SPR 2023 | Polity Current Affairs Compilation for Prelims 2023 | UPSC IAS

Please Share with maximum friends to support the Initiative.

Executive:
Legislature:
Judiciary:
Constitutional Provisions:

Executive:

Election of President

Context: The tenure of the current President of India is set to end in July 2022. Thus, the Election Commission has notified the election of India’s 15th President.
How is the President elected?
- The Indian President is elected through an electoral college system, wherein the votes are cast by MPs and MLAs.
- The elections are conducted and overseen by the Election Commission (EC) of India.
- The electoral college of the presidential election consists of:
  1. Lok Sabha and Rajya Sabha
  2. Legislative Assemblies of the states
  3. Legislative Assemblies of the Union Territories of Delhi, Jammu & Kashmir and Puducherry
- The nominated members of both the houses and state legislatures are not allowed to vote in the presidential election.
Value of Vote of MP and MLA in President Election in India:
- The value of the vote of each MP and MLA differs in accordance with the number of members in their legislative body. Further, each elector casts a different number of votes.
- The general principle is that the total number of votes cast by Members of parliament equals the total number of votes cast by State Legislators. Also, legislators from larger states cast more votes than those from smaller states.
Eligibility to hold the office of President of India:
1. He should be an Indian CitizenHis age should be a minimum of 35 years.
2. He should qualify the conditions to be elected as a member of the Lok Sabha.
3. He should not hold any office of profit under the central government, state government, or any public authority.
Related Constitutional Articles:
- Article 54: Election of President.
- Article 55: Manner of election of President.
- Article 56: Term of office of President.
- Article 57: Eligibility for re-election.
- Article 58: Qualifications for election as President.

Inter-State Council

Context: Tamil Nadu Chief Minister wrote to Prime Minister, asking that at least three meetings of the Inter-State Council should be held every year to “strengthen the spirit of cooperative federalism”.
About Inter-State Council:
- It is a mechanism that was constituted “to support Centre-State and Inter-State coordination and cooperation in India”.
- The Inter-State Council was established under Article 263 of the Constitution, which states that the President may constitute such a body if a need is felt for it.
- The Council is basically meant to serve as a forum for discussions among various governments.
- In 1988, the Sarkaria Commission suggested the Council should exist as a permanent body, and in 1990 it came into existence through a Presidential Order.
Functions:
- The main functions of the Council are inquiring into and advising on disputes between states, investigating and discussing subjects in which two states or states and the Union have a common interest, and making recommendations for the better coordination of policy and action.
Composition:
- The Prime Minister is the chairman of the Council.
- Members include the Chief Ministers of all states and UTs with legislative assemblies and Administrators of other UTs.
- Six Ministers of Cabinet rank in the Centre’s Council of Ministers, nominated by the Prime Minister, are also its members.

Zonal Councils

Context: Minister of Home Affairs chaired the 25th meeting of the Western Zonal Council at Diu.
About Zonal Councils:
- The zonal council is a statutory body established under the State Reorganization Act of 1956.
- It is an organ of deliberation and advice.
- The purpose of creating zonal councils is to promote interstate cooperation and coordination.
Composition:
- Chairman:- The Union Home Minister is the chairman of each committee.
- Vice Chairman: The chief minister of each state takes turns serving as vice chairman of the zonal council for that zone, each of whom serves for a term of one year.
- Members: the Chief Minister and two other ministers nominated by the governor of each state, and two members from the Union territories within that zone.
- Advisor: One person nominated by the Planning Commission (now by NITI Aayog) for each of the Zonal Councils, Chief Secretaries and another officer/Development Commissioner nominated by each of the States included in the Zone.
- If necessary, the ministers of the Union are also invited to participate in the meetings of the regional committees.
How many zonal councils are there?
- The States Reorganisation Act of 1956 created five zonal councils: Northern, Central, Eastern, Western and Southern.
- In addition to the above-mentioned Zonal Councils, a North-Eastern Council was created by a separate Act of Parliament, the North-Eastern Council Act of 1971.

Agnipath Scheme

Context: Agneepath scheme is a step taken by the Government of India as a new process of recruitment for the Indian Armed Forces i.e., the Indian Army, the Indian Navy as well as Air Force.
About Scheme:
- Agnipath Scheme is a recruitment process launched by the central government wherein selected candidates will be enrolled as Agniveers for four years period in Indian Armed Forces.
- The Armed Forces will be recruiting 46,000 Agniveers this year through the Agnipath scheme.
- On completion of the four-year period, Aginveers will go to the society as a disciplined, dynamic, motivated, and skilled workforce for employment in other sectors to pursue their career in the job of their choice.

Eligibility Criteria:
- It is only for personnel below officer ranks (those who do not join the forces as commissioned officers).
- Aspirants between the ages of 17.5 years and 23 years will be eligible to apply.
Benefits for Agniveers:
- Upon the completion of the 4-years of service, a one-time ‘Seva Nidhi’ package of Rs 11.71 lakhs will be paid to the Agniveers that will include their accrued interest thereon.
- They will also get a Rs 48 lakh life insurance cover for the four years.
- In case of death, the payout will be over Rs 1 crore, including pay for the unserved tenure.
- The government will help rehabilitate soldiers who leave the services after four years. They will be provided with skill certificates and bridge courses.

Election of the Vice-President

Context: Recently, Shri Jagdeep Dhankhar was elected as the 14th Vice-President of India.

Office of the Vice President:

In India, Vice-President has the second-highest office in the country.
The post of Vice-President of India is modelled on the lines of the American Vice-President.
Article 63 of the Constitution states that “there shall be a Vice-President of India”.
Under Article 64, the Vice-President “shall be ex officio Chairman of the Council of the States” (Rajya Sabha).
Article 65 says that “in the event of the occurrence of any vacancy in the office of the President by reason of his death, resignation or removal, or otherwise, the Vice-President shall act as President until the date on which a new President…enters upon his office”.
The Vice-President shall also discharge the functions of the President when the latter is unable to do so “owing to absence, illness or any other cause”.
- During this period, the Vice-President shall “have all the powers and immunities of the President and be entitled to… (the) emoluments, allowances and privileges” that are due to the President. The office of the Vice-President of India is the second-highest constitutional office after that of the President and ranks second in the order of precedence.

Election of the Vice-President:

The Election Commission of India conducts the election to the office of the Vice-President.
Article 66 lays down the process of the election of the Vice-President.
The Vice-President is elected by an electoral college consisting of members of both Houses of Parliament, in accordance with the system of proportional representation by means of the single transferable vote and the voting in such election is by secret ballot. The Electoral College to elect a person to the office of the Vice-President consists of all members of both Houses of Parliament.
The Vice-President is not a member of either House of Parliament or of a House of a Legislature of any state. If a member of either House of Parliament or of a House of a Legislature of any state is elected as Vice-President, he is deemed to have vacated his seat in that House on the date he/she enters his office as Vice-President.
A person cannot be elected as Vice-President unless he –
1. is a citizen of India;
2. has completed the age of 35 years, and
3. is qualified for election as a member of the Council of States (Rajya Sabha).
  - i.e. he should be a citizen of India, 30 years of age and an elector of the Parliamentary constituency in a State or Union Territory which he seeks to be elected to represent.
A person is not also eligible if he holds any office of profit under the Government of India or a State Government or any subordinate local authority.
An election to fill a vacancy caused by the expiry of the term of office of the Vice-President is completed before the expiry of the term. In case a vacancy arises by reasons of death, resignation or removal or otherwise, the election to fill that vacancy is held as soon as possible after the occurrence. The person so elected is entitled to hold office for a full term of 5 years from the date he enters the office.

Important Provisions relating to the Election of the Vice-President:

The election of the next Vice-President is to be held within 60 days of the expiry of the term of office of the outgoing Vice-President.
The Returning Officer usually appointed to conduct the Vice-Presidential elections is the Secretary-General of either House of the Parliament, by rotation. The Returning Officer issues a public notice of the intended election in a prescribed form, inviting the nomination of candidates and specifies the place where the nomination papers are to be delivered.
Any person qualified to be elected and intending to stand for election as Vice-President is required to be nominated by at least 20 MPs as proposers and at least 20 MPs as seconders.

Disputes regarding Election of the Vice-President:

All doubts and disputes arising in connection with the election of the Vice-President are enquired into and decided by the Supreme Court of India whose decision is final.
A petition challenging the election of the Vice-President is heard by a five-judge bench of the Supreme Court of India.

Important Facts:

Sarvepalli Radhakrishnan was the first Vice-President of India. He took oath at Rashtrapati Bhavan on 13 May 1952.
M. Venkaiah Naidu is the first vice president to be born after Independent India is formed. On 11 August 2022, Jagdeep Dhankhar took office as the 14th and incumbent vice president of India.
The list of Vice-Presidents of India from 1950 to 2021 is as follows:

Name of the Vice–President	Term of office
1. Sarvepalli Radhakrishnan	13 May 1952 – 12 May 1957 13 May 1957 – 12 May 1962
2. Zakir Hussain	13 May 1962 – 12 May 1967
3. V. V. Giri	13 May 1967 – 3 May 1969
4. Gopal Swarup Pathak	31 August 1969 – 30 August 1974
5. B. D. Jatti	31 August 1974 – 30 August 1979
6. Mohammad Hidayatullah	31 August 1979 – 30 August 1984
7. R. Venkataraman	31 August 1984 – 24 July 1987
8. Shankar Dayal Sharma	3 September 1987 – 24 July 1992
9. K. R. Narayanan	21 August 1992 – 24 July 1997
10. Krishan Kant	21 August 1997 – 27 July 2002
11. Bhairon Singh Shekhawat	19 August 2002 – 21 July 2007
12. Mohammad Hamid Ansari	11 August 2007 – 11 August 2012 11 August 2012 – 11 August 2017
13. Venkaiah Naidu	11 August 2017 – August 2022
14. Jagdeep Dhankhar	August 2022 – Incumbent

Chief Ministers’ Foreign Trips – Rules & Regulations

Context: Recently, Delhi Chief Minister Arvind Kejriwal has said the Centre is delaying clearance for his planned trip to Singapore.

Rules regarding clearance:

As per the circular issued in May 2015, Chief Ministers have to inform the Cabinet Secretariat about thier foreign visits.
The Cabinet Secretariat and the Ministry of External Affairs should be kept informed of the proposed foreign visit, either official or private, of Chief Ministers and Ministers of State Governments/Union Territories.
However, before informing Cabinet Secretariat, prior political clearance and FCRA (Foreign Contribution Regulation Act) clearance are mandatory.
In the case of Chief Ministers and Ministers of state governments, a copy of the application must also be sent to the Secretary, Department of Economic Affairs (DEA).

Types of clearances:

Political clearance:
- The political clearance comes from the Ministry of External Affairs (MEA). This is required not only for public servants but any government servant for a foreign trip.
- The concerned ministry and the Department of Economic Affairs (DEA) entertain an application only if political clearance from the MEA is attached with the request.
  Without this clearance, no public servant can go abroad.
Different officers need different additional clearances:
- Chief Ministers, ministers of state governments and other state officials also need clearance from the Department of Economic Affairs.
- For Union ministers, after getting political clearance from the MEA, additional clearance is needed from the Prime Minister, whether the trip is official or personal.
- Lok Sabha MPs need clearance from the Speaker and Rajya Sabha members from the Chairperson (Vice President of India).
- For officers of various ministries up to the Joint Secretary level, clearance is given by the minister concerned, after political clearance.
- For those above that rank, the proposal needs the approval of a screening committee of secretaries.
Do judges need clearance for foreign trips?
- For official foreign travel, the proposal by a Supreme Court or High Court judge is sent to the Department of Justice (DoJ) after taking clearance from the Chief Justice of India.
- The DoJ, after taking political clearance from the MEA and in some cases from the Home Ministry (when FCRA is involved), issues approval.
- Political clearance from the MEA was needed even for personal trips until February 11, 2010, when the DoJ decide to dispense with this necessity in case of private visits.

CENTRAL VIGILANCE COMMISSION

Context
- Recently, the Government appointed Suresh N Patel as the new chief of the Central Vigilance Commission.
What is the Central Vigilance Commission (CVC)?
- About
- Members
  - Central Vigilance Commissioner – Chairperson.
  - Not more than two Vigilance Commissioners – Members.
- Functions:
  - The CVC receives complaints about corruption or misuse of office and recommends appropriate action.
  - Following institutions, bodies, or a person can approach CVC:
    - The central government, Lokpal, Whistleblowers
    - It is not an investigating agency. The CVC either gets the investigation done through the Central Bureau of Investigation(CBI) or through chief vigilance officers (CVO) in government offices.
    - It is empowered to inquire into offences alleged to have been committed under the Prevention of Corruption Act, 1988 by certain categories of public servants.
What are the Service Conditions of the Chief vigilance Commissioner?
- Appointment
- Term
  - S/He holds the office for 4 years.
- Removal
  - S/He can be removed or suspended from office by the President on the ground of misbehaviour but only after the Supreme Court has held an inquiry into his case and recommended action against him.
  - Further, He can also be removed for proven misbehaviour or incapacity if the Supreme Court inquiry finds him guilty.
  - S/He can also resign by writing to the President.

FUNDAMENTAL DUTIES

Context
- Recently, the Chief Justice of India said Fundamental Duties in the Constitution are not merely to serve a “pedantic or technical” purpose, but they were incorporated as the key to social transformation.
How were the Fundamental Duties Incorporated?
- The idea of Fundamental Duties is inspired by the Constitution of Russia (erstwhile Soviet Union).
- These were incorporated in Part IV-A of the Constitution by the 42nd Constitutional Amendment Act, 1976 on the recommendations of the Swaran Singh Committee.
- Originally 10 in number, one more duty was added through the 86th Constitutional Amendment Act, 2002.
- Like the Directive Principles of State Policy, Fundamental duties are also non-justiciable in nature.
What are the Listed Fundamental Duties?
- To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem,
- To cherish and follow the noble ideals that inspired the national struggle for freedom,
- To uphold and protect the sovereignty, unity and integrity of India,
- To defend the country and render national service when called upon to do so,
- To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities and to renounce practices derogatory to the dignity of women,
- To value and preserve the rich heritage of the country’s composite culture,
- To protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures,
- To develop scientific temper, humanism and the spirit of inquiry and reform,
- To safeguard public property and to abjure violence,
- To strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement, and
- To provide opportunities for education to his child or ward between the age of six and fourteen years (added by the 86th Constitutional Amendment Act, 2002).
What is the Significance of Fundamental Duties?
- Constant Reminder of Democratic Conduct
  - Fundamental Duties are intended to serve as a constant reminder to every citizen that while the Constitution specifically conferred on them certain fundamental rights, it also requires citizens to observe basic norms of democratic conduct and democratic behaviour.
- Admonishes Against Anti-Social Activities
  - They serve as a warning to the people against the anti-social activities that disrespect the nation like burning the flag, destroying public property or disturbing public peace.
- Sense of Discipline and Commitment
  - These help in the promotion of a sense of discipline and commitment toward the nation.
  - They help in realising national goals by the active participation of citizens rather than mere spectators.
- Help Determine Constitutionality of Law
  - It helps the Court in determining the constitutionality of the law.
  - For instance, any law passed by the legislatures, when taken to Court for constitutional validity of the law, if it is giving force to any Fundamental Duty, then such law would be taken as reasonable.
What is the Supreme Court’s Stand on Fundamental Duties?
- The Supreme Court’s Ranganath Mishra judgment of 2003 held that fundamental duties should not only be enforced by legal sanctions but also by social sanctions.
- In AIIMS Students Union v. AIIMS 2001, it was held by the Supreme Court that fundamental duties are equally important as fundamental rights.
- Though fundamental duties are not enforceable like fundamental rights they cannot be overlooked as duties in Part IV A.
- They are prefixed by the same word fundamental which was prefixed by the founding fathers of the Constitution to ‘right’ in Part III.
Way Forward
- The fundamental duties are not merely pedantic or technical. They were incorporated as the key to social transformation.
- In order to contribute meaningfully to society, the citizens must first understand the Constitution and its organs. “It is imperative for the people to understand the system and its nuances, the powers and the limitations.
- That is why it is very important to spread constitutional culture in India.
- There is a need for every citizen to be a meaningful stakeholder in Indian democracy and try to imbibe the Constitutional philosophy in its true spirit.
- There is a need for a uniform policy for the “proper sensitization, full operationalization and enforceability” of fundamental duties which would “substantially help citizens to be responsible”.

ELECTORAL BONDS

Context
- Recently, the State Bank of India (SBI) shared data reporting that Donations to political parties through electoral bonds (EBs) have crossed the Rs 10,000-crore mark.
What are Electoral Bonds
- About
  - State Bank of India is authorised to issue and encash these bonds.
  - Electoral bonds are purchased anonymously by donors and are valid for 15 days from the date of issue.
  - As debt instruments, these can be bought by donors from a bank, and the political party can then encash them.
  - These can be redeemed only by an eligible party by depositing the same in its designated account maintained with a bank.
  - The bonds are issued by SBI in denominations of Rs 1,000, Rs 10,000, Rs 1 lakh, Rs 10 lakh and Rs 1 crore.
  - The bonds are available for purchase by any citizen of 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.
- Eligibility
  - Only the political parties registered under Section 29A of the Representation of the People Act, 1951 and have secured not less than 1% of the votes polled in the last general election to the House of the People or the Legislative Assembly, are eligible to receive electoral bonds.
Why are Electoral Bonds a Concern for India?
- Contradicting its Basic Idea
  - The central criticism of the electoral bonds scheme is that it does the exact opposite of what it was meant to do i.e. to bring transparency to election funding.
  - For example, critics argue that the anonymity of electoral bonds is only for the broader public and opposition parties.
- Possibility of Extortion
- A Blow to Democracy
  - Through an amendment to the Finance Act 2017, the Union government has exempted political parties from disclosing donations received through electoral bonds.
  - This means the voters will not know which individual, company, or organization has funded which party, and to what extent.
  - However, in a representative democracy, citizens cast their votes for the people who will represent them in Parliament.
- Compromising Right to Know
  - The Indian Supreme Court has long held that the “right to know”, especially in the context of elections, is an integral part of the right to freedom of expression (Article 19) under the Indian Constitution.
- Against Free & Fair Elections
  - Electoral bonds provide no details to the citizens.
  - The said anonymity does not apply to the government of the day, which can always access the donor details by demanding the data from the State Bank of India (SBI).
  - This implies that the government in power can leverage this information and disrupt free and fair elections.
- Crony Capitalism
Way Forward
- There is a need for effective regulation of political financing along with bold reforms to break the vicious cycle of corruption and erosion of quality of democratic polity.
- It is crucial to plug the loopholes in the current laws to make the entire governance machinery more accountable and transparent.
- Voters can also help bring in substantial changes by demanding awareness campaigns.
- If voters reject candidates and parties that overspend or bribe them, democracy would move a step higher.

FOREIGN VISITS OF THE STATE GOVERNMENT MINISTERS

Context
- Recently, Delhi’s Chief Minister was denied permission to attend the World Cities Summit in Singapore.
- Also, the state transport minister of Delhi filed a plea in Delhi high court to set aside the need for travel clearances by the Centre for private foreign visits of State government Ministers.
What's the Issue?
- The Chief Minister of Delhi was invited by the Singapore government to participate in the world cities conference but his clearance to visit was denied by the central government.
- Also, in 2019 the Delhi Chief Minister’s proposed visit to Copenhagen for attending the 7th C-40 World Mayors Summit was rejected by the MEA without providing any reason.
Under which Provisions are approvals Required?
- In 1982 the cabinet secretariat issued guidelines regarding foreign travel of Ministers of State government and Union Territories and State government officials.
- Foreign visits by members of the State governments in their official capacity would require clearances from the Ministry of External Affairs (MEA), Ministry of Home Affairs, Finance Ministry, and the Central Administrative Ministry.
- Further, another order circulated in 2004, modifying the provisions to the extent that the final orders were to be issued by the Finance Ministry.
- It stated that Chief Ministers required further approval from the Prime Minister’s Office before an official visit.
- Again in 2010, another directive was issued that made political clearances mandatory before private visits of Ministers in State governments.
On what Grounds has the Petition Been Filed?
- Violates Right to Privacy
- Beyond Jurisdiction of Governor’s Office
  - It argues that Governor advising against the proposed Singapore visit is beyond the jurisdiction of his office’s authority.
- Violates Article 21
  - The use of arbitrariness and unaccountable implementation of power by the Governor and Central Government is against national interest and good governance and impinges upon the right to travel abroad as guaranteed under Article 21.

GRIEVANCE REDRESSAL INDEX 2022

Context
- The Unique Identification Authority of India (UIDAI), which oversees Aadhaar, has topped the August rankings report published by the Department of Administrative Reforms and Public Grievances (DARPG), for resolving most public grievances among all government ministries and government departments.
Key Findings
- UIDAI has been a top performer in the resolution of cases received through the Centralized Public Grievance Redress and Monitoring System (CPGRAMS).
- UIDAI is further committed to serving residents of India and has been a catalyst for both ease of living and ease of doing business.
- UIDAI has a robust grievance redressal mechanism in place consisting of UIDAI HQ Divisions, Regional Offices, Technology Centre and engaged Contact Centre partners, which is enabling UIDAI to resolve around 92% of CRM Grievances within 7 days.
Features of UIDAI's Grievance Redressal Mechanism
- The organization is dedicated to further strengthen its Grievance Redressal Mechanism and is going to launch State-of-the-art Open Source CRM solution soon.
- The new Customer Relationship Management (CRM) solution has been designed with advanced features that shall enhance UIDAI service delivery to residents.
- The new CRM solution shall have the capability to support multi-channels like Phone Call, Email, Chatbot, Web Portal, Social Media, Letter and Walk-in through which the grievances can be lodged, tracked and resolved effectively. It is under advanced stage of implementation and is going to be rolled out soon.
- Endeavour of the UIDAI is that the residents’ voice must be heard, and residents must be empowered adequately to further enhance trust of residents in the system.

PREVENTIVE DETENTION

Context
- According to the latest crime statistics released by the National Crime Records Bureau (NCRB), there is a rise in Preventive detentions in 2021 of about 23% compared to 2020, with over 1.1 lakh people being placed under preventive detention.
What is Preventive Detention?
- Article 22: Article 22 of the Indian Constitution grants protection to persons who are arrested or detained.
  - Two Types of Detentions:
    - Preventive detention is when a person is held in police custody only on the basis of a suspicion that they would conduct a criminal act or cause harm to society.
      - The police have the authority to hold anyone they suspect of committing a criminal offence and also to make arrests without a warrant or a magistrate’s authorization in certain cases.
    - Punitive detention, which means detention as a punishment for a criminal offence. It occurs after an offence is actually committed, or an attempt has been made towards the commission of that crime.
Key Highlights of the National Crime Records Bureau (NCRB) Data
- The Highest number of Detention: A total of over 24,500 people placed under preventive detention were either in custody or still detained as of the end of 2021, the highest since 2017 when the NCRB started recording this data.
- State and Union Territories: Tamil Nadu followed by Telangana and Gujarat recorded most preventive detentions in 2021 among the States while Jammu and Kashmir recorded the highest number of such detentions in Union Territories (UTs).
- The Relative Preventive Laws:
  - National Security Act: The NCRB data showed that the number of people arrested under the National Security Act (NSA) had dipped significantly compared to 2020.
  - Preventive detentions under the NSA peaked in 2020 at 741. This number dropped to 483 in 2021.
  - The Goonda Act
  - Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988
  - Public Safety Act (PSA)
  - Narcotic Drug and Psychotropic Substance Act (NDPS),1985
  - Prohibition of Insider Trading (PIT)
  - Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act, 1980(PBMSECA)
  - Further, a category classified as “Other Detention Acts”, under which most of the detentions were registered Since 2017, the highest number of persons to be placed under preventive detention has consistently been under the “Other Detention Acts” category.
- Issues:
  - Misuse of other Acts: There are several laws like the Unlawful Activities (Prevention) Act and Maharashtra Control of Organised Crime Act which also provide for making preventive detentions.
  - Manipulation by Government Officials: District magistrates and the police also often make preventive detentions to control law and order in emerging communal clashes or clashes between any two communities, even when it might not always lead to public disorder.
- Supreme Court’s View: In July 2022, a Vacation Bench of the Supreme Court, while setting aside the preventive detention order issued for a chain-snatcher in Telangana, observed that these powers accorded to the State were “exceptional” and that since they affect the liberty of an individual, they should be used sparingly.
  - The court had also noted that these powers should not be used to control ordinary law and order problems.

CIVIL SERVANTS AND FREEDOM OF SPEECH

Context
- A senior IAS officer from Telangana, tweeted from her personal account in support of Ms. Bano and questioned the Gujarat government’s decision of releasing 11 men convicted on charges of gang-raping Bilkis Bano during the 2002 Gujarat riots.
  - It prompted a debate about whether the officer breached the Civil Service (Conduct) Rules of 1964 and revived the debate about civil servants' right to express their personal views on matters of law and governance.
Bilkino Bano Case
- On 15th August 2022, 11 convicts who were serving life sentences for rape and murder in the case, walked out of prison to a heroes' welcome.
- Many also pointed out that the release is in contravention of guidelines issued by both the federal government and the Gujarat state government – both say that rape and murder convicts cannot be granted remission.
  - Life terms in these crimes are usually served until death in India.
- The Supreme Court has asked the Gujarat government for its response after taking up petitions filed by opposition politicians and activists.
- Role of Civil Servant:
  - Adding the word “civil servant” by the officer in the tweet on Bilkis Bano Case is aligned with the sense that the dharma of the civil servant is to uphold constitutional principles in letter and in spirit, and the rule of law.
  - In this case, both the spirit of the Constitution and the rule of law were being subverted.
  - This could be a very dangerous precedent, as recently when the Andhra Pradesh government released eight murder convicts (on remission, despite them not completing the mandatory 14 years in jail).
  - For some actions if civil servants, whether retired or in service, speak up, that would have some kind od f a deterrent [effect] on the arbitrary abuse of bureaucratic power.
Can a Civil Servant Express their Views on Government Policy and Action?
- A civil servant has the right to tweet because the citizens of this country have the fundamental right of free speech (Article 19) guaranteed to them under the Constitution, which is subject to reasonable restrictions in the interest of securing the state’s sovereignty, international relations, health, morality, etc.
- But when a civil servant undertakes government service, he/she subject themselves to certain disciplinary rules.
  - That prevents a government servant from becoming a member of a political organisation, or any organisation of such a nature, or expressing herself freely with regard to anything that has to do with the governance of the country.
  - This rule is from the British era and there is no doubt that the British were very, very strict and didn’t want their officers to be talking about how bad the governance was.
- But in a democracy, the right to criticise the government is a fundamental right.
Related Judgements
- Lipika Paul v. the State of Tripura:
  - In a landmark judgment, in January of 2020, the High Court of Tripura ruled that ‘a government servant is not devoid of her right of free speech, a fundamental right.’
  - The Court did acknowledge that the expression of the right to speech is subject to curtailment in certain circumstances; nevertheless, the judgment has significant implications concerning the right to freedom of expression for government employees.
    - In the Bilkis Bano case, the officer was entitled to hold her own beliefs and express them in the manner she desired, subject to not crossing the borders laid down in the Conduct Rules which were applicable in Tripura.
    - A fundamental right cannot be curtailed except by a valid law made by a legislature.
      - Rule 9 of the Rules of the Central Civil Services (Conduct) Rules states, “No Government servant shall… make any statement of fact or opinion… which has the effect of an adverse criticism of any current or recent policy or action of the Central Government or a State Government.”
- Kerala High Court Judgement:
  - In 2018, the Kerala High Court had said “One cannot be prevented from expressing his views merely because he is an employee”.
  - In a democratic society, every institution is governed by democratic norms.
Way Forward
- Uphold Democratic Values:
  - Nowadays, many government officers and ministers are encouraged to communicate government policies to the general public through social media.
  - Unfortunately, government officers are given only one way of encouragement i.e., to say good things in the media.
  - The problem with this is that if any policy is being implemented everybody has a right to express his or her opinion, a right to object, a right to dissent in a democracy.
- Upholding Rights of the Officer:
  - Government officers have a duty to increase transparency about policies through social media. A case-by-case approach must be followed.
- Need is to make Differentiation:
  - The need of the hour is to make a differentiation between what is something that’s going to hurt society, hurt the Constitution, and the rule of law.
  - In the case of Bilkis Bano, the Supreme Court ordained the release of convicts on remission, which was executed by the Gujarat government, and the (question is over how it has been done), which was an exception.

