government also appears before the committee to present its viewpoint.
  • All this results in a report that makes suggestions for strengthening the Bill.
  • The report of the committee is of a recommendatory nature.

Termination of Session

• Context:
  • The Lok Sabha adjourned sine die recently in what is being termed one of the shortest sessions in India’s parliamentary history, but which was packed with 25 Bills.
  • In this session, Lok Sabha's productivity clocked at 167% with 25 Bills passed; 2,300 unstarred questions answered; 68% of the sittings dealing with legislative work; and 370 Zero Hour mentions.
  • 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.
• Prorogation:
  • The President issues notification for the prorogation of the session after the business of a session is completed and the presiding officer declares the House adjourned sine die. The President can also prorogue the House while in session.
• Dissolution:
  • Only the Lok Sabha is subject to dissolution. Rajya Sabha, being a permanent House, is not subject to dissolution.
  • A dissolution ends the life of the existing House, and a new House is constituted after general elections are held.
  • The President is empowered to dissolve the Lok Sabha.

Question Hour in the Parliament

• Context:
  • Recently Lok Sabha Secretariat officially released the schedule for the monsoon Parliament session with Question Hour being dropped. Zero Hour will also be restricted in both Houses.
  • The questions that MPs ask are designed to elicit information and trigger suitable action by ministries.
• About:
  • Mentioned in the Rules of Procedure.
  • There are three kinds of questions which can be put during the Question Hour 
    1. A starred question (distinguished by an asterisk) requires an oral answer and hence supplementary questions can follow.
    2. An unstarred question, on the other hand, requires a written answer and hence, supplementary questions cannot follow.
    3. A short notice question is one that is asked by giving a notice of fewer than ten days. It is answered orally.
  • The question should be related to an area of responsibility of the Government of India and the questions should not seek information about matters that are secret or are under adjudication before courts.
• Final Authority:
  • The presiding officers of the two houses are the final authority with respect to the conduct of Question Hour.
• Exceptions:
  • Question Hour in both Houses is held on all days of the session, but there are two days when an exception is made.
  • There is no Question Hour on the day the President addresses MPs from both Houses in the Central Hall.
  • Question Hour is not scheduled either on the day the Finance Minister presents the Budget.
• About Zero Hour:
  • Unlike the question hour, the zero-hours is not mentioned in the Rules of Procedure.
  • It is an informal device available to the members of the Parliament to raise matters without any prior notice.
  • The zero hour starts immediately after the question hour and lasts until the agenda for the day is taken up.
  • The time gap between the question hour and the agenda is known as zero hours.
  • It is an Indian innovation in the field of parliamentary procedures and has been in existence since 1962.

When can MPs be suspended from the House?

• Context:
  • Eight Rajya Sabha MPs were suspended on September 21 for unruly behaviour in the House.
  • The government moved a motion seeking the suspension of these MPs and it was passed by voice vote.
• Power to suspend Rajya Sabha MPs:
  • The Chairman of Rajya Sabha is empowered under Rule Number 255 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 may, by another motion, terminate the suspension.
  • 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.
• Background:
  • It is the role and duty of the Presiding Officer — Speaker of Lok Sabha and Chairman of Rajya Sabha — to maintain order so that the House can function smoothly.
• How can the suspension of MPs be justified? Isn't this an extreme step to take in order to curb unruly behaviour?
  • 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 the 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.

Judiciary

Judicial concepts and judgements:

Amicus Curiae

• Context:
  • Solicitor General (SG) made an appeal to the Supreme Court to frame guidelines to demarcate the role and ambit of the court’s amici curiae in various cases, especially sensitive ones.
• About:
  • Amicus Curiae or ‘friend of the court’ are the lawyers appointed by the courts to present diverse views and assist the court in specific cases.
  • They are advocates appointed to assist the court in the adjudication of important cases.
• Roles and functions:
  • India, thus, if a petition is received from the jail or in any other criminal matter if the accused is unrepresented, then, an Advocate is appointed as amicus curiae by the Court to defend and argue the case of the accused.
  • In civil matters also the Court can appoint an Advocate as amicus curiae if it thinks it necessary in case of an unrepresented party.
  • The Court can also appoint amicus curiae in any matter of general public importance or in which the interest of the public at large is involved.

Adjournment Sine Die

• Context:
  • Recently, the Rajya Sabha has been adjourned sine die at the end of the Budget session of Parliament after the Lok Sabha was adjourned sine die which brought the nearly two-month long Budget session to an end.
• About:
  • The phenomenon of Adjournment Sine Die means terminating a sitting of Parliament for an indefinite period.
  • It implies that when the House is adjourned without naming a day for reassembly, it is called adjournment sine die.
  • The power of adjournment, as well as adjournment sine, die lies with the presiding officer of the House.
  • The presiding officer can also call a sitting of the House before the date or time to which it has been adjourned or at any time after the House has been adjourned sine die.
  • The presiding officer (Speaker or Chairman) declares the House adjourned sine die when the business of a session is completed.

Curative Petition

• Context:
  • Recently, the Supreme Court held Prashant Bhushan guilty of criminal contempt of court for his tweets against the CJI S.A. Bobde and against the judiciary.
  • Now, Prashant Bhushan has asked the Court to defer the punishment until the review petition is filed and decided.
  • He also submitted that the remedy of a curative petition is also available.
• About Curative Petition:
  • The concept was first evolved by the Supreme Court of India in Rupa Ashok Hurra vs. Ashok Hurra and another case (2002) on the question of whether an aggrieved person is entitled to any relief against the final judgment/order of the Supreme Court, even 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. Its objectives are twofold- to avoid a miscarriage of justice and prevent abuse of process.
• Related Constitutional provisions:
  • The concept of the curative petition is supported by Article 137 of the Indian Constitution.
  • It provides that in the matter of laws and rules made under Article 145, the Supreme Court has the power to review any judgment pronounced (or order made) by it.
• Procedure:
  1. A curative petition may be filed after a review plea against the final conviction is dismissed.
  2. It can be entertained if the petitioner establishes that there was a violation of the principles of natural justice and that he was not heard by the court before passing an order.
  3. It must be rare rather than regular.
  4. A curative petition must be first circulated to a Bench of the three senior-most judges, and the judges who passed the concerned judgment, if available.
  5. Only when a majority of the judges conclude that the matter needs hearing should it be listed before the same Bench.
  6. The Bench at any stage of consideration of the curative petition can ask a senior counsel to assist it as amicus curiae (Friend of the court).
  7. A curative petition is usually decided by judges in the chamber unless a specific request for an open-court hearing is allowed.

Judicial Review

• Context:
  • The Supreme Court refused to treat the Central Vista project as a unique one requiring a greater or “heightened” judicial review.
  • Further, the Supreme Court gave its clearance to this project which is an envisaged construction of a new Parliament complex, buildings for central ministries, a new enclave for the Vice President, a new office and residence for the Prime Minister, among others. 
• More about the news:
  • The Supreme Court said the government is “entitled to commit errors or achieve successes” in policy matters without the court’s interference as long as it follows constitutional principles.
  • The government may examine the advantages or disadvantages of a policy at its own end, it may or may not achieve the desired objective. 
  • Judicial review is never meant to venture into the mind of the government and thereby examine the validity of a decision.
  • The SC noted that once the government decides to construct a project and follows the procedure prescribed under law commensurate with the nature of the project, then the court cannot act as a multiplier of regulations and add its own notion as to what ought to be the additional essential procedure for going ahead with a particular project.
  • It also said that the “right to development”, is “a basic human right and no organ of the State is expected to become an impediment in the process of development as long as the government proceeds in accordance with law”.
• Judicial Review:
  • Judicial review is the power of the courts of a country to examine the actions of the legislative, executive, and administrative arms of the government and to determine whether such actions are consistent with the constitution. Actions judged inconsistent are declared unconstitutional and, therefore, null and void.
  • Relating to that two concepts are important:
    • Procedure Established by Law: It means that a law enacted by the legislature or the concerned body is valid only if the correct procedure has been followed to the letter.
    • Due Process of Law: It is a doctrine that not only checks if there is a law to deprive the life and personal liberty of a person but also ensures that the law is made fair and just.
    • India follows Procedure Established by Law.
  • Judicial review is a part of the basic structure of the constitution (Indira Gandhi vs Raj Narain Case 1975).
  • There is no direct mention of the word judicial review in the constitution, but there are provisions empowering the courts to invalidate laws. However, the constitution has imposed definite limitations upon each of the organs, the transgression of which would make the law void.
  • Following are some of the concerned provisions:
    • Article 372 (1) establishes the judicial review of the pre-constitution legislation.
    • Article 13 declares that any law which contravenes any of the provisions of the part of Funda­mental Rights shall be void.
    • Articles 32 and 226 entrust the roles of the protector and guarantor of fundamental rights to the Supreme and High Courts.
    • Articles 251 and 254 states that in case of inconsistency between union and state laws, the state law shall be void.

Review Petition

• Context:
  • The Supreme Court has fined senior advocate Prashant Bhushan Re 1 in the contempt case for his tweets on the judiciary.
• Background:
  • On August 25, the court had reserved its ruling after numerous arguments as Bhushan refused to apologise.
• What is a review petition and when can it be filed?
  • A judgment of the Supreme Court becomes the law of the land, according to the Constitution. It is final because it provides certainty for deciding future cases.
  • However, the Constitution itself gives, under Article 137, the Supreme Court the power to review any of its judgments or orders.
  • This departure from the Supreme Court’s final authority is entertained under specific, narrow grounds.
  • So, when a review takes place, the law is that it is allowed not to take fresh stock of the case but to correct grave errors that have resulted in the miscarriage of justice.
• When can a review petition be accepted?
  • In a 1975 ruling, Justice Krishna Iyer said a review can be accepted “only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility”.
  • A review is by no means an appeal in disguise.
  • That means the Court is allowed not to take fresh stock of the case but to correct grave errors that have resulted in the miscarriage of justice.
• Filing Review Petition:
  • As per the Civil Procedure Code and the Supreme Court Rules, any person aggrieved by a ruling can seek a review.
  • This implies that it is not necessary that only parties to a case can seek a review of the judgment.
  • A Review Petition has to be filed within 30 days of the date of judgment or order.
  • In certain circumstances, the court can condone the delay in filing the review petition if the petitioner can establish strong reasons that justify the delay.

Right To Restitution For Victims Of Crime

• Context:
  • The Delhi High Court has secured the right to restitution for victims of crime, in a landmark judgment in Karan v. State N.C.T. of Delhi.
• About:
  • Restitution involves ordering the accused to compensate victims of crime for their losses.  
  • Section 357 of the CrPC allows courts to order the accused to pay “compensation” to the victim but it was hardly followed. SC also observed in many cases that Section 357 must be used liberally. 
  • In 2013, Ankush Shivaji Gaikwad v. the State of Maharashtra, the SC made it mandatory for lower courts to record reasons for passing, or not passing, orders relating to the use of Section 357. 
  • Still, lower courts are largely failed in implementation, mainly due to practical constraints faced by them. 
  • Constraints found by lower courts while applying section 357:
    • Language of section 357:  Courts are limited by the language of Section 357. For instance, the language of Section 357 does not differentiate between restitution and compensation. Restitution includes return made by the offender while compensation is paid by the state. Unless this difference is statutorily recognized, opacity is bound to continue.
    • No uniform head: the courts were restricted by the absence of a uniform head under which compensation could be granted.
    • No mechanism for calculating paying capacity: the absence of a uniform mechanism to calculate the paying capacity of the accused as well as determining the impact of the crime on the victim prevented courts from granting compensation under the section. 
    • No guidelines:  the absence of sentencing guidelines blocked the application of the section.  
  •  Significance of Delhi High Court’s verdict:
    • The significance of the Karan verdict lies in the Delhi High Court’s use of the Victim Impact Report (VIR) to determine the quantum of compensation. The Court’s version of VIR is loosely based on the concept of Victim Impact Statements (VIS), but with some differences. 
    • VIS is an instrument of victim participation, which effectively allows victims to inform the court in their own words as to how the crime impacted them.  
    • The VIS’s format comprises the description of physical injury, emotional harm, or the damage or loss to property as a result of the offense. 
    • VIS provides victims with the opportunity to directly address the court and works towards their concerns being heard and addressed by the court.  
    • It makes the offender realize the impact of the crime on the victim. It also works to aid the court in determining the amount of the sentence and fine. 
    • The Delhi HCs conception of VIR differs from a traditional VIS:  
      • Firstly, the primary purpose of the VIR in the Court’s idea is to act as an aid to determine the amount of compensation to the victim in combination with the paying capacity of the accused.  
      • Secondly, the VIR will not be directly made by the victim before the court but will be filed by the Delhi State Legal Services Authority (DLSA), which shall conduct a summary inquiry to establish the impact of the crime upon the victim. 
      • Third, the DLSA shall submit a report that estimates the paying capacity of the accused as well as the impact on the victim, after a conviction.  
      • Fourth, the courts will have to pass an order of compensation based on this. The scheme is binding on all lower courts in Delhi that deal with criminal cases. 

