Indian Polity : News


India Polity : Legislature

Annual review of state laws 2020 report by PRS

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Synopsis: PRS Legislative Research’s “Annual review of state laws 2020” shows that the productivity and efficacy of State legislatures is poor.

Background
  • Public information on the working of Lok Sabha and Rajya Sabha is readily available to Indian citizens because of the efforts of PRS Legislative Research.
  • In contrast, the public information available on the functioning of state legislatures and their productivity has been limited.
  • The good news is that PRS has now ventured into monitoring state legislatures and has recently released a report on the legislative work performed by states for the year 2020.
About Annual review of state laws report
  • The report is based on data compiled from state legislature websites and state gazettes.
  • It covers 19 state legislatures, including the Union Territory of Delhi, which together accounts for 90% of the population of the country.
  • Some of the state’s data are not available because few states do not have a systematic way of reporting legislative proceedings and business.

Important Findings of Annual review of state laws 2020

  • One, less number of working days: Pre-2020, these 19 states met for an average of 29 days a year as compared to the Parliament that met for 33 days in 2020.
  • Two, lack of detailed scrutiny over Bills: For instance, in 2020, 59% of the Bills were passed on the same day that they were introduced in the legislature. A further 14% were passed within a day of being introduced.
    • Whereas, In Parliament, Bills are often referred to Parliamentary Standing Committees for detailed examination. In most states, such committees are non-existent.
  • Three, no uniformity in policies that are related to National interest. For instance, while some states decided to reduce salaries of the members of state legislature, some states did not take any such action to maintain financial propriety.
Kuldip Nayar v. Union of India case:
  • In 2003, Section 3 of the Representation of People Act, 1951 (RP Act) was amended.
  • Section 3 of the RP Act, stipulated that for a person to be a member of the Rajya Sabha, he needs to be an “ordinary resident” in the State, from which he or she is contesting the election.
  • By amending the RP Act, the government did away with the ‘domicile’ requirement to be a member of the Rajya Sabha.
  • This amendment was challenged before the Supreme Court in the case Kuldip Nayar v. Union of India.
  • The petitioner argued that to “represent” a state, the member needs to have some domiciliary nexus with the State he is representing
  • However, the Supreme Court held that domicile requirement of a representative is not an essential attribute of federalism. Therefore, it does not violate the Basic Structure of the Constitution.

Source: Indian Express

Posted in 9 PM Daily Articles, CURRENT AFFAIRS, daily news, Daily News Updates, PUBLICTagged

Importance of Parliamentary Proceedings

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Synopsis: Parliamentary proceedings should operate virtually to ensure the voices of all sections of the country are heard. Many other countries are doing the same.

Introduction

The legislature which is the third arm of the state seems to be missing when there are as many as 306 districts now with a positivity of 20 percent or higher. The executive and the judiciary can be seen and heard in the public health emergency.

  • Recently, Congress MP and its leader in Lok Sabha Adhir Ranjan Chowdhury have written a letter to the President and the LS Speaker. They asked for a special session to discuss the response to Covid-19. This marked Parliament’s absence in the crisis.
  • Earlier, Mallikarjun Kharge had sent a letter to the Prime Minister and the RS chairman. He asked for virtual parliamentary standing committee meetings.

How has the world responded to the functioning of parliament and opposition suggestions amid a pandemic?

For instance, many other democracies across the world have found ways for their parliaments to carry on gathering amid the pandemic.

  • Firstly, some democracies used conventional ways and continued to meet physically, but with restrictions. Some switched to virtual meetings with the help of technologies that allowed remote working.
  • Secondly, the UK has adopted hybrid models. In this, a mix of members is present in the chamber and others participate by video conference. Many states have had to change laws and relax procedures, reset minimum number rules, and rearrange venues.
India’s response:
  • In India, the government showed little or no urgency for parliamentary proceedings. It has shown high resistance to suggestions and interferences by Opposition leaders.
    • For example, former Prime Minister Manmohan Singh’s suggestions were quickly disregarded by Health Minister Harsh Vardhan earlier.
Suggestions
  • Firstly, it is very important for governments to listen, learn and correct errors to find the best way forward. The response to a national health crisis needs the participation of all the people’s representatives, across states and party.
  • Secondly, the virus has brought death and distress to every constituency. To battle this, MPs must group ideas and resources, ask questions and apply the check and balance.
  • Thirdly, the House should reopen its doors virtually to ensure that the executive does not remain limited to echo chambers of its own making.
The conclusion
  • In a shared crisis, one-sided responses are terribly insufficient and even counter-productive. Parliament must return as a space for a wider discussion. The government must take the lead and make this happen.

Source: click here


WHO released “World Report on Hearing”

Posted in 9 PM Daily Articles, daily news, Daily News Updates, PUBLICTagged

Misuse of Ordinance Making Power

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Synopsis: Ordinance Making Power by the executives has increasingly been misused. A vigilant Legislature and Court can reduce this menace.

Background
  • Recently, the central government re-promulgated the Commission for Air Quality Management in National Capital Region and Adjoining Areas Ordinance, 2020
  • This raises questions over the constitutional validity of issuing ordinances and that of re-promulgating ordinances, that too without their ratification by the Parliament.
About Ordinance making power of executives
  • Article 123 and Article 213 empowers the central and state governments to make laws when Parliament or the State Legislature are not in session.
  • The Constitution states that the ordinance will lapse at the end of six weeks from the time Parliament or the State Legislature next meets.
  • Originally, it was conceived as an emergency provision and was expected to be used rarely.

Read also –Promulgation of “Tribunals Reforms Ordinance 2021

Misuse of the Ordinance making power
  • One, the number of Ordinance issued by the centre has increased from an average of 7.1 per year in the 1950s to 15 in 2020.
  • Two, States have also been using the ordinance route to enact laws. For example, in 2020, Kerala issued 81 ordinances, while Karnataka issued 24 and Maharashtra 21.
  • Three, further repromulgation of Ordinance by both centre and state is also increasing. For instance, The Indian Medical Council Amendment Ordinance by the centre and Kerala University of Digital Sciences, Innovation and Technology by Kerala are two recent examples.

What is the court’s view regarding promulgation and promulgation of the Ordinance?

  • In the D.C. Wadhwa case, the court took up the issue of promulgation of 256 ordinances, of which 69 were repromulgated in Bihar between 1967 and 1981.
  • The supreme court ruled that repromulgation of ordinances is against Constitutional morality and is an act of Colourable legislation. Because through ordinance making power the Executive encroaches into the law-making function of the Legislature.
  • Further, the court said that there was no such practice of repromulgation by the centre.
  • Later, the Centre too started to follow the lead of Bihar. For example, in 2013 and 2014, the Securities Laws Ordinance promulgated 3 times, Land Acquisition Act  twice.
  • In 2017, the matter came up again in the Supreme Court. This time, the court gave a strong verdict. It declared that Re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes.
  • However, the Centre and states are not following this judgement. It is evident in the current case of the Commission for Air Quality Management.

The principle of Separation of Powers and Checks and balances empowers the legislatures and the courts to check the encroachment of the Executive. However, by allowing for repromulgation of ordinances, the Legislature and the court are abdicating their responsibility to the Constitution.