ECONOMICALLY WEAKER SECTIONS QUOTA

Context
- Recently, the Attorney-General of India articulated that the 10% quota for Economically Weaker Sections (EWS) of society does not erode the rights of the Scheduled Castes, the Scheduled Tribes or the Other Backward Classes.
Government's Views
- Doesn't Harm Quota of Other Classes: The EWS quota was given independently of the already existing 50% reservation granted for the backward classes, that is, the scheduled communities and the OBCs.
  - The Attorney general rejected arguments by petitioners that the exclusion of backward classes from the EWS quota amounted to discrimination, as they have been loaded with benefits by way of affirmative actions.
  - For example, the members of the Scheduled Caste and Scheduled Tribe communities have been given several benefits under the Constitution, including Article 16(4)(a) (special provision for promotion), Article 243D (reservation in panchayat and municipality seats), Article 330 (reservation in the Lok Sabha) and Article 332 (reservation in state legislative assemblies).
- Necessary to Uplift the Weaker Section: The reservation for the backward classes, and now the EWS quota, should be considered by the court as “one single approach of the state intended for the upliftment of the weaker sections of the society”.
  - Altogether 18.2% of the total population in the general category belonged to EWS and referred to the Multi-dimensional Poverty Index used by the Niti Ayog, which would be about 350 million (3.5 crores) of the population.
- Confer the Constitution: The reservation for OBCs, SCs and STs fall under different silos other than the EWS quota and it does not violate the basic structure of the Constitution.
- Examples: As per the written submissions submitted by government referred to how the top court had stood by the validity of the Right of Children to Free and Compulsory Education Act, 2009.
  - The court had held that the 2009 Act seeks to remove all barriers, including financial and psychological barriers which a child belonging to the weaker section and disadvantaged group has to face while seeking admission and therefore upheld it under Article 21 of the Constitution.
Opponent’s views
- The amendments run contrary to the constitutional scheme, where no segment of available seats/posts can be reserved, only on the basis of economic criteria.
- The amendments also run contrary to the judgment pronounced in the Indra Sawhney V. Union of India 1992 case, that a backward class cannot be determined only and exclusively with reference to economic criteria.
- The amendments alter the 50% quota limit set up in Indra Sawhney V. Union of India 1992 case, which according to the petitioner is a part Basic Structure of the Constitution.

What is Economically Weaker Section (EWS) Quota?

About

The 10% EWS quota was introduced under the 103rd Constitution (Amendment) Act, 2019 by amending Articles 15 and 16.

It inserted Article 15 (6) and Article 16 (6).

It is for economic reservation in jobs and admissions in educational institutes for Economically Weaker Sections (EWS).
It was enacted to promote the welfare of the poor not covered by the 50% reservation policy for Scheduled Castes (SCs), Scheduled Tribes (STs) and Socially and Educationally Backward Classes (SEBC).
It enables both the Centre and the States to provide reservations to the EWS of society.

Significance

Addresses Inequality:
- The 10% quota is progressive and could address the issues of educational and income inequality in India since the economically weaker sections of citizens have remained excluded from attending higher educational institutions and public employment due to their financial incapacity.
Recognition of the Economic Backwards:
- There are many people or classes other than backward classes who are living under hunger and poverty-stricken conditions.
- The proposed reservation through a constitutional amendment would give constitutional recognition to the poor from the upper castes.
Reduction of Caste-Based Discrimination:
- Moreover, it will gradually remove the stigma associated with reservation because reservation has historically been related to caste and most often the upper caste looks down upon those who come through the reservation.

Concerns

Unavailability of Data:
- The Union or state governments have no such data to prove that ‘upper’ caste individuals, who have less than Rs 8 lakh annual income, are not adequately represented in government jobs and higher educational institutions. There is a strong possibility that they are actually over-represented in these places.
Arbitrary Criteria:
- The criteria used by the government to decide the eligibility for this reservation is vague and is not based on any data or study.
- Even the SC questioned the government whether they have checked the GDP per capita for every State while deciding the monetary limit for giving the EWS reservation.
- Statistics show that the per capita income in states differs widely – Goa is the state having the highest per capita income of almost Rs. 4 lakhs whereas Bihar is at the bottom with Rs.40,000.

WIKIPEDIA CONTENT MODERATION

Context
- Recently, India summoned officials of Wikipedia, in response to a national cricketer’s Wikipedia page being edited with misleading information.
- The Minister of State for Electronics and IT has expressed that no intermediary operating in India can permit this type of misinformation, as it violated the government’s expectation of a safe and trusted internet.
- Content Moderation refers to the process of ensuring user-generated content upholds platform-specific guidelines and rules to establish the suitability of the content for publishing.
What is Wikipedia?
- About:
  - Wikipedia is a free Internet-based encyclopedia, started in 2001, that operates under an open-source management style.
  - It is overseen by the nonprofit “Wikimedia Foundation”.
  - It is maintained by a community of volunteers through open collaboration and a wiki-based editing system.
  - Anyone can contribute to their pool of knowledge by making edits to existing pages for updating or correction and can even add new pages.
- Structure of Wikipedia:
- Responsibility for Content:
  - Under the majority of laws regulating online content, intermediaries are endowed with immunity from the user generated content they host, provided they maintain some due diligence over their platforms.
  - In previous challenges to the content on wikipedia, it has been ruled that the Wikimedia Foundation does not own the content, and does not have the legal responsibility for it.
    - However, administrators or editors have taken notice of the content concerns arising out of the situation and have made suitable edits.
    - Wikimedia can also “contribute, monitor or delete content” for legal compliance.
    - Therefore, it is arguable that since Wikimedia can exercise such power, it can be held responsible for illegal content being hosted on Wikipedia.
What can the Government do regarding Online Content?
- Section 69A of IT Act 2000:
  - Section 69 (A) of the Information Technology Act confers on the Central and State governments the power to issue directions “to intercept, monitor or decrypt any information generated, transmitted, received or stored in any computer resource”.
  - Section 69A enables the Centre to ask any agency of the government, or any intermediary, to block access to the public of any information generated, transmitted, received or stored or hosted on any computer resource.
  - Any such request for blocking access must be based on reasons given in writing.
- Section 79 of IT Act 2000:
- IT Rules 2021:

Scheduled Caste Status for Converted Dalits

Context: The Centre has recently appointed a commission to examine the issue of whether Scheduled Caste (SC) status can be accorded to Dalits who have over the years converted to religions other than Sikhism or Buddhism.

About:

Members: The three-member commission is headed by former Chief Justice of India K G Balakrishnan, along with Professor Sushma Yadav from UGC and retired IAS officer Ravinder Kumar Jain.
Timeline: The committee has been given a two-year deadline to submit a report on the issue.
The commission’s inquiry will look into :
- The changes an SC person goes through after converting to another religion.
- The implications of adding new persons to Scheduled Castes on the existing Scheduled Caste members.
- The changes they go through on converting to other religions in terms of customs, traditions, social and other discrimination, and deprivation.
Earlier, the Ranganath Misra Commission (2004) recommended that SC status should be made fully religion-neutral like the Scheduled Tribes.
Also, the National Commission for Scheduled Castes and the National Commission for Minorities also recommended providing SC status to Dalit Muslims and Dalit Christians.

North Eastern Council

Context: The Plenary meeting of the North Eastern Council concluded recently.

About:

NEC is not a constitutional body, but a statutory organization established in 1971 under the North Eastern Council Act, 1971.
Composition: It comprises Governors and Chief Ministers of all 8 North-Eastern States and three members
nominated by the President.
Functions :
- To function as Apex Regional Planning Body for the North Eastern Region.
- Implementing various projects through the State and Central agencies.
Administration: In June 2018, the Union cabinet approved the nomination of the Home Minister as the ex-officio chairman and Minister for DoNER (Development of North-East Region) as the council’s vice chairman.

Governor

Context: Kerala governor warned ministers against making statements that lowered the dignity of his office and saying it would invite action, including their removal from office.

About the Governor's Post in India:

Parallel to President: The Governors of the states of India have similar powers and functions at the state level as those of the President of India at the Central level. The Governor’s post finds its origin in the Government of India Act, of 1935.
Nominal head: The Governor acts as the nominal head whereas the real power lies with the Chief Ministers of the states and her/his councils of ministers.

Constitutional Provisions related to the Governor:

Article 154: The executive power of the state shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.
Article 163 (1): There shall be a council of ministers with the chief minister as the head to aid and advise the Governor in the exercise of his functions, except in so far as he is required to exercise his functions at his discretion.
Article 163 (2): If any question arises whether a matter falls within the Governor’s discretion or not, the decision of the Governor is final and the validity of anything done by him cannot be called into question on the ground that he ought or ought not to have acted in his discretion.
Article 164: The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office at the pleasure of the Governor.
Article 174: The Governor can also summon, prorogue, and dissolve the Legislative Assembly. By convention, he does this on the advice of the Council of Ministers while they enjoy the confidence of the Assembly.
Article 200: Every Bill passed in an Assembly has to be sent to the Governor, after which he has four options:
- to assent to the Bill,
- withhold assent,
- reserve the Bill for the consideration of the President, or
- return the Bill to the legislature, asking it to reconsider the Bill or an aspect of it.
- the Governor can also suggest an amendment to the Bill.

Right to Privacy

Context: The Supreme Court rejects WhatsApp-Meta pleas against the Competition Commission of India (CCI) probe into the privacy policy of 2021.

About:

The Supreme Court described privacy and its importance in the landmark decision of K.S. Puttaswamy v. Union of India in 2017 that – Right to Privacy is a fundamental and inalienable right and attaches to the person covering all information about that person and the choices that he/ she makes.
The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.
Restrictions (as stated in the Judgement): The right may be restricted only by state action that passes each of the three tests:
- First, such state action must have a legislative mandate,
- Second, it must be pursuing a legitimate state purpose, and
- Third, it must be proportionate i.e., such state action- both in its nature and extent, must be necessary for a democratic society and the action ought to be the least intrusive of the available alternatives to accomplish the ends.

About the CCI:

CCI is a statutory body under the Ministry of Corporate Affairs and is responsible for enforcing the Competition Act, of 2002.
It consists of a Chairperson and 6 Members appointed by the Central Government.
Objectives:
- Eliminating practices having an adverse effect on competition
- Promoting and sustaining competition
- Protecting the interests of consumers
- Ensuring the freedom of trade in the markets of India.

Hate Speech

Context: The Supreme Court recently directed the police and authorities to immediately and suo motu register cases against hate speech makers without waiting for a complaint to be filed.

About:

There is no specific legal definition of ‘hate speech’.
In general, hate speech is considered a limitation on free speech that seeks to prevent or bar speech that exposes a person or a group, or a section of society to hate, violence, ridicule, or indignity.
Provisions in law criminalize speeches, writings, actions, signs, and representations that foment violence and spread disharmony between communities and groups, and these are understood to refer to ‘hate speech’.

Constitutional Provisions:

Article 19 of the Constitution guarantees freedom of speech and expression to all citizens of India.
This article is subjected to certain restrictions, namely, 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.
Provisions in clauses (2) to (6) of Article 19 authorize the State to restrict the exercise of the freedom guaranteed under the article.

Legal Provisions:

Sections 153A and 505 of the Indian Penal Code are generally taken to be the main penal provisions that deal with inflammatory speeches and expressions that seek to punish ‘hate speech’.
Under Section 153A, ‘promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony, is an offense punishable with three years imprisonment.
Section 505 of the Indian Penal Code (IPC)makes it an offense to make “statements conducing to public mischief”.
Section 8 of the Representation of the People Act, 1951 disqualifies a person from contesting an election if he is convicted of indulging in acts amounting to the illegitimate use of freedom of speech and expression.

General Consent to CBI

Context: Recently, Maharashtra Government restored general consent to the Central Bureau of Investigation (CBI) to investigate cases in Maharashtra.

About General Consent:

The Central Bureau of Investigation (CBI) is an independent body regulated by the Delhi Special Police Establishment Act of 1946.
This law mandates attaining the State Government’s consent for CBI investigation of any crime in that state.
State Government consent can be either general or case-specific.
State provides its general consent for an impeccable CBI investigation of corruption cases against central government employees in its territory.
In case of absence of general consent, the CBI must ask for case-specific consent before taking each action, even the smallest ones.

Current Situation:

Telangana became the latest Indian state to withdraw general consent to the Central Bureau of Investigation (CBI), a move that comes amid Opposition complaints about the misuse of central agencies by the present government to stifle political dissent.
In the recent past, other states too have withdrawn general consent to the CBI, namely, Maharashtra, Punjab, Rajasthan, West Bengal, Jharkhand, Chhattisgarh, Kerala, and Mizoram.
However, Maharashtra reversed the decision.
In 2021, Calcutta High Court ruled that the withdrawal of the State’s general consent cannot stop CBI to proceed with investigating corruption cases.
It also stated that the agency can probe against Central Government employees equally across the country.
No one should be differentiated for being in a state with withdrawn general consent.
CBI can apply this Calcutta High Court order to raise a fresh case in any state.

What Action Does CBI Take Against a General Consent Withdrawal?

CBI can challenge a State’s decision of withdrawing its consent in a court. The agency must exhibit its progress in the investigation of the case.
If any State withdraws its consent for CBI investigations, the agency can further request case-specific consent. For instance, it can appeal for a search warrant from a local court to conduct an investigation.
CBI members can also utilize Section 166 of the Criminal Procedure Code (CrPC). This permits one police officer to ask another officer of a different jurisdiction for an investigation on their behalf.
To sum it up, despite several stumbling blocks, CBI can utilize different avenues to continue investigations.

About CBI:

The CBI was set up in 1963 by a resolution of the Ministry of Home Affairs.
Now, the CBI comes under the administrative control of the Department of Personnel and Training (DoPT) of the Ministry of Personnel, Public Grievances, and Pensions.
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, of 1946.
The CBI is the main investigating agency of the Central Government.
It also provides assistance to the Central Vigilance Commission and Lokpal.
It is also the nodal police agency in India that coordinates investigations on behalf of Interpol Member countries.

One Nation one Police Uniform

Context: Addressing the first Chintan Shivir (brainstorming session) of state home ministers and top police officers, Prime Minister Narendra Modi pitched the idea of “One Nation, One Uniform” for Indian police forces.

About:

Prime Minister Modi’s suggestion of “One Nation, One Uniform” is in line with his broader attempt to introduce a uniform set of policies across the country.
This will not only ensure quality products due to the scale at which they’ll be produced but also give a common identity to law enforcement as citizens will recognize police personnel anywhere in the country.
Law and order are a State Subject:
- The Indian Constitution puts police forces under the jurisdiction of state governments, and each of the 28 states has its own police force.
- Both ‘public order and the ‘police’ are placed in List II (State List) of the Seventh Schedule of the Constitution, which deals with the division of powers between the Union and States.
While police personnel in India are often associated with the color khaki, their uniforms do differ in varying degrees in different regions and there are at times inconsistencies in their official attire
- The Kolkata Police wear white uniforms
- Puducherry Police constables wear bright red caps with their khaki uniforms.
- Delhi Traffic Police personnel wear white and blue.
This is on the same lines as the “One Nation One Fertiliser” scheme of the Ministry of Chemicals and Fertilisers and the “One Nation One Ration Card” scheme introduced in 2019 and ‘one nation, one mobility’ card; ‘one nation, one grid’ and a ‘one nation, one sign language’.

Rajiv Gandhi Assassination Case Convicts Released

Context: Release of the remaining convicts in the Rajiv Gandhi assassination case.

About:

Former Prime Minister Rajiv Gandhi was assassinated on the night of May 21, 1991, at Sriperumbudur in Tamil Nadu by a woman suicide bomber at a poll rally.
On the Supreme Court on November 11 ordered the premature release of all six remaining convicts.
The bench in its order took note of the case of A G Perarivalan, the seventh convict, who was released in May.
Invoking its extraordinary power under Article 142 of the Constitution, the top court had on May 18 ordered his release after he served over 30 years in jail.

The basis for the release:

The TADA or Terrorist and Disruptive Activities (Prevention) Act trial court had initially sentenced 26 people to death in the case.
In 1999, a few years after the TADA Act was allowed to lapse, the Supreme Court upheld the conviction of only seven people, releasing all others.
The SC order observed none of those convicted was part of the nucleus of the assassination team.
Of the seven convicts serving life terms in the case, in 1999, the Supreme Court sentenced four of them to death and the other three to life imprisonment.
In 2000, the death sentence of one, Nalini, was commuted to life.
In 2014, the Supreme Court commuted the remaining three death sentences, including that of Perarivalan.
SC also commuted the remaining three death sentences, including that of Perarivalan.
While hearing convict A G Perarivalan’s plea on the delay in deciding his plea for remission, the SC had said in September 2018 that the Tamil Nadu Governor had the right to decide on his petition.
Within days, the Tamil Nadu Cabinet, headed by then chief minister Edappadi K Palaniswami, had recommended the release of all seven convicts.
But Raj Bhavan chose to sit on it.
On January 22, 2021, the Centre told the Supreme Court that the Tamil Nadu Governor was set to take a call on the release.
Then, on January 25, the Governor’s office left it to President Ram Nath Kovind to take a decision on the pardon of all these convicts. The Centre told the court “the proposal received by the central government will be processed in accordance with the law”.
But in May this year, Perarivalan was “set at liberty forthwith” by the Supreme Court, which used its extraordinary powers “for doing complete justice” under Article 142 of the Constitution.

What is Article 142 of the Constitution?

Subsection 1 of Article 142 (“Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc.”) says “the Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.”
Essentially, this provision of the Constitution gives the country’s top court-wide powers to do “complete justice” in a case.

Unseating of Vice-Chancellors

Context: Two recent judgments on the appointment of vice-chancellors (VC) in State universities by the Supreme Court have come under the limelight.

About:

In Gambhirdan K. Gadhvi vs The State Of Gujarat, from Sardar Patel University, Gujarat, the Supreme Court quashed the appointment of the incumbent Vice-Chancellor on the ground that the search committee did not form a panel for the appointment of VC. Therefore, it was not in accordance with the UGC Regulations of 2018.
In Professor (Dr) Sreejith P.S vs Dr Rajasree M.S., the appointment of the Vice Chancellor of the A.P.J. Abdul Kalam Technological University, Thiruvananthapuram, was challenged on the ground that the search committee recommended only one name. This is also against the UGC Regulations.
In both these cases, the issue framed by the Supreme Court is about whether the appointment of VCs should be made as per the UGC Regulations or the provisions of the State University Act.
Under the Indian Constitution, both the Union and the State can legislate on a matter under the Concurrent list.
A VC is appointed by the Chancellor under the relevant University Act.
But the Supreme Court has brought in Article 254 of the Constitution to rule that if provisions of the State law are repugnant to the provisions of the Union law, the State law will become void.

What is wrong with the Conclusion?

First, repugnancy under Article 254 relates to State law and a substantive law made by Parliament. It thus excludes rules, and regulations that are made by subordinate authorities, in this case, the UGC. However, the substantive law is made by the superior authority, namely Parliament.
Second, the rules and regulations made by the subordinate authority, though laid in Parliament, do not go through the same process as a law. The Constitution cannot be assumed to equate the Act with the rules.
Third, The inclusive definition of law given in Article 13(2) is applicable only to that Article. It means the term law does not include the rules, regulations, etc. for the purpose of Article 254.
Fourth, the regulations made by a subordinate authority of the Union overriding a law made by a State legislature will amount to a violation of federal principles.
Finally, the UGC Regulations on the appointment of VCs are outside the scope of the main provisions of the UGC Act as none of its provisions refers to the appointment of VCs.

Way Ahead:

Article 254 needs to be analyzed in depth before reaching such conclusions. Such an analysis would make it clear that State law can be repugnant only to the central Act, and not the regulations and rules made there.
Since this issue is bound with the right of States to manage university education, more serious thought needs to be given to it.
The Supreme Court held in S. Satyapal Reddy vs Govt. Of A.P. (1994) that the court has to make every attempt to reconcile the provisions of the apparently conflicting laws and the court would endeavor to give harmonious construction.
When this is done in most cases, there would be no need to strike down a State law on the ground of repugnancy.

Electoral Bonds

Context: Recently the Union government amended the electoral bonds scheme to allow an additional period of 15 days for electoral bond sales in years which have State elections.

What are Electoral Bonds?

Electoral bonds are banking instruments that can be purchased by any citizen or company to make donations to political parties, without the donor’s identity being disclosed.
It is like a promissory note that can be bought by any Indian citizen or company incorporated in India from select branches of the State Bank of India.
The citizen or corporate can then donate the same to any eligible political party of his/her choice.
An individual or party will be allowed to purchase these bonds digitally or through a cheque.
The political party has to encash it into the account which is registered with the Election Commission of India.

Electoral Bonds Scheme:

A citizen of India or a body incorporated in India will be eligible to purchase the bond.
Such bonds can be purchased for any value in multiples of ₹1,000, ₹10,000, ₹10 lakh, and ₹1 crore from any of the specified branches of the State Bank of India.
The purchaser will be allowed to buy electoral bonds only on due fulfilment of all the extant KYC norms and by making payment from a bank account.
The bonds will have a life of 15 days (15 days time has been prescribed for the bonds to ensure that they do not become a parallel currency).
Donors who contribute less than ₹20,000 to political parties through the purchase of electoral bonds need not provide their identity details, such as Permanent Account Number (PAN).

The objective of the scheme:

Transparency in political funding: To ensure that the funds being collected by the political parties is accounted money or clean money.

Issues with the Scheme:

Opaque funding: While the identity of the donor is captured, it is not revealed to the party or public. So transparency is not enhanced for the voter.
No IT break: Also income tax breaks may not be available for donations through electoral bonds. This pushes the donor to choose between remaining anonymous and saving on taxes.
No anonymity for donors: The privacy of the donor is compromised as the bank will know their identity.
Differential benefits: These bonds will help any party that is in power because the government can know who donated what money and to whom.
Unlimited donations: The electoral bonds scheme and amendments in the Finance Act of 2017 allow for “unlimited donations from individuals and foreign companies to political parties without any record of the sources of funding”.

Way Ahead:

The worries over the electoral bond scheme, however, go beyond its patent unconstitutionality.
The concern about the possibility of misuse of funds is very pertinent.
The EC has been demanding that a law be passed to make political parties liable to get their accounts audited by an auditor from a panel suggested by the CAG or EC. This should get prominence.
Another feasible option is to establish a National Election Fund to which all donations could be directed.
This would take care of the imaginary fear of political reprisal of the donors.

The Unlawful Activities (Prevention) Act (UAPA)

Context: Prime Minister had recently said that Central laws such as the Unlawful Activities (Prevention) Act (UAPA) had given an impetus to the system in a decisive fight against terrorism.

About UAPA:

The UAPA, an upgrade on the Terrorist and Disruptive Activities (Prevention) Act TADA (lapsed in 1995) and the Prevention of Terrorism Act – POTA (repealed in 2004) was passed in the year 1967.
It aims at the effective prevention of unlawful activity associations in India.
Till 2004, “unlawful” activities referred to actions related to secession and cession of territory.
The 2004 amendment, added “terrorist act” to the list of offenses.
Under the act, the investigating agency can file a charge sheet within a maximum of 180 days after the arrests, and the duration can be extended further after intimating the court.
Powers to Union Government: If the Centre deems an activity as unlawful then it may, by way of an Official Gazette, declare it so.
It has the death penalty and life imprisonment as the highest punishments.

2019 Amendment of UAPA:

The act was amended to designate individuals as terrorists on certain grounds provided in the Act.
- Earlier only organizations could be declared as such.
- Not designating individuals as terrorists would give them an opportunity to circumvent the law and regroup under a different name.
It empowers the Director General of NIA to grant approval for the seizure or attachment of property when the case is investigated by NIA.
- Earlier it required the consent of the State Police which delayed the process.
It empowers the officers of the NIA, of the rank of Inspector or above, to investigate cases of terrorism.
- This will help solve the human resource crunch in the NIA.

Criticism of UAPA:

Experiences of Anti-terror laws in India such as POTA and TADA reveal that they are often misused and abused.
The law could also be used against political opponents and civil society activists who speak against the government and brand them as “terrorists.”
Critics argue that the law, especially after the 2019 amendment gives unfettered powers to investigating agencies.
Some experts feel that it is against the federal structure, given that ‘Police’ is a state subject under the 7th schedule of the Indian Constitution.

Way Forward:

In this contemporary period of decline of Political parties, it is the civil society that caters to people’s needs, hence they should not be harassed through draconian laws
Anti-terror laws should not be used as tools to silence the critics of the government
Need to set up a review committee to examine and supervise the process of designating individuals as terrorists and investigating of cases with objectivity and fairness.
There is a greater role for the judiciary here to carefully examine the cases of alleged misuse. Arbitrariness under the law should be checked through Judicial review.
Drawing the line between individual freedom and state obligation to provide security is a case of classical dilemma. It is up to the officers to ensure professional integrity, follow the principle of objectivity and avoid any misuse.

The Uniform Civil Code

Context: Recently Gujarat announced that it will constitute a committee headed by a retired High Court judge to evaluate all aspects of implementing the Uniform Civil Code.

About:

A Uniform Civil Code means that all sections of the society irrespective of their religion shall be treated equally according to a national civil code, which shall be applicable to all uniformly.
They cover areas like- Marriage, divorce, maintenance, inheritance, adoption, and succession of the property.
It is based on the premise that there is no connection between religion and law in modern civilization.
Article 44 of the Indian Constitution corresponds with Directive Principles of State Policy stating that the State shall endeavor to provide for its citizens a uniform civil code (UCC) throughout the territory of India.
However, Article 37 of the Constitution itself makes it clear the DPSP “shall not be enforceable by any court”. Nevertheless, they are “fundamental in the governance of the country”.
This indicates that although our constitution itself believes that a Uniform Civil Code should be implemented in some manner, it does not make this implementation mandatory.
The origin of UCC is traced to Romans who governed themselves based on civil law, not holy texts.

Is India ready for UCC?

Need for uniformity of laws and ease of administration.
Uplift women who are being subjugated by archaic religious laws.
Justice to oppressed religious communities who are discriminated against with religious sanction.
Bias in personal laws of every faith in India – Unequal succession laws of almost all faith irrespective of how different the religious practices are.
In Goa, UCC is working effectively despite the population diversity.
Many Islamic countries have reformed personal laws to suit the ideas of the time: Turkey has abolished polygamy, Jordon and Egypt have banned triple talaq, etc.
Western democracies follow a common civil code.

Risks:

Concerns of misuse by religious forces.
Misinterpretation by politicians.
The wide-ranging diversity of the country.
Very cumbersome exercise.

Example of Goa:

Goa is the only Indian state to have a UCC in the form of common family law.
The Portuguese Civil Code that remains in force even today was introduced in the 19th century in Goa and wasn’t replaced after its liberation.
The Uniform Civil Code in Goa is a progressive law that allows equal division of income and property between husband and wife and also between children (regardless of gender).
Every birth, marriage, and death has to be compulsorily registered. For divorce, there are several provisions.
Muslims who have their marriages registered in Goa cannot practice polygamy or divorce through triple talaq.
During the course of a marriage, all the property and wealth owned or acquired by each spouse is commonly held by the couple.
Each spouse in case of divorce is entitled to half of the property and in case of death, the ownership of the property is halved for the surviving member.
The parents cannot disinherit their children entirely. At least half of their property has to be passed on to the children. This inherited property must be shared equally among the children.
However, the code has certain drawbacks and is not strictly a uniform code.
For example, Hindu men have the right to bigamy under specific circumstances mentioned in Codes of Usages and Customs of Gentile Hindus of Goa (if the wife fails to deliver a child by the age of 25, or if she fails to deliver a male child by the age of 30). For other communities, the law prohibits polygamy.

E-Gram Swaraj

Context: e-gram swaraj and AuditOnline of the Ministry of Panchayati Raj have won the GOLD AWARD under the category “Excellence in Government Process Re-engineering for Digital Transformation” of the National Awards for e-Governance.

About:

e-Gram Swaraj
- To strengthen e-Governance in Panchayati Raj Institutions (PRIs) across the country, the Ministry of Panchayati Raj (MoPR) has launched e-GramSwaraj, a user-friendly web-based portal.
- e-GramSwaraj aims to bring in better transparency and strengthen the e-Governance in Panchayati Raj Institutions (PRIs) across the country through decentralized Profiling, Planning, Physical Progress, Reporting, and Work-Based Accounting.
- There is a seamless integration between the e-gram swaraj Portal and Local Government Directory (LGD) through Unique Codes allocated to each PRI which allows interoperability with other PES.
Audit-Online
- AuditOnline is one of the generic and open-source applications developed as a part of Panchayat Enterprise Suite (PES) under the e-panchayat Mission Mode Project (MMP) initiated by the Ministry of Panchayati Raj (MoPR).
- AuditOnline facilitates the financial audit of accounts at all three levels of Panchayats viz District, Block and Village Panchayats, Urban Local Bodies (ULB), and Line department by Auditors (State AG/LFA).
- AuditOnline facilitates recording details for both Internal and External Audits as per the defined process.
- The software not only facilitates the online and offline audit of accounts but also serves the purpose of maintaining the past audit records of the auditee with the associated list of the auditors and audit team involved in the audit and acts as a good financial audit tool and improves transparency & accountability.
- Also, the information is available in the public domain and for usage by other PES applications.