Padmanabhaswamy temple case

• Context:
  • Reversing the 2011 Kerala High Court decision, the Supreme Court has upheld the right of the Travancore royal family to manage the property of deity at Sree Padmanabha Swamy Temple in Thiruvananthapuram.
  • The Temple has been in the news since 2011 after the discovery of treasure worth over Rs. 1 lakh crore in its underground vaults.
• What was the case?
  • The central legal question was whether Utradam Thirunal Marthanda Varma, the younger brother of Chithira Thirunal Balarama Varma, the last Ruler of Travancore, could claim to be the “Ruler of Travancore” after the death of the ruler in 1991.
  • The court examined this claim within the limited meaning of that term according to the Travancore-Cochin Hindu Religious Institutions Act, 1950 to claim ownership, control, and management of the ancient Sree Padmanabha Swamy Temple.
• The judgment:
  • The Supreme Court (SC) has reversed the 2011 Kerala High Court decision, which had directed the Kerala government to set up a trust to control the management and assets of the temple.
  • The court said that, as per customary law, the shebait rights (right to manage the financial affairs of the deity) survive with the members of the family even after the death of the last ruler.
  • The court defined ‘shebait’ as the “custodian of the idol, its earthly spokesman, its authorised representative entitled to deal with all its temporal affairs and to manage its property”.
• Directions:
  • Accepting the royals’ submission that the temple is a “public temple”, the court issued a slew of directions for its transparent administration in the future.
  • It directed the setting up of an administrative committee with the Thiruvananthapuram District Judge as its chairperson.
  • The other members would be a nominee of the trustee (royal family), the chief thanthri of the temple, a nominee of the State, and a member nominated by the Union Ministry of Culture. This committee would take care of the daily administration of the temple.
  • It also ordered a second committee to be constituted to advise the administrative committee on policy matters.
  • This would be chaired by a retired High Court judge nominated by the Chief Justice of the Kerala High Court.
• Who had the ownership, control, and management of the Padmanabhaswamy temple before 1991? (Have a brief overview of the events):
  • All the temples which were under the control and management of the erstwhile Princely States of Travancore and Cochin were under the control of the Travancore and Cochin Devaswom Boards before 1947.
    1. However, as per the Instrument of Accession signed between the princely states and the Government of India, since 1949, the administration of the Padmanabhaswamy Temple was “vested in trust” in the Ruler of Travancore.
    2. The state of Kerala was carved out in 1956 but the temple continued to be managed by the erstwhile royals.
    3. In 1971, privy purses to the former royals were abolished through a constitutional amendment stripping their entitlements and privileges.
    4. In 1991, when the last ruler’s brother took over the temple management, it created a furor among devotees who moved the courts leading to a long-drawn legal battle. The government joined in; supporting the claims of the petitioner that Marthanda Varma had no legal right to claim the control or management of the temple.
• Why Article 366 is in News?
  • The High Court (HC) had ruled that the successor to the erstwhile royals could not claim to be in control of the Sree Padmanabhaswamy Temple after the amendment of definition of ‘Ruler’ in Article 366 (22) of the Constitution of India.
  • The definition of Ruler was amended by the Twenty-Sixth (Constitutional) Amendment Act, 1971, which abolished the privy purses.
  • Article 366 (22) reads, “Ruler” means the Prince, Chief or other person who, at any time before the commencement of the Twenty-Sixth (Constitutional) Amendment Act, 1971, was recognised as the Ruler of an Indian State or was recognised as the successor of such Ruler.

Extra-judicial Killings

• Context:
  • The recent killing of Vikas Dubey by the Uttar Pradesh Police in an encounter has brought back the focus on extrajudicial killings and issues associated.
  • The government has formed a one-member judicial commission to probe this saga. The commission is headed by Justice (retd), Shashi Kant.
• Laws Dealing with Encounters:
  • At the outset, there is no provision in the Indian law that directly authorizes an official to encounter a criminal irrespective of the grievousness of the crime committed by him/her.
  • However, there are some enabling provisions that may be construed so as to vest officials with the power to deal with criminals including the power to use force against a criminal.
• 1. Section 100 of the Indian Penal Code, 1860:
  • It authorizes any person to exercise his right of private defense which may extend to causing death if there is reasonable apprehension in the mind of the person that there exists a threat to life or limb.
• 2. Section 46 of the Criminal Procedure Code, 1973:
  • It permits a police officer to use all means necessary to effect the arrest of the person.
• 3. Section 300 of the Indian Penal Code:
  • It provides that culpable homicide is not murder if the offender, being a public servant acting for the advancement of public justice exceeds the power given to him by law and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the discharge of his duty and without ill-will towards the person whose death is caused.
• View of the Supreme Court:
  • The Apex Court has held in:
    1. Om Prakash v. State of Jharkhand that “it is not the duty of the police to kill the accused merely because he is a criminal.” It was further stated that ‘encounters’ amounted to “state-sponsored terrorism.”
    2. Sathyavani Ponrai v. Samuel Raj that a fair investigation is mandatory under Articles 14, 21, and 39 of the Constitution of India and that it is not only a constitutional right but a natural right as well.
    3. Nirmal Singh Kahlon v. State of Punjab that the right to investigation and fair trial is applicable to both, the accused and the victim under Article 21 of the Constitution of India.
    4. Prakash Kadam v. Ramprasad Vishwanath Gupta that a fake encounter by a police official falls under the category of ‘rarest of rare case’ as laid down in Bachan Singh v. the State of Punjab and therefore, the death penalty would be attracted to the concerned police official.
    5. Public Union for Civil Liberties v. Union of India that not even State can violate the right to life and obligation to follow the procedure established by law under Article 21 of the Indian Constitution. The Court opined that encounter killings by the police must be investigated independently as it “affects the credibility of the rule of law and the administration of the criminal justice system.”
• View of the National Human Rights Commission (NHRC):
  • NHRC has stated that under the laws of India, police officials have no right to take away the life of another person.
  • If by his act, the police official kills a person, he will be booked for culpable homicide unless it is proved to the contrary that such an act did not constitute an offence.
  • Further, in 2010, the NHRC has laid down guidelines/procedures to be followed in cases of deaths caused by police action.
• Covered in detail in Samjaho's Corner: https://samajho.com/upsc/extra-judicial-killings/.

Special courts to try Politicians

• Context:
  • A three-judge committee of the Madras High Court has questioned the constitutional validity of setting up Special Courts to exclusively try MPs and MLAs for various crimes.
  • In 2017 Supreme Court order authorising the Centre to set up 12 Special Courts to exclusively try criminal politicians across the country.
• Observations of the committee:
  • An MP/MLA, who commits an offence can only be tried by a Special Court created under the respective act and there cannot be another Special Court exclusively for the trial of an MP/MLA, who commits the offence.
  • The committee said the Special Courts should be “offence-centric” and not “offender-centric.”
  • Special Courts can only be constituted by a statute and not by the executive or judicial fiats.

National green tribunal

• Context:
  • The National Green Tribunal has slammed the Ministry of Environment and Forests (MoEF) for the non-utilisation of over Rs 800 crore meant towards the Environment Relief Fund for victims of accidents in the process of handling hazardous substances.
• About:
  • The National Green Tribunal Act, 2010 enables the creation of a special tribunal to handle the expeditious disposal of the cases of environmental issues.
  • New Delhi is the Principal Place of Sitting.
  • The Tribunal is not bound by the procedure laid down under the Code of Civil Procedure, 1908, but shall be guided by principles of natural justice.
  • NGT is mandated to make disposing of applications or appeals finally within 6 months of the filing of the same.
  • Chairman: Is the administrative head of the tribunal, also serves as a judicial member and is required to be a serving or retired Chief Justice of a High Court or a judge of the Supreme Court of India.

Lok Adalat held online

• Context:
  • In a first of its kind in the country, the Delhi State Legal Services Authority (DSLSA) recently organized thee -Lok Adalat to facilitate mediation between the parties, who are willing to get their matters settled amicably, in all the District Courts Complexes of Delhi.
• How it was conducted?
  • In the e-Lok Adalat, an online link would be sent by SAMA (an Online Dispute Resolution platform recognized by the Department of Justice for resolving disputes through video conferencing) to the concerned parties and a judge would preside over the mediation process.
  • Following the settlement, an OTP would be sent to them and on the confirmation, the dispute would be settled.
• Outcomes:
  • 77 Benches were constituted wherein a total of 5838 cases were disposed of pertaining to various categories in which settlement amount was approx Rs 46.28 crores.
• What is a Lok Adalat?
  • A Lok Adalat is one of the substitute dispute redressal mechanisms.
  • National Legal Services Authority alongside other Legal Services Institutions conducts Lok Adalats.
  • It is a forum where cases or disputes incomplete in the court of law are compromised cordially.
  • Under the Legal Services Authorities Act, 1987 Lok Adalats have been given statutory status.
  • The Lok Adalats are formed to fulfill the promise given by the preamble of the Indian Constitution– securing Justice – social, economic, and political of every citizen of India.
  • Article 39A of the Constitution provides for free legal aid to the deprived and weaker sections of society and to promote justice on the basis of equal opportunity.
  • Articles 14 and 22(1) of the Constitution also make it compulsory for the State to guarantee equality before the law.
• Constitutional basis:
  • Article 39A of the Constitution provides for free legal aid to the deprived and weaker sections of the society and to promote justice on the base of equal opportunity.
  • Articles 14 and 22(1) of the Constitution also make it compulsory for the State to guarantee equality before the law.
• Statutory provisions:
  • Under the Legal Services Authorities Act, 1987 Lok Adalats have been given statutory status.
• Final award:
  • The decision made by the Lok Adalats is considered to be a verdict of a civil court and is ultimate and binding on all parties.
• No appeal:
  • There is no provision for an appeal against the verdict made by Lok Adalat.
  • But, they are free to initiate litigation by approaching the court of appropriate jurisdiction by filing a case by following the required procedure, in the exercise of their right to litigate.
• Court fee:
  • There is no court fee payable when a matter is filed in a Lok Adalat. If a matter pending in the court of law is referred to the Lok Adalat and is settled subsequently, the court fee originally paid in the court on the complaints/petition is also refunded back to the parties.
• Nature of Cases to be referred to as Lok Adalat:
  1. Any case pending before any court.
  2. Any dispute which has not been brought before any court and is likely to be filed before the court.
  3. Provided that any matter relating to an offense not compoundable under the law shall not be settled in Lok Adalat.

Consent Of Attorney General For Initiating Contempt Of Court Proceedings

• Context:
  • Attorney General for India granted consent to initiate criminal contempt of court proceedings against comic illustrator Rachita Taneja for allegedly scandalizing the judiciary through her tweets and illustrations.
  • In August, the AG had refused to grant consent to initiate criminal contempt proceedings against actor Swara Bhasker for allegedly making derogatory comments against the Supreme Court.
  • The AG had repeatedly objected to the court’s initiation of contempt proceedings against Prashant Bhushan during the course of the hearing. 
• About:
  • 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. 
• 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 penalize contempt, as well as the penalties that can be given for the offense of contempt.
  • Civil contempt: the willful disobedience of an order of any court.
  • Criminal contempt: includes any act or publication which:
  • Scandalizes the court. It broadly refers to statements or publications which have the effect of undermining public confidence in the judiciary.
  • Prejudices any judicial proceeding
  • Interferes with the administration of justice in any other manner
• • Need for AG's consent to initiate contempt proceedings: 
    • In the case of the Supreme Court, the Attorney General or the Solicitor General, and in the case of High Courts, the Advocate General, may bring in a motion before the court for initiating a case of criminal contempt. 
    • The AG’s consent is mandatory when a private citizen wants to initiate a case of contempt of court against a person. 
    • The objective behind requiring the consent of the Attorney General before taking cognizance of a complaint is to save the time of the court.
    • The AG’s consent is meant to be a safeguard against frivolous petitions which waste the valuable time of the judiciary, as it is deemed that the AG, as an officer of the court, will independently ascertain whether the complaint is indeed valid.
    • 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.
    • The Supreme Court reiterated this position in the Prashant Bhushan case. As far as the suo motu petitions are concerned, there is no requirement for taking consent of anybody, including the learned Attorney General because the Court is exercising its inherent powers(Article 129) to issue a notice for contempt.
    • In the case of Contempt proceedings, the requirement is that the procedure followed is required to be just and fair and in accordance with the principles of natural justice.

Hindu women’s inheritance rights

• Context:
  • Supreme Court has expanded on a Hindu woman’s right to be a joint legal heir and inherit ancestral property on terms equal to male heirs.
• What is the ruling?
  • A Hindu woman’s right to be a joint heir to the ancestral property is by birth and does not depend on whether her father was alive or not when the law was enacted in 2005.
  • The ruling now overrules the verdicts from 2015 and April 2018.
• How did the case come about?
  • While the 2005 law granted equal rights to women, questions were raised in multiple cases on whether the law applied retrospectively, and if the rights of women depended on the living status of the father through whom they would inherit.
• About the Hindu Succession (Amendment) Act, 2005:
  • It gave Hindu women the right to be coparceners or joint legal heirs in the same way a male heir does.
  • The amended act made a daughter of a coparcener also a coparcener by birth “in her own right in the same manner as the son”.
  • The law also gave the daughter the same rights and liabilities “in the coparcenary property as she would have had if she had been a son”.
• Applicability of the law:
  • It applies to ancestral property and to intestate succession in personal property — where succession happens as per law and not through a will.
• Background of the case:
  • Different benches of the Supreme Court and various High Courts had taken conflicting views on the issue.
  • In Prakash v Phulwati (2015), the Supreme Court held that the benefit of the 2005 amendment could be granted only to “living daughters of living coparceners” as on September 9, 2005 (the date when the amendment came into force).
  • In February 2018, contrary to the 2015 ruling, the Court held that the share of a father who died in 2001 will also pass to his daughters as coparceners during the partition of the property as per the 2005 law.
  • Then in April that year, the Court reiterated the position taken in 2015.
  • These conflicting views by Benches of equal strength led to a reference to a three-judge Bench in the current case.