Source: The Hindu

Posted in 9 PM Daily Articles, PUBLICTagged

Declining Role of Parliament in Ensuring Accountability of Executive

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Synopsis: Parliament needs to ensure scrutiny over the actions and bills passed by the government. Its role is declining in ensuring the accountability of the executive.

Background
  • Parliament sessions are ending prematurely due to various reasons. For example, the recent budget session of the parliament ended two weeks ahead of the original plan.
  • Partly the impact of the pandemic led to the reduction of the Budget session of 2020 and the monsoon session of the parliament.
  • However, during the pandemic, the parliament could have adopted remote working and technological solutions, similar to other countries.
  • The result was, the fiscal year 2020-21 witnessed the lowest ever parliamentary sessions. The Lok Sabha (34 days), the Rajya Sabha (33 days).
  • Unproductive parliament sessions resulted in a lack of public scrutiny over government functioning, financial expenditures, and government bills.
What are the issues associated with the functioning of the parliament?
  1. First, declining Parliament’s responsibility to scrutinize important Bills passed by the parliament. For example, During the last session, 13 Bills were introduced, and none of them was referred to the parliamentary committee for examination. The important bills introduced are
    1. The Government of National Capital Territory of Delhi (Amendment) Bill, 2021: It aims to shift the governance from the legislature and the Chief Minister to the Lieutenant Governor.
    2. The Mines and Minerals (Development and Regulation) Amendment Bill, 2021: it aims at removing end-use restrictions on mines and ease conditions for captive mines.
    3. The National Bank for Financing Infrastructure and Development (NaBFID) Bill, 2021: it aims to create a new government infrastructure finance institution and permit private ones in this sector.
    4. The Insurance (Amendment) Bill, 2021: it aims to increase the limit of foreign direct investment in insurance companies from 49% to 74%.
  2. Second, the role played by parliamentary committees was undermined. Parliamentary committees are instrumental in suggesting constructive changes to the bill to make the Code work better. For example, Insolvency and Bankruptcy Code, Motor Vehicles Act.
      • The percentage of Bills referred to committees declined from 71% in the 15th Lok Sabha to 27% in the 16th Lok Sabha and just 11% in the current one.
  3. Third, diminishing the role of Rajya Sabha by classifying ordinary bills as money bills. For example,
      • Non-financial items such as restructuring of tribunals, the introduction of electoral bonds, and amendments to the foreign contribution act introduced as part of Finance bills.
  4. Fourth, lack of debate, discussion over the demand for grants. For example,
      • In the last budget session, the Lok Sabha had only listed the budget of just five Ministries for detailed discussion and only three of these were discussed. The remaining 76% of the total budget was approved without any discussion.
      • Whereas, the Constitution requires the Lok Sabha to approve the expenditure Budget of each department and Ministry.
  5. Fifth, delay in appointments of key constitutional functionaries in Lok Sabha also impacted parliamentary functioning. For example,
      • the current Lok Sabha did not appoint a Deputy Speaker which is a constitutional mandate.
What is the way forward?

The central role of the Parliament is to scrutinize the work of the government. In order to fulfill its constitutional mandate, the parliament has to

  • Create an effective research support system to aid Members of Parliament.
  • Provide sufficient time for MPs to examine issues.
  • Parliamentary Committees should be made to examine the Bills and budgets.
  • Finally, Public feedback should be taken before finalising the bill.

Source: The Hindu

Posted in 9 PM Daily Articles, PUBLICTagged


Basics of Constitution

Centre Releases New Guidelines for “OCI Cardholders”

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What is the News?

The Central Government released new guidelines related to the Overseas Citizen of India(OCI).

What is the current Procedure for the OCI card?

  • Currently, the Overseas Citizen of India(OCI) card is required to be re-issued each time. Generally, the re-issue will occur two times.
    1. One, when issuing a new passport after 20 years of age.
    2. Other, when issuing a new passport after completing 50 years of age.
  • This is in view of capturing the biological changes in the face of the applicant.

What are the New Guidelines?

  • A person who is registered as an OCI cardholder prior to attaining the age of 20 years will get the card re-issued only once. (after completing his or her 20 years of age). This is to capture his or her facial features on attaining adulthood.
  • If a person has obtained an OCI card after attaining the age of 20 years, then there will be no requirement of re-issue of an OCI card.

Other New Guidelines: To update the data regarding new passports obtained by the OCI cardholder, it has been decided that:

  • OCI Cardholder shall upload a copy of the new passport containing along with the latest photo on the online OCI portal. He/She has to do this each time a new passport is issued up to 20 years of age and once after completing 50 years of age.
  • OCI cardholder shall upload the documents within three months of receipt of the new passport.
  • However, the spouses of the OCI cardholders will have to upload a copy of their passport along with a declaration whenever a new passport is issued. The declaration has to include that their marriage is still subsisting.

Who can apply for an OCI Card? :

  1. A foreign national who was a citizen of India at the time of, or at any time after 26th January 1950; or
  2. Foreign national eligible to become a citizen of India on 26th January 1950; or
  3. A foreigner who belonged to a territory that became part of India after 15th August 1947; or
  4. A foreign national who is a child or a grandchild or a great-grandchild of such a citizen; or
  5. A foreigner who is a minor child and whose both parents are citizens of India or one of the parents is a citizen of India
  6. Besides, a spouse of foreign origin of a citizen of India or a spouse of foreign origin of an OCI Cardholder is also eligible. But their marriage has to be registered and has a continuous period of not less than two years.

Note: If the applicant had ever been a citizen of Pakistan or Bangladesh, he/she will not be eligible to be registered as OCI.

Benefits to OCI Cardholders

  • OCI cardholders can enter India multiple times, get a multi-purpose lifelong visa to visit India. Further, they are also exempt from registering with Foreigners Regional Registration Office (FRRO).
  • If an individual is registered as an OCI for a period of five years, he/she is eligible to apply for Indian citizenship.
  • OCI cardholders can open special bank accounts in India, buy a non-farm property and exercise ownership rights. They can also apply for a Permanent Account Number (PAN) card.

Restrictions:

  • OCI cardholders do not get voting rights, cannot hold a government job. They also cannot purchase agricultural or farmland.

Source: The Hindu

Posted in Daily Factly articles, Factly: Polity and Nation, PUBLICTagged

Ways to Strengthen India’s Democracy

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 Synopsis: Increasing attacks on the press and the erosion of judicial autonomy are threatening India’s global image as an Indian’s Democracy. The government needs to take steps to strengthen India’s democratic values,

Background

  • It has been said that Democracy is on retreat worldwide. Many democracies in the 21st century continue to disregard the principles of democracies.
  • Principles such as the freedom of the press, independence of the other public institutions of the state are often violated.
    • For instance, many world leaders such as Vladimir Putin (Russia), Recep Tayyip Erdoğan (Turkey), Trump (USA) had initiated a sustained, attack on these very institutions to sustain power.
  • Recently, the western academic institutions, the Freedom House (US) and the Varieties of Democracy project (Sweden) downgraded India’s democratic ratings.
  • However, India’s External Affairs Minister S. Jaishankar dismissed these ratings as irrelevant.