Right to Repair

Context: Union Food and Consumer Affairs Minister unveiled the ‘right to repair’ portal on National Consumer Day (December 24). The theme of National Consumer Day 2022 was “Effective disposal of cases in consumer commission”.

About:

When customers buy a product, they should be able to repair and modify the product with ease and at a reasonable cost, without being captive to the whims of manufacturers for repairs.
The ‘Right to Repair’ movement started all over the world to have effective 'right to repair' laws.
Framework – In July 2022, the Department of Consumer Affairs set up a committee to develop a comprehensive framework on the 'Right to Repair'.
The objective of the framework is to empower consumers, harmonize trade between the original equipment manufacturers and the third-party buyers and sellers, and reduction in e-waste.
The Ministry of Consumer Affairs launched the ‘right to repair’ portal.
On the portal, manufacturers would share the manual of product details with customers.
This makes the customer either repair by self, or by third parties, rather than depend on original manufacturers.
Initially, mobile phones, electronics, consumer durables, automobiles, and farming equipment would be covered.

Exit Polls

Context: Exit polls are conducted for the Gujarat and Himachal Pradesh state assembly elections.

About:

An exit poll asks voters which political party they are supporting after they have cast their votes in an election.
They persist as an expression of free speech.
In this, it differs from an opinion poll, which is held before the elections.
An exit poll is supposed to give an indication of which way the winds are blowing in an election, along with the issues, personalities, and loyalties that have influenced voters.
Today, exit polls in India are conducted by a number of organizations, often in tie-ups with media organizations.
The surveys can be conducted face-to-face or online.
Historically in 1957, during the second Lok Sabha elections, the Indian Institute of Public Opinion conducted an exit poll.

Rules governing exit polls in India:

In India, results of exit polls for a particular election cannot be published until the last vote has been cast.
The issue of when exit polls should be allowed to be published has gone to the Supreme Court thrice in various forms.
Currently, exit polls can’t be telecast from before voting begins till the last phase concludes.

Restrictions in India:

The Indian Penal Code and Representation of the People Act, 1951 do contain certain restrictions against disinformation.
While the Constitution allows for reasonable restrictions on freedom of expression, its mandate to the ECI for free and fair elections is absolute.
The Supreme Court (SC), in a series of judgments, has emphasized this requirement.
Free and fair elections are considered a part of the basic structure of the Constitution (PUCL vs Union of India, 2003; NOTA judgment, 2013).

National Party

Context: The Aam Aadmi Party(AAP) has got 5 seats in Gujarat but its vote share was close to 13%, which meant it is on track to be recognized as a national party by the Election Commission of India (ECI).

About:

The ECI has laid down the technical criterion for a party to be recognized as a national party.
A party may gain or lose national party status from time to time, depending on the fulfilment of these laid-down conditions.
Criteria to be recognized as National Party:
- a) It is ‘recognized’ as a state party in four or more states;
- b) if its candidates polled at least 6% of total valid votes in any four or more states in the last Lok Sabha or Assembly elections and have at least four MPs in the last Lok Sabha polls;
- or c) if it has won at least 2% of the total seats in the Lok Sabha from not less than three states.
As of now, the ECI has recognized eight parties as national parties — the BJP, Congress, Trinamool Congress, CPI(M), CPI, Nationalist Congress Party (NCP), Bahujan Samaj Party (BSP), and National People’s Party(NPP) which was recognized in 2019.

Centre vs Delhi Government on Control over Services

Context: A five-judge constitution bench is hearing a dispute between the Centre and the Delhi Government on control over services i.e., matters pertaining to control over the transfers and overall functioning of administrative services in Delhi.

About:

The Timeline of the Dispute:
- 2017 Judgement:
  - The Delhi High Court had, in its judgment of 2017 held that for administration purposes of the National Capital Territory (NCT), the Lieutenant Governor (L-G) is not bound by the aid and advice of the Council of Ministers in every matter.
  - On appeal, the SC in 2017, referred the matter to decide the interpretation of Article 239AA of the Constitution.
- 2018 Judgement:
  - A five-judge Constitution bench had unanimously held that the L-G of Delhi is bound by the aid and advice of the elected government, and both needed to work harmoniously with each other.
- 2019 Judgement:
  - A two-judge Bench of the SC delivered a split verdict on the question of powers of the Government of NCT of Delhi and the Union government over services and referred the matter to a three-judge Bench.
  - While one judge ruled the Delhi government has no power at all over administrative services.
  - Another judge, however, had said the transfer or posting of officers in top echelons of the bureaucracy (joint director and above) can only be done by the Central government and the view of the L-G would prevail in case of a difference of opinion for matters relating to other bureaucrats.
- 2022 Case:
  - The Centre on 27th April 2022 sought a reference to a larger Bench, arguing that it needed the power to make transfers and postings of officers in Delhi on account of it being the national capital and the “face of nation”.
  - The court agreed that the limited question relating to the scope of the legislative and executive powers of the Centre and NCT of Delhi, with respect to the term “services”, would need an authoritative pronouncement by a Constitution Bench in terms of Article 145(3) of the Constitution.
Arguments and Counterarguments in the Issue:
- Arguments For:
  - The Centre has consistently maintained that because Delhi is the national capital and the face of the country, it must have control over administrative services, which include appointments and transfers.
- Counter-Arguments:
  - The Delhi government has argued that in the interest of federalism, the elected representatives must have power over transfers and postings.
  - The Delhi government had also contended that the recent amendments to the Government of National Capital Territory of Delhi (Amendment) Act, 2021, violate the doctrine of the basic structure of the Constitution.
Governance Model of New Delhi:
- The status of Delhi was a Union Territory under Schedule 1 of the Constitution but was christened as the ‘National Capital Territory’ under Article 239AA.
- The 69th amendment to the Constitution of India inserted Article 239AA, which declared the Union Territory of Delhi to be administered by an L-G who works on aid and advice of the elected legislative assembly.
- However, the ‘aid and advice’ clause pertains only to matters on which the elected Assembly has powers under the State and Concurrent Lists with the exception of public order, police, and land.
- Further, Article 239AA also notes that L-G has to either act on the aid and advice of the Council of Ministers, or he is bound to implement the decision taken by the President on a reference being made by him.
- Also, Article 239AA, empowers the L-G to refer a difference of opinion on ‘any matter’ with the Council of Ministers to the President.
- Thus, this dual control between L-G and the elected government leads to a power tussle.

Stalemate Between Telangana And Andhra Pradesh

Context: The Andhra Pradesh government has approached the Supreme Court seeking just, reasonable, and equitable apportionment of assets and liabilities with Telangana under the Andhra Pradesh Reorganization Act, 2014.

About:

Background:
- On 2nd June 2014, the northwestern part of Andhra Pradesh was separated and the 29th state Telangana was created.
- The States Reorganisation Act (1956) merged the Telugu-speaking areas of Hyderabad state with the Andhra state to create the enlarged Andhra Pradesh state.
- The Andhra Pradesh Reorganisation Act (2014) bifurcated Andhra Pradesh (AP) into two separate states, namely, Andhra Pradesh (residuary) and Telangana.
- Now more than eight years after the bifurcation of the erstwhile united Andhra Pradesh, the division of assets and liabilities between the two States remain elusive as the States make their own interpretation of the provisions under the Andhra Pradesh Reorganisation Act 2014.
The Issues:
- 12 Institutions not Mentioned in the Act:
  - The issue involves 245 institutions with a total fixed asset value of ₹1.42 lakh crore.
  - There are 91 institutions under Schedule IX and 142 institutions under Schedule X of the Act.
  - The division of another 12 institutions not mentioned in the Act has also become contentious between the States.
- Delays in Division of Assets and Liabilities:
  - AP laments that the Telangana government had selectively accepted the recommendations given by the expert committee headed by Sheela Bhide, leaving others which was resulting in delays in the division of assets and liabilities.
  - The committee has made recommendations with respect to the division of 89 out of the 91 Schedule IX institutions.
  - Andhra Pradesh argues that recommendations were accepted hastily to expedite the process of division and finalized the division of these institutions.
- Contention over Division of Assets:
  - The expert committee’s recommendations on the division of assets that are not a part of the headquarters assets attracted criticism from the Telangana government, saying it is against the spirit of the Reorganisation Act.
Role of the Centre:
- The Ministry of Home Affairs (MHA) has given clarity about the headquarters assets way back in 2017.
- MHA states that in the case of one single comprehensive State undertaking (which includes the headquarters and the operational units in one facility) which is exclusively located in, or its operations are confined in one local area, it shall be apportioned on the basis of location as per sub-section (1) of Section 53 of the Reorganisation Act.
- The Act empowers the Union Government to intervene as and when needed.
Constitutional Provisions for the role of the Centre:
- The SC in its original jurisdiction decides disputes between states.
- As Article 131 of the Constitution reads, the SC has original jurisdiction in any dispute between the Government of India and one or more States or between the Government of India and any State or between two or more states.
- Under Article 263 of the Constitution, the Inter-state council is expected to inquire and advise on disputes, discuss subjects common to all states and make recommendations for better policy coordination.

Journalists Not Exempted from Disclosing Sources

Context: While the Supreme Court broadly recognizes the freedom of the press, including the right of journalists to ensure the protection of their sources, various courts have ruled differently on this issue.

About:

While rejecting a closure report filed by the Central Bureau of Investigation, a Delhi court on January 19 said there is “no statutory exemption in India to journalists from disclosing their sources to investigating agencies”.
What did the court say?
- The CBI had sought to close its investigation on how certain news channels and a newspaper had aired and published reports related to a disproportionate assets case against late Samajwadi Party leader Mulayam Singh Yadav and his family members on February 9, 2009, a day prior to the scheduled date of hearing in the Supreme Court.
- The CBI had argued that the “documents used by the news channel were forged” but it could not be established who forged the documents since the “users of the forged documents did not disclose their source, therefore there is no sufficient material/evidence to prove the criminal conspiracy”.
- However, Chief Metropolitan Magistrate Anjani Mahajan of the Rouse Avenue Court rejected the closure report and directed the CBI to investigate further “on the modus operandi adopted by the culprits for gaining access to/obtaining the official documents including probing involvement of any insider in the acts alleged and preparing the alleged forged 17 pages to review note.”
What is the legal protection for disclosure of journalistic sources?
- In India, there is no specific legislation that protects journalists from being asked to disclose their sources. Article 19 of the Constitution guarantees the right to freedom of speech and expression to all citizens.
- Investigative agencies can issue notices to anyone, including journalists, to provide information. Like any citizen, a journalist can be compelled to give evidence in Court. If she does not comply, the journalist can face charges of Contempt of Court.
What have courts said on this issue?
- While the Supreme Court broadly recognizes the freedom of the press, including the right of journalists to ensure the protection of their sources, various courts have ruled differently on this issue.
- While constituting a committee to investigate the Pegasus spyware, the Supreme Court in October 2021 said that one of the fundamental conditions for the media to exercise its right to freedom of speech and expression under Article 19 is the protection of ‘journalistic sources.’
- “Having regard to the importance of protection of journalistic sources for press freedom in a democratic society and the potential chilling effect that snooping techniques may have, this Court’s task in the present matter, where certain grave allegations of infringement of the rights of the citizens of the country have been raised, assumes great significance,” the Court had said.
- “Protection of journalistic sources is one of the basic conditions for the freedom of the press. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest,” the SC added.
- In 2019, the Supreme Court in a review petition in the Rafale case overruled the Centre’s objections to the petitioner’s claims since they relied on purportedly “stolen” confidential documents. The Centre had asked the chairman of The Hindu Publishing Group, who wrote the reports, to disclose his sources. N Ram told the Court that the publication was “perfectly justified (and) in the public interest”.
- “In fact, the publication of the said documents in ‘The Hindu’ newspaper reminds the Court of the consistent views of this Court upholding the freedom of the press in a long line of decisions commencing from Romesh Thappar vs. the State of Madras and Brij Bhushan vs. The State of Delhi,” the Supreme Court had said.
- However, in the absence of a specific law, it is often the discretion of a Court. Courts have in “the public interest asked journalists to disclose their sources.
- Under the Press Council of India (PCI) Act, of 1978, the Press Council has the powers of a civil court to deal with complaints when a newspaper has “offended against the standards of journalistic ethics or public taste or that an editor or working journalist has committed any professional misconduct.” However, the Council cannot force a newspaper, news agency, journalist, or editor to reveal their sources during the proceedings.
Recommendations for a change in the law:
- The Law Commission of India in its 93rd Report in 1983 recommended recognizing journalistic privilege by amending the Indian Evidence Act. The short 38-page report suggested the insertion of a new provision which would read: “No court shall require a person to disclose the sources of information contained in a publication for which he is responsible, where such information has been obtained by him on the express agreement or implied understanding that the source will be kept confidential”.
- In its 185th report on the amendments to the Evidence Act, the Law Commission again suggested this amendment.
Position in other countries:
- United Kingdom:
- - The Contempt of Courts Act 1981 creates a presumption in favor of journalists who want to protect the identity of their sources.
  - However, that right is subject to certain conditions in the “interest of justice”.
  - The European Court of Human Rights in a landmark 1996 ruling held that an attempt to force a journalist to reveal his source for a news story violated his freedom of speech and expression guaranteed under the European Convention on Human Rights.
- United States:
- - Although the First Amendment guarantees free speech in the United States and specifically mentions the press, the Supreme Court has held that journalists do not have the right to refuse to testify in a federal grand jury proceeding and disclose sources.
  - This was in a 1972 ruling Branzburg v. Hayes. Several journalists have been imprisoned for refusing to disclose their sources.
  - However, several states in the US have “shield laws” that protect the rights of journalists to varying degrees.
- Sweden:
- - The Freedom of the Press Act in Sweden is a broad protection of the rights of journalists and even extends to state and municipal employees who might share information with journalists freely. In fact, a journalist who reveals his or her source without consent may be prosecuted at the behest of the source.
  - In France and Germany too, journalists can refuse to disclose sources in an investigation.

PM CARES

Context:

Of the Rs 10,990 crore collected by the Union government under the Prime Minister’s Citizen Assistance and Relief in Emergency Situations (PM-CARES) Fund since its inception on March 27, 2020, Rs 7,014 crore (64%) remained unutilised as of March 31, 2021.

What is Prime Minister’s Citizen Assistance and Relief in Emergency Situations (PM-CARES) Fund?

The Prime Minister’s Citizen Assistance and Relief in Emergency Situations (PM-CARES) Fund was set up to accept donations and provide relief during the Covid-19 pandemic, and other similar emergencies.
PM-CARES was set up as a public charitable trust with the trust deed registered on March 27, 2020.
It can avail donations from the foreign contribution and donations to fund can also avail 100% tax exemption.
PM-CARES is different from the Prime Minister’s National Relief Fund (PMNRF).

Prime Minister’s National Relief Fund (PMNRF):

Prime Minister’s National Relief Fund in India is the fund raised to provide support for people affected by natural and man made disasters.
In pursuance of an appeal by the then Prime Minister, Pt. Jawaharlal Nehru in January, 1948, the Prime Minister’s National Relief Fund (PMNRF) was established with public contributions to assist displaced persons from Pakistan.
The resources of the PMNRF are now utilized primarily to render immediate relief to families of those killed in natural calamities like floods, cyclones and earthquakes, etc. and to the victims of the major accidents and riots.
To undertake and support relief or assistance of any kind relating to a public health emergency or any other kind of emergency, calamity or distress, either man-made or natural, including the creation or upgradation of healthcare or pharmaceutical facilities, other necessary infrastructure, funding relevant research or any other type of support.
To render financial assistance, provide grants of payments of money or take such other steps as may be deemed necessary by the Board of Trustees to assist the affected population.
To undertake any other activity, which is not inconsistent with the above Objects.

Who administers the PM-CARES fund?

Prime Minister is the ex-officio Chairman of the PM CARES Fund and Minister of Defence, Minister of Home Affairs and Minister of Finance, Government of India are ex-officio Trustees of the Fund.
In 2021, the Delhi High Court was informed that the PM CARES Fund is not a Government of India fund and that the amount collected by it does not go to the Consolidated Fund of India.

Religious schools under RTE ambit?

Context:

Recently, the Supreme Court refused to entertain a petition questioning the exclusion of madrasas and Vedic schools from the ambit of the Right of Children to Free and Compulsory Education Act 2009.
The Court observed that the exclusion of these institutions was specifically inserted into the 2009 Act by an amendment of August 2012 and since then there has never been any controversy in the past decade.
Section 1(5) of the Act states, “Nothing contained in this Act shall apply to madrasas, Vedic pathshalas and educational institutions primarily imparting religious instruction,” while Section 1(4) said, “Subject to the provisions of Articles 29 and 30 of the Constitution, the provisions of this Act shall apply to conferment of rights on children to free and compulsory education.”

Cultural & Educational Rights (Articles 29 & 30):

Article 29 – Protection of Interests of Minorities
- This article is intended to protect the interests of minority groups.
- Article 29(1): This provides any section of the citizens residing in India having a distinct culture, language, or script, the right to conserve their culture, language and script.
- Article 29(2): The State shall not deny admission into educational institutes maintained by it or those that receive aid from it to any person based only on race, religion, caste, language, or any of them.
Article 30 – Right of Minorities to Establish and Administer Educational Institutions
- This right is given to minorities to form and govern their own educational institutions. Article 30 is also called the “Charter of Education Rights”.
- Article 30(1): All religious and linguistic minorities have the right to establish and administer educational institutions of their choice.
- Article 30(2): The State shall not, when granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.

What is Right of Children to Free and Compulsory Education Act 2009?

The Right to Education Act 2009, also known as the RTE Act 2009, was enacted by the Parliament of India on 4 August 2009.
It describes modalities of the importance of free and compulsory education for children aged between 6-14 years in India under Article 21 (A) of the Constitution of India.
This act came into effect on 1 April 2010 and made India one of the 135 countries to have made education a fundamental right for every child.
It prescribes minimum norms for elementary schools, prohibits unrecognised schools from practice and advocates against donation fees and interviews of children at the time of admission.

Features of the RTE Act:

Compulsory and free education for all:
- It is obligatory for the Government to provide free and compulsory elementary education to each and every child, in a neighbourhood school within 1 km, up to class 8 in India.
- No child is liable to pay fees or any other charges that may prevent him or her from pursuing and completing elementary education.
- Free education also includes the provisions of textbooks, uniforms, stationery items and special educational material for children with disabilities in order to reduce the burden of school expenses.
The benchmark mandate:
- The Right to Education Act lays down norms and standards relating to Pupil-Teacher-Ratios (number of children per teacher), classrooms, separate toilets for girls and boys, drinking water facility, number of school-working days, working hours of teachers, etc.
- Each and every elementary school (Primary school + Middle School) in India has to comply with this set of norms to maintain a minimum standard set by the Right to Education Act.
Special provisions for special cases:
- The Right to Education Act mandates that an out of school child should be admitted to an age-appropriate class and provided with special training to enable the child to come up to age-appropriate learning level.
Quantity and quality of teachers:
- The Right to Education Act provides for rational deployment of teachers by ensuring that the specified Pupil-Teacher-Ratio is maintained in every school with no urban-rural imbalance whatsoever. It also mandates appointing appropriately trained teachers i.e. teachers with the requisite entry and academic qualifications.
Zero tolerance against discrimination and harassment:
- The Right to Education Act 2009 prohibits all kinds of physical punishment and mental harassment, discrimination based on gender, caste, class and religion, screening procedures for admission of children capitation fee, private tuition centres, and functioning of unrecognised schools.
Ensuring all-round development of children:
- The Right to Education Act 2009 provides for the development of a curriculum, which would ensure the all-around development of every child. Build a child’s knowledge, human potential and talent.
Improving learning outcomes to minimise detention:
- The Right to Education Act mandates that no child can be held back or expelled from school till Class 8.
- To improve the performances of children in schools, the Right to Education Act introduced the Continuous Comprehensive Evaluation (CCE) system in 2009 to ensure grade-appropriate learning outcomes in schools. Another reason why this system was initiated was to evaluate every aspect of the child during their time in school so that gaps could be identified and worked on well in time.
Monitoring compliance of RTE norms:
- School Management Committees (SMCs) play a crucial role in strengthening participatory democracy and governance in elementary education.
- All schools covered under the Right to Education Act 2009 are obligated to constitute a School Management Committee comprising of a headteacher, local elected representative, parents, community members etc.
- The committees have been empowered to monitor the functioning of schools and to prepare a school development plan.
Right to Education Act is justiciable:
- The Right to Education Act is justiciable and is backed by a Grievance Redressal (GR) mechanism that allows people to take action against non-compliance of provisions of the Right to Education Act 2009.
Creating inclusive spaces for all:
- The Right to Education Act 2009 mandates for all private schools to reserve 25 per cent of their seats for children belonging to socially disadvantaged and economically weaker sections. This provision of the Act is aimed at boosting social inclusion to provide for a more just and equal nation.

Caste Census

Context:

It is frequently in the news as a result of demands made by political parties.

What is the caste census?

Caste census means inclusion of caste-wise tabulation of India’s population in the Census exercise, which is a decennial count of the Indian population.
From 1951 to 2011, every census in India has published the population of Scheduled Castes and Scheduled Tribes, comprising the Dalits and the Adivasis, along with the gamut of data including religions, languages, socio-economic status, etc.
It, however, has never counted OBC’s, the lower and intermediate castes, which according to the Mandal commission make up around 52 per cent of the country’s population. All castes other than Scheduled Castes and Scheduled Tribes are counted under the general category.
This is where the demand for caste census comes from.

Has there ever been a caste census?

Not properly since independence. The first census in India began in 1872 and the periodic count in 1881 under British rule. Since then, the data on caste was always included, though only till 1931.
The caste count was excluded for the 1941 census reportedly because of administrative and financial issues with England involved in World War II.
Thus the count of OBCs is, therefore, available for 1931, when their share of the population was found to be about 52 percent.
However, faced with a similar clamour for a caste census in 2010, the then Congress-led UPA government had partially conceded to the demand as the caste enumeration was not done as part of Census 2011, but a separate Socio-Economic Caste Census (SECC) was conducted in the same year, which also gleaned data on caste.
Later, the raw caste data was handed over to the Ministry of Social Justice and Empowerment, however, it was never made public by the government.

Census in India:

Population Census is the total process of collecting, compiling, analyzing and disseminating demographic, economic and social data pertaining, at a specific time, of all persons in a country or a well-defined part of a country.
The decennial Census in India is conducted by the Office of the Registrar General and Census Commissioner, Ministry of Home Affairs.
- Until 1951, the Census Organisation was set up on an ad-hoc basis for each Census.
The population census is a Union subject (Entry 69) under Article 246 of India Constitution.
Census in India is conducted under the provisions of the Census Act, 1948.

History of Census in India:

Ancient and Medieval Period:
- The earliest literature 'Rig-Veda' reveals that some kind of population count was maintained during 800-600 BC in India.
- Arthashastr' by Kautilya written in the 3rd Century BC prescribed the collection of population statistics as a measure of state policy for taxation.
- During the regime of the Mughal king Akbar, the administrative report 'Ain-e-Akbari' also included comprehensive data pertaining to population, industry, wealth and many other characteristics.
Modern India:
- A limited census was conducted in Allahabad (1824) and in Banaras (1827-28) by James Prinsep.
- The first complete census of an Indian city was conducted in 1830 by Henry Walter in Dacca.
- The Second Census was conducted in 1836-37 by Fort St. George.
- In 1849, the Government of India ordered the local governments to conduct quinquennial (five-yearly) returns of population.
- First Non-synchronous Census was conducted in India in 1872 during the reign of Governor-General Lord Mayo.
- The first synchronous census was taken under British rule on February 17, 1881, by W.C. Plowden who was Census Commissioner of India then.
- Since then, censuses have been undertaken uninterruptedly once every ten years.
- In India, 15 censuses have been conducted to date. The outbreak of the COVID-19 pandemic has forced the postponement of the 16th census (2021).

Salient features of the 16th census (2021):

For the first time in the 140-year history of the census in India, data was collected through a mobile app. So India’s first ‘Digital Census’ conducted in 2021. Census data was collected in 16 languages.
It is for the first time that information of households headed by a person from the Transgender Community and members living in the family will be collected.
The population of India, at 140 million, is almost equal to the combined population of the U.S.A., Indonesia, Brazil, Pakistan, Bangladesh, and Japan put together (140 million).

Socio-Economic and Caste Census (SECC):

The Socio-Economic and Caste Census (SECC) was conducted in 2011 for the first time since 1931.
It seeks to canvass every Indian family in rural and urban India, and ask about their:
- Economic status, to allow Central/State authorities to come up with a range of indicators of deprivation which could be used by each authority to define a poor or deprived person.
- Specific caste name, to allow the government to re-evaluate which caste groups are economically worse off and which are better off.

Difference between Census and SECC:

The Census provides a portrait of the Indian population, while the SECC is a tool to identify beneficiaries of state support.
Since the Census falls under the Census Act of 1948, all data are considered confidential, whereas all the personal information given in the SECC is open for use by Government departments to grant and/or restrict benefits to households.

So why is it demanded now?

The demand to include caste in the census is long-pending. It arises from the fact that there is no documented data on OBC population in India.
Even the constitutional body National Commission for Backward Classes urged the government to collect data on the population of OBCs and now various parties of different states have voiced their support of caste census.
Further, the 1931 caste census included present-day Pakistan and Bangladesh. India’s population has since increased three-fold to 1.21 billion in 2011.
Experts believe the economic status of the dominant OBC castes have improved in the past 80 years and certain castes have not benefited as much.
So, the new caste census is required to measure the economic and social well-being of all castes.

National Data and Analytics Platform (NDAP)

Context:

It was frequently in the news due to various reasons.

What is the National Data and Analytics Platform (NDAP)?

The National Data and Analytics Platform (NDAP) is NITI Aayog’s flagship initiative to improve access and use of government data.
NDAP is a user-friendly web platform that aggregates and hosts datasets from across India’s vast statistical infrastructure.
It was launched in 2022 by NITI Aayog.
The platform aims to democratize access to public government data by making data accessible, interoperable, interactive, and available on a user-friendly platform.
It hosts foundational datasets from various government agencies, presents them coherently, and provides tools for analytics and visualization.
NDAP follows a use-case based approach to ensure that the datasets hosted on the platform are tailored to the needs of data users from government, academia, journalism, civil society, and the private sector.
All datasets are standardized to a common schema, which makes it easy to merge datasets and do cross-sectoral analysis.

Some features of the NDAP:

Accessibility:
- NITI Aayog aims to make data more accessible by hosting data in clean, machine-readable formats, ensuring datasets are interoperable, and providing detailed documentation on the contents of each dataset.
- As of Mar 2023, NDAP hosts 886 datasets from across 15 sectors and 46 Ministries.
Quality:
- Datasets on the platform are required to meet a minimum data quality standard that is defined using NDAP’s in-house 5-star rating framework.
- Applying this minimum standard ensures that all datasets on NDAP are accompanied by detailed documentation, have been mapped to a common data schema (the Local Government Directory), and have passed internal data quality checks to ensure that they remain true to the source.
Interoperable:
- Datasets on NDAP are made interoperable by mapping them to a common set of geographical and temporal identifiers using the Ministry of Panchayati Raj Local Government Directory Code.
- This enables users to merge datasets from different sectors and sources for easier cross-sectoral analysis.
- NDAP's in-built Merge tool allows users to merge up to 3 datasets for cross-dataset analysis.
Interactive:
- NDAP users can create flexible tables and visualizations for easy exploratory analysis using the platform’s in-built analysis tools. Users can create maps, bar charts, line charts, pie charts, choropleth (heat maps), and scatter plots using any dataset and indicator on NDAP at levels of aggregation that are most suitable for their analysis.
User-centricity:
- NDAP centers the user experience in data delivery by hosting use-case relevant datasets, ensuring that the platform experience is user friendly, and regularly soliciting and incorporating user feedback.