EWS quota challenge

• Context:
  • The Supreme Court has referred to a five-judge Bench as the “substantial question of law” whether the grant of 10% reservation to economically weaker sections of the society is unconstitutional and violates the 50% ceiling cap on quota declared by the court itself.
• What does the reference mean?
  • A reference to a larger Bench means that the legal challenge is an important one.
  • As per Article 145(3) of the Constitution, “the minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution” shall be five.
  • The Supreme Court rules of 2013 also say that writ petitions that allege a violation of fundamental rights will generally be heard by a bench of two judges unless it raises substantial questions of law. In that case, a five-judge bench would hear the case.
• What are the grounds of challenge?
  • The law was challenged primarily on two grounds:
    1. First, it violates the Basic Structure of the Constitution. This argument stems from the view that the special protections guaranteed to socially disadvantaged groups are part of the Basic Structure and that the 103rd Amendment departs from this by promising special protections on the sole basis of economic status.
    2. Although there is no exhaustive list of what forms the Basic Structure, any law that violates it is understood to be unconstitutional.
    3. Second, it violates the SC’s 1992 ruling in Indra Sawhney & Ors v Union of India, which upheld the Mandal Report and capped reservations at 50%. In the ruling, the court held that economic backwardness cannot be the sole criterion for identifying backward class.
• What’s the issue?
  • The economic reservation was introduced in the Constitution by amending Articles 15 and 16 and adding clauses empowering the state governments to provide reservation on the basis of economic backwardness.
  • The validity of the Constitutional Amendment was challenged, saying the 50% quota limit was part of the Basic Structure of the Constitution.
  • A three-judge bench had refused to stay the implementation of the Constitution (103rd Amendment) Act, which provides the 10% quota.
• How the centre defends this move?
  • The Centre had argued that it was every State’s prerogative to provide a 10% economic reservation in State government jobs and admissions in State-run education institutions.
  • Whether or not to provide reservation to the economically weaker section (EWS) of the society for appointment in State government jobs and for admission to State government educational institutions, as per provisions of the newly inserted Articles 15(6) and 16(6) of the Constitution, is to be decided by the State government concerned.
  • The government also argued that under Article 46 of the Constitution, part of Directive Principles of State Policy, it has a duty to protect the interests of economically weaker sections.
  • Countering the claims that the amendment violates the Indra Sawhney principle, the government relied on a 2008 ruling— Ashok Kumar Thakur v Union of India, in which the SC upheld the 27% quota for OBCs.
  • The argument is that the court accepted that the definition of OBCs was not made on the sole criterion of caste but a mix of caste and economic factors, to prove that there need not be a sole criterion for according reservation.
• What is a constitution bench?
  • Article 145(3) says at least five judges need to hear cases that involve “a substantial question of law as to the interpretation” of the Constitution, or any reference under Article 143, which deals with the power of the President of India to consult the Supreme Court.
  • But this doesn't mean constitution benches can't be larger. For example, nine judges were on the bench that unanimously declared privacy to be a fundamental right in August 2017. There have also been seven and 13-judge benches.

Kerala Animals and Birds Sacrifices Prohibition Act

• Context:
  • The Supreme Court has agreed to examine the constitutional validity of the Kerala Animals and Birds Sacrifices Prohibition Act of 1968.
• What’s the issue?
  • An appeal is filed in the Supreme Court by people who are Shakthi worshippers, and for whom, animal sacrifice is an integral part of the worship.
  • In their appeal, they said the animal sacrifice was an “essential religious practice”.
  • But, the 1968 State law bans the killing of animals and birds for religious sacrifices. However, the act does not ban killing for personal consumption.
  • This amounted to arbitrary classification and is violative of Article 14 of the Constitution.
  • It also violates the right to practice religion and manage religious affairs under articles 25 and 26 of the Constitution.
  • The appellants said if the killing of animals and birds was to be prohibited, let it be so for all purposes – religious or otherwise.
  • Besides, Section 28 of the Prevention of Cruelty to Animals, 1960 does not make the killing of animals for religious purposes an offence.
• What had the High Court said?
  • Recently, the Kerala High Court had dismissed the PIL on the ground that no material was brought on record to establish that the practise was essential to the religion.
  • The High Court had observed that the Prevention of Cruelty Act does not have the word “sacrifice” for the purpose of religion.

Separate anti-torture law

• Context:
  • The alleged torture of a father-son duo in Sattankulam town in Tamil Nadu has once again given rise to the demand for a separate law against torture.
  • It is therefore essential to examine whether the existing law is inadequate to deter incidents of custodial torture.
• What constitutes torture?
  • Torture is not defined in the Indian Penal Code, but the definitions of ‘hurt’ and ‘grievous hurt’ are clearly laid down.
  • Though the definition of ‘hurt’ does not include mental torture, Indian courts have included psychic torture, environmental coercion, tiring interrogative prolixity, and overbearing and intimidatory methods, among others, in the ambit of torture.
  • Voluntarily causing hurt and grievous hurt to extort confession are also provided in the Code with enhanced punishment.
• How the Supreme Court has dealt with custodial torture cases?
  • DK Basu v. State of West Bengal case: The Court has issued guidelines that the police must follow in all cases of arrest and detention.
  • Nilabati Behera v. State of Orissa case: The Court made sure that the state could no longer escape liability in public law and had to be compelled to pay compensation.
  • Similarly, the Court has held in many cases that policemen found guilty of custodial death should be given the death penalty.
• Observations by law commissions:
  • 262nd Law Commission Report recommended that the death penalty be abolished except in cases of ‘terrorism-related offences’.
  • 273rd Report of the Law Commission recommended ratification of the U.N. Convention against Torture and other Cruel, Inhumane, or Degrading Treatment (CAT).
  • CAT was signed by India but is yet to be ratified.
• Other safeguards:
  1. Under the Code of Criminal Procedure, a judicial magistrate inquires into every custodial death.
  2. The National Human Rights Commission has laid down specific guidelines for conducting autopsy under the eyes of the camera.
• What needs to be done?
  • We first need to implement the law as we have it.
  • Then, the investigations, the prosecutions are not fair; these must be rectified first.
  • The police need to be trained better. The temptation to use third-degree methods must be replaced with scientific skills.
  • Thus, the need of the hour is to strike at the root cause of the problem and implement recommendations of various commissions to bring in necessary reforms.
• Prelims Facts:
  • About UNCAT and key provisions:
    • The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (commonly known as the United Nations Convention against Torture(UNCAT)) aims to prevent torture and other acts of cruel, inhuman, or degrading treatment or punishment around the world.
    • The Convention requires states to take effective measures to prevent torture in any territory under their jurisdiction and forbids states to transport people to any country where there is reason to believe they will be tortured.
    • The Convention was adopted on 10 December 1984 and came into force on 26 June 1987. 26 June is now recognized as the International Day in Support of Victims of Torture, in honor of the Convention.
  • About the Committee against Torture (CAT):
    • It is a body of human rights experts that monitors the implementation of the Convention by State parties.
    • The Committee is one of eight UN-linked human rights treaty bodies.
    • All state parties are obliged under the Convention to submit regular reports to the CAT on how rights are being implemented.
    • Upon ratifying the Convention, states must submit a report within one year, after which they are obliged to report every four years.

Same-sex marriage will cause havoc, Govt tells HC

• Context:
  • The Centre opposed any changes to the existing laws on marriage to recognize same-sex marriages, saying such interference would cause “complete havoc with the delicate balance of personal laws in the country”.
• Government’s Stand:
  • Living together as partners and having a sexual relationship by same-sex individuals is not comparable with the Indian family unit concept of a husband, a wife, and children, which necessarily presuppose a biological man as a ‘husband’, a biological woman as a ‘wife’ and the children born out of their union.
  • It said the 2018 judgment of the Supreme Court decriminalizing homosexual sex was “neither intended to nor did it in fact, legitimize the human conduct in question”.
  • Despite the decriminalization of Section 377 of the Indian Penal Code (IPC), the petitioners cannot claim a fundamental right for same-sex marriage to be recognized under the laws of the country.
  • Registration of marriage of same-sex persons also results in the violation of existing personal as well as codified law provisions — such as ‘degrees of prohibited relationship’; ‘conditions of marriage’; ‘ceremonial and ritual requirements’ under the personal laws governing the individuals.

Section 377 Section 377 of the Indian Penal Code 1860, a relic of British India, states that “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished.” This included private consensual sex between adults of same-sex. After the SC judgment, provisions of Section 377 remain applicable in cases of non-consensual carnal intercourse with adults, all acts of carnal intercourse with minors, and acts of bestiality.

A judicial review can’t be available prior to Speaker’s decision

• Context:
  • Rajasthan Speaker CP Joshi has served notices to 19 Congress MLAs including Sachin Pilot asking them why they cannot be disqualified. The MLAs have time until July 17 to reply.
  • Congress in its complaint to the Speaker has accused the rebel MLAs of attempting to jump parties.
• Why has the Speaker served notice to the 19 Congress MLAs?
  • The notice has been served under the Tenth Schedule of the Constitution, popularly known as the anti-defection law.
• Can the MLAs go to court at any time before the July 17 deadline to reply?
  • Courts have been extremely reluctant to interfere with the powers of the Speaker under the Tenth Schedule.
  • While deciding on the disqualification, the Speaker exercises powers that have been conferred to him under the Constitution.
  • Even when challenged, as it was in the case of Karnataka in 2019, the court gave time to the Speaker to decide on the pleas.
• Supreme Court’s ruling in ‘Kihoto Hollohan vs Zachillhu And Others’ (1992) case:
  • The court upheld the sweeping discretion available to the Speaker in deciding cases of disqualification of MLAs.
  • While the Speaker’s decisions can be challenged subsequently, the court cannot stay or prevent the process.
  • Hence, judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a quia time action would not be permissible. Nor would interference be permissible at an interlocutory stage of the proceedings.
  • Besides, the Court can review only infirmities based on violation of constitutional mandate, malafides, non-compliance with rules of natural justice, and perversity.
• Fundamental Rights in question:
  • Ousted Rajasthan Deputy Chief Minister Sachin Pilot and other 18 MLAs have approached the Rajasthan High Court challenging the constitutionality of Paragraph 2(1)(a) of the Tenth Schedule which makes “voluntarily giving up membership of a political party” liable for disqualification.
  • The MLAs have said the provision infringes on their right to express dissent and is a violation of their fundamental right to free speech as a legislator.

Plea bargaining

• Context:
  • Many members of the Tablighi Jamaat belonging to different countries have obtained release from court cases in recent days by means of plea bargaining.
• What is Plea Bargaining?
  • It refers to a person charged with a criminal offence negotiating with the prosecution for a lesser punishment than what is provided in law by pleading guilty to a less serious offence.
  • It primarily involves pre-trial negotiations between the accused and the prosecutor. It may involve bargaining on the charge or in the quantum of sentence.
• When was it introduced in India?
  • Plea bargaining was introduced in 2006 as part of a set of amendments to the CrPC as Chapter XXI-A, containing Sections 265A to 265L.
• In what circumstances is it allowed? How does it work?
  • In India, a plea bargaining process can be initiated only by the accused;
  • The accused will have to apply to the court for invoking the benefit of bargaining.
  • The applicant should state that it is a voluntary preference and that he has understood the nature and extent of punishment provided in law for the offence.
  • The court would then issue a notice to the prosecutor and the complainant or victim, if any, for a hearing.
  • The voluntary nature of the application must be ascertained by the judge in an in-camera hearing at which the other side should not be present.
  • Thereafter, the court may permit the prosecutor, the investigating officer, and the victim to hold a meeting for a “satisfactory disposition of the case”.
  • The outcome may involve payment of compensation and other expenses to the victim by the accused.
  • Once mutual satisfaction is reached, the court shall formalise the arrangement by way of a report signed by all the parties and the presiding officer.
  • The accused may be sentenced to a prison term that is half the minimum period fixed for the offence.
  • If there is no minimum term prescribed, the sentence should run up to one-fourth of the maximum sentence stipulated in the law.
• Cases for which the practice is allowed are limited:
  • Only someone who has been charge-sheeted for an offence that does not attract the death sentence, life sentence or a prison term above seven years can make use of the scheme under Chapter XXI-A.
  • It is also applicable to private complaints of which a criminal court has taken cognisance.
  • It is not available for those that involve offences affecting the “socio-economic conditions” of the country or committed against a woman or a child below the age of 14.
• What is the rationale for the scheme?
  • The Justice Malimath Committee on reforms of the criminal justice system endorsed the various recommendations of the Law Commission with regard to plea bargaining.
• Advantages:
  1. Ensure speedy trial.
  2. End uncertainty over the outcome of criminal cases.
  3. Save litigation costs and relieve the parties of anxiety.
  4. Impact on conviction rates.
  5. Help offenders make a fresh start in life.

Digital divide

• Context:
  • Delhi high court has ordered schools (Both Private and Government) to provide gadgets and internet access to students from economically weaker sections (EWS) and disadvantaged groups (DG) categories to assist in their online education during the Covid-19 crisis.
• What's the issue?
  • The court passed the order over concerns that these EWS category students were unable to sustain their online studies due to a lack of resources and unavailability of laptops and mobile phones during the COVID-19 pandemic.
• Why such measures are necessary? Observations made by the High Court:
  • To address discrimination: All students do not have access to such facilities. The intra-class discrimination upsets the level playing field and amounts to discrimination as well as creates a vertical division, digital divide, or digital gap or digital apartheid in addition to segregation in a classroom that is violative of RTE, 2009, and Articles 14, 15 and 21 of the Constitution.
  • A financial barrier: Such a mode of teaching will erect a financial barrier for EWS/DG category students by not providing the required equipment, preventing them from pursuing their elementary education.
• What next?
  • The Court has made it clear that the private unaided schools will be entitled to claim reimbursement of reasonable cost for procurement of the gadget and Internet package from the government under Section 12(2) of the RTE Act.
• About the Right to Education (RTE) Act, 2009:
  • The RTE Act aims to provide primary education to all children aged 6 to 14 years.
  • It enforces Education as a Fundamental Right (Article 21).
  • The act mandates a 25% reservation for disadvantaged sections of the society.
  • It also makes provisions for a non-admitted child to be admitted to an age-appropriate class.
  • It also states that the sharing of financial and other responsibilities between the Central and State Governments.
  • It also provides for prohibition of deployment of teachers for non-educational work, other than the decennial census, elections to the local authority, state legislatures and parliament, and disaster relief.
  • It had a clause for “No Detention Policy” which has been removed under The Right of Children to Free and Compulsory Education (Amendment) Act, 2019.
• It lays down the norms and standards related to:
  • Pupil-Teacher Ratios (PTRs).
  • Buildings and infrastructure.
  • School-working days.
  • Teacher-working hours.