Evolution of India’s Democracy :

  • The first-ever institutional check on sovereign power was provided through the Glorious Revolution in England. It led to the establishment of Parliament and England shifted from absolute monarchy to Constitutional monarchy.
  • Later, the French Revolution and the American revolution assured inalienable rights to its citizens.
  • However, in the era of colonialism, exclusion of women, as well as racial and religious minorities continued till the 1950s.
  • After the 1950s, democracy got strengthened due to the following measures.
      • Institutionalization of universal suffrage elections
      • Constitutional check on the powers of the government
      • Independent judiciary empowered with judicial review
      • Empowered press to scrutinize government actions
  • Finally, after the end of the Cold War, due to the collapse of the Soviet Union, many authoritarian countries were forced to conduct elections. This led to the establishment of liberal democracy rule in most of the world’s countries.

Why India’s democratic ratings were downgraded?

  • Both Freedom House and V-Dem multi-dimensional framework give considerable weightage to the freedom of the press and the independence of the judiciary.
  • Concerns about the undermining of these institutional checks-and-balances led both institutions to reduce India’s score on their index.
  • Weakening democracy in India can negatively impact India’s ambitions to become a full-fledged member of the Quad or the D-10. It will also undermine India’s claim to become a Permanent Member of the UN security council.

What needs to be done?

  • First, the Government should hear criticism rather than rejecting it outrightly. Suggestions on eroding democratic values need a thoughtful, and respectful response.
  • Second, the press and the judiciary which are considered the pillars of India’s Democracy, require to be independent of any executive interference.
  • Third, strong democracy requires strong opposition. Without an alternative choice, the very objective of election to provide a check on arbitrary power gets defeated.

Democratic Values and Principles are core to India’s identity. We need to safeguard India’s Democracy by strengthening its pillars- the Legislature, Executive, Judiciary, and the Media.

Source: The Hindu

Posted in 9 PM Daily Articles, PUBLICTagged ,

“Freedom in the World 2021 Report” Downgrades India’s Ranking

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What is the News? 

Freedom House releases the report titled “Freedom in the World 2021 – Democracy under Siege”. Freedom House is a US-based Human rights watchdog.

About Freedom in the World 2021 Report:

  • Freedom in the World is an annual global report that tracks political rights and civil liberties. The report has been produced since 1973.
  • Methodology: The report’s methodology is derived from the Universal Declaration of Human Rights. The UN General Assembly adopted the declaration in 1948.
  • The report assesses the individual’s real-world rights and freedoms. It doesn’t focus on governments or government performance in Human Rights.
  • Countries: The 2021 edition covers developments in 195 countries and 15 territories from January 1, 2020, through December 31, 2020.
  • Parameters: The countries are awarded scores based on:
    • Political rights indicators such as the electoral process, political pluralism and participation, and government functioning.
    • Civil liberties indicators are related to freedom of expression and belief, associational and organizational rights, the rule of law and personal autonomy, and individual rights.
  • Categories: These two score totals are then weighted equally to determine a country/territory’s status of a) Free b) Partly Free or c) Not Free. Countries are ranked from 1 to 100, 100 being the ranking for the freest country.

Key Findings Related to India:

  • India’s rank has fallen from 83 to 88 out of 195 countries and 15 territories.
  • India’s score decreased from 71 to 67.
  • India’s status has been downgraded from ‘Free’ to ‘Partly Free’.

Why has India’s status been downgraded? The report has highlighted the following reasons for the downgrade:

  • Use of the sedition law and other charges in recent years to deter free speech
  • Government’s coronavirus response including the lockdown.
  • The migrant crisis and violent and discriminatory enforcement by police and civilian vigilantes
  • Attack on Minorities
  • The decrease in Judicial Independence among others.

Other key Findings Related to India:

  • Kashmir: The Freedom House report has listed “Indian Kashmir” separately and retained its status as last year of “not free”. The score fell from 28 to 27.
  • Internet Freedom in India: India’s Internet Freedom Score has stayed at 51. However, the report has stated that Internet freedom in India has declined dramatically for a third straight year. It is due to reasons like Internet shutdowns, blocked content, misinformation spread by political leaders, online harassment among others.

Other Key Findings Globally:

  • There is a decline in global democracy over the last 15 years. Nearly 75% of the world’s population lived in a country that faced deterioration over the last year.
  • Finland, Norway, and Sweden are the most free countries in the world, with a score of 100. While the least free countries are Tibet and Syria, with a score of 1.

Source: The Hindu

Freedom In The World 2020 Report

Posted in Daily Factly articles, Factly: IR, Factly: Polity and Nation, PUBLICTagged ,

law on draping National Flag over body of a deceased

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What is the News?

Police in Uttar Pradesh has booked few persons under The Prevention of Insults to National Honour Act, 1971. They had allegedly draped the body of their relative in the national flag after his death.

Prevention of Insults to National Honour Act,1971:

  1. This act penalises the desecration of or insults to the country’s national symbols including, the National Flag, the constitution, the National Anthem, and the map of India. It also includes penalties for contempt of the Indian constitution.
  2. Section 2 of the act specifies punishment for insults to the Indian National Flag and the Constitution of India.
  3. The law specifies acts of insult to the Indian flag and constitution. Some acts of insult include burning, mutilation, defacing, disfiguring, or showing disrespect to the National Flag.
  4. It also prohibits using Indian National Flag as a drapery in any form except in State funerals or armed forces or other para-military forces funerals.
  5. It prescribes punishment of imprisonment for insults for up to 3 years or a fine or both.

About Flag Code of India, 2002

The Flag Code of India contains a set of laws, practices, and conventions for the display of the national flag of India. It also prohibits using the national flag as a drapery except in State/Military/Central Paramilitary Forces funerals.

Use of National Flag as a drapery

  1. The National Flag of the country can only be used as a drapery if a funeral has been accorded the status of a state funeral.
  2. State funerals are held if a person passed away belongs to police, armed forces, office of President, Vice-President, Prime Minister, Cabinet Minister, Chief Minister.
  3. The state government can accord the state funeral status to the person other than the mentioned categories.

Source: Indian Express

Posted in acts, bills and regulations, Daily Factly articles, Factly: Polity and Nation, PUBLICTagged


Judiciary

The Pros and Cons of e-Courts project

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Synopsis: Pandemic has shown that the e-Courts project has the ability to revolutionize the Indian Judiciary, but its application needs to be in line with the Fundamental Right to Privacy.

Why Indian courts should use digital technologies?
  • Faster justice delivery.
  • Clearing pendency which is around 3.27 crore cases before Indian courts. Of which 85,000 have been pending for over 30 years as of June 2020 as per the e-Committee.
  • Reduce long delays and difficulties for ordinary litigants.
  • Building people’s trust in the judiciary.

To fulfil the above-given objectives, the Indian judiciary has launched project e-courts, which are monitored by the e-Committee.