Centre Opposes Same-Sex Marriage

Context:
- The Centre has opposed same-sex marriage in the Supreme Court, stating that marriage between a biological man and woman is a holy union, a sacrament, and a sanskar in India.
- A Bench led by the Chief Justice of India refers petitions to legally recognise same-sex marriages to a Constitution Bench of five judges of the Supreme Court
What is the Stand of the Government Regarding Same Sex Marriage?
- The government argued that the Court had only decriminalised sexual intercourse between same-sex persons in its 2018 judgement in Navtej Singh Johar v. Union of India, and not legitimised this “conduct”.
- The court, while decriminalising homosexuality, did not accept same-sex marriage as part of the fundamental right to life and dignity under Article 21 of the Constitution.
- The government argues that marriage depends on customs, rituals, practices, cultural ethos, and societal values.
- Same-sex marriage cannot be compared to a man and woman living as a family with children born out of the union.
- The Parliament has designed and framed the marriage laws in the country to recognise only the union of a man and a woman.
- Registration of marriage of same-sex persons would result in a violation of existing personal as well as codified law provisions.
- The Special Marriage Act of 1954 provides a civil form of marriage for couples who cannot marry under their personal law.
- The government argued that any deviation from this norm can only be made through the legislature, and not the Supreme Court.
What are the Arguments in Favour of Same-Sex Marriage?
- Equal Rights and Protection Under the Law: All individuals, regardless of their sexual orientation, have the right to marry and form a family.
- Same-sex couples should have the same legal rights and protections as opposite-sex couples.
- Non-recognition of same-sex marriage amounted to discrimination that struck at the root of the dignity and self-fulfilment of LBTQIA+ couples.
- Strengthening Families and Communities: Marriage provides social and economic benefits to couples and their families. Allowing same-sex couples to marry strengthens families and communities by promoting stability and security.
- Global Acceptance: Same-sex marriage is legal in many countries around the world, and denying this right to individuals in a democratic society goes against global principles.
- In 133 countries homosexuality was decriminalised, but only in 32 of them same-sex marriage is legal.
What are the Arguments Against Same-Sex Marriage?
- Religious and Cultural Beliefs: Many religious and cultural groups believe that marriage should only be between a man and a woman.
- They argue that changing the traditional definition of marriage would go against the fundamental principles of their beliefs and values.
- Procreation: Some people argue that the primary purpose of marriage is procreation and that same-sex couples cannot have biological children.
- Therefore, they believe that same-sex marriage should not be allowed because it goes against the natural order of things.
- Legal issues: There are concerns that allowing same-sex marriage will create legal problems, such as issues with inheritance, tax, and property rights.
- Some people argue that it would be too difficult to change all the laws and regulations to accommodate same-sex marriage.

National Assessment and Accreditation Council (NAAC)

Context:
- Recently, the National Assessment and Accreditation Council (NAAC) has been facing allegations of irregularities in its functioning.
What is NAAC?
About:
- Established in 1994, it is an autonomous body under the University Grants Commission (UGC) responsible for assessing the quality of higher educational institutions in India.
Functions of NAAC:
- Through a multi-layered assessment process, it awards grades ranging from A++ to C based on parameters such as curriculum, faculty, infrastructure, research and financial well-being.
Allegations:
- The former chairperson of NAAC's executive committee resigned after alleging that malpractices were leading to questionable grades being awarded to some institutions.
- An inquiry commissioned found irregularities in the IT system and allocation of assessors.
- The inquiry also highlighted that nearly 70% of experts from the pool of around 4,000 assessors have not received any opportunity to make site visits.
- As of January 2023, out of the 1,113 universities and 43,796 colleges in the All India Survey on Higher Education (AISHE), 2020-2021, only 418 universities and 9,062 colleges were NAAC-accredited.
What are the Current Accreditation Criteria in India?
Criteria:
- Currently, only institutes that are at least 6 years old or from where at least two batches of students have graduated can apply for accreditation, which is valid for 5 years.
Accreditation Mandate:
- Accreditation by NAAC is voluntary, though many circulars have been issued by the UGC urging institutions to undergo assessment.
Efforts to Expedite Accreditation:
- The UGC launched a scheme named 'Paramarsh' in 2019 to mentor institutes aspiring to get accredited.
- NAAC explored the possibility of issuing Provisional Accreditation for Colleges (PAC) to one-year-old institutes.
- The National Education Policy (2020) has set an ambitious target of getting all higher educational institutes to obtain the highest level of accreditation over the next 15 years.
What are the Other Challenges in India’s Higher Education System?
- Limited Access: Despite efforts to increase access to higher education, many students from marginalised communities still face barriers to entry, including financial constraints and a lack of educational opportunities.
- Especially, the number of students in the Persons with Disabilities category dropped in 2020-21 to 79,035 from 92,831 in 2019-20.
- Gender Inequality: Women continue to face significant barriers to accessing higher education in India, including social and cultural biases and a lack of support systems.
- According to the All India Survey on Higher Education (AISHE), 2020-2021, female enrolment in higher education programmes was 49% of total enrolments in 2020-21.
- Employability Issues: Despite having a large number of graduates, many students in India struggle to find employment due to a lack of practical skills and industry-relevant education.
- Also, India lags behind many other countries in terms of research output, and there is a lack of a research culture in many higher education institutions.

Legislature:

How Rajya Sabha MPs elected?

Context: Recently, elections for 57 Rajya Sabha seats across 15 states are slated to be held on June 10.
What is Rajya Sabha:
- The Rajya Sabha or the Upper House of Parliament is modeled after the House of Lords in the United Kingdom. The Rajya Sabha currently has 245 members, including 233 elected members and 12 nominated.
- As per the constitutional limit, the Upper House strength cannot exceed 250.
- While 233 members are elected from states and Union Territories (UTs), President of India nominates the remaining 12 from from the fields of art, literature, science and social services.
- As per the constitution, since the Rajya Sabha is the Council of States, the allocation of seats for Rajya Sabha is made on the basis of the population of each state.
How are Rajya Sabha members elected?
- Members of the Rajya Sabha are elected through single transferable vote via open ballot. Members of a state’s Legislative Assembly vote in the Rajya Sabha elections in what is called proportional representation with the single transferable vote (STV) system. Each MLA’s vote is counted only once.
- The tenure of a Rajya Sabha member is six years. One-third members retire every second year and are replaced by newly chosen members.
- Each member serves for a term of six years. In case of death, disqualification or resignation, polls are held.
Important points for prelims:
- The ‘none of the above’ i.e. NOTA is not applicable to this election. Earlier in 2014, The ECI gave Rajya Sabha members the option to press the NOTA button in the Upper House polls. However, in 2018, the Supreme Court struck down the provision, holding that the ‘none of the above’.
- Cross-voting does not attract disqualification under the Anti-Defection Law or the 10th Schedule.

Speaker’s Powers in a Rebellion

Context: While granting interim relief to rebel MLAs of the Shiv Sena on Monday, the Supreme Court made a crucial but unusual judicial intervention that raises questions on the powers of the Speaker under the Tenth Schedule of the Constitution.
What is the Tenth Schedule?
- The 10th Schedule of the Indian Constitution (the anti-defection law) is designed to prevent political defections prompted by the lure of office or material benefits or other like considerations.
- The Anti-defection law was passed by Parliament in 1985 and reinforced in 2002.
- The 10th Schedule of the Indian Constitution popularly referred to as the ‘Anti-Defection Law’ was inserted by the 52nd Amendment (1985) to the Constitution.
The Tenth Schedule includes the following provisions with regard to the disqualification of MPs and MLAs on the grounds of defection:
- Grounds for disqualification:
  1. If an elected member gives up his membership of a political party voluntarily.
  2. If he votes or abstains from voting in the House, contrary to any direction issued by his political party.
  3. If any member who is independently elected joins any party.
  4. If any nominated member joins any political party after the end of 6 months.
Who has the power to disqualify legislators under the Tenth Schedule?
- The decision on disqualification questions on the ground of defection is referred to the Speaker or the Chairman of the House, and his/her decision is final.
- All proceedings in relation to disqualification under this Schedule are considered to be proceedings in Parliament or the Legislature of a state as is the case.
Supreme Court on Speakers’ Powers to disqualify legislators:
- Kihoto Hollohan versus Zachillhu in 1992: In this, the Supreme Court upheld the power vested in the Speaker and said that only the final order of the Speaker will be subject to judicial review. Basically, courts have refrained from interfering with the process itself.
- However, the ruling in the Nabam Rebia v Bemang Felix case has shifted the balance on the powers of the Speaker.
- Nabam Rebia v Bemang Felix case in 2016: The Supreme Court held that it is “constitutionally impermissible” for a speaker to proceed with disqualification proceedings if a no-confidence motion against him is pending.
- This is to ensure that the Speaker who disqualifies legislators must enjoy the confidence of the Assembly.
- Hence, this ruling gave a window to defecting legislators to stall or circumvent the Tenth Schedule by seeking removal of the Speaker when disqualification proceedings are anticipated — effectively tying the hands of the Speaker.

The Bail Law in India

Context: Recently, the Supreme Court underlined that “there is a pressing need” for reform in the law related to bail and called on the government to consider framing a special legislation on the lines of the law in the United Kingdom.

What is bail & types of bails in India?

Bail denotes provisional release of accused in Criminal Case in which court the trial is pending and the Court is yet to announce judgement.
There are 3 types of bail Regular, Interim and Anticipatory.
- Regular bail: A regular bail is generally granted to a person who has been arrested or is in police custody. A bail application can be filed for the regular bail under section 437 and 439 of CrPC.
- Interim bail is granted for a short period of time and it is granted before the hearing for the grant of regular or anticipatory bail.
- Anticipatory Bail: If any person has reason to believe that he/she may be arrested for non-bailable offence, he/she may apply to Sessions court or High court for anticipatory bail praying that in the event of arrest, he/she shall be released on bail. (Section 438 Cr.PC).

What is the law on bail in India?

The Code of Criminal Procedure (CrPC) does not define the word bail but only categories offences under the Indian Penal Code as ‘bailable’ and ‘non-bailable’.
The CrPC empowers magistrates to grant bail for bailable offences as a matter of right. This would involve release on furnishing a bail bond, without or without security.
For non-bailable offences which enable the police officer to arrest without a warrant, a magistrate would determine if the accused is fit to be released on bail.

What is the UK law on bail?

The Bail Act of the United Kingdom, 1976, prescribes the procedure for granting bail. A key feature is that one of the aims of the legislation is “reducing the size of the inmate population”. The law also has provisions for ensuring legal aid for defendants.
For rejecting bail, the prosecution must show that grounds exist for believing the defendant on bail would not surrender to custody, would commit an offence while on bail, or would interfere with witnesses or otherwise.

Unparliamentary Words

Context: A compilation of ‘unparliamentary’ words brought out by the secretariat of the Lok Sabha recently.

What are unparliamentary words?

Unparliamentary words are those which do not square with the dignity of the house and are, therefore, expunged from the record of speeches by the chair. In all parliaments in the world, certain words and expressions are considered as lowering the dignity of the house. The members of a legislature are required to maintain the dignity of the house and not use words against each other or against anyone who is undignified.
In the Westminster form of democracy that India follows, there is a custom where certain terms and phrases are referred to as unparliamentary when they are used during discussions in the legislature. Similar laws exist outside of the Westminster democracy as well to ensure that elected officials speak in a civilized way.
In most cases, the Speaker of the House decides exactly what is and isn't a parliamentary language. Enforcing the assembly's debating rules, one of which prohibits members from using “unparliamentary” language, is a part of the speaker's duties.
The house rules empower the speaker to remove such words from the record of the proceedings.

About compilation of unparliamentary words:

The secretariats of Parliament have been periodically bringing out updated compilations of unparliamentary words. For example, the compilation which was brought out in 2004 contained unparliamentary words and expressions declared so by the central legislative assembly, the constituent assembly, provisional parliament and the first to 13th Lok Sabhas.
Again, in 2010, an updated compilation was brought out under the name of this writer, updating it till 2008. It is an ongoing exercise. A compilation only contains words which have already been treated by the chair as unparliamentary at different times in the past. It serves as a ready reference and also as a guide for parliamentarians, research scholars and so on.

Why it is necessary to maintain such a compilation?

Under Article 105 of the Constitution, members of Parliament have the freedom of speech in the house. This freedom is subject only to the Constitution and the rules of the house. It is very substantive freedom without which parliamentarians cannot function freely and fearlessly. So, whatever they say in the house cannot be questioned by any other authority. It is a privilege enjoyed by the members of Parliament the world over.
The limits to which this freedom is subject are defined by the Constitution itself. For example, Article 121 bars any discussion in the house on the conduct of a judge of the Supreme Court or a high court, except when an impeachment motion is before the house.
Similarly, the house rules prohibit discussion on matters sub judice, or the conduct of persons in high authority, such as a governor, the President and other constitutional authorities, except on a substantive motion. Further, a member cannot make an allegation against another member or a minister in the course of his speech without proper notice and permission of the speaker.
Except for these restrictions, members of Parliament have absolute freedom to say anything in the house. Further, the use of a particular style of expression, words and the like, is also a part of that freedom.
Rule 380 of the Lok Sabha rules empowers the speaker to expunge words which are defamatory, indecent, unparliamentary or undignified from the record of the debate. The speaker has been given certain discretion in treating a word as ‘unparliamentary’ as there are no hard and fast rules about it.
But this power of the speaker is not totally unchecked in the sense that he can not choose any word in a speech as he feels and expunge it as unparliamentary. The chair cannot exercise this power in such a way as to erode the freedom of speech conferred on members by Article 105 of the constitution.
This, in essence, is the issue which has arisen in the context of the compilation of unparliamentary words.

Party Symbol Disputes and Election Commission

Context: Recently, there has been a split within the Shivsena party (Maharashtra) and both the factions are claiming the same party symbol.

What are Election symbols?

In order to tackle the problem of high illiteracy among voters in newly independent India, symbols were allocated to the political parties.
An electoral or election symbol is a standardized symbol allocated to a political party. They are used by the parties during their campaigning and are shown on Electronic Voting Machines (EVMs), where the voter chooses the symbol and votes for the associated party.
In 1968, the Election Commission (EC) promulgated Provisions under the Election Symbols (Reservation and Allotment) Order. This order provided for specification, reservation, choice and allotment of symbols at elections in Parliamentary and State Assemblies’ constituencies. It also had provisions regarding the registration and recognition of political parties as state and national parties. Paragraph 3 of the order mentions the registration of political parties while Para 6 deals with the recognition of political parties.

How does Election Commission decide on party symbol disputes?

The Election Symbols (Reservation and Allotment) Order, 1968 empowers the EC to recognise political parties and allot symbols. Under Paragraph 15 of the Order, it can decide disputes among rival groups or sections of a recognised political party staking claim to its name and symbol.
Under Paragraph 15, the EC is 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.

The procedure followed by the ECI:

Political parties or factions approach the ECI: The EC can not take suo motu cognizance of such cases. It can act only when at least one party approaches it with its claim.
Evidence produced: Once a claim has been raised with EC, it starts the proceedings by giving notice to the other faction to give its version. Both parties are asked to produce evidence in support of their claim, accompanied by affidavits
Scrutiny by EC: The commission will scrutinize whether there are rival sections or groups of a recognized political party as claimed based on the information it possesses. If the commission is satisfied that there exist rival factions within a political party then it decides which faction is a recognized party.
Test of majority: The EC employs ‘the test of the majority’ principle to decide the recognized party. The EC looks at the strength of each group, in the party’s organization and in the legislatures.
In case EC is not able to determine the strength of rival groups based on support within the party organization, it resorts to testing the majority among elected MPs and MLAs.
Binding decision: The decision of the Commission is binding and on all such rivals’ sections or groups.
In 1997 the EC introduced a new rule under which while one faction got the party symbol, the other had to register itself as a separate party.
The national or state party status of the new formation would be determined only on the basis of its performance in state or central elections after registration.

Election Commission of India (Article 324 of the Constitution):

The Election Commission of India is an autonomous constitutional authority responsible for administering Union and State election processes in India. The body administers elections to the Lok Sabha, Rajya Sabha, State Legislative Assemblies in India, and the offices of the President and Vice President in the country.
Election Commission of India is a permanent Constitutional Body. The Election Commission was established in accordance with the Constitution on 25th January 1950.
Originally the commission had only a Chief Election Commissioner. It currently consists of Chief Election Commissioner and two Election Commissioners.

Functions of Election Commission:

To direct and control the entire process of conducting elections to Parliament and Legislature of every State and to the offices of President and Vice-President of India.
To decide the election schedules for the conduct of periodic and timely elections, whether general or bye-elections
To decide on the location of polling stations, assignment of voters to the polling stations, location of counting centres, arrangements to be made in and around polling stations and counting centres and all allied matters
To prepare electoral roll and issues Electronic Photo Identity Card (EPIC)
To grant recognition to political parties & allot election symbols to them along with settling disputes related to it
To sets limits of campaign expenditure per candidate to all the political parties, and also monitors the same
To advise in the matter of post-election disqualification of sitting members of Parliament and State Legislatures.
To issue the Model Code of Conduct in the election for political parties and candidates so that no one indulges in unfair practice or there is no arbitrary abuse of powers by those in power.

Suspension of MPs: the rules, and the powers of presiding officers

Context: In the recent session of the two Houses of Parliament have suspended 27 MPs between them.

Rules under which the Presiding Officer acts: In Loksabha

Rule 373: The Speaker, if he is of the opinion that the conduct of any Member is grossly disorderly, may direct such Member to withdraw immediately from the House, and any Member so ordered to withdraw shall do so forthwith and shall remain absent during the remainder of the day’s sitting.
To deal with more recalcitrant Members, the Speaker makes recourse to Rules 374 and 374A.
Rule 374 says:
- The Speaker may, if deems it necessary, name a Member who disregards the authority of the Chair or abuses the rules of the House by persistently and wilfully obstructing the business thereof.
- If a Member is so named by the Speaker, the Speaker shall, on a motion being made forthwith put the question that the Member (naming such Member) be suspended from the service of the House for a period not exceeding the remainder of the session: Provided that the House may, at any time, on a motion being made, resolve that such suspension be terminated.
- A member suspended under this rule shall forthwith withdraw from the precincts of the House.
Rule 374A was incorporated in the Rule Book on December 5, 2001. The intention was to skirt around the necessity of moving and adopting a motion for suspension.
According to Rule 374A:
- Notwithstanding anything contained in rules 373 and 374, in the event of grave disorder occasioned by a Member coming into the well of the House or abusing the Rules of the House persistently and wilfully obstructing its business by shouting slogans or otherwise, such Member shall, on being named by the Speaker, stand automatically suspended from the service of the House for five consecutive sittings or the remainder of the session, whichever is less: Provided that the House may, at any time, on a motion being made, resolve that such suspension be terminated.
- On the Speaker announcing the suspension under this rule, the Member shall forthwith withdraw from the precincts of the House.

In Rajya Sabha: It’s largely similar to Lok Sabha

Rule 255: Like the Speaker in Lok Sabha, the Chairman of Rajya Sabha is empowered under this Rule of its Rule Book to “direct any Member whose conduct is in his opinion grossly disorderly to withdraw immediately” from the House.
Under Rule 256, the Chairman may “name a Member who disregards the authority of the Chair or abuses the rules of the Council by persistently and wilfully obstructing” business. In such a situation, the House may adopt a motion suspending the Member from the service of the House for a period not exceeding the remainder of the session.
The House may, by another motion, terminate the suspension.

Is suspending an MP a common practice in Parliament?

It is strong action, but it is not uncommon. Suspensions have become more common in recent years, and have taken place every year since 2019.

INNER PARTY DEMOCRACY

Context
- Recently, Boris Johnson (Former UK’s Prime Minister) has been ousted as leader of the British Conservative Party in a series of coups periodically mounted by the party’s Members of Parliament against him.
- This calls for India to seriously consider empowering its elected representatives, to ensure accountability for party leadership.
How are Members of Parliament elected in the United Kingdom?
- To become an MP representing a main political party, a candidate must be authorised to do so by the party's nominating officer. They must then win the most votes in the constituency.
  - They do not owe their nomination to the party leader but are selected by the local constituency party.
- The UK is divided into 650 areas called constituencies.
  - During an election, everyone eligible to cast a vote in a constituency selects one candidate to be their MP.
  - The candidate who gets the most votes become the MP for that area until the next election.
  - If an MP dies or retires, a by-election is held in that constituency to find a new MP for that area.
- At a general election, all constituencies become vacant and a Member of Parliament is elected for each from a list of candidates standing for election.
  - General elections happen every five years.
How are Members of Parliament elected in India?
- The Parliament of India consists of two houses and members are elected for each one of them.
  - Lok Sabha
    - It is also called The House of the People.
    - Election of Representative:
      - For elected representatives, each state is divided into territorial constituencies.
      - Representatives are elected from each constituency using the First-past-the-post system, the candidate who secures the majority of votes is declared elected.
      - By the Union Territories (Direct Election to the House of the People) Act, 1965, the members of Lok Sabha from the UTs are chosen by direct election.
  - Rajya Sabha
    - It is also called The Council of States.
    - Election of Representative:
      - The representatives of states are elected by the members of state legislative assemblies.
      - The representatives of each Union Territory in the Rajya Sabha are indirectly elected by members of an electoral college specially constituted for the purpose.
      - Only three UTs (Delhi, Puducherry and Jammu & Kashmir) have representation in Rajya Sabha (others don’t have enough population).
    - The members nominated by the President are those who have special knowledge or practical experience in art, literature, science and social service.
    - The rationale is to provide eminent persons a place in the house without going through elections.
What Powers does an MP have in the UK against the Prime Minister?
- A Prime Minister has to be able to maintain the confidence of his ministers at all time to run a stable government.
- If there is a sense that the leader is no longer acceptable to the country, then a well-structured mechanism comes into action to protect the party’s electoral gains by providing fresh leadership.
- Individual Conservative MPs write to the 1922 Committee (which comprises backbench MPs, and looks out for their interests) expressing that they have “no confidence” in their leader.
  - If a numerical or percentage threshold (15% of the party’s MPs in the U.K.) is breached, an automatic leadership vote is triggered, with the party leader forced to seek a fresh mandate from the parliamentary party.
What Powers does an MP have in India against the Prime Minister?
- No Confidence Motion
  - A no-confidence motion is a parliamentary motion which 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.
    - 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 about 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.
    - A 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.
What can be considered as Hindrance to MP's Liberty in India?
- Anti-Defection Law
  - The anti-defection law punishes individual Members of Parliament (MPs)/MLAs for leaving one party for another.
  - Parliament added it to the Constitution as the Tenth Schedule in 1985. Its purpose was to bring stability to governments by discouraging legislators from changing parties.
    - The Tenth Schedule – popularly known as the Anti-Defection Act – was included in the Constitution via the 52nd Amendment Act, 1985.
    - It sets the provisions for disqualification of elected members on the grounds of defection to another political party.
    - It was a response to the toppling of multiple state governments by party-hopping MLAs after the general elections of 1967.
  - However, it allows a group of MP/MLAs to join (i.e., merge with) another political party without inviting the penalty for defection. And it does not penalize political parties for encouraging or accepting defecting legislators.
    - As per the 1985 Act, a 'defection' by one-third of the elected members of a political party was considered a 'merger'.
    - But the 91st Constitutional Amendment Act, 2003, changed this and now at least two-thirds of the members of a party must be in Favour of a “merger” for it to have validity in the eyes of the law.
  - The members disqualified under the law can stand for elections from any political party for a seat in the same House.
  - The decision on questions as to disqualification on the ground of defection is referred to the Chairman or the Speaker of such House, which is subject to ‘Judicial review’.
    - However, the law does not provide a timeframe within which the presiding officer has to decide a defection case.

THE PRIVILEGES OF MEMBERS OF PARLIAMENT

Context
- Recently, the Vice President of India highlighted the wrong assumptions of Members of Parliament about the Parliamentary privileges, that action can’t be taken against them by investigating agencies during a Parliamentary session.
- There have been protests by some political parties against the alleged misuse of central agencies like the Enforcement Directorate (ED), Central Bureau of Investigation (CBI), and the Income Tax department (IT) by the government to frame political rivals.
What are the Parliamentary Privileges?
- About
  - Parliamentary privileges are special rights, immunities and exemptions enjoyed by the two Houses of Parliament, their committees and their members.
    - These privileges are defined in Article 105 of the Indian Constitution.
  - Under these privileges, the members of Parliament are exempted from any civil liability (but not criminal liability) for any statement made or act done in the course of their duties.
  - The privileges are claimed only when the person is a member of the house. 
  - As soon as s/he ends to be a member, the privileges are said to be called off.
  - Parliament has not made any special law to exhaustively codify all the privileges. They are rather based on five sources:
    - Constitutional provisions
    - Various laws made by Parliament
    - Rules of both the Houses
    - Parliamentary conventions
    - Judicial interpretations
- Privileges
  - Freedom of Speech in Parliament
    - The freedom of speech and expression guaranteed to a citizen under Article 19(2) is different from the freedom of speech and expression provided to a member of the parliament. 
    - It has been guaranteed under Article 105(1) of the Indian constitution. But the freedom is subject to rules and orders which regulate the proceedings of the parliament.
    - Limitations:
      - Freedom of speech should be in accordance with the constitutional provisions and subject to rules and procedures of the parliament, as stated under Article 118 of the Constitution.
      - Under Article 121 of the Constitution, the members of the parliament are restricted from discussing the conduct of the judges of the Supreme Court and the High Court.
         
  - Freedom from Arrest
    - The members enjoy freedom from arrest in any civil case 40 days before and after the adjournment of the house and also when the house is in session. 
    - No member can be arrested from the limits of the parliament without the permission of the house to which s/he belongs so that there is no hindrance in performing their duties.
    - If the detention of any members of the parliament is made, the chairman or the speaker should be informed by the concerned authority, of the reason for the arrest.
      - But a member can be arrested outside the limits of the house on criminal charges against him under the Preventive Detention act, the Essential Services Maintenance Act (ESMA), the National Security Act (NSA), or any such act.
  - Right to Prohibit the Publication of Proceedings
    - Article 105(2) of the Constitution, no person shall be held liable for publishing any reports, discussions etc. of the house under the authority of the member of the house. 
    - For paramount and national importance, it is essential that the proceedings should be communicated to the public to aware them of what is going on in the parliament.
  - Right to Exclude Strangers
    - The members of the house have the power and right to exclude strangers who are not members of the house from the proceedings. This right is very essential for securing free and fair discussion in the house.
What Did the Vice President Hold?
- According to the Vice President under the Article 105 of the Constitution, the Members of Parliament enjoy certain privileges so that they can perform their parliamentary duties without any hindrance.
  - One of the privileges is that a Member of Parliament cannot be arrested in a civil case, 40 days before the commencement of the Parliamentary session or Committee meeting, and 40 days thereafter. 
  - This privilege is already incorporated under Section 135A of the Civil Procedure Code, 1908.
  - However, in criminal matters, Members of Parliament are not on a different footing than a common citizen. 
    - It means that a Member of Parliament does not enjoy any immunity from being arrested in a criminal case, during the session, or otherwise.
What is the View of Supreme Court?
- The Supreme Court in the State of Kerala Vs. K. Ajith and Others (2021), observed, that “privileges and immunities are not gateways to claim exemptions from the general law of the land, particularly as in this case, the criminal law which governs the action of every citizen.”
- In July 2021, the Supreme Court rejected Kerala government’s plea to withdraw criminal cases against its MLAs who were charged in the assembly.
  - The Supreme court stated that Parliamentary Privileges are Not Gateways of Immunity and the legislators who indulge in vandalism and general mayhem cannot claim parliamentary privilege and immunity from criminal prosecution.
Way Forward
- The Parliamentary privileges are conferred on the members for the smooth functioning of the parliament. But these rights should always be in conformity with the fundamental rights because they are our representatives and work for our welfare. 
- If the privileges are not in accordance with the fundamental rights, then the very essence of democracy for the protection of the rights of the citizen will be lost. 
- It is the duty of the parliament not to violate any other rights which are guaranteed by the constitution. The members should also use their privileges wisely and not misuse them.