Judicial Disqualification or Recusal

• Context:
  • A judge of the Punjab and Haryana High Court has recused from hearing the anticipatory bail application moved by former Punjab Director General of Police (DGP) Sumedh Singh Saini, in connection with the case of disappearance and murder of a man in the year 1991.
  • The Judge, while recusing himself from the case referred the matter to the Chief Justice for listing.
• What is recusal?
  • Judicial disqualification, referred to as recusal, is the act of abstaining from participation in an official action such as a legal proceeding due to a conflict of interest of the presiding court official or administrative officer.
• General Grounds for Recusal:
  • Motions to recuse or disqualify judges and other adjudicators have been made for all sorts of reasons.
  • Most commonly such motions are predicated upon a claim that the judge is biased in favour of one party, or against another, or that a reasonable objective observer would think he might be.
• But such motions are also made on many other grounds, including the challenged judge’s:
  1. Interest in the subject matter, or relationship with someone who is interested in it.
  2. Background or experience, such as the judge’s prior work as a lawyer.
  3. Personal knowledge about the parties or the facts of the case.
  4. Ex parte communications with lawyers or non-lawyers.
  5. Rulings, comments, or conduct.
• Are there any laws in this regard?
  • There are no definite rules on recusals by Judges.
  • Justice J. Chelameswar in his opinion in Supreme Court Advocates-on-Record Association v. Union of India (2015) held that “Where a judge has a pecuniary interest, no further inquiry as to whether there was a ‘real danger’ or ‘reasonable suspicion’ of bias is required to be undertaken”.
  • Besides, In taking the oath of office, judges, both of the Supreme Court and of the high courts, promise to perform their duties, to deliver justice, “without fear or favour, affection or ill-will”.

Plea for 'legal entity' status to animals

• Context:
  • The Supreme Court has agreed to examine a petition seeking “legal entity” status to the entire animal kingdom.
• What's the demand?
  • The demand is to give animals a “legal personality”. This means bestowing on animals, by judicial direction, the capacity to sue and be sued in courts of law.
  • This mainly stems from SC’s interpretation of the right to life under Article 21 of the Constitution, with the effect the word “life” includes “all forms of life, including animal life, which are necessary for human life.”
• Why this demand?
  • While referring to recently reported incidents of cruelty on animals in the country, the plea has said that such incidents have enraged many and raised a question as to whether existing laws are sufficient enough to protect animals from possible abuse and cruelty.
  • It alleged the rights of animals exist only on paper due to their lack of implementation and enforcement.
  • Besides, the plea said that legal status has been accorded to animals in two recent verdicts rendered by the Punjab and Haryana High Court and the Uttarakhand High Court.
• What Next?
  • The Court has issued notices to the Centre and others seeking their replies on the petition.
• What is a legal entity?
  • A legal entity means an entity that acts like a natural person but only through a designated person, whose acts are processed within the ambit of the law.
• Previous Instances:
  1. In 2018, a bench presided over by justice Sharma had accorded the status of “legal person or entity” to animals in Haryana.
  2. In Uttarakhand 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.
  3. In 2018, Uttarakhand high court declared the entire animal kingdom, including birds and aquatic animals, as a legal entity.
  4. In June 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.

309 Indian Penal Code (IPC)

• Context:
  • Should we stop penalizing suicides and seek a more permanent solution like the repeal of section 309 Indian Penal Code (IPC).
• The high suicide rate in India: 
  • India has the highest suicide rate in the Southeast Asian region, according to the World Health Organization.  
  • A total of 1,34,516 cases of suicide were reported in 2018 in India, according to the National Crime Records Bureau. While the rate of suicide was 9.9 in 2017, it increased to 10.2 in 2018. 
• Reasons for suicide: 
  • Depression, chronic ill health, guilt, trauma, substance abuse, failure in exams, and loss of loved ones are some of the reasons which influence a person’s decision to take his or her life. 
• What is section 309 IPC? 
  • Section 309 of the Indian Penal Code provides for the penal provision for attempting suicide.  
  • If a person is suffering from any mental trauma or illness, he or she should be given reformative treatment rather than a deterrent punishment which is “simple imprisonment for a term which may extend to one year [or with fine, or with both]”. 
  • British Parliament decriminalized attempts to suicide in 1961 through the Suicide Act. In India, a Bill to repeal Section 309 was first introduced in the Rajya Sabha in 1972 but it failed to pass in the Lok Sabha because the House was dissolved. 
• Judgements favoring decriminalization of suicide: 
  • Those who favour the penal provision generally quote the following judgments. 
  • Gian Kaur V. State of Punjab (1996): In this judgment court held that the “right to life is a natural right embodied in Article 21” of the Constitution but “suicide is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of the right to life”. 
  • Aruna Ramchandra Shanbaug v. Union of India (2011): In this case, the Supreme Court endorsed the Gian Kaur judgment. 
• Judgments against decriminalization of suicide: 
  • Maruti Shripati Dubal v. State of Maharashtra (1986): In this judgment, the Bombay High Court declared Section 309 unconstitutional. It said: “For example, the freedom of speech and expression includes freedom not to speak and to remain silent. The freedom of association and movement likewise includes the freedom not to join any association or to move anywhere… If this is so, logically it must follow that right to live… will include also a right not to live or not to be forced to live.” 
  • Chenna Jagadeeswar v. State of Andhra Pradesh and P. Rathinam v. Union of India (1994): In these judgments, the court held that Section 309 of the Indian Penal Code is a violation of Articles 14 and 21 and is void and unconstitutional. 
• Does the mental healthcare act offer a solution? 
  • To some degree but not fully.  
  • In 2017, Parliament passed the Mental Healthcare Act. Section 115 (1) of the Act provides, that any person who attempts to commit suicide shall be presumed unless proved otherwise, to have severe stress and shall not be tried and punished under the said Code. 
  • However, this law applies only to those suffering from mental illness. There is a presumption of severe stress in case of an attempt to die by suicide. 
• Way forward: 
  • We have to shift from penalizing attempts to suicide or making such cases medico-legal ones. Instead, we should provide psychological or mental treatment and support to the persons affected. As the issue demands a reformative stance, we need a permanent solution like repealing Section 309 of the Indian Penal Code or striking it down. 

Recusal of Judges

• Context:
  • Recently, two Supreme Court (SC) judges have recused themselves from hearing cases relating to West Bengal. 
• What is the recusal of judges? 
  • Recusal is the removal of oneself as a judge or policymaker in a particular matter. 
• The judges usually recuse themselves when there is a Conflict of Interest: 
  • Conflict of Interest:
    • It can occur in many ways, such as, holding shares in a company that is a litigant to having a prior or personal association with a party involved in the case. 
    • As the judges have a duty to act fair, they recuse from the case. 
    • Another instance for recusal is when an appeal is filed in the Supreme Court against a judgement of a High Court that may have been delivered by the SC judge when he or she was in the HC.
• Background:
  • It granted bail to Jawaharlal Nehru and Jamia University students, arrested under the Unlawful Activities (Prevention) Act (UAPA) in connection with the northeast Delhi riots in 2020. 
  • The Delhi police had maintained that the accused engaged in “sloganeering and instigating the public against the government”.
  • They tried to create a “communally surcharged environment” with the intent to disrupt the unity and strike terror.
  • According to data provided by the Ministry of Home Affairs in the Parliament in March, a total of 1126 cases were registered under UAPA in 2019, a sharp rise from 897 in 2015.
  • The Delhi Police argued that the terror clause in UAPA can be invoked in the following conditions: 
    • For the intent to threaten the unity and integrity but the likelihood to threaten the unity and integrity, 
    • For the intent to strike terror but the likelihood to strike terror, 
    • With the use of firearms but also for causing or likely to cause not just death but injuries to any person or persons or loss or damage or destruction of property.
• Delhi High Court observations:
  • The court criticised the Delhi Police for “casually” invoking provisions of the anti-terror law against the three accused, who had protested against the enactment of the Citizenship Amendment Act (CAA).
  • The court observed that the line between the constitutionally guaranteed “right to protest” and “terrorist activity” had been blurred.
  • It appears that in its anxiety to suppress dissent and in the morbid fear that matters may get out of hand, the state has blurred the line.
  • If such blurring gains traction, democracy would be in danger.
  • The charge sheet lacked “any specific, particularised, factual allegations” that would make out the ingredients of offences under the UAPA.
  • The court is of the view that the mere use of alarming and hyperbolic verbiage in the subject charge-sheet will not convince it otherwise.
  • The foundations of our nation stand on a surer footing than is likely to be shaken by a protest.
  • However vicious, organised by a tribe of college students or other persons, operating as a coordination committee from the confines of a University situated in the heart of Delhi.
  • The allegations relating to the following are evidence that the appellant participated in organising protests: 
    • Inflammatory speeches, 
    • Organising of chakka jaam (road blockades), 
    • Instigating women to protest and 
    • To stock-pile various articles and other similar allegations.
• Previous cases referred by the Delhi HC:
  • The bail orders also refer to how the Supreme Court itself, in the 1994 case of Kartar Singh v State of Punjab, flagged similar concerns against the misuse of another anti-terror law, the Terrorists and Disruptive Activities (Prevention) Act, 1987.
  • The court cited a 1992 SC ruling in the case of Hitendra Vishnu Thakur v State of Maharashtra.
  • In which the extent and reach of terrorist activity must travel beyond the effect of an ordinary crime and must not arise merely by causing disturbance of law and order or even public order;
  • And must be such that it travels beyond the capacity of the ordinary law enforcement agencies to deal with it under the ordinary penal law.
  • In 2019, the SC, in NIA v Zahoor Ahmed Watali, read the bail provisions strictly, holding that courts must only be satisfied that a prima facie case can be made out to deny bail and not consider the merit or the admissibility of the evidence.
• Delhi High Court Ruling:
  • The phrase ‘terrorist act’ cannot be permitted to be applied in a cavalier manner to criminal acts or omissions that fall squarely within the definition of conventional offences as defined inter alia under the IPC (Indian Penal Code).
  • The right to protest is not outlawed and cannot be termed as a ‘terrorist act’ within the meaning of the UAPA.
  • The ingredients of the offences under sections 15, 17 and/or 18 of the UAPA are clearly discernible from the factual allegations contained in the charge sheet.
  • Section 15 of the UAPA defines “terrorist act” and is punishable with imprisonment for a term of at least five years to life.
  • In case the terrorist act results in death, the punishment is death or imprisonment for life.
  • Court rejected the Delhi Police interpretation of the law for pressing charges stating that it is a sacrosanct principle of interpretation of penal provisions.
  • Interpretation must be construed strictly and narrowly.
  • The Delhi High Court’s reading of what constitutes terror activity stated that bail under UAPA can be granted only when the court is of the opinion that there are reasonable grounds for believing that the accusation against such a person is prima facie true.
  • It also helpfully points out that a simple law-and-order problem in a state should not be equated with a terrorist problem.
  • By making a clear distinction that the former is a state subject, and the latter a Union subject under lists one and two, the order, potentially, also has implications for federalism in matters of law enforcement.
  • This order insists that the allegations made against the accused must be backed up by facts, must pertain to acts undertaken by them as individuals, and must be specifically framed.
• Appeal to Supreme Court:
  • The students’ lawyers press for their immediate release, stating they could not be made to spend another night in jail after getting bail.
  • The police objected stating they should not be released until the outstation addresses of the three students and their sureties were verified.
  • The police sought more time to file its verification report.
  • The police, in their appeal in the Supreme Court, claimed the High Court had lost sight of the evidence in the case. 
  • Seeking an immediate stay of the HC order, the police said it would otherwise affect all other cases registered by the National Investigation Agency under the UAPA.
• Supreme Court Held:
  • It stated that the High Court’s order of June 15 would neither be treated as a precedent in any proceedings nor be relied on by the parties.
  • The way the UAPA Act has been interpreted (by the High Court) requires further examination.
• The root of the issue:
  • Ostensibly designed to check and address terrorism, the UAPA is perhaps one of the most abused laws in India today. 
  • The root of the problem lies in Section 43(D)(5) of this Act, which prevents the release of any accused person on bail under the following conditions:
    • If, on a perusal of the case diary,
    • The report made under Section 173 of the Code Of Criminal Procedure and the court is of the opinion that there are reasonable grounds for believing that the accusation against such a person is prima facie true.
    • India follows the adversarial system of criminal justice.
    • Where two sides to a dispute attempt to persuade the court that their version of events is true.
    • The adversarial system of justice is the testing of evidence through cross-examination.
    • Each side is afforded the opportunity to scrutinise, challenge, and question the evidence produced by its opponent.
    • The best way for a judge to unearth the truth (or the closest approximation of it) is to consider which side’s evidence is left standing, and appears more persuasive, after the rigours of cross-examination.
    • Production of evidence, and cross-examination, involves Witnesses,  Recoveries of incriminating objects, 
    • Tests of handwriting or voice samples, and  Many other elements.
    • In India, with our overburdened courts and creaking justice system, criminal trials take years. 
    • In high-profile cases such as the Delhi riots case, where the record is bulky, and the witnesses number in their hundreds, trials can take many years even a decade or more.