Salient features of the e-Courts project:
  • Phases I and II had dealt with the digitisation of the judiciary:
    • e-filing, tracking cases online
    • uploading judgments online.
  • Draft vision document for Phase III of the e-Courts project aims for:

Read more: CJI launches SUPACE Portal— AI-driven Research Portal

What are the key benefits of the e-Courts project?
  • Phase II of the project helped in the development of the National Service and Tracking of Electronic Processes which enabled the delivery of e-summons.
  • During the COVID-19 pandemic, the Supreme Court and High Courts have been able to function online.
What are the concerns associated with the e-court project?
  • Firstly, as per Criminal Justice and Police Accountability Project, the ICJS will exacerbate existing class and caste inequalities.
    • For instance, the exercise of data creation at local police stations have historically contributed to the criminalisation of entire communities through colonial-era laws such as the Criminal Tribes Act of 1871.
    • It helped in labelling such communities as “habitual offenders”.
    • ICJIS also has the potential to label citizen with such tags.
  • Secondly, large-scale gathering and sharing of data with no data protection regime present in India may cause data theft, cybersecurity issues and online harassment.
  • Thirdly, Localised data will be centralised by the Ministry of home affairs will lead to :
    • Creation of a 360-degree profile of each person by integrating all of their interactions with government agencies into a unified database.
    • This approach is used by social media platforms and technology companies for targeted advertisement, but data collection by the government may end up as “targeted surveillance”.
  • Fourthly, it is not clear that why Home Ministry needs access to court data which has absolutely no relation to criminal law.
Way forward:
  • Firstly, the e-Courts project must move towards localization of data. Also, e-Committee must prevent the seamless exchange of data between the branches of the state that should remain separate.
  • Secondly, collected data need to be stored in an anonymous and aggregated manner.
  • Thirdly, the Supreme Court need to ensure that the e-courts project does not violate the privacy standards that it set in Puttaswamy v. Union of India (2017).
  • Fourthly, active participation of citizen should be there as when data of the courts and police stations are integrated, the link is individual citizen.

Digital Technology can play a huge role in the faster delivery of justice. However, the privacy and fundamental rights of citizens need to be protected as the technology is only a means, not an end in itself.

Source: The Hindu

Posted in 9 PM Daily Articles, daily news, Daily News Updates, PUBLICTagged

SC releases draft model rules for live-streaming and Recording of court proceedings

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What is the news?

The Supreme Court e-Committee headed by Justice D.Y. Chandrachud has released the “Draft Model Rules for Live-Streaming and Recording of Court Proceedings”.

Note: Right to access live court proceedings is a part of the right of access to justice guaranteed under Article 21 of the Constitution.

Read Also :-What is Monetary Policy Committee

Draft Rules for Live-Streaming and Recording of Court Proceedings:
  • Prepared by: The Model Rules were framed by a sub-committee consisting of judges of the Bombay, Delhi, Madras and Karnataka High Courts.
  • Part of: The rules are part of the National Policy and Action Plan for implementation of Information and Communication Technology (ICT) in the judiciary.
  • Coverage: The rules would cover live-streaming and recording of proceedings in High Courts, lower courts and tribunals.
  • Significance: The draft rules are a step towards implementing Swapnil Tripathi and Indira Jaising 2018 judgement of the Supreme Court.
    • In this judgement, SC held that telecast of important cases to an audience outside the courtroom would usher in greater transparency and aid accountability.
Key Features of the Draft Rules:
  • Prior information of live-stream: The Court has to duly inform the parties before the commencement of proceedings that the proceedings are being live-streamed. If any objections are there, they should be mentioned before the concerned bench. However, the final decision lies with the bench.
  • Delay of 10 minutes: There shall be a delay of 10 minutes in live-streaming, which may be changed as per directions of the Court.
  • No reveal of personal information: Personal information such as date of birth, home address, identity card number, bank account information and the personal information of related parties will be deleted or muted.
  • The judge can pause or stop the live stream: A remote-control device shall be provided to the presiding judge on the bench to pause or stop the live streaming at any time.
  • Unauthorized usage of Livestream will be punishable: The unauthorized usage of the live stream will be punishable as an offence under the Indian Copyright Act, Information Technology Act and other provisions of law, including the law of contempt.

Exemption of Cases: The following cases will be excluded from live-streaming:

  • Matrimonial matters and cases concerning sexual offences and gender-based violence against women.
  • Matters registered under the Protection of Children from Sexual Offences Act, 2012 (POCSO) and Juvenile Justice Act,2015.
  • Cases that may provoke enmity amongst communities, likely to result in a breach of law and order.
  • Recording of evidence, including cross-examination.
  • Any other matter in which a specific direction is issued by the Bench or the Chief Justice.

Source: The Hindu

Posted in Daily Factly articles, Factly: Polity and Nation, PUBLICTagged

Judicial Governance during Pandemic – Explained, Pointwise

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Introduction

The judiciary is referred to as the custodian of the constitution and protector of fundamental rights. It is the supreme authority responsible to punish the violators of fundamental rights and civil liberties. In this regard, it also has the power to review the decisions of the executive as mandated by Article 13. Further, under Article 142, it can pass any order for doing complete justice.

Both of these have been the source of power for Judicial Activism. It is a philosophy that motivates judges to go beyond the traditional precedents in favor of progressive and new social policies.

This activism has been widely used during the 2nd wave of the pandemic. It was mainly to direct the government towards a more citizen-centric path. However, some experts are calling it an act of judicial governance. In this article, we will describe the pros and cons of judicial governance. Further, some suggestions would be provided to direct the future course of action.

Understanding Judicial Activism and Judicial Governance:
  • Judicial Activism is a “judicial philosophy which motivates judges to depart from the traditional precedents in favor of progressive and new social policies”.
  • It empowers judges to use their powers to correct injustices. It happens especially when the other branches of government do not act to do so.
  • Judicial Governance is when the judiciary assumes the role and functions of the executive and manages governance. Unrestrained activism on the part of the judiciary often leads to judicial governance. 
Judicial Conduct during the pandemic times
  • The Supreme Court’s verdict in the Election Commission of India case is an example of judicial statesmanship. The SC  beautifully dissolved the conflict between EC and the HC, avoiding a positive pronouncement either way. 
  • It has recorded an appreciation of the performance of the EC and nullified the effect of oral observations. As per SC, the observations during the course of the hearing do not constitute a judgment or binding decision.
    • The Madras High court had accused EC of spreading the second wave of pandemic. It further opinionated that its officers should be booked for murder charges.
    • The EC then approached the Supreme Court against such allegations claiming it as an act to undermine its credibility.
  • However, as per some experts, many orders have been passed by courts that extend beyond the boundary of activism and can be called Judicial governance.
    • The Allahabad High Court ordered to fix a “minimum” ex gratia of Rs1 crore for every official who succumbed to the pandemic because of panchayat election duty. Although, the state government had fixed an amount of 30 lakhs.
    • The Kerala High Court ordered a ceiling on charges in private hospitals for Covid-19 treatment. 
    • The Delhi High Court has been almost micromanaging pandemic management, fixing oxygen quota and distribution. It even issued a contempt notice to the Centre on the oxygen issue, which the Supreme Court dismissed. 
    • The Uttarakhand High Court pulled up the state government for allowing the Kumbh Mela to go ahead against scientific advice, and then, for not following standard operating procedures.
Provisions/ Tools allowing the judiciary to do Activism
  • Article 13 of the Indian Constitution read with Article 32 and 226 allows the higher judiciary to review and declare void any law which is inconsistent with the fundamental rights.
  • Article 142 provides that the Supreme Court in the exercise of its jurisdiction may pass such a decree or order as is necessary for doing complete justice.
  • The introduction of PIL (Public interest litigation) has broadened the scope of the judiciary for doing activism.
  • Similarly, there are international statutes like the Universal Declaration of Human Rights that are used by courts for doing judicial activism.
Factors demanding judicial governance
  • Using judge’s wisdom when the law fails: Many sensitive issues need a different perspective and care which laws don’t allow. Judicial activism allows a judge to use his personal judgment in situations where the law fails. This was seen in the triple talaq case.
  • Filling the legal vacuum: It gives judges a personal voice to fight unjust issues which though important but evade the eye of the legislature. For example, SC formulated Vishakha Guidelines for countering harassment against women at the workplace.
  • Check on Legislative and executive: It provides a system of checks and balances to the other government branches. For example, SC laid conditions for the imposition of Governor Rule in states in S.R. Bommai Case. This was aimed to bring objectivity in the application of the rule.
  • Social Engineering: Judicial governance allows judges to adjudicate in favor of progressive and new social policies helping in social engineering. 
    • For instance, in Indian Council for Enviro-Legal Action Case 1999, the SC adopted the polluter pays principle for environment conservation. 
    • It meant that financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause the pollution.