REGISTERED UNRECOGNIZED POLITICAL PARTIES

Context
- The Election Commission of India has delisted 86 non-existent Registered Unrecognized Political Parties (RUPP) and declared additional 253 as ‘Inactive RUPPs’.
Delisting by ECI
- Declared Inactive:
  - 253 RUPPs have not responded to the letter/notice delivered to them and have not contested a single election either to the General Assembly of a State or the Parliament Election of 2014 & 2019.
  - As per Section 29A of the Representation of People Act 1951, every political party has to communicate any change in its name, head office, office bearers, address, PAN to the Commission without delay.
- Delisted:
  - 86 RUPPs have been found to be non-existent either after a physical verification carried out by the Chief Electoral Officers of concerned States/UTs or based on a report of undelivered letters/notices from Postal Authority sent to the registered address of concerned RUPP.
    - Additionally, they would not be entitled to have benefits under the Symbols Order, 1968.
Key Points related to the Political Parties
- Registered Unrecognised Political Parties (RUPP):
  - Either newly registered parties or those which have not secured enough percentage of votes in the assembly or general elections to become a state party, or those which have never contested elections since being registered are considered unrecognised parties.
  - Such parties don’t enjoy all the benefits extended to the recognised parties.
- Recognised Political Party:
  - A recognised political party shall either be a National party or a State party if it meets certain laid down conditions.
  - To become a recognised political party either at the state or national level, a party has to secure a certain minimum percentage of polled valid votes or certain number of seats in the state legislative assembly or the Lok Sabha during the last election.
  - The recognition granted by the Commission to the parties determines their right to certain privileges like allocation of the party symbols, provision of time for political broadcasts on the state-owned television and radio stations and access to electoral rolls.
Conditions For Recognition of National Parties:
- A party is recognised as a national party if any of the following conditions is fulfilled:
  - If it secures 6% of valid votes polled in any four or more states at a general election to the Lok Sabha or to the legislative assembly and in addition, it wins four seats in the Lok Sabha from any state or states, or
  - If it wins 2% of seats in the Lok Sabha at a general election and these candidates are elected from three states, or
  - If it is recognised as a state party in four states.
Conditions for Recognition as a State Party:
- A party is recognised as a state party in a state if any of the following conditions is fulfilled:
  - If it secures 6% of the valid votes polled in the state at a general election to the legislative assembly of the state concerned and in addition, it wins 2 seats in the assembly of the state concerned or
  - If it secures 6% of the valid votes polled in the state at a general election to the Lok Sabha from the state concerned and in addition, it wins 1 seat in the Lok Sabha from the state concerned or
  - If it wins 3% of seats in the legislative assembly at a general election to the legislative assembly of the state concerned or 3 seats in the assembly, whichever is more or
  - If it wins 1 seat in the Lok Sabha for every 25 seats or any fraction thereof allotted to the state at a general election to the Lok Sabha from the state concerned or
  - If it secures 8% of the total valid votes polled in the state at a General Election to the Lok Sabha from the state or to the legislative assembly of the state. This condition was added in 2011.

The Representation of the People Act (RPA)

Introduction:

The holding of free and fair elections is the sine-qua-non of democracy. To ensure the conduct of elections in free, fair and in an impartial manner, the constitution-makers incorporated Part XV (Articles.324-329) in the constitution and empowered Parliament to make laws to regulate the electoral process.
In this context, the Parliament has enacted the Representation of the People Act (RPA), 1950 and Representation of the People Act,1951.

Representation of the People Act (RPA), 1950

Key Provisions:
- Lays down procedures for delimitation of constituencies.
- Provides for the allocation of seats in the House of the People and in the Legislative Assemblies and Legislative Councils of States.
- Lays procedure for the preparation of electoral rolls and the manner of filling seats.
- Lays down the qualification of voters.

Representation of the People Act (RPA) of 1951:

Key Provisions:
- It regulates the actual conduct of elections and by-elections.
- It provides administrative machinery for conducting elections.
- It deals with the registration of political parties.
- It specifies the qualifications and disqualifications for membership of the Houses.
- It provides provisions to curb corrupt practices and other offences.
- It lays down the procedure for settling doubts and disputes arising out of elections.

INTERNAL DEMOCRACY IN POLITICAL PARTIES

Context
- The Election Commission is likely to take up the issue of internal democracy within parties.
Need for Internal Party Democracy
- Representation: The absence of intra-party democracy has contributed to political parties becoming closed autocratic structures. This adversely impacts the constitutional rights of all citizens to equal political opportunity to participate in politics and contest elections.
- Less Factionalism: A leader with strong grassroot connections would not be sidelined. This will allow less factionalism and division of parties. E.g., Sharad Pawar formed Nationalist Congress Party (NCP), Mamata Banerjee formed All India Trinamool Congress after leaving Indian National Congress (INC).
- Transparency: A transparent party structure with transparent processes will allow proper ticket distribution and candidate selection. The selection would not be based on the whims of a few powerful leaders in the party but will represent the choice of the larger party.
- Accountability: A democratic party will be accountable to its party members, for they will lose elections in the next cycle for their shortcomings.
- Decentralising Power: Every political party has State and local body units, an election at each level will allow creation of power centres at different levels. This will allow decentralisation of power and the decision making will take place at the ground level.
- Criminalization of Politics: As there is no well-defined process for the distribution of tickets to candidates before elections, tickets are given to candidates on the vague concept of winnability. This has led to an additional problem of candidates with criminal backgrounds contesting elections.
Reasons for Lack of Intra-Party Democracy
- Dynasty Politics: The lack of intra-party democracy has also contributed to the growing nepotism in political parties. With senior party leaders fielding their kins in elections, the succession plans for “family” constituencies are being put in place.
- Centralised Structure of Political Parties: The centralised mode of functioning of the political parties and the stringent anti-defection law of 1985 deters party legislators from voting in the national and state legislatures according to their individual preferences.
- Lack of Law: Currently, there is no express provision for internal democratic regulation of political parties in India and the only governing law is provided by Section 29A of the Representation of the Peoples’ Act, 1951 which provides for registration of political parties with the ECI. However, ECI does not have any statutory power to enforce internal democracy in parties or to mandate elections.
- Personality cult: There is a tendency of hero worship in people and many times a leader takes over the party and builds his own coterie, ending all forms of intra-party democracy.
- Easy to Subvert Internal Elections: The ability of existing repositories of power to subvert internal institutional processes to consolidate power and maintain the status quo is unquestionable.
Direction of the Election Commission on Internal Democracy
- Representation of the People Act, 1951:
- The ECI has periodically used guidelines issued for registration of parties under Section 29A of the Representation of the People Act, 1951 to remind parties to conduct elections and to ensure that their leadership is renewed, changed or re-elected every five years.
- The EC’s guidelines for parties applying for registration under the Act state that the applicant should submit a copy of the party constitution.
- Power of De-registration of Political Parties:
- The commission has asked the Law Ministry for the power to deregister political parties in the past, but the proposal has not been implemented so far.
- No Permanent President for a Party:
- The Election Commission of India (ECI) has also recently rejected the idea of a ‘permanent president’ for a party.
- The ECI says such a step is inherently anti-democratic.
Way Forward
- There is a need for a new interpretation and some bold moves from the ECI re-interpreting the existing laws, like:
- It shall be the duty of the political party to take appropriate steps to ensure the holding of elections at all levels. The political party shall hold elections of national and State levels in the presence of the observers to be nominated by the ECI.
- The ECI shall be competent to inquire into allegations of non-compliance with any of the provisions requiring elections. ECI should have the penal power to deregister a party until free and fair elections in the party are conducted.

Matadata Junction program

Context: Chief Election Commissioner Shri Rajiv Kumar along with Election Commissioner Shri Anup Chandra Pandey today launched a yearlong Voter Awareness Program – ‘Matdata Junction’ during an event organized at Akashvani Rang Bhavan, New Delhi. The ‘Matdata Junction’ is a 52-episode radio series produced by the Election Commission of India, in collaboration with All India Radio.

About:

It is a year-long voter awareness program.
The Matadata Junction program will be broadcast in 23 languages across the country.
The weekly program covers all aspects of the Voter ecosystem and shall be broadcast every Friday on the All India Radio network.
Each Program will be based on a particular Theme in the Electoral process.
All 52 Themes are aimed at encouraging all eligible citizens and especially young and first-time voters to vote and make an informed decision during the elections.
The program includes a Citizen's Corner where any citizen can ask a query or suggest any aspects of the voting.

Election Commission Freezes Shiv Sena Symbol

Context: The Election Commission recently decided that the two factions of the Shiv Sena, led by Uddhav Thackeray and Eknath Shinde, would not be allowed to use the party name and symbol for the ongoing Andheri East by-poll till the EC passes a final order on the dispute between them.

How does the ECI decide who gets the symbol?

Before 1968, the EC issued notifications and executive orders under the Conduct of Election Rules, 1961.
According to Para 15 of the Symbols Order, 1968, “When the Commission is satisfied… that there are rival sections or groups of a recognized political party each of whom claims to be that party. The Commission may decide that….one such rival section or group or none of such rival sections or groups is that recognized political party and the decision of the Commission shall be binding on all such rival sections or groups.”
This applies to disputes in recognized national and state parties.
Previous instances: The first case under the 1968 order was the split of the Indian National Congress in 1969.

How does the ECI resolve the symbol disputes?

The ECI usually conducts the test of the majority to resolve a symbol dispute.
In almost all disputes decided by the EC so far, a clear majority of party delegates/office bearers, MPs, and MLAs have supported one of the disputing factions.
Whenever the EC could not test the strength of rival groups based on support within the party organization, it fell back on testing the majority only among elected MPs and MLAs.

Uniform Civil Code (UCC)

Context: The Gujarat government recently moved a proposal to constitute a committee to evaluate all aspects of implementing the Uniform Civil Code (UCC).

About:

Uniform Civil Code seeks to replace personal laws based on the scriptures and customs of each major religious community in India with a common set of rules governing every citizen.
The Constitution in Article 44 requires the State to strive to secure for its citizens a Uniform Civil Code(UCC) throughout India, but to date, no action has been taken in this regard.
The Hindu personal laws were codified in the year 1956. However, there has been no attempt to frame a Uniform Civil Code applicable to all citizens of the country.
Despite exhortations of this Court in the case of Shah Bano in 1985, the government has done nothing to bring the Uniform Civil Code.
The Supreme Court hailed the State of Goa as a “shining example” where a “uniform civil code” is applicable to all, regardless of religion except while protecting certain limited rights.
Goa has a common civil code called Portuguese civil code 1867, whereby:
- A Muslim man whose marriage is registered in the State cannot practice polygamy.
- A married couple shares property equally, pre-nuptial agreements are the order of the day, and assets are divided equally between the man and woman on divorce.

Can convicted legislators be disqualified from the Assembly?

Context: One of the two Uttar Pradesh legislators recently convicted of criminal charges has been disqualified and his seat has been declared vacant by the Legislative Assembly secretariat of the state.

About:

One of the legislators among the two was sentenced to a three-year jail term for making an inflammatory speech in 2019.
Since conviction on a criminal charge that results in a prison sentence of two years or more attracts immediate disqualification of the legislator, the assembly secretariat declared his seat vacant.
However, one more legislator sentenced to two years imprisonment for his role in the Muzaffarnagar riots of 2013 was not disqualified.

Can convicted legislators be disqualified from the Assembly?

Section 8 of the Representation of the People Act (RP Act), 1951 mentions various provisions which aim to decriminalize electoral politics.
As per Section 8 of the RP Act, 1951, an individual convicted for any of the mentioned categories of offenses shall be disqualified from contesting in elections for a period of 6 years.
Further, if the punishment is fine, the six-year period will start from the date of conviction.
However, if the punishment is a prison sentence, the disqualification will start on the date of conviction and continues till completion six years after the date of release from jail.
Various categories of offences include:
- Promoting enmity between different groups on the grounds of religion, race, place of birth, residence, language, etc. (Section 153A of IPC)
- Influencing elections (Section 171F of IPC)
- Bribery (Section 171E of IPC)
- Offences relating to rape or cruelty towards a woman (sections 376A or 376B or 376C or 376D of IPC)
Conviction under serious provisions of the below-mentioned special laws also attracts qualifications regardless of the quantum of punishment.
- Protection of Civil Rights Act (the practice of untouchability)
- Customs Act
- Unlawful Activities (Prevention) Act
- Foreign Exchange (Regulation) Act
- Narcotic Drugs and Psychotropic Substances Act
- All the other criminal provisions form a separate category under which mere conviction will not entail disqualification but a sentence of imprisonment for not less than two years is required to incur such disqualifications.

Legal protection for legislators against disqualification:

Under the provisions of Section 8(4) of the RP Act, legislators could avoid immediate disqualifications until 2013.
As per the provision of Section 8(4), convicted Members of Parliament or State legislators could continue in their posts, provided they appealed against their conviction in higher courts within three months of the date of judgment by the trial court, i.e the mere filing of an appeal against conviction would act as a stay against the disqualification.
However, the Supreme Court in the Lily Thomas v/s Union of India case struck down clause (4) as unconstitutional and ultra vires thereby removing the protection extended to lawmakers.
Further, the Supreme Court has the authority to stay the sentence and also the conviction of a person.
In a few rare cases, conviction has been stayed to enable the appellant to contest an election.
However, the SC has clarified that such provisions must be used for very rare and special reasons.
Additionally, the RP Act itself provides a solution through the Election Commission
- According to Section 11 of the RP Act, the Election Commission can record reasons and either remove or reduce the period of, a person’s disqualification.
- For example, the Election Commission exercised this power earlier for Sikkim Chief Minister who had served a one-year sentence for corruption and reduced his disqualification so as to enable him to contest a byelection and remain in office.

Remote Voting

Context: On the assurance of the Attorney General that the Centre was looking at ways to facilitate distance voting for non-resident Indians (NRIs), mainly migrant laborers.

About:

The Supreme Court on November 1 disposed of a batch of petitions seeking remote voting for NRIs.
The Bench led by Chief Justice U. U. Lalit said that the purpose of the petitions had been served as the government had introduced a Bill to facilitate proxy voting by overseas electors.
The Bill, however, lapsed and a pilot project for postal voting is yet to see the light of day.

What is Remote Voting:

Remote voting may take place in person somewhere other than an assigned polling station or at another time, or votes may be sent by post or cast by an appointed proxy.
There have been demands from various political parties that the EC should ensure that migrant workers, NRIs (Non-Resident Indians) who miss out on voting, as they cannot afford to go home during elections to exercise their franchise, should be allowed to vote for their constituency from the city they are working in.

What is the Current Voting Process for NRIs?

It was through the Representation of the People (Amendment) Act, 2010, eligible NRIs who had stayed abroad beyond six months were allowed to vote, but only in person at the polling station where they have been enrolled as an overseas elector.
- Prior to 2010, an Indian citizen who is an eligible voter and was residing abroad for more than six months, would not have been able to vote in elections. This was because the NRI’s name was deleted from electoral rolls if he or she stayed outside the country for more than six months at a stretch.
An NRI can vote in the constituency in which his/her place of residence, as mentioned in the passport, is located.
He/She can only vote in person and will have to produce her passport in original at the polling station for establishing identity.

Election Security Deposit

Context: The state Assembly polls in Himachal Pradesh and Gujarat have concluded. As with all elections, while there will be candidates who will rake in huge victory margins, there will also be contestants who will lose their Security Deposit.

About:

An election security deposit is an amount that is to be deposited with the Returning Officer when a candidate files their nomination.
This is to be submitted either in cash, or a receipt must be enclosed with the nomination paper.
It mentions that the said sum has been deposited on the candidate’s behalf in the Reserve Bank of India or in a Government Treasury.
The main purpose of this practice is to ensure that only genuinely intending candidates end up filing the nomination to be a part of the electoral process.
The amount of deposit depends on the particular election being conducted, and the Representation of the People Act of 1951 mentions different amounts depending on the level of election.
Losing the deposits:
- As per the same Act, the deposit has to be forfeited at an election if the number of valid votes polled by the candidate is less than 1/6th of the total number of valid votes polled.
- Or, in the case of the election of more than one member, it would be 1/6th of the total number of valid votes so polled divided by the number of members to be elected.
- This refers to elections by proportional representation method, as is the case in Rajya Sabha.
- If the candidate does meet the threshold, “the deposit shall be returned as soon as practicable after the result of the election is declared.”
- If a candidate withdraws their nomination or passes away before the polls, the amount is returned.

Zonal Councils

Context: Recently, the 25th Eastern Zonal Council meeting was held in Kolkata which was presided over by the Home Minister.

About:

Zonal Council is a statutory body established by the State Reorganization Act of 1956.
It is an advisory body that may discuss any matter in which some or all of the States represented in that Council, or the Union, and one or more of the States represented in that Council.
The act divided the country into five zones –Northern, Central, Eastern, Western and Southern and provided a zonal council for each zone.
In addition to the above-mentioned Zonal Councils, a North-Eastern Council was created by a separate Act of Parliament, the North-Eastern Council Act of 1971.
The home minister is the common chairman of all the zonal councils.
The purpose of creating zonal councils is to promote interstate cooperation and coordination.
The concept of Zonal Councils was proposed by India's first Prime Minister, Pandit Jawahar Lal Nehru, during a discussion on the findings of the States Reorganisation Commission in 1956.
According to Section 17(1) of the States Reorganisation Act, each Zonal Council must convene at such times as the Chairman of the Council may appoint.
The statue has also formed the Secretariat of the Zonal Councils.
The Secretariat of the Zonal Councils investigates center-state, inter-state, and zonal topics that will be debated by the Councils or Standing Committees.

Organizational Structure of Zonal Councils:

Chairman -The Union Home Minister is the chairman of each committee.
Vice Chairman- The chief minister of each state takes turns serving as vice chairman of the zonal council for that zone, each of whom serves for a term of one year.
Members- the Chief Minister and two other ministers nominated by the governor of each state, and two members from the Union territories within that zone.
Advisor- One person nominated by the Planning Commission (now by NITI Aayog) for each of the Zonal Councils, Chief Secretaries, and another officer/Development Commissioner nominated by each of the States included in the Zone.
If necessary, the ministers of the Union are also invited to participate in the meetings of the regional committees.

Composition:

The Northern Zonal Council: It includes the States of Haryana, Himachal Pradesh, Jammu & Kashmir, Punjab, Rajasthan, the National Capital Territory of Delhi and the Union Territory of Chandigarh,
The Central Zonal Council: It comprises the States of Chhattisgarh, Uttarakhand, Uttar Pradesh, and Madhya Pradesh,
The Eastern Zonal Council: It includes the States of Bihar, Jharkhand, Orissa, Sikkim, and West Bengal,
The Western Zonal Council: It comprises the States of Goa, Gujarat, and Maharashtra and the Union Territories of Daman & Diu and Dadra & Nagar Haveli,
The Southern Zonal Council: It includes the States of Andhra Pradesh, Karnataka, Kerala, Tamil Nadu, and the Union Territory of Puducherry.

Functions of the Council:

Any matter of common interest in the field of economic and social planning,
Any matter concerning border disputes, linguistic minorities, or inter-State transport,
Any matter connected with or arising out of, the reorganization of the States under the States Reorganisation Act.

Rule 267 of RS Rule Book

Context: Rule 267 of the Rajya Sabha rulebook, which allows for the suspension of a day’s business to debate the issue suggested by a Member, has become a bone of contention in the Upper House.

About:

The Rule gives special power to a Rajya Sabha member to suspend the pre-decided agenda of the House, with the approval of the Chairman.
The Rajya Sabha Rule Book says, “Any member, may, with the consent of the Chairman, move that any rule may be suspended in its application to a motion related to the business listed before the Council of that day.
If the motion is carried, the rule in question shall be suspended for the time being: provided further that this rule shall not apply where specific provision already exists for suspension of a rule under a particular chapter of the Rules”.
Any discussion under Rule 267 assumes great significance in Parliament simply because all other businesses would be put on hold to discuss the issue of national importance.
No other form of discussion entails suspension of other business.
If an issue is admitted under Rule 267, it signifies it’s the most important national issue of the day.
Also, the government will have to respond to the matter by replying during the discussions under Rule 267.

Delimitation Commission

Context: Recently, the Election Commission of India said that it has begun the process of delimitation of Assembly and Parliamentary constituencies in Assam.

About:

Delimitation is the act of redrawing boundaries of Lok Sabha and state Assembly seats to represent changes in population.
In this process, the number of seats allocated to different states in Lok Sabha and the total number of seats in a Legislative Assembly may also change.
The main objective of delimitation is to provide equal representation to equal segments of a population.
It also aims at a fair division of geographical areas so that one political party doesn’t have an advantage over others in an election.
Delimitation is carried out by an independent Delimitation Commission.
The Constitution mandates that its orders are final and cannot be questioned before any court as it would hold up an election indefinitely.
In the history of the Indian republic, Delimitation Commissions have been set up four times:1952, 1963, 1973, and 2002 under the Acts of 1952, 1962, 1972, and 2002.

Process of Delimitation:

Under Article 82, the Parliament enacts a Delimitation Act after every Census.
Once the Act is in force, the Union government sets up a Delimitation Commission made up of a retired Supreme Court judge, the Chief Election Commissioner, and the respective State Election Commissioners.
The Commission is supposed to determine the number and boundaries of constituencies in a way that the population of all seats, so far as practicable, is the same.
The Commission is also tasked with identifying seats reserved for Scheduled Castes and Scheduled Tribes
All this is done on the basis of the latest Census and, in case of difference of opinion among members of the Commission, the opinion of the majority prevails.

The draft proposals of the Delimitation Commission are published in the Gazette of India, official gazettes of the states concerned, and at least two vernacular papers for public feedback.

The Commission also holds public sittings.

After hearing the public, it considers objections and suggestions, received in writing or orally during public sittings, and carries out changes, if any, in the draft proposal.

The final order is published in the Gazette of India and the State Gazette and comes into force on a date specified by the President.

Triple Test Formula for OBC Quota

Context: The Allahabad HC recently ordered the Uttar Pradesh government to hold urban local body elections without reservation for OBCs as the 'triple test' requirement for it had not been met.

About:

What is a triple test?

The triple test requires the government to complete three tasks for the finalization of reservations to OBCs in the local bodies. These include:

To set up a dedicated commission to conduct a rigorous empirical inquiry into the nature and implications of the backwardness in local bodies;

To specify the proportion of reservation required in local bodies in light of recommendations of the commission, so as not to fall foul of overbreadth;

To ensure reservation for SCs/STs/OBCs taken together does not exceed an aggregate of 50 percent of the total seats.

These triple test/conditions were outlined by the Supreme Court in the case of Vikas Kishanrao Gawali vs. the State of Maharashtra and others, decided on March 4, 2021

Previously Used Method in Uttar Pradesh:

The UP government used the method of rapid survey for determining the population of OBCs as determined by the Urban Development Department.

It was used for the polls held in 1995, 2000, 2006, 2012, and 2017.

Based on this survey, seats were reserved in proportion to the population of the backward class of citizens in the constituency/ward concerned.

Why triple test instead of a rapid survey?

The Lucknow Bench of the Allahabad High Court said that any inquiry or study into the nature and implications of the backwardness with respect to local bodies involves the ascertainment of representation in such bodies. The court said such an exercise cannot be confined to counting heads alone, as is being done through the rapid survey.

The court said that simply granting reservation on the basis of population misses a very crucial factor for the determination of backwardness, and that factor is the political representation of the class or group concerned.

The High Court quoted the Supreme Court’s observation in the K Krishna Murthy case, which pointed out that the nature of disadvantages that restrict access to education and employment cannot be readily equated with disadvantages in the realm of political representation.

“Further observation made by Hon’ble Supreme Court in this regard is that the backwardness in the social and economic sense does not necessarily imply political backwardness. Elaborating on the difference between the nature of reservation provided under Article 243-D and under Article 15(4) and 16(4), the Supreme Court in K Krishna Murthy also observed that there is an inherent difference between the nature of benefits that accrue from access to education and employment on one hand and political representation at the grassroots level on the other hand,” the HC said.

This inherent difference is that while access to higher education and public employment increases the likelihood of the socio-economic upliftment of the individual beneficiaries, participation in local self-government is intended as a more immediate measure of empowerment for the community to which the elected representative belongs, the court said.

Motion of Thanks to the President

Context:

It was in the news due to the Budget Session of the Parliament.

What is Motion of Thanks?

The first session after each general election and the first session of every fiscal year is addressed by the president.

In this address, the president outlines the policies and programmes of the government in the preceding year and ensuing year.

This address of the president, which corresponds to the ‘speech from the Throne in Britain’, is discussed in both the Houses of Parliament on a motion called the ‘Motion of Thanks’.

At the end of the discussion, the motion is put to vote.

This motion must be passed in the House. Otherwise, it amounts to the defeat of the government.

This inaugural speech of the president is an occasion available to the members of Parliament to raise discussions and debates to examine and criticise the government and administration for its lapses and failures.

Can Amendments be proposed to the Motion of Thanks:

Notices of amendments to Motion of Thanks on the President’s Address can be tabled after the President has delivered his Address.

Amendments may refer to matters contained in the Address as well as to matters, in the opinion of the member, the Address has failed to mention.

Amendments can be moved to the Motion of Thanks in such form as may be considered appropriate by the Speaker.

Privilege Motion

Context:

Four Telangana Rashtra Samithi (TRS) members in the Rajya Sabha have submitted a Privilege Motion against Prime Minister Narendra Modi regarding his February 8 remarks in the Upper House about the Andhra Pradesh Reorganisation Bill.

What is Privilege Motion?

It is concerned with the breach of parliamentary privileges by a minister.

It is moved by a member when he feels that a minister has committed a breach of privilege of the House or one or more of its members by withholding facts of a case or by giving wrong or distorted facts.

Its purpose is to censure the concerned minister.

The Constitution also extends the parliamentary privileges to those persons who are entitled to speak and take part in the proceedings of a House of Parliament or any of its committees.

These include the Attorney General of India.

The parliamentary privileges do not extend to the President who is also an integral part of the Parliament. Article 361 of the Constitution provides for privileges for the President.

What are the roles of the Presiding officers regarding the Privilege Motion?

The Presiding Officer of the respective House is the first level of scrutiny of a privilege motion.

He or she can decide on the privilege motion himself or herself or refer it to the privileges committee of Parliament.

If the Presiding Officer gives consent under relevant rules, the member concerned is given an opportunity to make a short statement.

Expunging in Parliament

Context:

On February 7th, 2023, a portion of a speech given by the opposition leader in the Lok Sabha was ordered to be expunged from the Parliament records by the Speaker.

The decision to expunge parts of a speech lies with the Presiding Officer of the House.

The 'Unparliamentary Expressions' is a bulky volume that contains words or expressions that may be considered offensive.

The Speaker of Lok Sabha and Chairperson of Rajya Sabha are responsible for keeping such words out of Parliament's records.

Under the Indian Constitution, Members of Parliament have immunity from court proceedings for their statements in Parliament, but their speeches are subject to the discipline of the Rules of Parliament, the “good sense” of its Members, and the control of proceedings by the Speaker.

What are the Rules on Expunging from the Record?

Article 105(2) of the Indian Constitution provides Members of Parliament (MPs) with immunity from court proceedings for any statements made in Parliament.

However, this does not mean that MPs have free rein to say anything they like in Parliament.

The Indian Parliament has its own set of rules that govern the behaviour and conduct of MPs. The rules are designed to ensure that parliamentary proceedings are conducted in an orderly and dignified manner.

Rule 380 of the Rules of Procedure and Conduct of Business in Lok Sabha gives the Speaker the power to expunge any words or expressions used in debate that are deemed defamatory, indecent, unparliamentary, or undignified.

This means that the Speaker has the discretion to remove any words or phrases from the record of Parliament that are considered offensive or inappropriate.

Defamation Law and Disqualification of MPs

Context:

Recently, an MP (Member of Parliament) was sentenced to two years in jail in a 2019 Defamation Case over his remarks about another political leader by the Surat Court.

The case was filed under Indian Penal Code (IPC) sections 499 and 500, dealing with defamation.

What do IPC sections 499 and 500 say?

Section 499 of the IPC elaborates on how defamation could be through words – spoken or intended to be read, through signs, and also through visible representations.

These can either be published or spoken about by a person with the intention of damaging the reputation of that person, or with the knowledge or reason to believe that the imputation will harm his reputation.

Section 500 stipulates imprisonment of up to two years, with or without a fine, for someone held guilty of criminal defamation.

What Is Defamation?

About:

Defamation is the act of communicating false statements about a person that injure the reputation of that person when observed through the eyes of an ordinary man.

Any false and unprivileged statement published or spoken deliberately, intentionally, or knowingly with the intention to damage someone's reputation is defamation.

The history of defamation can be traced to Roman law and German law. Abusive chants were capital punishment in Romans.

Defamation Law in India:

Article 19 of the Constitution grants freedom of speech to its citizens. However, Article 19(2) has imposed certain reasonable exemptions to this freedom such as – Contempt of Court, defamation and incitement to an offense.

In India, defamation can both be a civil wrong and a criminal offence, depending on the objective they seek to achieve.

A Civil Wrong sees a wrong being redressed with monetary compensation, while a criminal law seeks to punish a wrongdoer and send a message to others not to commit such acts, with a jail term.

In a Criminal Offense, defamation has to be established beyond reasonable doubt but in a civil defamation suit, damages can be awarded based on probabilities.

Free Speech v/s Defamation laws:

It is argued that the defamation laws are a violation of Fundamental Rights guaranteed under Article 19 of the constitution.

The Supreme Court has ruled that the criminal provisions of defamation are constitutionally valid and are not in conflict with the right to free speech.

The SC has also held that it is valid to treat defamation as a public wrong and that criminal defamation is not a disproportionate restriction on free speech, because the protection of reputation is a fundamental right as well as a human right.

The Court relied on the judgments of other countries and reaffirmed the right to reputation as a part of the right to life under Article 21.

Using the principle of ‘balancing of fundamental rights’, the court held that the right to freedom and speech and expression cannot be “allowed so much room that even reputation of an individual which is a constituent of Article 21 would have no entry into that area”.