 

Supreme court:

Chief Justice of India

• Context:
  • Justice N.V. Ramana was recently sworn in as the 48th Chief Justice of India (CJI) by President Ram Nath Kovind at Rashtrapati Bhavan.
• About:
  • The Chief Justice of India is appointed by the President under clause (2) of Article 124 of the Constitution, after consultation with such judges of the Supreme Court and high courts as he deems necessary.
  • From 1950 to 1973, the practice has been to appoint the seniormost judge of the Supreme Court as the chief justice of India.
  • This established convention was violated in 1973 when A.N. Ray was appointed as the Chief Justice of India by superseding three senior judges.
  • Again in 1977, M.U. Beg was appointed as the chief justice of India by superseding the then senior-most judge.
  • This discretion of the government was curtailed by the Supreme Court in the Second Judges Case (1993), in which the Supreme Court ruled that the seniormost judge of the Supreme Court should alone be appointed to the office of the chief justice of India.

Disabled are entitled to the same benefits of SC/ST quota: SC

• Context:
  • The Supreme Court, in a significant decision, has confirmed that persons suffering from disabilities are also socially backwards and entitled to the same benefits of relaxation as Scheduled Caste/Scheduled Tribe candidates in public employment and education.
  • The Court has upheld a 2012 judgment of the Delhi High Court in Anamol Bhandari (minor) through his father/Natural Guardian v. Delhi Technological University in a significant decision.
• What was the case?
  • A petition was filed by Aryan Raj, a special needs person, against the Government College of Arts, Chandigarh.
  • The college denied Mr Raj relaxation in minimum qualifying marks in the Painting and Applied Art course.
  • The college insisted that disabled persons need to meet the general qualifying standard of 40% in the aptitude test, whereas SC/ST candidates were given relaxation to 35%.
• Need for reservations:
  • Intellectually/mentally challenged persons have certain limitations, which are not there in physically challenged persons.
• What needs to be done?
  1. New academic courses should be crafted to specifically cater to the needs of intellectually disabled persons.
  2. The subject experts should examine the feasibility of creating a course that caters to the specific needs of such persons.
  3. They may also examine increasing the number of seats in the discipline of Painting and Applied Art with a view to accommodating such students.

Contempt of Court: Prashant Bhushan Case

• Context: 
  • The Supreme Court has initiated suo motu  proceedings for criminal contempt against Advocate Prashant Bhushan for two of his tweets on Chief Justice of India S.A. Bobde as well as former CJIs
• What were the tweets about?
  • In one of his tweets, Bhushan had written about the “role of the Supreme Court” in the “destruction” of democracy during the last 6 years, and had also mentioned the “role of the last 4 CJIs” in it. 
  • In another tweet, Bhushan had commented on Chief Justice of India S.A. Bobde astride a Harley Davidson bike. He had questioned the CJI for riding a bike without a helmet and a face mask, while “he keeps the SC in lockdown mode”. 
• Contempt of court
  • Contempt of court is an act of disrespect or disobedience towards a judge or court’s officers or interference with its orderly process. 
  • The Contempt of Courts Act of 1971 categorises contempt of courts as:
    • Civil contempt:  
      • It is willful disobedience to any judgment, decree, direction, order, writ, or other processes of a court or wilful breach of an undertaking given to the court. 
    • Criminal contempt:
      • Anything that “scandalises or tends to scandalise” the judiciary or “lowers the court’s authority” 
    • Safeguards:
      • However, innocent publication and distribution of some matter, fair and reasonable criticism of judicial acts and comment on the administrative side of the judiciary do not amount to contempt of court. 
    • Punishments:
      • The supreme court and the high courts have the power to punish for contempt of court, either with simple imprisonment for a term of up to six months or with a fine up to 2,000 or with both. 
    • Amendment in 2006: 
      • Truth and good faith were recognised as valid defences against charges of contempt of court.
• Constitutional Provisions:
  • Article 129:
    • Grants the Supreme Court the power to punish for contempt of itself.
  • Article 142(2):
    • Enables the Supreme Court to investigate and punish any person for its contempt.
  • Article 215:
    • Grants every High Court the power to punish for contempt of itself.
    • However, the expression ‘contempt of court’ has not been defined by the Constitution.
• Contempt of Courts:
  • As per the Contempt of Courts Act 1971, contempt refers to the offence of showing disrespect to the dignity or authority of a court. The Act divides contempt into civil and criminal contempt.
    • Civil contempt:
      • It is willful disobedience to any judgment, decree, direction, order, writ, or other processes of a court or wilful breach of an undertaking given to the court.
    • Criminal contempt:
      • It is an act that may result in:
        • Scandalising the court by lowering its authority.
        • Interference in the due course of a judicial proceeding.
        • An obstruction in the administration of justice.
• Amendment:
  • The Contempt of Courts Act 1971 was amended in 2006 to include the defence of truth under Section 13 of the original legislation.
  • Implying that the court must permit justification by truth as a valid defence if it is satisfied that it is in the public interest.
  • Further, innocent publication and distribution of some matter, fair and reasonable criticism of judicial acts and comment on the administrative side of the judiciary do not amount to contempt of court.
• Punishment for Contempt of Court:
  • The Supreme Court and High Courts have the power to punish for contempt of court, either with simple imprisonment for a term up to six months or with a fine up to Rs. 2,000 or with both.
  • In 1991, the Supreme Court ruled that it has the power to punish for contempt not only of itself but also of high courts, subordinate courts, and tribunals functioning in the entire country.
  • On the other hand, High Courts have been given special powers to punish contempt of subordinate courts, as per Section 10 of the Contempt of Courts Act of 1971.
• Need for Contempt Law:
  • To insulate the judiciary from unfair attacks and prevent a sudden fall in the judiciary’s reputation in the public eye.
  • It helps judges to do their duties of deciding cases without fear, favour, affection, or ill will.
• Contempt of Courts (Amendment) Act, 2006:
  • The statute of 1971 has been amended by the Contempt of Courts (Amendment) Act, 2006 to include the defence of truth under Section 13 of the original legislation.
    • Section 13:
      • Restrict the powers of the court in that they were not to hold anyone in contempt unless it would substantially interfere with the due process of justice. 
      • The amendment further states that the court must permit ‘justification by truth as a valid defence if it is satisfied that it is in the public interest and the request for invoking the said defence is bona fide.’
  • Already, contempt has practically become obsolete in foreign democracies, with jurisdictions recognising that it is an archaic law, designed for use in a bygone era, whose utility and necessity has long vanished.
• Covered in detail in Samjaho's Corner: https://samajho.com/upsc/contempt-of-court-prashant-bhushan-case-analysis/.

Audit of PM-CARES Fund: SC

• Context:
  • Supreme Court has delivered its judgment on PM CARES funds.
• What’s the issue?
  • The petition was filed by an NGO named Centre for Public Interest Litigation (CPIL) had sought direction to the Centre to transfer the funds of PM Cares Fund to the NDRF.
• Highlights of the judgment:
  1. The Court has “refused” to order the transfer of funds from the PM CARES Fund to the National Disaster Response Fund (NDRF). They “are two entirely different funds with different object and purpose”.
  2. PM CARES Fund, being a public charitable trust, “there is no occasion for audit by the Comptroller & Auditor General of India”.
  3. The Court also rejected the request for a new National Plan under the National Disaster Management Act, 2005, to deal with the Covid-19 situation.
  4. The court held that there is “no statutory prohibition on individuals to make voluntary contributions to NDRF” under Section 46(1)(b) of the DM Act.
  5. The court also declined to intervene with the “minimum standards of relief” and the necessary guidelines issued by the government under Section 12 of the DM Act.
• About PM CARES Fund:
  • Set up on March 28, the PM CARES Fund is a charitable trust registered under the Registration Act, 1908.
  • The trust does not receive any Budgetary support or any Government money.
  • It was constituted with an objective to extend assistance in the wake of a public health emergency that is pandemic COVID-19”.
• Who administers the fund?
  • Prime Minister is the ex-officio Chairman of the PM CARES Fund and the Minister of Defence, Minister of Home Affairs and Minister of Finance, the Government of India are ex-officio Trustees of the Fund.

FCRA nod for PM CARES

• Context:
  • The PM CARES Fund has received an exemption from all provisions of the Foreign Contribution (Regulation) Act.
  • However, it is alleged that PM CARES does not meet the precondition of being a body established and owned by the government whose accounts are audited by the Comptroller and Auditor-General (CAG).
• What did the rules say?
  • In July 2011, the Home Ministry issued an order exempting all bodies established by a Central or State Act which are required to have their accounts audited by the CAG.
  • Earlier this year, on January 30, 2020, it issued a fresh order superseding the previous one, “to exempt organisations (not being a political party), constituted or established by or under a Central Act or a State Act or by any administrative or executive order of the Central Government or any State Government and wholly owned by the respective Government and required to have their accounts compulsorily audited by the Comptroller and Auditor General of India (CAG) or any of the agencies of the CAG”.
• Why PM CARES Fund cannot be exempted?
  1. It was not set up through a Central or State Act.
  2. It has been argued that it is not a public authority under RTI.
  3. The Fund is audited by an independent auditor, not by the CAG.
• FCRA:
  • The FCRA is meant to regulate the acceptance and use of foreign contributions and to prevent their use for activities detrimental to the national interest.
  • This includes gifts and monetary contributions from foreign sources, whether in Indian or foreign currency.
  • Organisations that wish to receive foreign donations must have a definite cultural, economic, educational, religious, or social programme, and must register under the Act, and receive a clearance from the government.
  • Section 50 of the Act allows the Central government to issue orders exempting any organisation (apart from political parties) from the provisions of FCRA if it feels it necessary or expedient in the public interest, subject to conditions specified in the order.

States can have sub-groups among SCs/STs: Supreme Court

• Context:
  • A five-judge Bench of the Supreme Court has held that States can sub-classify Scheduled Castes and Scheduled
  • Tribes in the Central List to provide preferential treatment to the “weakest out of the weak”.
• Background:
  • The judgment is based on a reference to the Constitution Bench the question of law involving Section 4(5) of the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006.
  • The legal provision allows 50% of the reserved Scheduled Castes seats in the State to be allotted to Balmikis and Mazhabi Sikhs.
• Need for sub-classification- Observations made by the Supreme Court:
  • Reservation has created inequalities within the reserved castes themselves.
  • There is a “caste struggle” within the reserved class as the benefit of reservation is being usurped by a few.
  • It is clear that caste, occupation, and poverty are interwoven.
  • The State cannot be deprived of the power to take care of the qualitative and quantitative differences between different classes to take ameliorative measures.
• What does the Constitution of India state?
  • According to the Constitution of India, under article 341(1), the President of India, after consultation with the Governor, may specify, “the castes, races, tribes or parts of groups within castes or races, which shall be deemed to be Scheduled Castes”.
  • Accordingly, the President has notified the Scheduled Castes in the order called ‘Constitution (Scheduled Castes) Order-1950’ and the ‘Scheduled Castes and Scheduled Tribes List (Modification) Order-1956.
  • • However, under article 341(2), the Parliament of India by law can include or exclude the abovementioned groups from the list of the Scheduled Castes.
• Does the latest judgment amount to the tinkering of the Central list?
  • No, said the Supreme Court bench. Sub-classifications within the Presidential/Central List does not amount to “tinkering” with it. No caste is excluded from the list. The States only give preference to the weakest of the lot in a pragmatic manner based on statistical data.
  • Besides, Preferential treatment to ensure even distribution of reservation benefits to the more backward is a facet of the right to equality.
• Why this judgment is significant?
  • It fully endorses the push to extend the creamy layer concept to the Scheduled Castes and Scheduled Tribes.
  • The judgment records that “Citizens cannot be treated to be socially and educationally backwards till perpetuity; those who have come up must be excluded like the creamy layer”.
  • The entire basket of fruits cannot be given to the mighty at the cost of others under the guise of forming a homogenous class.
• Implications of the judgment:
  • With this, the Bench took a contrary view to a 2004 judgment delivered by another Coordinate Bench of five judges in the E.V. Chinnaiah case.
  • In this case, the court had held that allowing States to unilaterally “make a class within a class of members of the Scheduled Castes” would amount to tinkering with the Presidential list.
  • Now with two numerically equal Benches of judges holding contrary viewpoints, the issue has been referred to a seven-judge Bench of the court.

SC exploring avenue to provide quick relief to the road accident victim

• Context:
  • In an effort to speed up compensation to victims and their families, the Court is planning to take the digital route to improve the administration of justice.
• Background:
  • Insurance company Bajaj Allianz had filed a writ petition on the plight of accident victims who had been waiting for years for compensation. Drawing on its “pan-India experience”
  • In its petition, the company said that delay in the collection of information on the accident and submission of the report in the tribunal makes it tougher for insurers to separate genuine claims from fake ones.
  • The Supreme Court’s own Artificial Intelligence Committee, headed by Justice L Nageswara Rao, had been considering a virtual machine to speed up the compensation process. 

Related Information: Recently, the Union Minister for Road Transport and Highways released the World Bank Report titled “Traffic Crash Injuries And Disabilities: The Burden on India Society”. The Report has been prepared in collaboration with the NGO-Save Life Foundation. The survey data was collected from four Indian states i.e. Uttar Pradesh, Bihar, Tamil Nadu, and Maharashtra. Motor Vehicles Amendment Act, 2019: The Act hikes the penalties for traffic violations, defective vehicles, juvenile driving, etc. It provides for a Motor Vehicle Accident Fund, which would provide compulsory insurance cover to all road users in India for certain types of accidents. It also provides for a National Road Safety Board, to be created by the Central Government through a notification. It also provides for the protection of good samaritans.

