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Indian Constitution and Polity:

Congress, six other parties move to impeach CJI Misra(The Hindu) 

Context

Motion submitted to Vice-President cites five cases of ‘misbehaviour’

What has happened?

The Congress, supported by six other Opposition parties in the Rajya Sabha, on Friday took the unprecedented step of moving an impeachment motion against Chief Justice of India (CJI) Dipak Misra on grounds of ‘misbehaviour’ and levelled five charges against him

For the first time in Indian history

It is the first time a sitting Chief Justice will face an impeachment notice in India’s constitutional history.

Impeachment move doesn’t fetter CJI, say experts(The Hindu) 

What has happened?

Former Chief Justices of India and eminent jurists said on Friday that there was no need for Chief Justice of India Dipak Misra to withdraw from work merely because a group of Opposition MPs had submitted a notice for his impeachment to the Rajya Sabha Chairman.

No provision in the constitution

Both the Constitution and the Judges (Inquiry) Act of 1968 are silent on whether a judge facing impeachment motion should excuse himself from judicial and administrative work till he is cleared of the charges against him

Usual work for CJI

Until the Rajya Sabha Chairman makes up his mind to admit the motion and refer it to an Inquiry Committee under the 1968 Act, things will be as usual for the CJI

Review of decision

The jurists are, however, divided on whether a decision by the Rajya Sabha Chairman to refuse the impeachment motion would be judicially reviewable

Whether a decision by the Rajya Sabha Chairman to refuse the impeachment motion would be judicially reviewable?

  • View 1:  Impeachment was a “legislative process where a decision thereon is amenable to judicial scrutiny”, and the Chairman’s decision was not protected by parliamentary privilege
  • View 2: Chairman’s decision to refuse or admit the motion would be hit by parliamentary privilege.

Can’t sit over the motion

He [Chairman] is a constitutional authority. This motion is made by over 60 MPs. The Chairman cannot refuse the motion on flimsy grounds. He cannot delay and let uncertainty continue. He has to decide within a reasonable time

The process needs to be updated

For 60 years, it has not worked wherever it was needed. It requires serious deliberation on what alternative measures can be employed to bring an end to the matter

Cabinet to discuss death penalty for rape of minors(The Hindu) 

What has happened?

Law Ministry sources say that they have approved a proposal received from the Ministry of Women and Child Development (MoWCD) to amend the Protection of Children from Sexual Offences (POCSO) Act, 2012, and a final decision on whether to bring it in the form of an Ordinance will be taken at the Cabinet meeting.

Draft Cabinet note

  • According to a senior Ministry official, the draft Cabinet note proposes an amendment to Section 6 of the POCSO Act, which lays down a punishment of 10 years to life imprisonment for aggravated penetrative sexual assault against children.
  • On Friday, the Centre also informed the Supreme Court that it is actively considering amending the penal law to introduce death penalty to those convicted of sexually abusing children up to 12 years of age.

Checks against atrocities(The Hindu Opinion)

What has happened?

The Supreme Court, in its recent judgment in Subhash Kashinath Mahajan v. State of Maharashtra , has stirred up a debate which is bound to impact the law and policy on the prohibition of the practice of untouchability and prevention of atrocities against Scheduled Castes (SCs) and Scheduled Tribes (STs) in India.

What data show

The empirical question of whether the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is really being misused by the filing of false cases (which is the basis for the judgment) needs to be addressed by looking at the available data

Act needs to be strengthened not weakened

There is plenty of evidence to support the view that the SCs/STs are victims of rising crime each year

  • NCRB data show that in the past 10 years, crimes against SCs have risen by 51% (27,070 cases in 2006 and 40,801 crimes in 2016 were reported).
  • Against STs it was by 13% (5,791 in 2006 and 6,568 cases in 2016 were reported).
  • Studies by the National Law School of India University and Action Aid India have shown that religious, social and other disabilities involving the practice of untouchability continue to be widespread in India.

Inadequate enforcement

  • Legislation on untouchability and atrocities against SCs/STs arguably constitutes a radical departure from the usual approach of the criminal justice system
  • Unlike other offences, untouchability is an offence under the Constitution — Article 17 prescribes that ‘the enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law’
  • Article 17 has not succeeded in achieving its mandate largely due to inadequate enforcement, in turn leading to low conviction rates and a huge pendency of cases

Possible solutions

  • Even if the ruling on anticipatory bail is to be welcomed as protecting the accused from needless arrest and humiliation on the one hand and as a victory for human rights on the other, whether ordinary police powers of registering a first information report and making arrests in cognisable cases should be whittled down to this extent in atrocity cases is a matter of deliberation
  • False and frivolous complaints filed under untouchability legislation could also have been dealt with by other means which include directions for prompt investigation and prosecution of such offences by the police and others under the Indian Penal Code, 1860
  • It might have been more appropriate to have left the delicate balancing act between the enforcement of penal laws and the protection of civil liberties to Parliament, the body entrusted with the task of making our laws.

Mission impossible(The Hindu Opinion)

Context

The proposal for simultaneous elections involves too many practical difficulties

What has happened?

In principle, simultaneous elections to the Lok Sabha and State Assemblies have the benefits of saving poll expenditure and helping ruling parties focus on governance instead of being constantly in election mode 

Difficult to implement

  • The flip side is that it is nearly impossible to implement, as it would mean arbitrarily curtailing or extending the term of existing legislatures to bring their election dates in line with the due date for the rest of the country
  • This would be the most difficult change to execute, as such a measure would undermine federalism as well as representative democracy 

Alternative by the Law Commission

  • Categorize States based on proximity to the next general election, and have one round of State Assembly polls with the next Lok Sabha election, and another round for the remaining States 30 months later
  • This would mean that India would have a set of elections every two and a half years

Problem: But governments have been brought down or have collapsed on their own, leading to mid-term polls in different States and even at the Centre in different years

Conclusion

Given the difficulties involved in shifting to simultaneous elections, we may have to live with the reality that some part of the country will go to polls every few months

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