What are the Previous Defamation Judgements?

Mahendra Ram Vs. Harnandan Prasad (1958): A letter written in Urdu was sent to the plaintiff. Therefore, he needed another person to read it to him. It was held that since the defendant knew the plaintiff does not know Urdu and he needs assistance, the act of the defendant amounted to defamation.

Ram Jethmalani Vs. Subramanian Swamy (2006): The High Court of Delhi held Dr. Swamy for defaming Ram Jetmalani by saying that he received money from a banned organization to protect the then Chief Minister of Tamil Nadu from the case of the assassination of Rajiv Gandhi.

Shreya Singhal Vs. Union of India (2015): It is a landmark judgment regarding internet defamation. It held unconstitutional Section 66A of the Information Technology Act, 2000 which punishes for sending offensive messages through communication services.

What Happens if a Lawmaker/MP is Convicted?

The conviction may disqualify an MP if the offense for which he is convicted is listed in Section 8(1) of the Representation of the People (RPA) Act of 1951.

This section includes offences such as section 153A (offence of promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony) or section 171E (offence of bribery) or section 171F (offence of undue influence or personation at an election) and a few others.

Section 8(3) of the RPA mandates that an MP can be disqualified if convicted and sentenced to at least 2 years of imprisonment.

However, the section also states that the disqualification takes effect only “after three months have elapsed” from the date of conviction.

Within that period, the convicted MP can file an appeal against the sentence before the High Court.

Punchhi Commission’s Report

Context:

The Union Ministry of Home Affairs (MHA) has decided to start the process of seeking the states’ comments on the Punchhi Commission’s report on Centre-state relations.

What is the Punchhi Commission?

The Punchhi Commission was constituted by the Union Government in April 2007 under the chairmanship of former Chief Justice of India (CJI) Madan Mohan Punchhi.

The Commission examined and reviewed how the existing arrangements between the Union and States were functioning, as well as various court rulings regarding the powers, duties, and responsibilities in all areas, including legislative relations, administrative relations, the role of governors, emergency provisions and others.

The Commission presented its seven-volume report to the government in March 2010.

The Inter-State Council's (ISC) Standing Committee considered the suggestions of the Punchhi panel at its meetings in April 2017, November 2017, and May 2018.

What are the Key Recommendations of the Punchhi Commission?

National Integration Council:

It recommended the creation of a superseding structure for matters relating to internal security (like the Homeland Security Department in the United States). This structure could be known as the ‘National Integration Council’.

Amendment to Article 355 and Article 356:

It advised that Article 355 and Article 356 of the Constitution should be amended.

Article 355 talks about the duty of the Centre to protect the state against any external aggression and Article 356 talks about the implementation of the President’s rule in case of failure of the machinery of the state.

The recommendation seeks to protect States’ interests by curbing the centre's misuse of powers.

Subjects in the Concurrent List:

The Commission recommended that the States should be consulted through the inter-state council before bills are introduced on matters that fall in the concurrent list.

A concurrent list is one of the three lists; in this, the matters on which both State and Centre governments can formulate laws are mentioned.

Appointment and Removal of Governors:

The Governor should stay away from active politics (even at a local level) for at least two years prior to his appointment.

There should be a say of the state’s Chief Minister while making the Governor’s appointment.

A committee should be formed that is entrusted with the task of appointment of governors. This committee may comprise the Prime Minister, the Home Minister, the Lok Sabha’s speaker and the concerned Chief Minister of the State.

The term of appointment should be five years.

Governor could only be removed via a resolution by the State Legislature.

Union’s Power of Making Treaties:

The treaty-making power of the union should be regulated with respect to treaties formulated in concern with the matters present in the State list.

This way, the states will get more representation in their internal affairs.

The Commission identified that the states need to be more involved in such kinds of treaties that are formulated in reference to their issues. This will ensure a peaceful co-existence between the different levels of the government.

Appointment of Chief Ministers:

Clear guidelines should be made with regard to the appointment of chief ministers so that the governor’s discretionary powers are limited in this aspect.

A pre-poll alliance is to be considered as a single political party.

The order of precedence while the State government is being formed should be the following:

The group/alliance with the largest pre-poll alliance with the highest number.

The single largest party with support from others.

The post-poll alliance with a few parties joining the government.

The post-poll alliance with a few parties joining the government and remaining including independents giving outside support.

Judiciary:

Law & precedent on clubbing of cases

Context: Recently there was a plea by former BJP spokesperson Nupur Sharma to club the hate speech cases filed against her across the country.

On what grounds are such cases clubbed?

A person cannot be prosecuted more than once for the same offence. Article 20(2) of the Constitution guarantees the right against double jeopardy. Multiple FIRs on the same incident would virtually mean multiple trials. Approaching the Supreme Court in such situations is a procedural safeguard against excessive litigation.

In T T Anthony v State of Kerala, a 2001 verdict, the Supreme Court held that there cannot be a “second FIR” on the same issue.

“There can be no second F.I.R. and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the F.I.R. in the station house diary, the officer in charge of a Police Station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 of the CrPC,” the court had said.

In 2020, the Supreme Court in the case of Arnab Goswami v Union of India expanded this ruling and said that similar FIRs in different jurisdictions also violates fundamental rights.

“Subjecting an individual to numerous proceedings arising in different jurisdictions on the basis of the same cause of action is a violation of fundamental rights,” a bench headed by Justice DY Chandrachud said.

What is article 20 of the Constitution?

Fundamental Right – Protection in respect of conviction for offences

No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

No person shall be prosecuted and punished for the same offence more than once.

No person accused of any offence shall be compelled to be a witness against himself.

Section 69(A) of the IT Act, 2000

Context: Recently, Twitter initiated legal action against some of the government missives ordering it to take down certain content issued under IT ACT SEC 69A of the Information Technology Act, 2000.

What is Section 69A?

Section 69A of the IT Act, 2000, allows the Centre to block public access to an intermediary “in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognisable offence relating to above”.

According to the definition under Section 2(w) of the IT Act, an intermediary includes “telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online auction sites, online marketplaces, cyber cafes etc”.

While Section 69A provides the government the power to take such steps, the procedure to do so is listed in the Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules, 2009.

Any request made for blocking by the government is sent to an examining committee, which then issues these directions. However, in case of an emergency situation, such orders are passed by the committee’s chairperson first and then presented to the committee.

While no time is given to the stakeholder to respond before the action is taken in the case of an emergency situation, Rule 9 of the IT blocking rules allows for a review committee to send “recommendations regarding the case, including whether it is justifiable to block the accounts” in order to uphold the blocking of an account permanently.

However, it is Rule 16 of the IT Blocking Rules — which states that requests and complaints to block accounts must remain confidential — that has been repeatedly criticised for being “unconstitutional”.

Shreya Singhal vs Union of India judgment:

A Case Which Rejuvenated The Liberty To Speech And Expression In The Country.

In 2015, the apex court struck down the law in the landmark case Shreya Singhal v. Union of India, calling it “open-ended and unconstitutionally vague”, and thus expanded the contours of free speech to the Internet. While Section 69A was also challenged, it was upheld by the court.

What did Section 66A do?

Introduced by the UPA government in 2008, the amendment to the IT Act, 2000, gave the government power to arrest and imprison an individual for allegedly “offensive and menacing” online posts, and was passed without discussion in Parliament.

Section 66A empowered police to make arrests over what policemen, in terms of their subjective discretion, could construe as “offensive” or “menacing” or for the purposes of causing annoyance, inconvenience, etc. It prescribed the punishment for sending messages through a computer or any other communication device like a mobile phone or a tablet, and a conviction could fetch a maximum of three years in jail.

SC declared Section 66A unconstitutional for “being violative of Article 19(1)(a) and not saved under Article 19(2).”

Article 19(1)(a) gives people the right to speech and expression whereas 19(2) accords the state the power to impose “reasonable restrictions” on the exercise of this right.

The decision was considered a landmark judicial pushback against state encroachment on the freedom of speech and expression.

The Information Technology Act, 2000:

The Information Technology Act, 2000 provides legal recognition to the group action done via electronic exchange of information and alternative electronic suggests that of communication or electronic commerce transactions.

This also involves the utilization of alternatives to a paper-based technique of communication and knowledge storage to facilitate the electronic filing of documents with government agencies.

Further, this act amended the Indian legal code 1860, the Indian proof Act 1872, the Bankers’ Books proof Act 1891, and also the bank of India Act 1934.

CONSTITUTION BENCH OF SUPREME COURT

Context

Justice Uday Umesh Lalit, 49th Chief Justice of India (CJI), assured there will be at least one Constitution Bench functioning throughout the year in the Supreme Court.

What is Constitutional bench of the Supreme Court

A Constitution Bench is a bench of the Supreme Court having five or more judges on it. These benches are not a routine phenomenon.

A vast majority of cases before the Supreme Court are heard and decided by a bench of two judges (called a Division Bench), and sometimes of three.

Constitution Benches are exceptions, set up only if one or more of the following circumstances exist:

Article 145(3):

Article 145(3) provides, “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 or for the purpose of hearing any reference under Article 143 shall be five.”

Article 143:

When the President seeks the Supreme Court’s opinion under law under Article 143 of the Constitution.

As per the provision, the President of India has the power to address questions to the Supreme Court, which he deems important for public welfare.

The Supreme Court upon reference advises the President by answering the query. However, such referral advice by the apex court is not binding on the President, nor is it ‘law declared by the Supreme Court’.

Conflicting Judgments:

When two or more three-judge benches of the Supreme Court have delivered conflicting judgments on the same point of law, necessitating a definite understanding and interpretation of the law by a larger bench.

The Constitution benches are set up on ad hoc basis as and when the above-mentioned conditions exist.

Why does CJI seek a Permanent Constitutional Bench?

Presently, Constitution Benches are set up on an ad hoc basis (particular purpose) as and when the need arises.

It aims to help the judges identify, hear and provide relief in cases which need their urgent attention and also help litigants and lawyers to avoid delay in getting their cases listed for hearing before judges due to the long-winded processes of the Supreme Court Registry.

It is also imperative because the Supreme Court's pendency has crossed over 71,000 from a little over 55,000 in 2017.

This is despite the fact that the sanctioned judicial strength of the court was increased to 34 judges in August 2019.

Way Forward

Unless Constitutional Bench decisions establish clear precedent, and large numbers of cases are dismissed through written orders without a hearing by the SC, the long-term benefits of a Constitutional Bench jurisdiction may be lost.

Supreme Court Verdict on ECI Appointments

Context:

A five-judge bench of the Supreme Court (SC) unanimously ruled that the appointment of the Chief Election Commissioner and the Election Commissioners shall be made by the President on the advice of a Committee consisting of the Prime Minister, the Leader of the Opposition of the Lok Sabha and Chief Justice of India (CJI).

In case no leader of the Opposition is available, the leader of the largest opposition Party in the Lok Sabha in terms of numerical strength will be a part of such a committee.

What are the Other Important Points of the Verdict?

SC Verdict:

SC stated that a reading of the debates of the Constituent Assembly (CA) on the appointment of ECI makes clear that all the members were of the clear view that elections must be conducted by an independent Commission.

The deliberate addition of the words “subject to the provisions of any law made on that behalf by Parliament” further indicates that CA envisaged parliament making norms to govern appointment to ECI.

While ordinarily, the court cannot encroach on a purely legislative power, in the context of the Constitution and inertia of the Legislature and the vacuum created by it make it necessary for the court to intervene.

On the question whether process of removal should be same for CEC and the ECs, SC stated that it cannot be same as CEC has special position and article 324 becomes inoperable without CEC.

SC left the question of funding the EC, Permanent secretariat and need for expenditure to be charged on Consolidated Fund of India for the government to decide.

Government Argument:

The government had argued that in the absence of such a law by parliament, the President has the constitutional power and asked the SC to exhibit Judicial restraint.

What is the Challenge?

As the constitution places the power to make any law on appointment of ECI in the hands of Parliament, SC ruling on this issue poses a question of Separation of Power.

However, SC has stated that this ruling will be subject to any law made by parliament, which means parliament can bring a law to undo it.

Another view is that since there is no law made by parliament on this issue, the Court must step in to fill the “constitutional vacuum.”

What are the Existing Provisions for Appointment to ECI?

Constitutional Provisions:

Part XV (Article 324-329) of the Indian Constitution: It deals with elections and establishes a commission for these matters.

Structure of ECI:

Originally the commission had only one EC but after the Election Commissioner Amendment Act 1989, it was made a multi-member body (1 CEC & 2 other ECs.).

According to Article 324, the Election Commission shall consist of the CEC and such number of other election commissioners, if any, as the President may from time-to-time fix.

Appointment Procedure:

Article 324(2): The appointment of the CEC and other Election Commissioners shall be made by the President, subject to the provisions of any law made in that behalf by Parliament.

The Law Minister suggests a pool of suitable candidates to the Prime Minister for consideration. The President makes the appointment on the advice of the PM.

The President determines the conditions of service and tenure of office of the Election.

They have a tenure of six years, or up to the age of 65 years, whichever is earlier.

Removal:

They can resign anytime or can also be removed before the expiry of their term.

The CEC can be removed from office only through a process of removal similar to that of a SC judge by Parliament.

Any other EC cannot be removed except on the recommendation of CEC.

BCI Allows Foreign Lawyers to Practice in India

Context:

Recently, the Bar Council of India (BCI) has notified Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022, allowing foreign lawyers and law firms to practice in India.

However, it did not allow them to appear before courts, tribunals or other statutory or regulatory authorities.

What is the BCI Decision?

For over a decade, BCI was opposed to allowing foreign law firms in India.

Now, the BCI has reasoned that its move will address concerns about the flow of Foreign Direct Investment in the country and make India a hub of International Commercial Arbitration.

The rules bring legal clarity to foreign law firms that currently operate in a very limited way in India.

The BCI said it “resolves to implement these Rules enabling the foreign lawyers and Foreign Law Firms to practice foreign law and diverse international law and international arbitration matters in India on the principle of reciprocity in a well-defined, regulated and controlled manner.

What are the New Rules?

The notification allows foreign lawyers and law firms to register with BCI to practice in India if they are entitled to practice law in their home countries. However, they cannot practice Indian law.

According to the Advocates Act 1961, advocates enrolled with the Bar Council alone are entitled to practise law in India. All others, such as a litigant, can appear only with the permission of the court, authority or person before whom the proceedings are pending.

They shall be allowed to practice transactional work /corporate work (Non-Litigious Practice) such as joint ventures, mergers and acquisitions, Intellectual Property matters, drafting of contracts and other related matters on a reciprocal basis.

They shall not be involved or permitted to do any work pertaining to the conveyancing of property, title investigation or other similar works.

Indian lawyers working with foreign law firms will also be subject to the same restriction of engaging only in “Non-Litigious Practice.”

What is the Significance of the New Move?

It is likely to pave the way for potential consolidation, especially for firms dealing in the cross-border mergers and acquisitions (M&A) practice in particular.

Entry of foreign law firms will support in a big way the ambition of India to be more visible and valuable in a global context, especially in international trade and commerce.

This will be a game changer for mid-size firms and will also help the law firms in India to achieve more efficiency in talent management, IA, technology, domain knowledge in a global context, and management.

Contempt of Court

Context:

It was frequently in the news due to various reasons.

What is contempt of court?

According to the Contempt of Courts Act, 1971, contempt of court can either be civil contempt or criminal contempt.

Civil contempt means wilful disobedience of any judgment, decree, direction, order, writ or other process of a court, or wilful breach of an undertaking given to a court.

Criminal contempt, on the other hand, is attracted by the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which:

scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or

prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or

interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

In 2006, the government brought in an amendment, which now provides “truth” as defence provided it is bona fide and in public interest.

According to the Contempt of Courts Act, 1971 the Attorney General’s consent needed to initiate contempt of court proceedings.

Articles 129 and 215 of the Indian Constitution provide the Supreme Court and the High Court the authority to punish offenders for contempt of court in their respective jurisdictions.

The power of the High Court to punish contempts of its subordinate courts is defined in Section 10 of the Contempt of Courts Act, 1971.

Article 19 of the Constitution recognises contempt of court as a justified constraint on the right of speech and expression, alongside other components such as public order and defamation.

What is the punishment for contempt of court?

According to the Act, contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both, provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court.

Tribunal Reforms Act of 2021

Context:

Recently, the Supreme Court said the government's move to bring Tribunals Reforms Act, 2021 merely days after the court struck down an identical law, may amount to dishonouring its judgment.

The Tribunals Reforms Act, 2021 replaces a similar Ordinance promulgated in April 2021 that sought to dissolve eight tribunals.

The petitioners have argued that the Act was introduced in the Lok Sabha just days after the Supreme Court struck down the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance of 2021.

The 2021 Act abolishes nine key tribunals, raises a serious threat to judicial independence by giving the government-wide powers regarding appointments, service conditions, salaries etc., of members of key tribunals.

It was passed without parliamentary debate amidst ruckus in the House.

Basics of Tribunals:

The original Constitution did not contain provisions with respect to tribunals. The 42nd Amendment Act of 1976 added a new Part XIV-A to the Constitution.

This part is entitled as ‘Tribunals’ and consists of only two Articles–Article 323A dealing with administrative tribunals and Article 323B dealing with tribunals for other matters.

Part XIV-A:

Article 323A empowers the Parliament to provide for the establishment of administrative tribunals for the adjudication of disputes relating to recruitment and conditions of service of persons appointed to public services of the Centre, the states, local bodies, public corporations and other public authorities.

In pursuance of Article 323A, the Parliament has passed the Administrative Tribunals Act in 1985.

The act authorises the Central government to establish one Central administrative tribunal and the state administrative tribunals.

Central Administrative Tribunal (CAT):

The Central Administrative Tribunal (CAT) was set up in 1985 with the principal bench at Delhi and additional benches in different states.

The CAT is a multi-member body consisting of a chairman and members

The CAT exercises original jurisdiction in relation to recruitment and all service matters of public servants covered by it.

Its jurisdiction extends to the all-India services, the Central civil services, civil posts under the Centre and civilian employees of defence services.

However, the members of the defence forces, officers and servants of the Supreme Court and the secretarial staff of the Parliament are not covered by it.

State Administrative Tribunals:

The Administrative Tribunals Act of 1985 empowers the Central government to establish the State Administrative Tribunals (SATs) on specific request of the concerned state governments.

Like the CAT, the SATs exercise original jurisdiction in relation to recruitment and all service matters of state government employees.

The chairman and members of the SATs are appointed by the president after consultation with the governor of the state concerned.

The act also makes a provision for setting up of joint administrative tribunal (JAT) for two or more states. A JAT exercises all the jurisdiction and powers exercisable by the administrative tribunals for such states.

Under Article 323B, the Parliament and the state legislatures are authorised to provide for the establishment of tribunals for the adjudication of disputes relating to the following matters:

axation

Foreign exchange, import and export

Industrial and labour

Land reforms

Ceiling on urban property

Elections to Parliament and state legislatures

Food stuffs

Rent and tenancy rights

Articles 323A and 323B differ in the following three aspects:

While Article 323 A contemplates establishment of tribunals for public service matters only, Article 323 B contemplates establishment of tribunals for certain other matters (mentioned above).

While tribunals under Article 323 A can be established only by Parliament, tribunals under Article 323 B can be established both by Parliament and state legislatures with respect to matters falling within their legislative competence.

Under Article 323 A, only one tribunal for the Centre and one for each state or two or more states may be established. There is no question of hierarchy of tribunals, whereas under Article 323 B a hierarchy of tribunals may be created.

Judicial review:

In Chandra Kumar case (1997), the Supreme Court declared those provisions of these two articles which excluded the jurisdiction of the high courts and the Supreme Court as unconstitutional. Hence, the judicial remedies are now available against the orders of these tribunals.

VALIDITY OF CHILD GANG RAPE LAW

Context

Recently, a petition was filed by a 29-year-old man, in the Supreme Court, who is serving a life sentence, for the gang rape of a nine-year-old in Maharashtra.

The Supreme Court will examine the validity of a law which sends a guilty man either to a lifetime in prison or to the gallows for gangraping a child under 12 years without affording him a chance to atone for his crime or reform.

What are the Issues Highlighted in the Petition?

Restrict judge’s options

It argued that Section 376DB (gang rape of a child under 12 years of age) of the Indian Penal Code restricted the trial judge’s options to either a sentence for the remainder of the person’s natural life or the death penalty.

However, Life imprisonment is the minimum, mandatory punishment under the provision.

Anomaly in 2018 Amendment

The petitioner further argued that there is an anomaly in the sentencing system drafted through the criminal amendments carried out in August 2018.

Section 376DB was introduced in 2018 when the penal code was amended to provide harsher sentences for the offense of rape.

Arbitrariness

While Section 376-AB provided for a minimum sentence of 20 years for a person convicted of raping an under-12 girl.

Whereas, Section 376-DB provides for a mandatory minimum punishment of life imprisonment for each of the persons involved in the gang rape of an under-12 girl.

Both sections provided the death penalty as maximum punishment.

This life sentence without remission could mean 60-70 years of jail for a person who is in his twenties.

Violates Right to Life

Section 376DB offered a trial court no option but a life sentence or the higher punishment of the death penalty.

The petition argued that Section 376DB violated Articles 21 (Right to life) and Article 14 (right to equality) of the Constitution.

Global Scenario

Given the global context of this issue, the European Court of Human Rights in the case of Winter vs the United Kingdom ruled that life imprisonment without a real prospect of parole was a violation of Article 3 of the European Convention on Human Rights.

It held that life sentences cannot be considered just punishment as they provided the prisoner with no opportunity for atonement and such sentences were incompatible with respect for human dignity.

The U.S. Supreme Court had held that in extreme cases, a disproportionate sentence violated the Eighth Amendment, which prohibits cruel and unusual punishment, of the U.S. Constitution.

What's the View of the Supreme Court?

The SC bench said that this question required consideration, as the SC has already quashed the provision imposing mandatory death sentence as unconstitutional.

Further, it asked an additional solicitor general, as well as the petitioner to submit written submissions and propositions on the issue.

Historical Perspective

Also, the SC in 'Mithu Vs Punjab' in 1983, had ruled that Section 303 of IPC was unconstitutional to the extent it provided for the mandatory death penalty to a person who committed a murder while serving a life sentence in another case.

Section 303 had mandated that courts would impose no other punishment but the death penalty in such cases.

Other Related Initiatives for Child Protection

POSCO (Protection of Children from Sexual Offences).

Child Abuse Prevention and Investigation Unit.

Beti Bachao, Beti Padhao.

Juvenile Justice Act/Care and Protection Act, 2000.

Child Marriage Prohibition Act (2006).

Child Labour Prohibition and Regulation Act, 2016.

HATE SPEECH AND BLASPHEMY

Context

Recently, there has been a rise in cases related to Hate Speech, Blasphemy in India.

What is Hate Speech

About

According to the 267th Report of the Law Commission of India, Hate Speech is stated as an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief, and the like.

Thus, hate speech is any word written or spoken, signs, visible representations within the hearing or sight of a person with the intention to cause fear or alarm, or incitement to violence.

Related Data

According to the National Crime Records Bureau (NCRB), there has been a huge increase in cases registered to promote hate speech and foster animosity in society.

As there were only 323 cases registered in 2014, it had increased to 1,804 cases in 2020.

What are the Regulations Related to Blasphemy?

About

Section 295(A) of the Indian Penal Code (IPC), punishes any speech, writings, or signs that “with premeditated and malicious intent” insult citizens’ religion or religious beliefs with a fine and imprisonment for up to three years.

SC Interpretation

Ramji Lal Modi case (1957)

The legality of Section 295(A) was affirmed by a five-judge Bench of the Supreme Court in this case.

Supreme court reasoned that while Article 19(2) allows reasonable limits on freedom of speech and expression for the sake of public order.

The punishment under Section 295(A) deals with aggravated form of blasphemy which is committed with the malicious aim of offending the religious sensibilities of any class.

Superintendent, Central Prison, Fatehgarh Vs Ram Manohar Lohia case (1960)

It stated that the link between the speech spoken and any public disorder caused as a result of it should have a close relationship for retrieving Section 295(A) of IPC.

Further in 2011, it concluded that only speech that amounts to “incitement to impending unlawful action” can be punished. 

That is, the state must meet a very high bar before using public disturbance as a justification for suppressing expression.

Why there is a Need for Distinction between Blasphemy and Hate Speech Laws?

Too wide Interpretation

Section 295(A) is considerably too wide and it cannot be stated that deliberate disrespect to religion or religious sensibilities is necessarily tantamount to incitement.

Section 295(A) contains hate speech statutes:

The Supreme Court has said on several occasions that perhaps the goal of hate speech statutes in Section 295(A) is to prevent prejudice and ensure equality.

Laws Lack Clarity

Hate speech laws are predicated on the critical distinction between criticizing or ridiculing religion and encouraging prejudice or aggression towards individuals or a community because of their faith.

Unfortunately, there is a huge disparity between this interpretation and the actual wording due to which the law is still being exploited at all levels of administration.

Way Forward

Blasphemy, which generally prohibits criticism of religion, is incompatible with the principles of democratic societies. 

In a free and democratic society, there should be no scrutiny of discourse or objections. 

Following the subtle line between the protection of faith and hate speech, the only viable solution is to keep blasphemy in law and make it non-criminal.

SC'S REFERENCE TO CAPITAL PUNISHMENT

Context

Recently, the Supreme Court (SC) has referred to a larger Bench the issues relating to the norms for imposing the Capital Sentence.

What has the Court Said?

The current referral of the three-judge bench of the Supreme Court to a five-judge bench is based on an argument that the process of same-day sentencing is hopelessly tilted against the accused.

The Bench said that the State is given an opportunity to present aggravating circumstances against the accused throughout the duration of a trial.

The accused, on the other hand, is able to produce evidence showing mitigating circumstances in their favour, only after their conviction.

What are the Issues?

There are conflicting judgments on when and how the sentencing hearing must take place mainly on whether it is necessary to hold the hearing on sentencing on a subsequent day and not on the day of the conviction.

The issue pertains to giving meaningful opportunity to those found guilty of a capital offence to present mitigating factors and circumstances so that they can better plead for a life term instead of a death sentence.

The issue arises from the legal requirement that whenever a court records a conviction, it has to hold a separate hearing on the quantum of sentence.

Legalities and Judgements

Section 235 of the Code of Criminal Procedure (CrPC) says if the accused is convicted, the judge will hear the accused on the question of sentence and then pass sentence.

This process is significant if the conviction is for an offence that entails either death or life imprisonment.

Section 354(3) says that when there is death Punishment or imprisonment for life, the judgment will have to state the reason for why the sentence was awarded.

If the sentence is death, “special reasons” will have to be provided in the judgment.

In 1980, the Supreme Court upheld the constitutionality of capital punishment in ‘Bachan Singh v State of Punjab’ on the condition that the punishment will be awarded in the “rarest of the rare” cases.

Crucially, the ruling also stressed that a separate sentencing hearing would be held, where a judge would be persuaded on why the death sentence need not be awarded.

This position was reiterated in several subsequent rulings of the court, including in ‘Mithu v State of Punjab’, a 1982 ruling by a five-judge Bench that struck down mandatory death sentence as it falls foul of the right of an accused to be heard before sentencing.

Views on Same-Day Sentencing

Even though a separate hearing on sentencing is practiced in all trials, most judges do not adjourn the case to a future date to go through this.

As soon as the verdict of ‘guilty’ is pronounced, they ask counsel on both sides to argue on sentencing.

There is a view that such ‘same-day’ sentencing is inadequate and violates natural justice as convicts do not get enough time to gather mitigating factors.

In a series of judgments, the Supreme Court has advocated that the sentencing hearing be done separately, that is, at a future date after conviction.

However, in a contradiction of sorts, several judgments have upheld the practice of ‘same-day’ sentencing.

What is the likely Outcome?

The Constitution Bench may lay down comprehensive guidelines on the manner in which sentencing decisions can be arrived at.

The SC may make it necessary for the trial court to get to know the accused better before passing the sentence.

The courts may draft the help of psychologists and psychoanalytical experts.

A study into the childhood experiences and upbringing of the accused, mental health history in the family and the likelihood of traumatic past experiences and other social and cultural factors may be mandated to be part of the sentencing process.

This may mean that trial courts will be better informed than now, when only basic data such as educational and economic status are ascertained before a sentence is imposed.

What is Capital Punishment?

Capital Punishment stands for the most severe form of punishment. It is the punishment which is awarded for the most heinous and grievous crimes against humanity.

Certain offences under Indian Penal Code, for which the offenders can be sentenced to punishment of death are:

Murder (Section 302)

Dacoity with murder (Section 396)

Criminal Conspiracy (Section 120B)

Waging war against the Government of India or attempting to do so (Section 121)

Abatement of mutiny (Section 132) and others.