Supreme court on Rohingya refugees

• Context:
  • The Supreme court rejected a petition against the possible deportation of members of the Rohingya community detained in Jammu.
• The petition:
  • Petitioner had sought the release of the people from his community detained in Jammu and Kashmir and a direction to the Centre not to deport them to Myanmar.
  • His Advocate had earlier argued that rights under Articles 14 and 21 are available to all persons who may or may not be citizens.
  • He contended that the principle of non-refoulment – the right not to be sent to a place where they may face persecution – is part of the right guaranteed under Article 21 of the Constitution.
• Response of the central government:
  • The Centre, however, said that India is not a signatory to the United Nations Convention on the Status of Refugees 1951 or to the 1967 Protocol relating to the Status of Refugees and “that the principle of nonrefoulement is applicable only to contracting States”.
  • Appearing for the Centre, Solicitor General Tushar Mehta held that Rohingyas are illegal immigrants.
• Illegal immigrant vs refugee:
  • Under the 1951 UN Convention on the Status of Refugees and the subsequent 1967 Protocol, the word refugee pertains to any person who is outside their country of origin and unable or unwilling to return owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion.
  • The UN has said the flight of the Rohingya following the Myanmar military crackdown in Rakhine state in 2017 had created the world’s biggest refugee crisis.
  • An illegal immigrant in India is a foreigner who has entered India either without valid documents or who initially had a valid document, but has overstayed beyond the permitted time, as per the general provisions of the Citizenship Act as amended in 2003.
• About the court order:
  • The court noted that the Centre in its reply had made “two serious allegations”, which relate to
    1. the threat to the internal security of the country; and
    2. the agents providing a safe passage into India for illegal immigrants, due to the porous nature of the landed borders.
  • Therefore, it is not possible to grant the interim relief prayed for.
  • It is true that the rights guaranteed under Articles 14 and 21 are available to all persons who may or may not be citizens.
  • But the right not to be deported is ancillary to the right to reside or settle in any part of the territory of India guaranteed under Article 19(1)(e).
  • However, it is made clear that the Rohingya in Jammu, on whose behalf the present application is filed, shall not be deported unless the procedure prescribed for such deportation is followed.

Constitutional Provisions

Constitution Day or Samvidhan Divas

• Context:
  • November 26 is observed as India’s Constitution Day.
• About:
  • On November 26, 1949, the Constituent Assembly adopted the Constitution of India, and it came into effect on January 26, 1950.
  • While January 26 is celebrated as Republic Day, since 2015, November 26 has been observed as the Constitution Day of India or Samvidhan Divas.
  • In 2015, the government formally notified November 26 as Constitution Day. Before this, the day was observed as National Law Day.
  • It is to promote constitutional values amongst citizens.
• Timeline of events:
  • The Constituent Assembly, the body meant to draft the Constitution of India, held its first session on December 9, 1946, attended by 207 members, including nine women.
  • The assembly took over three years to draft the constitution, spending over 114 days considering the content of the draft alone.
  • On December 13, 1946, Nehru moved the “Objectives Resolution” that was later adopted as the Preamble on January 22, 1947.
  • The Drafting Committee chaired by Ambedkar was one among the over 17 committees of the Constituent Assembly. Their task was to prepare a Draft Constitution for India. 
  • The last session of the Constituent Assembly ended on November 26, 1949, when the Constitution was adopted.

Right to private property

• Context:
  • The Urban Development Ministry and the Delhi Development Authority has accused the Supreme Court-appointed monitoring committee, set up in 2006 to identify unauthorised structures and check misuse of residential properties in Delhi, of “expanding its territory on its own”.
• Observation of supreme court:
  • The court had found that the committee had no authorisation to seal private residential premises not used for commercial purposes in the National Capital.
  • The Constitution mandates that a person can be deprived of property and right of residence only in the manner prescribed by law, the court had noted.
  • In another recent judgement, the court said that citizen’s right to own private property is a human right.
  • The state cannot take possession of it without following due procedure and authority of law.
• Constitutional provisions:
  • The private property ceased to be a fundamental right with the 44th Constitution Amendment in 1978.
  • Nevertheless, Article 300A required the state to follow due procedure and authority of law to deprive a person of his or her private property.

Differences between the US and the Indian electoral system

• Context:
  • After the recently concluded elections in the USA, many American citizens have raised questions on the American electoral system.
• Electoral system of USA:
  • US voters on election day don’t select the President directly.
  • They are voting for 538 electors instead, who meet in their respective states and vote for President and Vice President.
  • Each state, no matter how populous, will get at least three electors, and the remaining are in proportion to the population of the state.
  • These electors comprise the Electoral College.
  • To win the presidency, 270 electoral votes are needed to get a majority of the Electoral College. 
  • In the electoral college system, the candidate with the highest number of votes in a state claims all of the state’s electoral votes.
  • Thus, some call the electoral college a ‘winner-takes-all' system, as small margins in the key states with large populations (and thus more electors), can tilt the US elections in one party’s favour.
• Indian electoral system:
  • The country has been divided into 543 Parliamentary Constituencies, each of which returns one MP to the Lok Sabha, the lower house of the Parliament.
  • 28 states and 3 Union territories have legislative assemblies/ Vidhan Sabhas.
  • Elections to the Lok Sabha and each Vidhan Sabha are carried out using a first-past-the-post electoral system.
  • For each constituency, the electors can cast their vote for a single candidate (of their choice), the winner being the candidate who gets the most votes.

Comparison of Indian and French model of secularism

• Context:
  • The beheading of a schoolteacher in a Paris suburb and Knife attacks in Nice brought to light the French model of secularism.
• Comparison:

  Indian Secularism	French secularism
  Differences
  Negative secularism i.e complete separation of State and religion.	Positive secularism i.e there is no strict separation between state and religion. State can interfere for reform and to protect religious rights
  There is only the concept of individual rights.	Both individual rights (Article 25) and community rights (Article 26) are protected by the constitution.
  Religious rights are not guaranteed, hence no remedy for their violation.	Religious rights are guaranteed by the constitution (Article
  Similarities
  There is freedom of conscience.	Indian constitution also guaranteed freedom of conscience (Article 25).
  Secularism is the core concept in the constitution.	The preamble of the Indian constitution states that India is a secular state.

Comparison of pardoning powers of US and Indian presidents

• Context:
  • Recently, US President Donald Trump exercised his pardoning powers.
• US President’s power to pardon:
  • The President of the US has the constitutional right to pardon or commute sentences related to federal crimes.
  • The US Supreme Court has held that this power is “granted without limit” and cannot be restricted by Congress.
  • President is not answerable for his pardons and does not have to provide a reason for issuing one.
  • Limitations:
    • This power cannot be exercised in cases of impeachment.
    • The power only applies to federal crimes and not state crimes.
• Indian President’s power to pardon:
  • Article 72 of the constitution provides the president power to grant pardons, etc, and to suspend, remit or commute sentences in certain cases.
  • 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:
    • In all cases where the punishment or sentence is by a Court Martial;
    • 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;
    • In all cases where the sentence is a sentence of death.
  • Under Article 161, the Governor also has pardoning powers, but these do not extend to death sentences.
  • Limitations:
    • The President cannot exercise his power of pardon independent of the government.
    • The President of India has to act on the advice of the Cabinet.
  • Although the President is bound by the Cabinet’s advice, Article 74(1) empowers him to return it for reconsideration once.
  • If the Council of Ministers decides against any change, the President has no option but to accept it.

Article 32

• Context:
  • Recently, a Supreme Court bench headed by Chief Justice of India S A Bobde observed that it is “trying to discourage” individuals from filing petitions under Article 32 of the Constitution.
• Article 32:
  • It is one of the fundamental rights listed in the Constitution that each citizen is entitled.
  • Article 32 deals with the ‘Right to Constitutional Remedies’, or affirms the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred in Part III of the Constitution.
  • It states that the Supreme Court “shall have the power to issue directions or orders or writs, including writs like habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part”.
  • The right guaranteed by this Article “shall not be suspended except as otherwise provided for by this Constitution”.
  • According to Dr B R Ambedkar had said, “It is the very soul of the Constitution and the very heart of it”.
  • He said the rights invested with the Supreme Court through this Article could not be taken away unless the Constitution itself is amended and hence it was “one of the greatest safeguards that can be provided for the safety and security of the individual”.
• Writs:
  • Both the High Courts and the Supreme Court can be approached for violation or enactment of fundamental rights through five kinds of writs:
    • Habeas corpus (related to personal liberty in cases of illegal detentions and wrongful arrests)
    • Mandamus — directing public officials, governments, courts to perform a statutory duty;
    • Quo warranto — to show by what warrant is a person holding public office;
    • Prohibition — directing judicial or quasi-judicial authorities to stop proceedings which it has no jurisdiction for; and
    • Certiorari — a re-examination of an order given by judicial, quasi-judicial or administrative authorities.

Article 363-A

• Context:
  • A grandson of the last Nizam Nawab Mir Osman Ali Khan has complained to the Hyderabad Police seeking registration of an FIR on a few other Nizam’s heirs alleging that they have used false documents to lay claim over the £35 million Nizam’s Fund lying in a UK bank.
  • He said this move amounted to a violation of Article 363-A of the Constitution.
• About:
  • It was inserted in the Constitution (Twenty-sixth Amendment) Act, 1971.
  • It led the abolition of Privy Purse.

Constitutional provisions for the safeguard of cow slaughter

• Context: 
  • The Allahabad High Court has expressed concern about the misuse of the anti cow slaughter law in Uttar Pradesh.
• About:
  • Article 48 of the Constitution of India is one of the Directive Principles which directs the state to make efforts for banning Beef consumption, animal slaughtering, Smuggling and trading with neighbouring borders.
  • On 26 October 2005, the Supreme Court of India, in a landmark judgement upheld the Constitutional validity of anti-cow slaughter laws enacted by different states of India.
  • The “Preservation, protection and improvement of stock and prevention of animal diseases, veterinary training and practice” is in the State List of Seventh Schedule of the Indian Constitution.
  • The laws governing cattle slaughter in India vary greatly from state to state.
  • State Legislature has exclusive powers to legislate the prevention of slaughter and preservation of cattle.

Constitutional Provisions for women

• Context: 
  • The Ministry of Home Affairs has issued an advisory to all States regarding “mandatory action by the police in crimes against women”.
• Constitutional provisions:
  • The principle of gender equality is enshrined in the Indian Constitution in its Preamble, Fundamental Rights, Fundamental Duties and Directive Principles.
  • The Constitution not only grants equality to women, but also empowers the state to adopt measures of positive discrimination in favour of women for neutralizing the cumulative socio-economic, educational, and political disadvantages faced by them.
• Constitutional Privileges:
  • Equality before law for women (Article 14).
  • The State is not to discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them (Article 15(1)).
  • The State to make any special provision in favour of women and children (Article 15(3)).
  • The State to direct its policy towards securing for men and women equally the right to an adequate means of livelihood (Article 39(a)); and equal work for both men and women (Article 39(d)).
  • Reservation of seats.

Right to marry

• Context:
  • The Supreme Court agreed to examine the constitutional validity of a spate of laws enacted by States such as Uttar Pradesh and Uttarakhand that criminalize religious conversion via marriage and mandate prior official clearance before marrying into another faith.
• About the anti-conversion laws:
  • States like Uttar Pradesh, Madhya Pradesh have enacted these laws which require prior permission to marry.
  • The burden of proof was on the people who marry to show they were not doing so to get converted.
  • Those who are found guilty under these laws stare at a 10-year prison sentence. The offences are non-bailable.
  • There are reports that people are being picked up in the middle of weddings on suspicion of religious conversion.
• SC verdicts on the Right to marry a person of one's choice:
  • In the Hadiya case, the right to marry a person of one’s choice was part of an adult’s privacy.
  • It essentially means that this right is an integral part of the fundamental right to Life and personal liberty enshrined under Article 21.
  • The Hadiya case verdict underlines that the choice of a life partner, whether by marriage or outside it, was part of an individual’s “personhood and identity”.
  • “Matters of dress and of food, of ideas and ideologies, of love and partnership are within the central aspects of identity.
  • Neither the State nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters.
  • Also, in the K.S. Puttuswamy case, the court said, “Autonomy of the individual was the ability to make decisions in vital matters of concern to life.”
  • Any interference by the State in an adult’s right to love and marry has a “chilling effect” on freedom.
  • Intimacies of marriage lie within a core zone of privacy, which is inviolable and the absolute right of an individual to choose a life partner is not in the least affected by matters of faith.
• A correction by Allahabad High Court:
  • The Allahabad High Court judgment struck down provisions of the Special Marriage Act, 1954 that make it mandatory for couples to publish a 30-day public notice of their intent to marry — which often exposes them to vigilante and familial violence.
  • A single-judge bench of the high court ruled that the compulsory notice inviting scrutiny and objections encroached on “the fundamental rights of liberty and privacy, including within its sphere freedom to choose for marriage without interference from state and non-state actors, of the persons concerned.”
  • The Law Commission of India report in 2012 had made a similar recommendation to “keep a check on the high-handed and unwarranted interference by caste assemblies in sagotra, inter-caste or inter-religious marriages”.