However, activism must be done cautiously or else it may get converted into judicial governance.

Why Judicial Governance is not good?
  • Against Separation of Power (SOP): Judicial governance destroys the spirit of ‘separation of powers’ between Legislative, Executive, and Judiciary as enshrined in the constitution.
    • SOP is a model that divides the government into separate branches, each of which has separate and independent powers.
  • Expertise in a particular field: The courts don’t have expertise in the field of administration, unlike the administrative authorities. Hence, unnecessary intervention should be avoided.
    • For instance, in one of the orders, a high court insisted on controlled re-opening of the city. And this was without even telling what constitutes ‘controlled re-opening.
  • Impracticable Solutions: The courts lack the machinery to deal with highly sensitive and technical issues. Due to this, they end up giving impracticable solutions. 
    • For instance, the Allahabad High Court’s order to the UP government to consider a state lockdown was returned with the answer that yes, it was considered, but it was not needed.  
  • Disincentivization: Severely critical observations over administrative actions act as disincentive to honest and dutiful officials. They have been working day and night to fight the unpredictable pandemic whose characteristics are not yet fully known to science.
  • Undemocratic Nature: Judicial governance appears as an act of ‘tyranny of unelected’ in a democracy. The executive remains “accountable” to the people through a 5-year election process, but judges exercise self-regulation and are accountable only to themselves.
  • Wastage of court’s time: It is a wastage of the court’s time, which can otherwise be used for adjudicating other important matters relating to public importance pending before the court.
    • For instance in National Anthem Case 2016, the SC mandated all cinema halls to play the National Anthem before a film starts in movie halls. However, this decision was reversed later on, and it consumed a significant portion of judicial time.  
Suggestions
  • First, the adjudication must be done within the system of historically validated restraints and conscious minimization of the judge’s preferences.
  • Second, the decision of the administrators should not be interfered with unless it is clearly violative of some statute or is shockingly arbitrary. In times of Pandemic, the response and strategy of the nation should be driven by expert medical and scientific opinion; not by judicial interference. 
  • Third, the judiciary must resort to self-imposed discipline and self-restraint in order to prevent judicial governance.
  • Fourth, the courts have to be cautious that they do not knowingly or unknowingly become a source of obstruction in the performance of states’ obligations.  
Conclusion

Judiciary should prevent interference in the domain and work of the executive as mandated by the concept of separation of powers. Judicial activism would be counterproductive and would fail in achieving its laudable purpose if it assumes the role of judicial governance. It is one thing to direct the executive to perform. However, it is another thing to say “if you do not do it, we will do it ourselves”.

Posted in 7 PM, PUBLICTagged ,

A Case of Declining Judicial Federalism in India

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Synopsis: SC transferred all oxygen supply-related cases in various High Courts. It did so, in the name of prioritising uniformity across nations in the distribution of essential services. This step of SC is against Judicial Federalism in India.

Background
  • In Parmanand Katara v. Union of India (1989), the Supreme Court said that ‘the right to emergency medical treatment is part of the citizen’s fundamental rights.
  • The lack of oxygen supply during the Covid-19 crisis prompted many hospitals to file pleas in their respective High court lately. They wanted to defend their right to emergency medical treatment.
  • Accordingly, the High Courts of Delhi, Gujarat, Madras, and Bombay issued a series of directions to the executive. For instance,
      • Bombay High Court, directed immediate restoration of oxygen supply that had been reduced from the Bhilai steel plant in Chhattisgarh.
      • The Delhi High Court directed the Central government to ensure adequate measures for the supply of oxygen.
  • Later, the Supreme court (SC) took suo motu cognisance of the issue and hinted the possibility of shifting the cases related to oxygen supply to supreme court from high courts.
  • The SC said that the distribution of essential services needs uniformity across the nation. Further, it asked the Central government to prepare a national plan for the same.
  • However, several senior lawyers have criticized the intervention by the Supreme Court while High Courts were already hearing the issues.
  • This move by the SC is against judicial federalism in India.
Why the decision of SC is seen as an attack against Judicial federalism in India?
  1. First, Article 139A of the Constitution empowers the SC to transfer cases from the High Courts to itself if cases involve the same questions of law.
    • However, the SC’s contemporary conduct of being indifferent towards executive actions in significant cases has cast doubt over Judiciary. For instance,
    • The SC did not use article 139A to hear cases related to the Internet ban in Kashmir or activists and journalists who were arrested and detained.
  2. Second, many lawyers viewed this as an act of “arrogance of power” and contempt for and disregard of the High Courts in the country.
  3. Third, declining of trust over SC to provide deliberative justice. SC sits in two or more benches to deliberate and dissent upon significant issues. However, In recent years, there is a lack of dissent in issues that have serious political implications.
  4. Fourth, public health and hospitals come under the State List. And the respective High Courts have been dealing with specific challenges at the regional level. It did not warrant any interference from the SC.
  5. Fifth, In L. Chandra Kumar v. Union of India (1997), the SC itself has said that the High Courts have significant advantage in winning the confidence of the people. Further, the power of the High Court under Article 226 to issue writs is wider than the Supreme Court’s under Article 32.
Way forward
  • Need to learn from the good practices of the American Judicial System. The U.S. Supreme Court reviews only a few cases from state courts. It ensures autonomy in the application of federal law for the State courts.
  • Further, the need for a uniform judicial order across India is needed only in cases of conflict of laws or judgments on legal interpretation. Otherwise, autonomy, not uniformity, and decentralisation not centrism should be the rule.

 

Source: The Hindu

 

Posted in 9 PM Daily Articles, daily news, PUBLICTagged ,


Rights, duties and Principles

Right to be Forgotten – Explained, Pointwise

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Introduction

The Delhi High Court ordered the removal of easy access from one of its own judgments. The move respected the petitioner’s right to be forgotten (RTBF) and aimed to prevent post-acquittal stigmatization. RTBF is a right to remove private information about a person from Internet searches and other directories under some circumstances.