The term death penalty is sometimes used interchangeably with capital punishment, though imposition of the penalty is not always followed by execution, it can be commutated into life imprisonment or pardoned by the President under Article 72 of Indian Constitution.

Way Forward

The hearings will effectively settle the debate on whether the fast-tracked hearings by trial courts awarding death sentences — in a matter of days in some cases — is legally tenable.

The ruling could also be a crucial step in raising the bar further in awarding the death sentence.

The focus should not only be on eliminating the criminal but also on elimination of the crime. The purpose of punishment in criminal law, if looked at from a wider angle and a broader perspective, is to achieve the goals of an orderly society. There is a need to ensure the restoration of peace and prevent future occurrences of crimes by balancing the competing rights of the criminal and the victim.

LIVE STREAMING OF THE SUPREME COURT'S PROCEEDINGS

Context

Recently, the Supreme Court (SC) decided to live stream its proceedings in crucial Constitution Bench cases that will be heard from 27th September, 2022.

Positive systemic corrections have been made possible due to the broadcast of court proceedings.

Background

The Supreme Court in Swapnil Tripathi vs Supreme Court of India (2018) had ruled in favour of opening up the apex court through live-streaming.

It held that the live streaming proceedings are part of the right to access justice under Article 21 (Protection of Life and Personal Liberty) of the Constitution

Gujarat High Court was the first high court to livestream court proceedings followed by Karnataka high court.

Currently, the Jharkhand, Karnataka, Madhya Pradesh, Orissa, and Patna High Courts live stream their proceedings.

Allahabad High Court is considering power doing the same.

Recommendations by the Attorney-General of India

Live-streaming must be introduced as a pilot project in Chief-Justice of India’s (CJI’s) court, and only in Constitution Bench cases.

The success of this project will determine whether or not live streaming should be introduced in all courts i.e., the Supreme Court and in courts pan-India.

De-congestion of courts and improved physical access to courts for litigants who have to otherwise travel long distances to come to the SC were cited by the Attorney general (AG) in support of his recommendation.

A set of guidelines suggested by the A-G was approved by the SC. However, the A-G suggested that the court must retain the to withhold broadcasting, and also not permit it in cases involving:

Matrimonial matters

Matters involving interests of juveniles or the protection and safety of the private life of the young offenders

Matters of National security

To ensure that victims, witnesses or defendants can depose truthfully and without any fear.

Special protection must be given to vulnerable or intimidated witnesses.

It may provide for face distortion of the witness if she/he consents to the broadcast anonymously.

To protect confidential or sensitive information, including all matters relating to sexual assault and rape

Matters where publicity would be antithetical to the administration of justice, and

Cases which may provoke sentiments and arouse passion and provoke enmity among communities.

Scenario in Other Countries

United States: Since 1955, audio recording and transcripts of oral arguments has been allowed.

Australia: Live or delayed broadcasting is allowed but the practices and norms differ across courts.

Brazil: Since 2002, live video and audio broadcast of court proceedings, including the deliberations and voting process undertaken by the judges in court, is allowed.

Canada: Proceedings are broadcast live on Cable Parliamentary Affairs Channel, accompanied by explanations of each case and the overall processes and powers of the court.

South Africa: Since 2017, the Supreme Court of South Africa has allowed the media to broadcast court proceedings in criminal matters, as an extension of the right to freedom of expression.

United Kingdom: After 2005, proceedings are broadcast live with a one-minute delay on the court’s website, but coverage can be withdrawn in sensitive appeals.

Concerns:

Video clips of proceedings from Indian courts that are already there on YouTube and other social media platforms with sensational titles and little context are leading to the spread of misinformation among the public, as prevalent from the recent past.

Also, the commercial agreements with broa dcasters are also concerning.

The unauthorised reproduction of live streaming videos is another cause for concern as its regulation will be very difficult at the government’s end.

Way Forward:

Broadcasting court proceedings is a step in the direction of transparency and greater access to the justice system. Citizens have the right to information and technology exists to make matters of constitutional and national importance available for public viewership.

If a live stream of the top court’s proceedings is not possible, alternatively video recording of the proceedings should be allowed.

The agreements with broadcasters should be on a non-commercial basis. No one should profit from the arrangement.

A set of guidelines must be framed to ensure that the video titles and description are not misleading and convey accurate information, only.

Strict punishment/penalty must be attached with the unauthorised reproduction of live-streaming of videos.

Lok Adalats

Context: Recently, the government informed that National Lok Adalat will be held on 12th November 2022 across the country to dispose of pending cases through settlement.

About:

National Lok Adalats are held at regular intervals where on a single day Lok Adalats are held throughout the country, in all the courts right from the Supreme Court to the District level wherein cases are disposed of in huge numbers.

Considering the benefits of the Lok Adalat system and mutual settlement between parties a large number of consumer cases are expected to be disposed of.

Department of Consumer Affairs is reaching out to consumers, companies, and organizations through SMS and emails to have maximum outreach and benefit consumers.

With the help of technology, a separate link is being created and circulated amongst all stakeholders wherein one can enter their pending case number and commission where the case is pending and easily refer the matter to Lok Adalat.

The link shall be circulated through email and SMS.

Through data analytics, sector-wise distribution of pendency has been identified such as banking with a total number of 71379 pending cases, insurance with 168827, e-commerce with 1247, electricity with 33919, railways with 2316, etc.

Steps are being taken toward the settlement of such consumer cases on priority.

Department is in the process of collaborating with the National Legal Service Authority (NALSA) for referring the inclusion of pending consumer cases to be disposed of through the upcoming National Lok Adalat.

About Lok Adalats:

Lok Adalat is one of the alternative dispute redressal mechanisms where disputes or cases pending in the court of law or at the pre-litigation stage are compromised amicably.

Lok Adalats have been given statutory status under the Legal Services Authorities Act, of 1987.

The Act constitutes provisions to provide free legal services to the weaker sections of society according to Article 39A of the constitution.

Under the said Act, the award made by the Lok Adalats is deemed to be a decree of a civil court and is final and binding on all parties and no appeal against such an award lies before any court of law.

If the parties are not satisfied with the award of the Lok Adalat, there is no provision for an appeal against such an award, however, they are free to initiate litigation by approaching the court of appropriate jurisdiction.

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.

Every Lok Adalat organized for an area shall consist of:

A judicial officer as a chairman,

and a lawyer and a social worker as members.

Split verdict

Context: The Supreme Court recently delivered a split verdict in the Karnataka hijab ban case. In view of the “divergence in opinion”, the apex court directed the matter to be placed before the Chief Justice of India for appropriate directions.

About:

Justice Hemant Gupta: “There is a divergence of opinion. In my order, I have framed 11 questions. First is, whether the appeal should be referred to the Constitution bench. Whether college management can take a call on the uniform of students and if wearing of Hijab and restricting it is violative of Article 25. Whether rights under Article 19 and Article 25 are mutually exclusive. Whether government order infringes upon the fundamental right. Can a student exert her fundamental right, is wearing right a part of essential religious practice under Islam, whether government order serves the purpose of access to education: the answer according to me is against the appellant.”

Justice Sudhanshu Dhulia: “I have set aside the Karnataka High Court order and quashed the government order. Venturing into essential religious practice was not needed and the court took it the wrong way. It was just a question of choice. One thing which was topmost for me was the education of girl child.”

Justice Hemant Gupta: “In view of divergent opinion, let the matter be placed before the Chief Justice of India for appropriate directions.”

About Split Verdicts:

A split verdict is passed when the Bench cannot decide one way or the other in a case, either by a unanimous decision or by a majority verdict.

Split verdicts can only happen when the Bench has an even number of judges. This is why judges usually sit in Benches of odd numbers (three, five, seven, etc.) for important cases, even though two-judge Benches — known as Division Benches — are not uncommon.

In case of a split verdict, the case is heard by a larger Bench.

The larger Bench to which a split verdict goes can be a three-judge Bench of the High Court, or an appeal can be preferred before the Supreme Court.

In the case of the hijab verdict, the CJI, who is the ‘master of the roster, will constitute a new, larger Bench to hear the matter.

Earlier examples of Split Verdicts include:

A two-judge Bench of the Delhi High Court delivered a split verdict in petitions challenging the exception provided to marital rape in the Indian Penal Code (IPC).

Madras High Court Division Bench order on the challenge to the disqualification of AIADMK MLAs owing allegiance to TTV Dinakaran (2018).

Supreme Court on sealed cover affidavits

Context: The Supreme Court has suggested a way out of routinely filing documents in sealed covers, especially in cases touching on national security.

About:

The Supreme Court was recently urged to consider laying down a law on the practice of governments submitting affidavits in a sealed cover.

The court said the government could redact the sensitive portions and show the rest to the petitioners.

This would address both the state’s concerns about “national security” and the “right to know” of petitioners.

The Supreme Court also said that the government has to present “extenuating circumstances” before confidentially passing materials to the court without disclosing them to the petitioners.

Issues & Criticisms with the Sealed cover affidavits:

Repeated practice in the name of National Security.

Bias and no power in defense.

Denial of bail.

Use in disputed cases.

What is an Affidavit?

An affidavit is a written statement made under oath that is typically used in legal proceedings. When a person swears to be truthful in creating the affidavit, they are called an affiant.

Affidavits are a vital part of court proceedings since they provide a written account of the details surrounding the case, which can make it easier for judges to make decisions. They are also useful for record-keeping purposes.

The purpose of an affidavit is to formally legitimize a claim.

The Indian Evidence Act:

The Act was originally passed in India by the Imperial Legislative Council in 1872, during the British Raj.

When India gained independence on 15 August 1947, the Act continued to be in force throughout the Republic of India.

It contains a set of rules and allied issues governing the admissibility of evidence in the Indian courts of law.

The enactment and adoption of the Indian Evidence Act changed the entire system of concepts pertaining to the admissibility of evidence in the Indian courts of law.

‘Evidence’ means and includes the following:

All statements made before the Court by witnesses about matters of fact under investigation, which the Court permits or requires; such statements are referred to as oral evidence;

All documents (including electronic records) presented for the inspection of the Court; such materials are referred to as documentary evidence.

Chargesheets Are Not Public Documents

Context: The Supreme Court recently held that chargesheets are not ‘public documents’ and enabling their free public access violates the provisions of the Criminal Code of Procedure as it compromises the rights of the accused, victim, and the investigation agencies.

About:

What is a chargesheet?

A chargesheet, as defined under Section 173 CrPC, is the final report prepared by a police officer or investigative agency after completing their investigation of a case.

After preparing the chargesheet, the officer-in-charge of the police station forwards it to a Magistrate, who is empowered to take notice of the offenses mentioned in it.

The charge sheet should contain details of names, the nature of the information, and offenses. Whether the accused is under arrest, in custody, or has been released, whether any action was taken against him, are all important questions that the chargesheet answers.

Further, when the chargesheet relates to offenses for which there is sufficient evidence against the accused, the officer forwards it to the Magistrate, complete with all documents. This forms the basis for the prosecution’s case and the charges to be framed.

“The charge sheet is nothing but a final report of the police officer under s. 173(2) of the CrPC,” the apex court held in its 1991 ruling in K Veeraswami vs UOI & Ors.

A chargesheet must be filed against the accused within a prescribed period of 60-90 days, otherwise, the arrest is illegal and the accused is entitled to bail.

How is a chargesheet different from an FIR?

The term ‘chargesheet’ has been expressly defined under Section 173 of the CrPC but ‘First Information Report’ or FIR, has not been defined in either the Indian Penal Code (IPC) or the CrPC. Instead, it finds a place under the police regulations/ rules under Section 154 of CrPC, which deals with ‘Information in Cognizable Cases’.

While the chargesheet is the final report filed towards the end of an investigation, an FIR is filed at the ‘first’ instance’ that the police are informed of a cognizable offense or offense for which one can be arrested without a warrant; such as rape, murder, kidnapping.

Further, an FIR does not decide a person’s guilt but a chargesheet is complete with evidence and is often used during the trial to prove the offenses the accused is charged with.

After filing an FIR, the investigation takes place. Only if the police have sufficient evidence can the case be forwarded to the Magistrate, otherwise, the accused is released from custody under Section 169 of the CrPC. The law laid down by the Supreme Court in 1967 in Abhinandan Jha & Ors vs Dinesh Mishra reiterates this.

Finally, the FIR should be filed at the first instance of receiving the knowledge of the occurrence of a cognizable offense. According to Section 154 (3) of the CrPC, if any person is aggrieved by the refusal of authorities to file an FIR, they can send the complaint to the Superintendent of Police, who will either investigate himself or direct it to their subordinate.

A chargesheet is filed by the police or law-enforcement/ investigative agency only after they have gathered sufficient evidence against the accused in respect of the offenses mentioned in the FIR, otherwise, a ‘cancellation report’ or ‘untraced report’ can be filed when due to lack of evidence.

Why is a chargesheet not a ‘public document’?

Dismissing the plea, the Court held that a chargesheet cannot be made publicly available as it’s not a ‘public document’ under Sections 74 and 76 of the Evidence Act, as argued by the petitioners.

Section 74 of the Evidence Act defines ‘public documents’ as those which form the acts or records of sovereign authority, official bodies, tribunals, and of public offices either legislative, judicial, or executive in any part of India, Commonwealth or a foreign country. It also includes public records “kept in any State of private documents”.

Meanwhile, Section 76 of the Evidence Act mandates every public officer having custody over such documents to provide its copy pursuant to demand and payment of legal fee, accompanied by a certificate of attestation along with the date, seal, name, and designation of the officer.

While dictating its order, the Court said that reliance on Sections 74 and 76 was ‘misconceived’ and added, “Documents mentioned in Section 74 of the Evidence Act can only be said to be public documents, certified copies of which are to be given by the concerned public authority having the custody of such a public document. Copy of chargesheets along with necessary public documents cannot be said to be ‘public documents’ under Section 74 of the Evidence Act.”

The Court also clarified that as per Section 75 of the Evidence Act, all documents other than those listed under Section 74’ are private documents.

The Court rejected the petitioner’s reliance on a 2016 ruling of the Supreme Court in ‘Youth Bar Association of India vs UOI’, where it directed all police stations in the country to publish copies of FIRs online within 24 hours of registration, except in cases where offenses were of sensitive nature.

The Court rejected the reliance on its judgment by saying that the directions given by it in the 2016 ruling only applied to FIRs and could not extend to chargesheets.

“This was done so that if the innocent accused are harassed, they are able to get relief from the competent court and are not taken by surprise,” the Court said in reference to its 2016 judgment. The direction was issued in favor of the accused in that case and could not be stretched to the public at large, the Bench added.

What is the Court’s refrain from the misuse of documents?

One of the concerns expressed by Justice MR Shah during the proceedings was the possibility of misuse by NGOs and ‘busybodies’ “Chargesheets cannot be given to everybody,” Justice MR Shah had said on January 9, according to a report by LiveLaw.

Meanwhile, Justice CT Ravikumar cited the 2022 ruling in ‘Vijay Madanlal Choudhary vs UOI’, where the Court held that ECIR is not equivalent to FIR and thus, the accused cannot be allowed a copy of the same.

“Suffice it to observe that ECIR cannot be equated with an FIR which is mandatorily required to be recorded and supplied to the accused as per the provisions of the 1973 Code,” the Apex Court said in its 2022 judgment.

Applying the same principles to the present case, the Bench said that investigating agencies like ED could not be made to provide their chargesheets to the public.

22nd Law Commission

Context: The Centre constituted the Law Commission of India with Justice (retd) Rituraj Awasthi, former Chief Justice of Karnataka High Court, at its head.

About the Law Commission of India:

The Law Ministry describes the Law Commission of India as a non-statutory body that is constituted by a notification of the Government of India, with definite terms of reference to carry out research in the field of law.

The Commission makes recommendations to the Government (in the form of Reports) as per its terms of reference.

The Law Commission was first constituted in 1955 and has so far submitted 277 reports.

According to the Law Ministry’s website, the “Law Commission of India provides excellent thought-provoking and vital review of the laws in India”.

About the 22nd Law Commission:

The Commission headed by Justice Awasthi is the 22nd Law Commission of India.

The tenure of the 21st Law Commission, which was headed by former Supreme Court judge Justice B S Chauhan, came to an end on 31 August 2018.

The 22nd Commission was constituted two and a half years after it was approved by the Union Cabinet on 19 February 2020, just before the outbreak of the Covid-19 pandemic.

A petition had been moved in the Supreme Court subsequently against the delay in constituting the 22nd Commission.

The Commission shall, among other things, “identify laws which are no longer needed or relevant and can be immediately repealed legislations as might be necessary to implement the Directive Principles and to attain the objectives set out in the Preamble of the Constitution”revise the Central Acts of general importance so as to simplify them and remove anomalies, ambiguities and inequities”.

Ranganath Mishra Commission

Context: In the Supreme Court, the Central government informed that it had taken a decision to not accept Justice Ranganath Mishra Commission's report.

About:

The Government rejected the Ranganath Mishra Commission's recommendation of including Dalit Christians and Dalit Muslims in the SC list because the report was written within the “four walls of a house” without any field research or consultation, in opposition to a petition to include Dalit Christians and Dalit Muslims within the ambit of Scheduled Castes to grant them reservation.

The Center informed the court that Dalits who converted to Christianity and Islam could not be granted SC status to receive the benefits of reservation because there was no oppression or backwardness in those religions.

The Constitution (Scheduled Castes) Order of 1950, according to the ministry of social justice and empowerment, is legal and valid and does not suffer from any constitutional problems.“In fact, one of the reasons for which people from Scheduled Castes have been converting to religions like Islam or Christianity is that they can come out of the oppressive system of untouchability which is not prevalent at all in Christianity or Islam,” it said.

Since at least 2004, the Supreme Court has been debating whether to grant Dalits who over time converted to Christianity or Islam SC status. The Union government had opposed granting SC status to converts of these religions after the court asked the Centre to clarify its position on the matter this year. It had nonetheless informed the supreme court that, “given its importance, sensitivity, and potential impact,” it had appointed a Commission of Inquiry to look into the matter.

The Centre has appointed a new three-member commission, headed by the former Chief Justice of India K G Balakrishnan, to examine whether SC status could be granted to new individuals who claim to have historically belonged to the SC community but converted to other religions, Solicitor General Tushar Mehta informed a bench of Justices Sanjay Kishan Kaul, Abhay S Oka, and Vikram Nath. Former IAS officer Ravinder Kumar Jain and University Grants Commission member Sushma Yadav are the other members of the commission.

Who is included in the Constitution Order of 1950?

The Constitution (Scheduled Castes) Order of 1950, which was enacted to address the social disadvantage caused by the practice of untouchability, initially only allowed Hindus to be recognized as belonging to the SCs.

Dalits who converted to Sikhism were included in the Order in 1956, and Dalits who converted to Buddhism were included in the Order once more in 1990.

The Kaka Kalelkar Commission report from 1955 and the High-Powered Panel (HPP) on Minorities, Scheduled Castes, and Scheduled Tribes report from 1983 provided support for both amendments.

In 2019, the Union government rejected the idea that Dalit Christians could join SCs, citing a 1936 Imperial Order issued by the colonial government, which had first categorized a list of the Depressed Classes and specifically left out “Indian Christians”.

Conjugal Rights

Context: The State of Punjab has furthered the cause of the right to life and personal liberty of prisoners by allowing conjugal visits for inmates.

About:

Broadly speaking, conjugal rights are rights created by marriage, that is, the right of the husband or the wife to the company of their spouse.

In the context of prisons, however, conjugal visits refer to the concept of allowing a prisoner to spend some time in privacy with his spouse within the precincts of a jail.

It is often argued that conjugal visits can have positive impacts in the form of psychological health benefits for prisoners, preservation of marital ties, and, reduction in the rates of homosexuality and sexual aggression within prisons.

Aside from the above, it is also argued that conjugal visits are a fundamental right of the spouses of the prisoners.

International Rules:

Prisoner rights are internationally recognized through the United Nations Standard Minimum Rules for the Treatment of Prisoners, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, etc.

Through such instruments, prisoners are guaranteed the right to life and inherent dignity.

The right to maintain family relations including conjugal visits are included in these treaties.

Most prison Acts and Rules across the country accept the importance of maintenance of continuity in family and social relations.

Punjab Model:

The State guidelines clarify that conjugal visits are a matter of privilege rather than a right.

It has been notified that the average time for conjugal visits shall be two hours, allowed once every two months.

The visiting spouse will have to furnish proof of marriage and medical certificates declaring that he or she is free from HIV, any other sexually transmitted disease, COVID-19, or any other infectious disease.

Moreover, such a facility will not be extended to high-risk prisoners, terrorists, child abuse and sexual offenders, death row convicts, prisoners who suffer from HIV, etc.

Personality Rights

Context: The Delhi High Court has passed an interim order to prevent the unlawful use of Bollywood star Amitabh Bachchan’s name, image, and voice. The court through its order restrained persons at large from infringing the personality rights of the actor.

About:

Personality rights are interpreted as the personal property of a well-known celebrity to guarantee his/her enjoyment of his own sense of existence.

Personality rights are a celebrity's personal rights to use and control the use of their physical attributes in promotions and at any other place for which the celebrity's consent is required.

Does the use of a name on the internet affect personality rights?

The Delhi High Court in 2011 made an observation in the case of Arun Jaitley vs Network Solutions Private Limited and Ors.

In this case, the former finance minister filed a suit seeking a permanent injunction against the defendants for misuse and immediate transfer of the domain name www.arunjaitley.com.

The Court stated that the popularity or fame of an individual will be no different on the internet than in reality.

Right to vote for undertrials

Context: Supreme Court (SC) has decided to examine the law depriving under trials the right to vote.

About:

The decision to examine came on a petition challenging Section 62 (5) of the Representation of the People Act (RPA), 1951 which deprives prisoners of their right to vote.

This restriction does not apply to a person under preventive detention.

According to the latest National Crime Reports Bureau (NCRB) report, there are around 5.5 lakh prisoners in various jails across the country.

The people who support prisoners' right to vote call this provision discriminatory as even the convicted persons are allowed the right to vote if they are on bail while even the undertrials are denied the same if they are in prison.

Triple Test Survey

Context: After the Allahabad High Court ordered the Uttar Pradesh government to hold urban local body elections without reservation for OBCs because the ‘triple test’ requirement for the quota had not been fulfilled, the state recently set up a commission for this purpose.

About:

The triple test requires the government to complete three tasks for the finalization of reservations to OBCs in the local bodies.

These include:

To set up a dedicated commission to conduct a rigorous empirical inquiry into the nature and implications of the backwardness in local bodies;

To specify the proportion of reservation required in local bodies in light of recommendations of the commission, so as not to fall foul of overbreadth;

To ensure reservation for SCs/STs/OBCs taken together does not exceed an aggregate of 50 percent of the total seats.

These triple tests/conditions were outlined by the Supreme Court in the case of Vikas Kishanrao Gawali vs. the State of Maharashtra and others, decided on March 4, 2021.

This is the first time that the triple test exercise will be carried out in Uttar Pradesh.

Constitutional Provisions:

Flag Code of India

Context: To facilitate the Har Ghar Tiranga Campaign, the Ministry of Home Affairs amended the Flag Code of India 2002.

The National Flag of India:

The Indian National Flag represents the hopes and aspirations of the people of India. It is the symbol of our national pride and there is universal affection and respect for, and loyalty to, the National Flag. It occupies a unique and special place in the emotions and psyche of the people of India.

The hoisting/use/display of the Indian National Flag is governed by the Prevention of Insults to National Honour Act, 1971 and the Flag Code of India, 2002.

What is the Flag Code of India?

Divided into three parts, the Flag Code of India 2002 contains the general description of the National Flag, its display by members of the public, private organisations, educational institutions etc, and the central and state governments and their agencies.

Salient Features (including recent amendments) of Flag Code of India, 2002:

The Flag Code of India, 2002 was amended vide Order dated 30 December, 2021 and National Flag made of polyester or machine made Flag have been allowed. Now, the National Flag shall be made of hand spun and hand woven or machine made, cotton/polyester/wool/silk khadi bunting.

A member of public, a private organization or an educational institution may hoist/display the National Flag on all days and occasions, ceremonial or otherwise, consistent with the dignity and honour of the National Flag.

The Flag Code of India, 2002 was amended vide Order dated 19″ July, 2022 and clause (xi) of paragraph 2.2 of Part-II of the Flag Code of India was replaced by the following clause:

(xi) “where the Flag is displayed in open or displayed on the house of a member of public, it may be flown day and night;”

The National Flag shall be rectangular in shape. The Flag can be of any size but the ratio of the length to the height (width) of the Flag shall be 3:2.

Whenever the National Flag is displayed, it should occupy the position of honour and should be distinctly placed.

A damaged or dishevelled Flag shall not be displayed.

The Flag should not be flown on any vehicle except of the dignitaries mentioned in Section IX of Part III of the Flag Code, such as President, Vice-President, Prime-Minister, Governors etc.

No other flag or bunting should be placed higher than or above or side by side with the National Flag.

Why did Centre amend the Flag Code of India?

The amendments to the flag code came ahead of the launch of the ‘Har Ghar Tiranga’ campaign under which the government is encouraging people to hoist the Tricolour at their homes to mark the 75th Independence Day. The government says it plans to reach out to more than 20 crore homes across India by August 15 through this campaign ahead of the 75th Independence Day of India.

The government believes that amending the flag code will make the National Flag easily available and affordable to the general public.

The Brief History of the National Flag of India:

The first national flag, three horizontal stripes of red, yellow and green, was hoisted on 7th August 1906 in Calcutta.

In 1921, the main architect of the present-day National Flag, Pingali Venkayya met Mahatma Gandhi and proposed a basic design of the flag. This consisted of two red and green bands.

In 1931, the modified version of the tricolour was adopted as the national flag by Congress in Karachi.

On 22nd July 1947, the Constituent Assembly adopted the National Flag in its present form.

Har Ghar Tiranga Campaign:

It is part of Azadi Ka Amrit Mahotsav. It encourages people to bring the Tiranga home and to hoist it to mark the 75th year of India's independence.

The Union Government has announced that the National Flag can now remain hoisted through the night if it is in the open and hoisted by a member of the public.

Appropriation Bill

Context: Recently, the Union Finance Minister moved the Appropriation (No.5) Bill, 2022, and Appropriation (No.4) Bill, 2022, in the Rajya Sabha.

About:

The Appropriation Bill gives power to the government to withdraw funds from the Consolidated Fund of India to meet the expenditure during the financial year.

As per Article 114 of the Constitution, the government can withdraw money from the Consolidated Fund only after receiving approval from Parliament.

The amount withdrawn meets the current expenditure during the financial year.

Procedure Followed:

The Appropriation Bill is introduced in the Lok Sabha after discussions on Budget proposals and Voting on Demand for Grants.

The defeat of an Appropriation Bill in a parliamentary vote would lead to the resignation of a government or a general election.

Once it is passed by the Lok Sabha it is sent to the Rajya Sabha.

Rajya Sabha has the power to recommend any amendments to this Bill. However, it is the prerogative of the Lok Sabha to either accept or reject the recommendations made by the Rajya Sabha.

After the bill receives assent from the president it becomes an Appropriation act.

The unique feature of the Appropriation Bill is its automatic repeal clause, whereby the Act gets repealed by itself after it meets its statutory purpose.

The government cannot withdraw money from the Consolidated Fund of India till the enactment of the appropriation bill.

However, this takes time and the government needs money to carry on its normal activities.

To meet the immediate expenses the Constitution has authorized the Lok Sabha to make any grant in advance for a part of the financial year. This provision is known as the ‘Vote on Account’.

A vote on account is defined in Article 116 of the Indian Constitution.

During an election year the Government either opts for an ‘interim Budget’ or for a ‘Vote on Account’ as after the election the Ruling Government may change and so the policies.

Article 200 – Assent to Bills

Context: The Governors of various Opposition-ruled States take advantage of Article 200 of the Indian Constitution.

About:

Article 200 of the Indian Constitution is an important provision that gives the Governor of a State the power to reserve certain Bills passed by the Legislature of a State for the consideration of the President of India.

The President can then either give their assent to the bill or return it for reconsideration by the state legislature, with or without recommendations.

This article plays a crucial role in the lawmaking process in India, as it provides a mechanism for the President to review and consider bills that may have significant implications for the country as a whole, or that may raise important constitutional or legal issues.

The Governors of various Opposition-ruled States take advantage of Article 200 of the Indian Constitution to give assent to the bills.

Right to Repair

Context: Recently, Department of Consumer Affairs sets up committee to develop comprehensive framework on the Right to Repair.

Why Right to Repair:

In a bid to emphasize on LiFE (Lifestyle for the Environment) movement through sustainable consumption, the Department of Consumer Affairs has taken a significant step for developing an overall framework for the Right to Repair.

The LiFE movement calls for mindful and deliberate utilization of product.