Right to Privacy

• Context:
  • The Supreme Court agreed to consider after three weeks a petition filed by a group of women against the compulsory nature of sacred confessions to priests in Christianity.
• About the issue:
  • The Women's petitioners filed a petition saying that confessions are being abused.
  • The court observed: There cannot be a rule to impose confessions on a worshipper. Ladies are forced to confess before the priest. The court has to see whether confessions are an integral part of the religion. This brings into picture the doctrine of Essentiality, which was also used during the Sabarimala Case.
  • A senior lawyer said forced confessions violated the right to privacy.
• The doctrine of Essentiality:
  • The doctrine of “essentiality” was invented by a seven-judge Bench of the Supreme Court in the ‘Shirur Mutt’ case in 1954.
  • The court held that the term “religion” will cover all rituals and practices “integral” to a religion, and took upon itself the responsibility of determining the essential and non-essential practices of a religion.

Right to counsel in custody

• Context:
  • National Investigation Agency (NIA) told a special court in Mumbai that the arrested assistant police inspector Sachin Waze, now suspended from Mumbai Police, was not cooperating in the probe against him and was insisting on his lawyer being present during interrogation
• What is the Right to counsel?
  • Right to counsel means a defendant has a right to have the assistance of counsel (i.e., lawyers) and, if the defendant cannot afford a lawyer, requires that the government appoint one or pay the defendant’s legal expenses.
  • The right to counsel is generally regarded as a constituent of the right to a fair trial.
• What Constitution say?
  • Article 22 of the Constitution of India states that “No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.”
  • Section 41D of the Criminal Procedure Code (CrPC) states that an accused is entitled to “meet an advocate of his choice during interrogation, though not throughout interrogation”
  • In 2011, the Supreme Court of India ruled that a court could not decide a case without a lawyer present for the defendant, and mandated that a court must appoint a lawyer when the defendant cannot afford one.
  • Public legal assistance is provided through the National Legal Services Authority and state-level legal services organizations.
  • Courts appoint legal aid lawyers in both civil and criminal cases.

Sri Lanka 19th amendment of the constitution

• Context:
  • In his first address to the newly elected Parliament, Sri Lankan President Gotabaya Rajapaksa has declared his intention to repeal the landmark 19th Amendment to the Constitution, and, thereafter, to work towards a new Constitution.
  • Why? The Rajapaksa camp viewed the 19th Amendment’s clauses as primarily intending to prevent its leaders’ return to power.
• Overview of the 19th Constitutional Amendment:
  • Introduced in 2015. The legislation envisages the dilution of many powers of the Executive Presidency, which had been in force since 1978.
• It involves:
  1. The reduction in the terms of President and Parliament from six years to five years.
  2. Re-introduction of a two-term limit that a person can have as President.
  3. The power of the President to dissolve Parliament only after four and a half years.
  4. The revival of the Constitutional Council and the establishment of independent commissions.
  5. The President remains the head of the Cabinet and he can appoint Ministers on the advice of the Prime Minister.
• Why was the 19th Amendment introduced?
  • It mainly sought to weaken the power of the presidency which the 18th amendment had greatly expanded.
• The 18th amendment allowed four basic changes:
  1. The President can seek re-election any number of times;
  2. The ten-member Constitutional Council has been replaced with a five-member Parliamentary Council;
  3. Independent commissions are brought under the authority of the President; and,
  4. It enables the President to attend Parliament once in three months and entitles him to all the privileges, immunities, and powers of a Member of Parliament other than the entitlement to vote.
  5. The 19th amendment counterbalanced many of these decisions and restored components of the 17th amendment.

Comptroller and Auditor General of India (CAG)

• Context:
  • Former Jammu and Kashmir Lieutenant Governor GC Murmu was recently appointed as the new Comptroller and Auditor General of India (CAG).
• About CAG:
  • The Constitution of India provides for an independent office of the Comptroller and Auditor General of India (CAG) in chapter V under Part V.
  • The CAG is mentioned in the Constitution of India under Article 148 – 151.
  • He is the head of the Indian Audit and Accounts Department.
  • He is the guardian of the public purse and controls the entire financial system of the country at both levels- the center and state.
  • His duty is to uphold the Constitution of India and the laws of Parliament in the field of financial administration.
• Appointment and Term to Constitutionals Posts:
  • The CAG is appointed by the President of India by a warrant under his hand and seal.
  • He holds office for a period of six years or up to the age of 65 years, whichever is earlier.
• Duties:
  1. CAG audits the accounts related to all expenditures from the Consolidated Fund of India, Consolidated Fund of each state, and UT has a legislative assembly.
  2. CAG audits all expenditures from the Contingency Fund of India and the Public Account of India as well as the Contingency Fund and Public Account of each state.
  3. CAG audits all trading, manufacturing, profit and loss accounts, balance sheets, and other subsidiary accounts kept by any department of the Central Government and the state governments.
  4. CAG audits the receipts and expenditure of all bodies and authorities substantially financed from the Central or State revenues; government companies; other corporations and bodies when so required by related laws.
  5. He ascertains and certifies the net proceeds of any tax or duty and his certificate is final on the matter.
• Reports:
  • He submits his audit reports relating to the accounts of the Centre and State to the President and Governor, who shall, in turn, place them before both the Houses of Parliament and the state legislature respectively.
  • He submits 3 audit reports to the President: an audit report on appropriation accounts, an audit report on financial accounts, and the audit report on public undertakings.
• CAG and PAC:
  • He acts as a guide, friend, and philosopher of the Public Accounts Committee of the Parliament.
  • CAG along with its mandatory regulatory and compliance audit performs the performance as well as efficiency audit to question the executive’s wisdom and economy in order to identify cases of improper expenditure and waste of public money.
• Constitutional provisions which ensure the independence of CAG are:
  1. CAG is provided with the security of tenure. He can be removed by the president only in accordance with the procedure mentioned in the Constitution. Thus, he does not hold his office until the pleasure of the president, though he is appointed by him.
  2. He is not eligible for further office, either under the Government of India or of any state, after he ceases to hold his office.
  3. His salary and other service conditions are determined by the Parliament. His salary is equal to that of a judge of the Supreme Court.
  4. Neither his salary nor his rights in respect of leave of absence, pension or age of retirement can be altered to his disadvantage after his appointment.
  5. The administrative expenses of the office of the CAG, including all salaries, allowances and pensions of persons serving in that office are charged upon the Consolidated Fund of India. Thus, they are not subject to the vote of Parliament.

UPSC chairman

• Context:
  • Educationist Professor Pradeep Kumar Joshi has been appointed as the chairman of the Union Public Service Commission (UPSC).
  • Mr Joshi is currently a member of the Commission.
  • He will succeed Arvind Saxena.
• Who appoints the chairman and other members?
  • Article-316- Appointment and term of office of members:
    • The Chairman and other members of a Public Service Commission shall be appointed, in the case of the Union Commission or a Joint Commission, by the President, and in the case of a State Commission, by the Governor of the State.
• Term:
  • A member of a Public Service Commission shall hold office for a term of six years from the date on which he enters upon his office or until he attains, in the case of the Union Commission, the age of sixty-five years, and in the case of a State Commission or a Joint Commission, the age of sixty-two years, whichever is earlier.
• Reappointment:
  • A person who holds office as a member of a Public Service Commission shall, on the expiration of his term of office, be ineligible for reappointment to that office.
  • But, a member other than the Chairman of the Union Public Service Commission shall be eligible for appointment as the Chairman of the Union Public Service Commission, or as the Chairman of a State Public Service Commission, but not for any other employment either under the Government of India or under the Government of a State.
  • Also, the Chairman of a State Public Service Commission shall be eligible for appointment as the Chairman or any other member of the Union Public Service Commission.
• Article-317- Removal and suspension of a member of a Public Service Commission:
  • Chairman or any other member of a Public Service Commission shall only be removed from his office by order of the President on the ground of misbehaviour after the Supreme Court, on reference being made to it by the President, has, on inquiry held in accordance with the procedure prescribed in that behalf under article 145, reported that the Chairman or such other member, as the case may be, ought on any such ground to be removed.
• Besides, President may by order remove from office the Chairman or any other member of a Public Service Commission if the Chairman or such other member, as the case may be:
  1. is adjudged an insolvent; or
  2. engages during his term of office in any paid employment outside the duties of his office; or
  3. is, in the opinion of the President, unfit to continue in office by reason of infirmity of mind or body.
• Guilty of Misbehaviour:
  • If the Chairman or any other member of a Public Service Commission is or becomes in any way concerned or interested in any contract or agreement made by or on behalf of the Government of India or the Government of a State or participates in any way in the profit thereof or in any benefit or emolument arising therefrom otherwise than as a member and in common with the other members of an incorporated company, he shall, for the purposes of clause (1), be deemed to be guilty of misbehaviour.

Appointment of Election Commissioners

• Context:
  • In pursuance of clause (2) of Article 324 of the Constitution, the President has appointed Rajiv Kumar, IAS(Retd.) as the Election Commissioner.
• About Election commission of India:
  • The constitution under article 324 provides for an Election Commission for the superintendence, direction, and control of the preparation of the electoral rolls for the conduct of elections to parliament, state legislatures, and to the offices of president and vice president.
• Composition Election commission of India:
  • The constitution provides for the following provisions in relation to the composition of the election commission:
    1. The election commission shall consist of the Chief Election Commissioner and a such number of other election commissioners, if any, as the president may from time to time fix.
    2. The appointment of the chief election commissioner and other election commissioners shall be made by the president.
    3. When any other election commissioner is so appointed the chief election commissioner shall act as the chairman of the election commission.
    4. The president may also appoint after consultation with the election commission such as regional commissioners as he may consider necessary to assist the election commission.
    5. The conditions of service and tenure of office of the election commissioners and the regional commissioners shall be such as the President may by rule determine.
• CEC vs ECs:
  • Though the Chief Election Commissioner is the chairman of the election commission, however, his powers are equal to the other election commissioners.
  • All the matters in the commission are decided by the majority amongst its members. The Chief Election Commissioner and the two other election commissioners receive equal salaries, allowances, and other benefits.
• Tenure:
  • The Chief Election Commissioner and other election commissioners hold office for 6 years or till they attain the age of 65 years, whichever is earlier. They can resign at any time by addressing their resignation to the president.
• Removal:
  • They can resign anytime or can also be removed before the expiry of their term.
  • The Chief Election Commissioner can be removed from his office in the same manner and on the same grounds as a judge of the Supreme Court.

Lokayukta

• Context:
  • The Supreme Court has issued a notice on a plea filed by the State of Nagaland for a direction to its Lokayukta to cease exercising his powers and functions and transfer all his work to the Upa-Lokayukta.
• What’s the issue?
  • The petition by the State asked the court to use its extraordinary powers under Article 142 of the Constitution to preserve the institutional integrity of the Lokayukta and ensure that a “fit, proper and competent person” occupies the office of the Lokayukta.
• What is Lokayukta?
  • Lokayukta is an anti-corruption authority or ombudsman – an official appointed by the government to represent the interests of the public.
  • Most importantly, it investigates allegations of corruption and mal-administration against public servants and is tasked with speedy redressal of public grievances.
• Genesis:
  • The Administrative Reforms Commission headed by Late Morarji Desai in 1966 recommended the setting up of the institution of Lokayukta.
  • The Lokpal and Lokayukta Act, 2013, commonly known The Lokpal Act was passed by the Parliament of India in December 2013.
  • It provides for the appointment of a Lokayukta “to investigate and report on allegations or grievances relating to the conduct of public servants.”
  • It also called for the establishment of Lokpal at the Centre.
• Who is appointed as the Lokayukta?
  • The Lokayukta is usually a former High Court Chief Justice or former Supreme Court judge and has a fixed tenure.
• Selection of Lokayukta:
  • The Chief Minister selects a person as the Lokayukta after consultation with the High Court Chief Justice, the Speaker of the Legislative Assembly, the Chairman of the Legislative Council, Leader of Opposition in the Legislative Assembly, and the Leader of Opposition in the Legislative Council.
  • The appointment is then made by the Governor.
  • Once appointed, Lokayukta cannot be dismissed nor transferred by the government, and can only be removed by passing an impeachment motion by the state assembly.

Attorney General

• Context:
  • Attorney General of India KK Venugopal has told the Centre that it must compensate states fully for the loss of Goods and Services Tax revenue during the coronavirus-induced lockdown.
  • The Centre had sought advice from the attorney general on the matter.
• Attorney General- Facts:
  • The Attorney General for India is the central government’s chief legal advisor, and its primary lawyer in the Supreme Court of India.
  • He is a part of the Union Executive.
• Appointment and eligibility:
  • He is appointed by the President of India under Article 76(1) of the Constitution and holds office during the pleasure of the President.
  • He must be a person qualified to be appointed as a Judge of the Supreme Court.
  • He should be an Indian Citizen.
  • He must have either completed 5 years in the High Court of any Indian state as a judge or 10 years in High Court as an advocate.
  • He may be an eminent jurist too, in the eye of the President.
• Powers and Functions:
  • The Attorney General is necessary for giving advice to the Government of India in legal matters referred to him. He also performs other legal duties assigned to him by the President.
  • The Attorney General has the right of audience in all Courts in India as well as the right to participate in the proceedings of the Parliament, though not to vote.
  • The Attorney General appears on behalf of the Government of India in all cases (including suits, appeals, and other proceedings) in the Supreme Court in which the Government of India is concerned.
  • He also represents the Government of India in any reference made by the President to the Supreme Court under Article 143 of the Constitution.
  • The Attorney General can accept briefs but cannot appear against the Government.
  • He cannot defend an accused in the criminal proceedings and accept the directorship of a company without the permission of the Government.
  • The Attorney General is assisted by two Solicitor General and four Additional Solicitor Generals.