It is not explicitly available to the Indian masses. However, it has been implicitly recognised by courts as part of the right to privacy under Article 21 of the Indian Constitution. However, some experts have expressed concerns about it. Because RTBF deters the right to information and media freedom under Article 19(1)(a) of the constitution. Therefore, cautious balancing is desired, to enable its implementation in a restricted sense. 

Why in the News?
  • The Delhi High Court in Jorawar Singh Mundy v Union of India (2021) made an interim order protecting the rights of an American citizen.
    • The petitioner desired the removal of a judgment of acquittal in a case filed under the Narcotic Drugs and Psychotropic Substances Act (1985).
    • As per the petition, the continued existence of judgment on the websites/portals of Google and Indiankanoon had caused irreparable damage to his social life as well as his career prospects.
  • An interim order was issued by the High Court of Delhi. It directed Google and IndianKanoon to remove access to a judgment from their portals.
  • The court recognised that the petitioner has a right to be forgotten, which must be balanced with the right of the public to access the court’s records.
  • This is the first instance of a court ordering the removal of access to its complete final judgment from certain spaces.
About Right to be forgotten
  • It is a right to remove private information about a person from Internet searches and other directories under some circumstances.
  • It empowers individuals to ask organisations to delete their personal data.
  • Likewise, it allows the individuals to determine the development of their life in an autonomous way without being perpetually stigmatized for a specific action performed in the past.
The scenario of Right to be forgotten in India
  • The RTBF is not an explicit right granted to Indian citizens. Although courts in various judgments have emphasized the importance of this right.
    • In K.S Puttaswamy versus Union of India (2017), the court deduced that the right to privacy also encompasses an individual’s right to control his existence on the internet.
  • The recommendations by the B.N Srikrishna committee also emphasized this right. Thus, it was incorporated under the Draft Personal Data Protection Bill, 2019.
    • Section 20 of the bill states that every person has the right to restrict or prevent continuing disclosure of personal data by any data fiduciary. Provided such disclosure meets any one of the following conditions:
      • The disclosure served the purpose for which it was made or is no longer necessary
      • Further, the disclosure was made with the prior consent of the individual, and such consent has since been withdrawn.
      • Lastly, the disclosure was made contrary to the provisions of the new bill or any other law in force.
International Scenario of Right to be forgotten
  • The right took shape largely from the 1995 Directive of the European Union on the protection of individuals with regard to the processing of personal data.
  • It is currently being provided by the EU’s General Data Protection Regulation (GDPR), a law passed by the 28-member bloc in 2018.
  • According to the EU GDPR’s website, the right to be forgotten appears in Article 17 of the regulation.
    • It states that the data subject shall have the right to obtain the erasure of personal data concerning him or her, without undue delay, from the controller. Further, the controller shall have the obligation to erase personal data without undue delay.
  • In 2019, the European Court of Justice ruled that the ‘right to be forgotten’ under European law would not apply beyond the borders of EU member states. 
    • This was in favour of Google, which was contesting a French regulatory authority’s order to have web addresses removed from its global database.
  • Currently, the EU, UK, and Australia are strongly moving towards the consolidation of the Right to be forgotten.
Arguments in Favour of the right to be forgotten
  • First, it will uphold an individual’s privacy under Article 21 of the Indian Constitution. This would enable him/her to fully enjoy the right to life and personal liberty.
  • Second, it would prevent post-acquittal social stigmatization by society. The right may save an individual from additional punishments like social boycott, difficulty in getting jobs, doing marriage, etc.
    • The Delhi HC revoked access to its judgment in Jorawar Singh Mundy v Union of India (2021) based on this premise.
  • Third, it would help in maintaining a veil of secrecy on the victim’s identity, especially in highly sensitive cases involving rape or affecting the modesty of the woman. This was observed by the Karnataka High court in Sri Vasunathan v The Registrar General (2017).
  • Fourth, many articles are written based on half-truths and mere accusations. The media doesn’t update its prior articles based on future verdicts.
  • Fifth, much information is published without an individual’s consent which may cause severe harm to its reputation and mental peace. 
    • For instance, uploading fake or revenge posts with respect to a person. 
    • Jasleen Kaur (a former Delhi University student) had in 2015 accused Saravjeet Singh of verbally harassing her at a traffic signal in West Delhi. 
    • This induced media persons to label him an “eve teaser” and a “pervert” however he was later acquitted.
Arguments against the right to be forgotten
  • First, it gets in conflict with the right to information, which is part of freedom of speech under Article 19(1)(a) of the Indian constitution.
    • For instance, a rape victim has a right that her past is forgotten. While a criminal cannot claim that he has the right to insist that his conviction should not be referred to by the media.
  • Second, under the proposed data protection bill, removal depends on the discretion of the adjudicating officer. This may lead to partisan or arbitrary removal in favour of the government.
  • Third, it may impair the right of media personnel to do independent reporting. The adjudicatory officer may remove articles of media groups that generally criticize government policies.
    • Thus, the freedom to criticize the public personalities for their public policies based on their past statements and activities will be in jeopardy.  
  • Fourth, the removal of complete judgments may restrict public scrutiny of judicial performance to ascertain the fairness and objectivity of the administration of justice. Further judgments are an important source of learning for law students.
  • Fifth, the removal sometimes creates a Streisand effect. It is a social phenomenon that occurs when an attempt to hide, remove or censor information has the unintended consequence of further publicizing that information.
Suggestions
  • Privacy needs to be added as a ground for reasonable restriction under Article 19 (2) through a constitutional amendment for the effective implementation of RTBP.
  • The impending Data Protection Bill should be passed expeditiously. This would give individuals a legal right to erase their unnecessary and inappropriate personal data.
  • The courts should resort to narrow tailoring of the judgment rather than forbidding access to its complete judgment.
    • For instance, in the current Jorawar Singh Mundy v Union of India (2021), the court could have ordered that the name and personal details of the petitioner be censored while maintaining public access to the judgment itself.
Conclusion

The right to be forgotten is well established across the world, although Indian courts have not had much occasion to deal with the same. However, this situation may change in the future as more petitions are likely to be filed on account of the evolving international jurisprudence and impending enactment of the Indian Personal Data Protection Bill.

Posted in 7 PM, PUBLICTagged ,

Delhi High Court’s order upholds ‘Right to be Forgotten’

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Synopsis:

Recently, in response to a petition, the Delhi High Court ordered the removal of easy access from one of its own judgments. Delhi HC upheld the petitioner’s right to be forgotten to prevent post-acquittal disgrace faced by him. However, some experts have criticized the order, stating that minor modifications would have yielded better results than complete revocation.