The rationale behind the “Right to Repair” is that when we buy a product, it is inherent that we must own it completely for which the consumers should be able to repair and modify the product with ease and at reasonable cost, without being captive to the whims of manufacturers for repairs.

However, over a period of time it has been observed that the Right to Repair is getting severely restricted, and not only there is a considerable delay in repair but at times the products are repaired at an exorbitantly high price and the consumer who has once bought the product is hardly given any choice. Often the spare parts are not available, which causes consumers great distress and harassment.

What are the aims of Right to Repair:

The aim of developing a framework on right to repair in India is to empower consumers and product buyers in the local market, harmonize trade between the original equipment manufacturers and the third-party buyers and sellers, emphasize on developing sustainable consumption of products and reduction in e-waste.

Once it is rolled out in India, it will become a game-changer both for the sustainability of the products and as well as serve as a catalyst for employment generation through Aatmanirbhar Bharat by allowing third-party repairs.

Right to repair to generate employment through Aatmanirbhar Bharat by allowing third-party and self-repairing of products.

Framework to be in synchronization with call for global initiative of LiFE movement by the Hon’ble Prime Minister of India.

Which sectors will be covered under Right to Repair:

The sectors identified include Farming Equipment, Mobile Phones/ Tablets, Consumer Durables and Automobiles/Automobile Equipment.

Global status:

The right to repair has been recognised in many countries across the globe, including the US, UK and European Union.

Draft of the New Drugs, Medical Devices and Cosmetics Bill, 2022

Context: The recently-released draft of the New Drugs, Medical Devices and Cosmetics Bill, 2022, by the Union Ministry of Health and Family Welfare has proposed to regulate e-pharmacies, clinical trials and medical devices among others.

Features of the bill:

The new Bill will replace the pre-Independence Drugs and Cosmetics Act, 1940, and several Rules. It will regulate online pharmacies, clinical trials, and medical devices.

The draft focuses on regulating medical devices as a separate entity, makes provision for fines and imprisonment for injury and death related to clinical trials or investigations, and seeks to regulate e-pharmacies.

Online pharmacies:

Suggesting that the Central government should formulate rules for regulating online pharmacies, the draft Bill prohibits any person from selling, keeping stock, exhibiting or offering for sale or distributing any drug by online mode, except under and in accordance with a licence or permission issued by the authority.

Apart from regulation of clinical trials, the Bill proposes new definitions for over-the-counter drugs, manufacturers, new drugs, bioavailability study, investigational new drug and imported spurious drugs, among others.

Medical devices:

The draft Bill makes provision for creation of a ‘medical devices technical advisory board’ on the lines of the existing drugs technical advisory board.

This board will not only include medical professionals, but also people with technical knowledge of the devices. Other than officials from the Health Ministry, the board will also include people from the department of atomic energy, department of science and technology, ministry of Electronics, DRDO, and experts in the field of biomedical technology, biomaterials, and polymer technology.

Currently, decisions regarding medical devices are taken by the drugs technical advisory board.

Clinical trials and investigations:

The draft Bill makes provisions for compensation to participants or their legal heirs for injury or death suffered in clinical trials and investigations for drugs and medical devices.

The draft also lays the onus of providing medical management for any injury arising due to the trial on the investigators.

There is a new provision for imprisonment, and fine amounting to double the compensation amount if the compensation is not paid. If the draft Bill becomes law, these provisions will be part of it, and will not be restricted to just clinical trial Rules.

The draft Bill prohibits clinical trials or clinical investigations of drugs and medical devices without permission from the central licensing authority. While companies have to seek permission from the regulator to conduct trials even now, this is not specifically mentioned in the existing law.

The draft provides for debarring the investigators and sponsors of a trial or investigation if the laid-down provisions are not followed.

Prevention of Money Laundering Act, 2002 and Supreme Court

Context: The Supreme Court of India upheld the constitutional validity of the Prevention of Money Laundering Act, 2002.

Certain provisions of PMLA are controversial according to the opposition. These are:

The procedure followed by ED officers

The scheduled list of offences

Lack of Judicial oversight in an investigation

Provisions upheld by the Supreme Court:

EDs Power of Arrest in offences related to money laundering.

SC held that it was not mandatory for the ED to provide a copy of the Enforcement Case Information Report (ECIR) to the accused. The court was of the view that it is enough if the ED disclosed the grounds of arrest at the time of the arrest.

The court upheld the stringent twin bail conditions required under the law for granting bail to an accused. The two conditions require a court to hear the public prosecutor against the bail plea and reach a satisfaction that there are reasonable grounds to believe that the accused is not guilty of the offense and that he is not likely to commit any offence while on bail.

However, the court said undertrials could seek bail under Section 436A of the Code of Criminal Procedure if they had already spent one-half of the term of punishment in jail for the offence prescribed in law. But, again,this is not an “absolute right” and would depend from case to case.

The court upheld this provision that the burden of proof rests heavily on the shoulders of the accused and said that this provision did not suffer from the “vice of arbitrariness or unreasonableness”.

Prevention of Money-Laundering Act, 2002 (PMLA):

It forms the core of the legal framework put in place by India to combat Money Laundering.

The provisions of this act are applicable to all financial institutions, banks(Including RBI), mutual funds, insurance companies, and their financial intermediaries.

PMLA (Amendment) Act, 2012:

Adds the concept of ‘reporting entity’ which would include a banking company, financial institution, intermediary etc.

PMLA, 2002 levied a fine up to Rs 5 lakh, but the amendment act has removed this upper limit.

It has provided for provisional attachment and confiscation of property of any person involved in such activities.

Enforcement Directorate (ED):

ED is a specialized financial investigation agency under the Department of Revenue, Ministry of Finance, Government of India.

It is mandated with the task of enforcing the provisions of two special fiscal laws:

Foreign Exchange Management Act, 1999 (FEMA).

The Prevention of Money Laundering Act, 2002 (PMLA).

It can take actions like confiscation of property if the same is determined to be proceeds of crime derived from a Scheduled Offence under PMLA, and to prosecute the persons involved in the offence of money laundering.

Money Laundering:

Money laundering is concealing or disguising the identity of illegally obtained proceeds so that they appear to have originated from legitimate sources. It is frequently a component of other, much more serious, crimes such as drug trafficking, robbery or extortion.

According to the IMF, global Money Laundering is estimated between 2 to 5% of World GDP.

HIMACHAL PRADESH FREEDOM OF RELIGION(AMENDMENT) BILL, 2022

Context

Recently, the Himachal Pradesh government has proposed the Himachal Pradesh Freedom of Religion (Amendment) bill 2022, seeking to criminalise mass religious conversions.

The Bill amends Himachal Pradesh Freedom of Religion Act-2019, which was enacted with a view to provide freedom of religion by prohibition of conversion from one religion to another.

Why is the Proposed Amendment?

Himachal Pradesh Freedom of Religion Act-2019 prohibits conversion from one religion to another by misrepresentation, force, undue influence, coercion, inducement or any other fraudulent means or by marriage and for matters connected there with.

However, there is no provision to curb mass conversion.

What are the Key Provisions of the Bill?

It defines mass conversion as conversion of two or more persons at the same time.

The maximum sentence has been proposed to be extended to maximum 10 years and increase the amount of fine, if a person contravenes the provisions of Section 3 in respect of mass conversion.

Section 3 of the Freedom Act states that no person shall convert or attempt to convert, either directly or otherwise, any other person from one religion to another by use of misrepresentation, force, undue influence, coercion, inducement or by any fraudulent means or by marriage.

Complaints received should be investigated or inquired into by a police officer not below the rank of sub-inspector.

The offences punishable under the Act would be triable by the sessions court.

If a person marries someone by concealing his religion in such a manner that other person believes that his religion is truly the one professed by him shall be punished with minimum imprisonment of not less than three years and maximum imprisonment of 10 years.

What is Religious Conversion?

Religious conversion is the adoption of a set of beliefs identified with one particular religious denomination to the exclusion of others.

Thus “religious conversion” would describe the abandoning of adherence to one denomination and affiliating with another.

For example, Christian Baptist to Methodist or Catholic, Muslim Shi'a to Sunni.

In some cases, religious conversion “marks a transformation of religious identity and is symbolized by special rituals”.

What is the Need for Anti-Conversion Laws?

No Right to Proselytize

The Constitution confers on each individual the fundamental right to profess, practice and propagate his religion.

Proselytizing is the act of trying to convert another individual from the convertee's religion to the converter's religion.

The individual right to freedom of conscience and religion cannot be extended to construe a collective right to proselytize.

For the right to religious freedom belongs equally to the person converting and the individual sought to be converted.

Fraudulent Marriages

In the recent past, several instances have come to the notice that whereby people marry persons of other religion by either misrepresentation or concealment of their own religion and after getting married they force such other person to convert to their own religion.

SC Observations

Recently, the Supreme Court took judicial notice of instances of people marrying by either misrepresentation or concealment of their own religion.

According to the court, such incidents not only infringe the freedom of religion of the persons so converted but also militate against the secular fabric of our society.

What is the Status of Anti-Conversion Laws in India?

Constitutional Provision

The Indian Constitution under Article 25 guarantees the freedom to profess, propagate, and practice religion, and allows all religious sections to manage their own affairs in matters of religion; subject to public order, morality, and health.

However, no person shall force their religious beliefs and consequently, no person should be forced to practice any religion against their wishes.

Existing Laws

There has been no central legislation restricting or regulating religious conversions.

However, since 1954, on multiple occasions, Private Member Bills have been introduced in (but never approved by) Parliament, to regulate religious conversions.

Further, in 2015, the Union Law Ministry stated that Parliament does not have the legislative competence to pass anti-conversion legislation.

Over the years, several states have enacted ‘Freedom of Religion’ legislation to restrict religious conversions carried out by force, fraud, or inducements.

What are the Issues Associated with Anti-Conversion Laws?

Uncertain and Vague Terminology:

The uncertain and vague terminology like misrepresentation, force, fraud, allurement presents a serious avenue for misuse.

These terms leave room for ambiguities or are too broad, extending to subjects far beyond the protection of religious freedom.

Antithetical to Minorities

Another issue is that the present anti-conversion laws focus more on the prohibition of conversion to achieve religious freedom.

However, the broad language used by the prohibitive legislation might be used by officials to oppress and discriminate against minorities.

Antithetical to Secularism

These laws may pose a threat to the secular fabric of India and the international perception of our society’s intrinsic values and legal system.

Way Forward

The governments implementing such laws need to ensure that these do not curb one’s Fundamental Rights or hamper the national integration instead, these laws need to strike a balance between freedoms and malafide conversions.

WITHDRAWAL OF PERSONAL DATA PROTECTION BILL

Context

The government of India has withdrawn the Personal Data Protection Bill from Parliament as it considers a “comprehensive legal framework” to regulate the online space to boost innovation in the country through a new bill.

What was the Personal Data Protection Bill & Its Major Challenges?

The Personal Data Protection Bill, 2019 was introduced in Lok Sabha by the Minister of Electronics and Information Technology, on December 11, 2019.

Commonly referred to as the “Privacy Bill”, it intended to protect individual rights by regulating the collection, movement, and processing of data that is personal, or which can identify the individual.

About

Challenges

Many contend that the physical location of the data is not relevant in the cyber world as the encryption keys may still be out of reach of national agencies.

National security or reasonable purposes are open-ended and subjective terms, which may lead to intrusion of the state into the private lives of citizens.

Technology giants like Facebook and Google are against it and have criticised the protectionist policy of data localisation as they are afraid it would have a domino effect in other countries as well.

It had been opposed by social media firms, experts and even ministers, who said that it had too many loopholes to be effective and beneficial for both users and companies.

Also, it may backfire on India’s own young startups that are attempting global growth, or on larger firms that process foreign data in India.

Why has the Bill been withdrawn?

The Joint Committee of Parliament analyzed the Personal Data Protection Bill, 2019 in detail.

81 amendments were proposed and 12 recommendations were made towards a comprehensive legal framework on the digital ecosystem.

Considering the report of the JCP, a comprehensive legal framework is being worked upon.

Hence, it is proposed to withdraw.

Too Many Amendments

Compliance Intensive

The Bill was also seen as being too “compliance intensive” by startups of the country.

The revamped bill will be much easier to comply with, especially for startups.

Issues with Data Localisation

The tech companies questioned a proposed provision in the Bill called Data Localisation.

Under data localisation, it would have been mandatory for companies to store a copy of certain sensitive personal data within India, and the export of undefined “critical” personal data from the country would be prohibited.

The activists had criticised that it would allow the central government and its agencies blanket exemptions from adhering to any and all provisions of the Bill.

Pushback from Stakeholders

The bill had faced major push back from a range of stakeholders including big tech companies such as Facebook and Google, and privacy and civil society activists.

Delay in Implementation

The delays in the Bill had been criticised by several stakeholders pointing out that it was a matter of grave concern that India did not have a basic framework to protect people’s privacy.

What did the Joint Committee of Parliament Recommend?

It proposed 81 amendments to the Bill finalized by the Srikrishna panel, and 12 recommendations including expanding the scope of the proposed law to cover discussions on non-personal data, thereby changing the mandate of the Bill from personal data protection to broader data protection.

Non-personal data is any set of data that does not contain personally identifiable information.

The JCP’s report also recommended changes on issues such as regulation of social media companies, and on using only “trusted hardware” in smartphones, etc.

It proposed that social media companies that do not act as intermediaries should be treated as content publishers, making them liable for the content they host.

Way Forward

Data Localisation

The data should be stored in a region that is trusted by the Indian government, and that data should be accessible in the event of a crime.

The government may also consider allowing cross-border data flows only to “trusted geographies”.

Classification of Data

The new Bill could also do away with classification of personal data from the perspective of data localisation, and only use classification for awarding damages to people whose personal data may have been compromised by an entity.

ATTORNEY GENERAL OF INDIA

Context

Recently, senior advocate R. Venkataramani has been appointed as the new Attorney General (AG) of India by President Droupadi Murmu for a period of three years.

Who is the Attorney General of India?

Article 76 of the constitution mentions that he/she is the highest law officer of India. As a chief legal advisor to the government of India, he advises the union government on all legal matters.

He also is the primary lawyer representing Union Government in the Supreme Court of India. The Attorney General, like an Advocate General of a State, is not supposed to be a political appointee, in spirit, but this is not the case in practice.

Who appoints Attorney General of India?

President of India appoints a person who is qualified for the post of Supreme Court Judge. Attorney General is appointed by the President on the advice of the government.There are the following qualifications:

He should be an Indian Citizen

He must have either completed 5 years in 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.

What is the term of Attorney General’s office?

There is no fixed term for the Attorney General of India. The Constitution mentions no specified tenure of Attorney General. Similarly, the Constitution also does not mention the procedure and ground of his removal.

He can be removed by the President at any time

He can quit by submitting his resignation only to the President

Since he is appointed by the President on the advice of the Council of Ministers, conventionally he is removed when the council is dissolved or replaced.

Roles and Functions of Attorney ?General of India

Whichever legal matters are referred to him by the President, he advises the Union government upon the same.

President keeps on referring him legal matters that suits his interest and Attorney General has to advise on those too.

Apart from what President refers, he also performs the duties mentioned in the Constitution.

The three duties that are assigned to him by the President are:

In any legal case where the government of India is related to, the Attorney General has to appear in the Supreme Court on its behalf.

He has to represent the Union Government in any reference made by the president to the Supreme Court under Article 143 of the Constitution.

He also appears in the High Court if any case is related to the Government of India

ELECTION COMMISSSION OF INDIA SEEKS RESTRICTIONS ON CASH DONATIONS TO POLITICAL PARTIES

Context

The Election Commission has proposed reducing anonymous political donations to Rs 2,000 from Rs 20,000 and cap cash donations at 20% or at a maximum of Rs 20 crore to cleanse election funding of black money.

Cause of Concern

It was found that while donations reported by some political parties were nil, their audited accounts statement showed receipt of huge amounts, proving large-scale transactions in cash, below the threshold limit of Rs 20,000.

Another area of concern that has been identified by the EC is the violation of foreign exchange regulations.

Key Recommendations

Report Donations above Rs 2000.

All donations above Rs 2,000 should be reported, thereby enhancing transparency in funding.

As per rules, political parties have to disclose all donations above Rs 20,000 through their contribution report that is submitted to the EC.

Digital or Cheque Transactions:

Make digital transactions or account payee cheque transfers mandatory for all expenses above Rs 2,000 to a single entity/person.

Limit Cash Donations:

Restrict cash donations at 20% or at maximum Rs 20 crore out of the total funds received by a party, whichever is less.

Separate Bank Account:

Every fielding candidate should open a separate bank account for election purposes and route all expenses and receipts through this account, and furnish these details in their account of election expenditure.

Segregate Foreign Donations:

The EC has also sought “electoral reforms” to ensure that no foreign donations creep into the funds of the parties as stipulated under the RP Act and the Foreign Contribution Regulation Act (FCRA), 2010.

At present, there is no mechanism to segregate foreign donations at the initial stages specifically, and the present format of contribution report.

Election Commission of India

The Election Commission of India is an autonomous constitutional authority responsible for administering Union and State election processes in India.

The body administers elections to the Lok Sabha, Rajya Sabha, and State Legislative Assemblies in India, and the offices of the President and Vice President in the country.

Originally the commission had only one election commissioner but after the Election Commissioner Amendment Act 1989, it has been made a multi-member body.

The commission consists of one Chief Election Commissioner and two Election Commissioners.

Constitutional Provisions related to ECI

Part XV of the Indian constitution deals with elections, and establishes a commission for these matters.

The Election Commission was established in accordance with the Constitution on 25th January 1950.

Article 324 to 329 of the constitution deals with powers, function, tenure, eligibility, etc of the commission and the members.

Constitution Day

Context: The Constitution of India was adopted by the Constituent Assembly on November 26, 1949, for ‘We the people of India’. After being unnoticed for a long, the day began to be celebrated as Constitution Day since 2015.

About the Constitution of India:

In 1934, M N Roy first proposed the idea of a constituent assembly. Under the Cabinet Mission plan of 1946, elections were held for the formation of the constituent assembly.

The Drafting Committee had seven members: Alladi Krishnaswami Ayyar, N. Gopalaswami, B.R. Ambedkar, K.M. Munshi, Mohammad Saadulla, B.L. Mitter, and D.P. Khaitan.

At its first meeting on 30th August 1947, the Drafting Committee elected B.R Ambedkar as its Chairman.

The framing of the Constitution took over 2 years, 11 months, and 18 days.

The original copies of the Indian Constitution weren’t typed or printed. They have been handwritten and are now kept in a helium-filled case within the library of the Parliament.

Prem Bihari Narain Raizada had written the unique copies of the Structure of India.

Originally, the Constitution of India was written in English and Hindi.

The Constitution of India has borrowed some of its features from a number of countries, including Britain, Ireland, Japan, the USA, South Africa, Germany, Australia, and Canada.

The basic structure of the Indian Constitution stands on the Government of India Act of 1935.

World's lengthiest Constitution

Federal System with Unitary Features

Parliamentary Form of Government.

The constitution has a preamble and 470 articles, which are grouped into 25 parts with 12 schedules and five appendices.

As of October 2021, there have been 105 amendments of the Constitution of India since it was first enacted in 1950.

Uniform Civil Code

Context:

It was frequently in the news due to various reasons.

What is Uniform Civil Code (UCC)?

Uniform Civil Code (UCC) means that all people irrespective of the region or religion they belong to will be under one set of civil laws.

The UCC is mostly talked about in context of personal laws governing marriage, divorce, succession, etc, as different religions have different personal laws at the moment.

The UCC finds mention in Article 44 of Part IV, Constitution of India. The part contains Directive Principles of State Policy (DPSPs).

These provisions are not enforceable but are meant to serve as the guiding principles of legislatures.

“The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India,” says Article 44.

While DPSPs are not enforceable, several provisions listed under DPSPs have been made into laws in the years since the Constitution came into being.

Do you know about Uniform Civil Code in Goa?

After Independence, the State of Goa adopted the Portuguese Civil Code which enforced a UCC for all its citizens.

Under this code, a married couple holds joint ownership in all assets owned and acquired by each spouse.

Even Parents can’t disinherit their children entirely at least half of the property must be passed on to them.

Muslim persons who have registered their marriage in Goa are not allowed to practice polygamy.

What is the idea behind Uniform Civil Code?

Currently, different laws apply to different religious communities in personal affairs.

One key idea behind the UCC is to bring all communities at par with each other as provisions in some personal laws are perceived to be unequal.

For example, until the Supreme Court ruled 'triple talaq' to be unconstitutional in 2017, Muslim men could divorce their wives orally by saying 'talaq' thrice. The maintainance rights of divorved wives were also limited. This was unlike Hindu personal laws where divorce cannot be given orally and women have broader alimony rights.

Therefore, there is a gender equality and gender justice dimension to the call of Uniform Civil Code. However, the critics say that the UCC would be undue interferance in the affairs of religious minorities, such as Muslims.

The Supreme Court too has expressed the need for Uniform Civil Code, most notably in the landmark 1985 Shah Bano judgement.

Public order

Context:

Public order is one of the reasonable restrictions on fundamental rights (such as Article 25) enshrined in Part III of the Constitution. It was frequently in news due to various reasons, thus let's have a brief idea about it.

What is public order?

Public order is one of the three grounds on which the state can restrict freedom of religion. Public order’ is also one of the grounds to restrict free speech and other fundamental rights.

Article 25 of the Constitution guarantees to all persons right to freedom and conscience and the right freely to profess, practise and propagate religion subject to public order, morality and health.

Public order is normally equated with equated with public peace and safety. According to List 2 of the Seventh Schedule of the Constitution, the power to legislate on aspects of public order rests with the states.

How has public order been interpreted by courts?

What affects public order is contextual and is determined by the state. But courts have broadly interpreted it to mean something that affects the community at large and not a few individuals.

In Ram Manohar Lohia vs State of Bihar (1965), the Supreme Court held that in the case of ‘public order’, the community or the public at large have to be affected by a particular action. “The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large.

One has to imagine three concentric circles, the largest representing ‘law and order’, the next representing ‘public order’ and the smallest representing ‘security of State’.”

Fundamental Duties

Context:

Recently, a petition has been filed in the Supreme Court seeking the enforcement of Fundamental Duties under the Constitution through comprehensive and well-defined laws.

What are Fundamental Duties?

They were not part of the original Constitution.

Later in 1976, the fundamental duties of citizens were added to the Constitution. In 2002, one more Fundamental Duty was added.

According to Article 51A, it shall be the duty of every citizen of India:

to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;

to cherish and follow the noble ideals that inspired the national struggle for freedom;

to uphold and protect the sovereignty, unity and integrity of
India;

to defend the country and render national service when called upon to do so;

to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities and to renounce practices derogatory to the dignity of women;

to value and preserve the rich heritage of the country’s composite culture;

to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures;

to develop scientific temper, humanism and the spirit of inquiry and reform;

to safeguard public property and to abjure violence;

to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement; and

to provide opportunities for education to his child or ward between the age of six and fourteen years. This duty was added by the 86th Constitutional Amendment Act, 2002.

Characteristics of the Fundamental Duties:

Some of them are moral duties while others are civic duties. For instance, cherishing noble ideals of freedom struggle is a moral precept and respecting the Constitution, National Flag and National Anthem is a civic duty.

They refer to such values which have been a part of the Indian tradition, mythology, religions and practices. In other words, they essentially contain just a codification of tasks integral to the Indian way of life.

Unlike some of the Fundamental Rights which extend to all persons whether citizens or foreigners, the Fundamental Duties are confined to citizens only and do not extend to foreigners.

Like the Directive Principles, the fundamental duties are also non-justiciable. The Constitution does not provide for their direct enforcement by the courts. Moreover, there is not legal sanction against their violation. However, the Parliament is free to enforce them by suitable legislation.

Freedom of religion and attire

Context:

Recently, six students were banned from entering a college in Karnataka’s Udupi district for wearing a hijab.

The issue throws up legal questions on reading the freedom of religion and whether the right to wear a hijab is constitutionally protected.

How is religious freedom protected under the Constitution?

Article 25(1) of the Constitution guarantees the “freedom of conscience and the right freely to profess, practise and propagate religion”.

It is a right that guarantees a negative liberty — which means that the state shall ensure that there is no interference or obstacle to exercise this freedom.

However, like all fundamental rights, the state can restrict the right for grounds of public order, decency, morality, health and other state interests.

Article 25: Freedom of Conscience and Free Profession, Practice and Propagation of Religion

Article 25 says that all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion.

The implications of this are:

Freedom of conscience: Inner freedom of an individual to mould his relation with God or Creatures in whatever way he desires.

Right to Profess: Declaration of one’s religious beliefs and faith openly and freely.

Right to Practice: Performance of religious worship, rituals, ceremonies and exhibition of beliefs and ideas.

Right to Propagate: Transmission and dissemination of one’s religious beliefs to others or exposition of the tenets of one’s religion.

Article 25 covers religious beliefs (doctrines) as well as religious practices and rituals.

Moreover, these rights are available to all persons—citizens as well as non-citizens.

These rights are subject to public order, morality, health and other provisions relating to fundamental rights.

The State is permitted to regulate or restrict any economic, financial, political or other secular activity associated with religious practice.

SC and the Essential Religious Practices Test:

Over the years, the Supreme Court has evolved a practical test of sorts to determine what religious practices can be constitutionally protected and what can be ignored.

In 1954, the Supreme Court held in the Shirur Mutt case that the term “religion” will cover all rituals and practices “integral” to a religion.

The test to determine what is integral is termed the “essential religious practices” test.

In several instances, the court has applied the test to keep certain practices out.

In a 2004 ruling, the Supreme Court held that the Ananda Marga sect had no fundamental right to perform Tandava dance in public streets, since it did not constitute an essential religious practice of the sect.

How have courts ruled so far on the issue of a hijab?

In Amna Bint Basheer v Central Board of Secondary Education (2016), the Kerala HC held that the practice of wearing a hijab constitutes an essential religious practice but did not quash the CBSE rule. The court once again allowed for the “additional measures” and safeguards put in place the previous year.

In Fathima Tasneem v State of Kerala (2018) a single Bench of the Kerala HC held that collective rights of an institution would be given primacy over individual rights of the petitioner.

Right against Self Incrimination and Constitutional Remedies

Context:

The Supreme Court refused to hear a bail plea by the Deputy CM of Delhi in the excise policy case, as he had approached the court directly under Article 32 of the Constitution instead of first seeking remedy in the High Court under Section 482 of the CrPC.

SC argued that though in previous cases petitions were entertained directly under Article 32, those cases involved free speech issues while this case is about the Prevention of Corruption Act.

What is the Background?

Previously, the Special CBI Judge had granted Central Bureau of Investigation(CBI) custody of Deputy CM on the ground that he ‘failed to provide satisfactory answers.’

The court had rejected the argument that it was a violation of the right against self-incrimination.

What is an Individual’s Right against Self-incrimination?

Constitutional Provisions:

Article 20 grants protection against arbitrary and excessive punishment to an accused person, whether a citizen or foreigner or legal people like a company or a corporation. It contains three provisions in that direction:

It contains provisions related to No ex-post-facto law, No double jeopardy, and No self-incrimination.

No self-incrimination: No person accused of any offence shall be compelled to be a witness against himself.

The protection against self-incrimination extends to both oral evidence and documentary evidence.

However, it does not extend to:

compulsory production of material objects,

the compulsion to give thumb impressions, specimen signatures, blood specimens, and

compulsory exhibition of the body.

Further, it extends only to criminal proceedings and not to civil proceedings or proceedings which are not of criminal nature.

Judicial Rulings:

However, obtaining a DNA sample from the accused is permitted. If an accused refuses to give a sample, the court can draw adverse inferences against him under Section 114 of the Evidence Act.

Earlier in 2010, in Selvi v State of Karnataka, the SC held that a narcoanalysis test without the consent of the accused would amount to a violation of the right against self-incrimination.

In 2019, the SC in its ruling in Ritesh Sinha versus the State of Uttar Pradesh broadened the parameters of handwriting samples to include voice samples, adding that this would not violate the right against self-incrimination.

What is the Right to approach SC under Article 32?

In this regard, the jurisdiction of the Supreme Court is original but not exclusive. It is concurrent with the jurisdiction of the high court under Article 226.

Article 32 confers the right to approach SC for remedies for the enforcement of the fundamental rights of an aggrieved citizen. It is a basic feature of the Constitution.

Rights other than Fundamental rights are not entertained under Article 32 but are within the scope of HC under Article 226.

Since the right guaranteed by Article 32 is in itself a fundamental right, the availability of alternate remedies is no bar to relief under Article 32.

However, the Supreme Court has ruled that where relief through the high court is available under Article 226, the aggrieved party should first move the high court.

Please Share with maximum friends to support the Initiative.