Deputy Chairman of Rajya Sabha

• Context:
  • Electing new deputy Chairman Rajya Sabha, the post had fallen vacant after Harivansh Narayan Singh's term ended.
• About the Deputy Chairman of Rajya Sabha:
  • It is a constitutional position created under Article 89 of the Constitution, which specifies that Rajya Sabha shall choose one of its MPs to be the Deputy Chairman as often as the position becomes vacant.
• Who can be a deputy chairman?
  • The Deputy Chairman is elected by the Rajya Sabha itself from amongst its members.
  • Whenever the office of the Deputy Chairman falls vacant, the Rajya Sabha elects another member to fill the vacancy.
• The Deputy Chairman vacates his office in any of the following three cases:
  1. if he ceases to be a member of the Rajya Sabha;
  2. if he resigns by writing to the Chairman;
  3. if he is removed by a resolution passed by a majority of all the members of the Rajya Sabha. Such a resolution can be moved only after giving 14 days’ advance notice.
• Functions:
  • The Deputy Chairman performs the duties of the Chairman’s office when it is vacant or when the Vice President acts as President or discharges the functions of the President.
  • He also acts as the Chairman when the latter is absent from the sitting of the House. In both cases, he has all the powers of the Chairman.
  • The Deputy Chairman also plays a critical role in ensuring the smooth running of the House.
• Powers:
  • The Deputy Chairman is not subordinate to the Chairman.
  • He is directly responsible to the Rajya Sabha.
  • The Deputy Chairman is entitled to a regular salary and allowance which are fixed by Parliament and are charged on the Consolidated Fund of India.
• Election Procedure:
  • For electing the Deputy Chair any Rajya Sabha MP can submit a motion proposing the name of a colleague for this constitutional position.
  • The motion has to be seconded by another MP.
  • Additionally, the member moving the motion has to submit a declaration signed by the MP whose name s/he is proposing stating that the MP is willing to serve as the Deputy Chairperson if elected.
  • Each MP is allowed to move or second only one motion.
  • Then the majority of the House decides who gets elected as the Deputy Chairperson.
  • However, if the political parties arrive at a consensus candidate, then that MP will be unanimously elected as the Deputy Chair.

Deputy Speaker of Lok Sabha

• Context:
  • The Lok Sabha has not had a Deputy Speaker for the last 15 months. Instead, a panel of MPs has been assisting the Speaker.
• About Deputy Speaker:
  • Article 93 of the Constitution provides for the election of both the Speaker and the Deputy Speaker.
  • The constitutional office of the Deputy Speaker of the Lok Sabha is more symbolic of parliamentary democracy than some real authority.
  • There is no need to resign from their original party though as a Deputy Speaker, they have to remain impartial.
• Roles and functions:
  • They act as the presiding officer in case of leave of absence caused by death or illness of the Speaker of the Lok Sabha.
• Election:
  • Usually, the Deputy Speaker is elected in the first meeting of the Lok Sabha after the General elections from amongst the members of the Lok Sabha.
  • It is by convention that the position of Deputy Speaker is offered to an opposition party in India.
• Tenure and removal:
  • They hold office until either they cease to be a member of the Lok Sabha or they resign.
  • They can be removed from office by a resolution passed in the Lok Sabha by an effective majority of its members.

Basic Structure of the Constitution

• Context:
  • Kesavananda Bharati, the man who lent his name to an iconic case as the petitioner, died on Sunday.
  • The landmark ruling in which the Supreme Court announced the basic structure doctrine was in the case of His Holiness Kesavananda Bharati Sripadagalvaru and Ors v State of Kerala.
• What was the case about?
  • The case was primarily about the extent of Parliament’s power to amend the Constitution.
  • First, the court was reviewing a 1967 decision in Golaknath v State of Punjab which, reversing earlier verdicts, had ruled that Parliament cannot amend fundamental rights.
  • Second, the court was deciding the constitutional validity of several other amendments. Notably, the right to property had been removed as a fundamental right, and Parliament had also given itself the power to amend any part of the Constitution and passed a law that it cannot be reviewed by the courts.
  • Politically, the case represented the fight for supremacy of Parliament led by then Prime Minister Indira Gandhi.
• What happened then?
  • A 13-judge bench was set up by the Supreme Court, the biggest so far, and the case was heard over 68 working days spread over six months.
  • The basic structure doctrine was evolved in the majority judgment.
  • The judgement listed some basic structures of the constitution as:
    • The supremacy of the Constitution
    • Unity and sovereignty of India
    • A democratic and republican form of government
    • Federal character of the Constitution
    • Secular character of the Constitution
    • Separation of power
    • Individual freedom
  • Over time, many other features have also been added to this list of basic structural features. Some of them are:
    • Rule of law
    • Judicial review
    • Parliamentary system
    • Rule of equality
    • Harmony and balance between the Fundamental Rights and DPSP
    • Free and fair elections
    • Limited power of the parliament to amend the Constitution
    • Power of the Supreme Court under Articles 32, 136, 142 and 147
    • Power of the High Court under Articles 226 and 227
    • Any law or amendment that violates these principles can be struck down by the SC on the grounds that they distort the basic structure of the Constitution.
• Evolution of the Basic Structure Concept:
  • The concept of the basic structure of the constitution evolved over time. In this section, we shall discuss this evolution with the help of some landmark judgement related to this doctrine:
  • Shankari Prasad Case (1951) 
    • In this case, the SC contended that the Parliament’s power of amending the Constitution under Article 368 included the power to amend the Fundamental Rights guaranteed in Part III as well.
  • Sajjan Singh case (1965)
    • In this case, also, the SC held that the Parliament can amend any part of the Constitution including the Fundamental Rights. 
    • It is noteworthy to point out that two dissenting judges, in this case, remarked whether the fundamental rights of citizens could become a plaything of the majority party in Parliament.
  • Golaknath case (1967)
    • In this case, the court reversed its earlier stance that the Fundamental Rights can be amended. 
    • It said that Fundamental Rights are not amenable to the Parliamentary restriction as stated in Article 13 and that to amend the Fundamental rights a new Constituent Assembly would be required.
    • Also stated that Article 368 gives the procedure to amend the Constitution but does not confer on Parliament the power to amend the Constitution. This case conferred upon Fundamental Rights a ‘transcendental position’. 
    • The majority judgement called upon the concept of implied limitations on the power of the Parliament to amend the Constitution. As per this view, the Constitution gives a place of permanence to the fundamental freedoms of the citizens.
    • In giving to themselves the Constitution, the people had reserved these rights for themselves.
  • Kesavananda Bharati case (1973)
    • This was a landmark case in defining the concept of the basic structure doctrine.
    • The SC held that although no part of the Constitution, including Fundamental Rights, was beyond the Parliament’s amending power, the “basic structure of the Constitution could not be abrogated even by a constitutional amendment.” 
    • The judgement implied that the parliament can only amend the constitution and not rewrite it. The power to amend is not a power to destroy.
    • This is the basis in Indian law in which the judiciary can strike down an amendment passed by Parliament that is in conflict with the basic structure of the Constitution.
  • Indira Nehru Gandhi v. Raj Narain case (1975)
    • Here, the SC applied the theory of basic structure and struck down Clause(4) of Article 329-A, which was inserted by the 39th Amendment in 1975 on the grounds that it was beyond the Parliament’s amending power as it destroyed the Constitution’s basic features.
    • The 39th Amendment Act was passed by the Parliament during the Emergency Period. This Act placed the election of the President, the Vice President, the Prime Minister, and the Speaker of the Lok Sabha beyond the scrutiny of the judiciary.
    • This was done by the government in order to suppress Indira Gandhi’s prosecution by the Allahabad High Court for corrupt electoral practices.
  • Minerva Mills case (1980)
    • This case again strengthens the Basic Structure doctrine. The judgement struck down 2 changes made to the Constitution by the 42nd Amendment Act 1976, declaring them to be violative of the basic structure. 
    • The judgment makes it clear that the Constitution, and not the Parliament is supreme.
    • In this case, the Court added two features to the list of basic structural features. They were: judicial review and balance between Fundamental Rights and DPSP.
    • The judges ruled that a limited amending power itself is a basic feature of the Constitution.
  • Waman Rao Case (1981)
    • The SC again reiterated the Basic Structure doctrine. 
    • It also drew a line of demarcation as April 24th, 1973 i.e., the date of the Kesavananda Bharati judgment, and held that it should not be applied retrospectively to reopen the validity of any amendment to the Constitution which took place prior to that date.
    • In the Kesavananda Bharati case, the petitioner had challenged the Constitution (29th Amendment) Act, 1972, which placed the Kerala Land Reforms Act, 1963 and its amending Act into the 9th Schedule of the Constitution.
    • The 9th Schedule was added to the Constitution by the First Amendment in 1951 along with Article 31-B to provide a “protective umbrella” to land reform laws.
    • This was done in order to prevent them from being challenged in court.
    • Article 13(2) says that the state shall not make any law inconsistent with fundamental rights and any law made in contravention of fundamental rights shall be void.
    • Now, Article 31-B protects laws from the above scrutiny. Laws enacted under it and placed in the 9th Schedule are immune to challenge in a court, even if they go against fundamental rights.
    • The Waman Rao case held that amendments made to the 9th Schedule until the Kesavananda judgment are valid, and those passed after that date can be subject to scrutiny.
  • Indra Sawhney and Union of India (1992)
    • SC examined the scope and extent of Article 16(4), which provides for the reservation of jobs in favour of backward classes. It upheld the constitutional validity of 27% reservation for the OBCs with certain conditions (like creamy layer exclusion, no reservation in promotion, the total reserved quota should not exceed 50%, etc.)
    • Here, ‘Rule of Law’ was added to the list of basic features of the constitution.
  • S.R. Bommai case (1994)
    • In this judgment, the SC tried to curb the blatant misuse of Article 356 (regarding the imposition of President’s Rule on states).
    • In this case, there was no question of the constitutional amendment but even so, the concept of basic doctrine was applied.
    • The Supreme Court held that policies of a state government directed against an element of the basic structure of the Constitution would be a valid ground for the exercise of the central power under Article 356.

The Constitutional Right To Protest

• Context:
  • The Supreme Court said it recognizes the farmers' fundamental right to protest, but at the same time, it cannot affect other fundamental rights or the right to life of others.
• About:
  • According to Article 19, All citizens shall have the right to
    • Freedom of speech and expression;
    • Assemble peaceably and without arms;
    • Move freely throughout the territory of India;
  • Hence, under Article 19, the Farmers have the fundamental right to protest against the new farm laws as a part of their right to freedom of speech and expression.
  • Reasonable Restrictions: But the fundamental rights guaranteed under Article 19 aren't absolute and there are reasonable restrictions in the interests of sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offense, the interests of the general public or for the protection of the interests of any Scheduled Tribe

Those Not Wearing Masks Are Violating Other Citizen's Rights

• Context:
  • The Supreme Court said that those people not wearing masks in public are violating the fundamental right (right to life and health) of other citizens.
• About:
  • The three-judge bench headed by Justice Ashok Bhushan held that the state must vigorously enforce the standard operating procedure (SOP) released by the Centre for mandatory wearing of masks and keeping social distancing to contain the spread of Covid 19 disease.
  • Article 21: Right to life and personal liberty.

Personal Choices, The Constitution's Endurance

• Context:
  • The order delivered by the Allahabad High Court underlines the most cherished values of our Constitution. The order examines the scope of individual choice and personal liberty on the touchstone of constitutional values.
• About:
  • The Allahabad High Court declared last month that religious conversions, even when made solely for the purposes of marriage, constituted a valid exercise of a person’s liberties.
  • The petitioners had approached the High Court seeking orders to quash a First Information Report (FIR) that was lodged against them.
  • The petitioners claimed that they were both adults competent to contract a marriage, and had, in fact, wedded in August 2019, as per Muslim rites and ceremonies, only after the girl had converted to Islam.
  • The State argued that the petitioner’s partnership had no sanctity in the law because a conversion with a singular aim of getting married was illegitimate.
  • In making this argument, the government relied on a pair of judgments of the Allahabad High Court, in particular on the judgment in Noor Jahan v. State of U.P. (2014).
  • There, the High Court had held that conversion by an individual to Islam was valid only when it was predicated on a “change of heart” and on an “honest conviction” in the tenets of the newly adopted religion.
  • Additionally, the High Court had ruled that the burden to prove the validity of conversion was on the party professing the act.
  • Major takeaways from the High Court order:
    • The Allahabad High Court ruled that the freedom to live with a person of one’s choice is intrinsic to the fundamental right to life and personal liberty.
    • It order recognizes that a person’s freedom is not conditional on the caste, creed, or religion that her partner might claim to profess.
    • And also that every person had an equal dominion over their own senses of conscience.
    • The High Court’s order makes it clear that it is neither the province of the state nor any other individual to interfere with a person’s choice of partner or faith.
    • By invoking the Supreme Court’s judgment in Puttaswamy, the High Court held that an individual’s ability to control vital aspects of her life inheres in her right to privacy.
    • Term privacy includes the preservation of decisional autonomy, on matters, among other things, of “personal intimacies, the sanctity of family life, marriage, procreation, the home, and sexual orientation”.
    •  It Court that the judgment in Noor Jahan was incorrectly delivered.
    • Marriage, the High Court said, is a matter of choice, and every adult woman has a fundamental right to choose her own partner. 
  • Freedom of conscience under Article 25:
  • Article 25 of the Constitution expressly protects the choices that individuals make
  • In addition to the right freely to profess, practise, and propagate religion, it guarantees to every person the freedom of conscience.
  • The idea of protecting one’s freedom of conscience goes beyond mere considerations of religious faith.

Covered in detail in Samjaho's Corner: https://samajho.com/upsc/allahabad-high-court-verdict-on-personal-choices-a-reminder-of-constitutions-most-cherished-values/.

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