Background:
  • The Delhi HC gave temporary relief to a petitioner. He sought the removal of the judgment from leading database platforms and search engines after his acquittal.
    • The court asked search engines to remove this order from search results. It ordered the database platform to block the judgment from being accessed by search engines.
  • It recognized that the petitioner may have a right to be forgotten, which must be balanced with the right of the public to access courts of record.
  • This is the first instance of a court ordering the removal of access to its complete final judgment from certain spaces.
About Right to be forgotten:
  • It is a right to remove private information about a person from public access.
  • It allows an individual to determine the development of their life in an autonomous way and prevents perpetual stigmatization for past conduct.
  • In 2017, the Supreme Court held it to be a part of the Right to privacy. The court deduced that a lot of personal information may serve no “legitimate interest”, was unnecessary or irrelevant and hence can be taken down.
Issues associated with Right to Forgotten:
  • First, there are no concrete provisions or guidelines to determine the ambit of ‘Right to be forgotten’. It is dependent on the discretion of individual courts and the status of individuals. For instance, a public figure may find greater difficulties in exercising this right.
  • Second, there is no clarity on information uploaded by 3rd parties like a journalist or news agency. There is a broad consensus that one should be empowered to remove the information upheld by him/her over the internet.
    • However, removing 3rd party information may muzzle fair criticism of government policies and the media’s right to report.
    • U.S Supreme court in New York Times Co. v. Sullivan (1964), ruled that public interest reporting may continue without fear as long as it did not intentionally or recklessly make outright false statements.
  • Third, the removal of complete judgments may not allow public scrutiny of judicial performance to ascertain the fairness and objectivity of the administration of justice.
  • Fourth, the removal sometimes creates a Streisand effect. It is a social phenomenon that occurs when an attempt to hide, remove or censor information has the unintended consequence of further publicizing that information.

Way Forward:

  • As per some experts, narrow tailoring of the judgment would have been more beneficial than forbidding access to its complete judgment.
  • The court could have ordered that the name and personal details of the petitioner be censored while maintaining public access to the judgment itself. 

Thus, the right to be forgotten must be studied along with the concepts of fair criticism and accountability.

Source: Click Here 

Read Also :-Misuse of Sedition law in India

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CBSE can’t refuse to change names after declaring results: Supreme Court

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What is the News?

The Supreme Court has directed the Central Board of Secondary Education (CBSE) to allow changes in name or date of birth in school certificates issued by it even after the publication of results.

What is the issue?
  • A petition was filed in the Supreme Court challenging the CBSE’s Examination Bye-Laws of 2007. The law prohibited students from changing or correcting their names on Board certificates.
What did the Supreme Court say?
    • The Supreme Court said that the Right to Change Name is part of the Right to Freedom of Speech and Expression subject to reasonable restrictions.
    • Hence, the court directed the CBSE to allow students to change their name on the Board certificates issued by them.
    • The CBSC argued that it is denying students to change their name on certificates as it would affect their administrative efficiency. But, the court said that these certificates are used by students to go for higher studies and gain employment. So the presumption of CBSE on administrative efficiency is wrong.
    • The Supreme court also held that the decision of CBSE is in violation of the Right to be forgotten. As the CBSE decision of refusing to change the name forces the student to live with the scars of the past.
What is the Right to be forgotten?

The right to be forgotten (RTBF) is the right to have private information about a person be removed from Internet searches and other directories under some circumstances. For example,

  • If there is a juvenile accused of being in conflict with the law or is a sexual abuse victim. But his identity is leaked due to lapses by the media or the investigative body.
  • The juvenile may consider changing the name to seek rehabilitation in the society in the exercise of his right to be forgotten.

Source: The Hindu

Posted in Daily Factly articles, daily news, Daily News Updates, Factly: Polity and Nation, PUBLICTagged , ,

Maratha Reservation Case Judgment and Federalism

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Synopsis:  Recently Supreme Court declared the reservation to the Maratha community in education and public employment as unconstitutional. This judgment is against federalism.

What were the reasons given by the Supreme Courts’ five-judge Bench?
  • One, the Maratha community did not constitute a socially and educationally backward class.
  • Two, the law is against Indra Sawhney judgment. In Indra Sawhney case the court has disallowed reservations made in excess of 50% of the total available positions.
  • Third, the State governments had no independent power to declare a group as a backward class.
What are the issues in the interpretation provided by the Supreme Courts’ five-judge Bench?

The reasoning that it violates Indra Sawhney judgment and State governments had no independent power to declare a group as a backward class is against the values of equality and federalism.

  • First, the cap of 50% on the reservation of  Indra Sawhney judgment does not come from the constitution. Articles 16(4) and 15(4) confer power on the government to make reservations, contains no such limitation.
    • Also, in State of Kerala vs N.M. Thomas (1975), the seven-judge bench held that reservation was inherent in the Constitution’s basic guarantee of equal treatment. This statement by the state high court contradicts the principle of capping reservation at 50%.
  • Second, the court’s interpretation that states do not have the power to declare groups as backward classes is misleading.
    • The 102nd Constitutional Amendment Act forms the basis of court’s ruling.
    • After the 102nd Constitutional Amendment Act granted constitutional status to the National Commission for Backward Classes, Article 342A, Article 366(26C) were introduced.
      • Article 342A stipulates that President may, notify groups of persons within a State deemed to be socially and educationally backward, after consultation with the state.
      • Further, Article 342A states that Central lists could be altered only by the Parliament.
      • Article 366(26C) defines  “socially and educationally backward classes” as such backward classes identified under Article 342A.
    • Based on the provision of Article 342A, a majority on the Bench had made  erroneous interpretation that, the Centre is empowered to identify socially and educationally backward classes similar to the preparation of the lists of Scheduled Castes and Scheduled Tribes and not the states.
    • However, the five-bench ruling of the supreme court has overlooked two essential factors,
      • One, the term “Central List” in Article 342A refers to the categorisation of groups as backward for the purposes of reservation of posts and seats under the Union government’s control only. It does not affect states power to categorise backward classes for promoting reservations in State’s domain.
      • Two, the Union Minister of Social Justice and Empowerment had earlier clarified that Article 342 doesn’t take away the state’s right to include or remove classes from the List.
Way forward
  • The court’s decision in denying the right to recognize backward classes by states directly impede their ability to secure just social order.
  • Hence, the Parliament should amend the Constitution and grants to States an express power to determine backwardness.

Source: The Hindu

Important Judgments

Posted in 9 PM Daily Articles, daily news, Daily News Updates, PUBLICTagged


Various Bodies

Need of Constituting National Tribunal Commission in India

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Synopsis- The formation of the National Tribunal commission could transform the present tribunal system in India.

Introduction-
  • Recently, the Centre government has issued the Tribunals Reforms (Rationalization and Conditions of Service) Ordinance 2021.
  • The ordinance aims to abolished certain existing appellate tribunals and transferred their functions to other existing judicial bodies.
  • The ordinance also shortened the period for members of the tribunals to 4 years.
  • However, the ordinance has been widely criticized and is being challenged in the Supreme Court.
Reason for Criticism of the ordinance-
  1. First, the ordinance bypasses the usual legislative process.
  2. Second, the Center abolished tribunals such as the Film Certification Appellate Tribunal and the Intellectual Property Appellate Board, without any stakeholder consultation. 
  3. Third, No Judicial Impact Assessment (JIA) was conducted, before abolishing tribunals. Whereas, in Rojer Mathew v. South Indian Bank (2019) SC directed the government for JIA before any such step.
  4. Fourth, the ordinance has fixed a four-year tenure for Chairpersons and members of the tribunal. It is against the SC direction of fixing the 5- year term.
  5. Last, No National Tribunals Commission (NTC) was constituted for supervising tribunals. This idea was proposed in the L. Chandra Kumar v. Union of India (1997).
Need of National Tribunals Commission 
  • Executive interference– executive interference in the functioning of tribunals is common, especially in the appointment and removal of tribunal members, provision of finances, infrastructure, etc. Thus, the formation of NTC can remove this possibility.
  • Lack of independent supervisory body [such as NTC] to support the uniform functioning of the tribunals.
  • Inadequate infrastructure, lack of judicial independence, and sluggish conflict settlement.

All of these issues necessitated the establishment of the National tribunal Commission. It will be an independent umbrella body to supervise the functioning of tribunals, including the recruitment of members and disciplinary processes against them as well as the administrative and infrastructural needs of the tribunals.

Benefits of National Tribunals Commission (NTC)
  • It will provide administrative support across all tribunals.
  • It could separate the administrative and judicial functions carried out by various tribunals.
  • Further, it would set performance standards for the efficiency of tribunals and their own administrative processes.
  • Also, it will function as an independent recruitment body to develop and operationalize the procedure for disciplinary proceedings and tribunal member appointments.
  • Lastly, Speedy resolution of disputes.
Way forward-
  • NTC may ensure the functional, operational, and financial independence of tribunals.
  • Till the time NTC does not come into existence, the FM should come up with a transition plan.

Source- The Hindu

Posted in 9 PM Daily Articles, daily news, Daily News Updates, PUBLICTagged

The Case of EC’s Demand for Restriction on Media

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Synopsis: The Election Commission had asked the court to not let the media cover its verbal hearing. It should withdraw its request to recover some of its moral high ground.

Introduction 

The Election Commission of India is a constitutional body that draws its mandate to conduct free and fair elections from Article 324. It has built a desirable reputation for impartiality and public trust. However, the EC has appeared too weak to political pressures amid a pandemic.

  • The election commission approached the Supreme Court against the sharply critical observations by the Madras High Court about its management of elections. 
  • The HC said that possibly EC should face murder charges. EC complained in the apex court by stating that these comments are blatantly critical and derogatory. It further suggested that a line should be drawn so that such remarks are not reported by the media. 
    • The complaint shows disregard for an open and democratic public sphere.
  • The Supreme Court in its response rightly said that it is essential for constitutional bodies to take criticism from other constitutional bodies in the right spirit.
    •  The people have a right to be informed. The media has a duty to cover the unfolding of debate in the court of law not just its final verdict.
Where did the election commission go wrong?

The EC should take a moment to pause and do an honest introspection. It has invited serious questions from the start of the poll exercise.

  • Firstly, the eight-phase schedule for the West Bengal polls was overstretched especially during a pandemic. The EC ignored requests by opposition parties to shorten the election duration by clubbing together the last few phases.
  • Moreover, the segregation of phases and geographies seemed to favor a specific political party. 
  • Secondly, the EC made only casual attempts to make sure that COVID protocols were followed by candidates and parties. The COVID curve rose up in West Bengal and the rest of India. 
    • India crossed daily cases of 1 lakh on April 4. The daily cases to over 3 lakhs by registering 3,32,730 on April 22. 
  • Thirdly, the EC only banned roadshows and public meetings of over 500 after the Prime Minister’s announcement of the cancellation of his election meetings scheduled for the next day. 
What should the election commission do?
  • The EC had gained the trust of people over the years. It should focus on maintaining it. This will require constant awareness and work. The EC must know that the impression is growing of late that it has let itself go. 
    • The EC needs to act to regain and restore its hard-earned credibility. It should begin by withdrawing its self-indulgent and ill-conceived petition from the Supreme Court.
  • In a time when a stout executive does not hesitate to weaponize its mandate, the independence of monitorial institutions is especially precious and needed. 

Source: click here

Posted in 9 PM Daily Articles, CURRENT AFFAIRS, daily news, Daily News Updates, PUBLICTagged ,

Reducing Independence of the Election Commission of India – Explained, Pointwise

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Introduction

The Election Commission (EC’s) independence and credibility has come into question in the recent phase of state elections in Assam, West Bengal, Tamil Nadu, Puducherry, and Kerala. The Madras High Court blamed the EC. It was for proliferating the second wave of Covid-19 during the electoral process by not acting in a credible manner. After this, EC approached the Supreme Court in order to confront such allegations.

Although SC has denied any immediate relief to EC, the Matter is still under consideration. Now the question comes that why the constitutional body like the Election Commission, with a prestigious past record of impartiality, is facing such allegations. A thorough analysis of all these aspects along with remedial suggestions would be provided in this article.

About Election Commission
  • It is a permanent and independent body established by the Constitution of India to ensure free and fair elections in the country.
  • Article 324 of the Constitution provides that the power of superintendence, direction, and control of elections shall be vested in the election commission. 
  • This includes elections to parliament, state legislatures, the office of president of India, and the office of vice-president of India.
  • It grants election symbols and also recognizes political parties.
  • It issues a model code of conduct and keeps an eye on the election expenditure of candidates.
What was the case?
  • The Madras High court accused EC of spreading the 2nd wave of pandemic and stated that its officers should be booked for murder charges. Similarly, the Media also reported the institution negatively and held it responsible for the second wave.
  • The EC then approached the Supreme Court against such allegations claiming it as an act to undermine its credibility.
  • The supreme court will deliver the final verdict in due time, although it has issued some advisories – 
    • It is important for constitutional bodies to take criticism from other constitutional bodies in the “right spirit”.
    • The media has a duty to report “the unfolding of debate in the court of law” and not merely the final verdict. Both aspects constitute are important for people’s right to know.
What are the criticisms facing EC at present?
  • Criticism in Current Elections:
    • Election Commission planned a very long 8 phase election schedule in West Bengal amidst a pandemic. Further, even after the demand of merging the last few rounds of the election, EC showed no interest in the proposal.
    • Demarcation of phases and geographies appeared to favor the central Government.
    • Half-hearted attempts to ensure that Covid-19 protocols were followed by candidates and parties.
  • Other Criticisms:
    • There have been allegations of EVMs malfunctioning and not registering votes.
    • It has also not been able to contain money power and muscle power. Today those who come to parliament and legislatures are mostly moneyed candidates.
Reasons behind reducing independence:
  • Selection Procedure: The Chief election commissioner and other ECs are appointed by the President on recommendations of the central government. This raises a question of partisan behavior of officials towards the ruling party.
  • Security of Tenure: EC is a three-member body with a chief election commissioner and two election commissioners. CEC enjoys a secure tenure like an SC judge. However, the other two ECs can be easily removed by the President on the recommendation of CEC.
  • Post Retirement Jobs: The Constitution has not debarred the retiring election commissioners from any further appointment by the government. The government uses this loophole for compromising the independence of members.  
  • Lack of powers hindering independent functioning: It has no power to derecognize a political party or control the extent of party expenditure. Further, the model code of conduct is not legally enforceable.  
  • Inadequate Political Will: In the last 70 years numerous political leaders and parties became part of the government. However, very few were willing and able to bestow sufficient powers to EC for ensuring independent functioning.
  • Misuse of State Machinery: In recent times, there has been a rising trend of targeting family members of election commissioners using state institutions like the Enforcement Directorate, Vigilance commission, etc. This creates additional pressure on them thereby compromising independent behavior.    
Importance of ensuring independence:
  • Free and Fair Elections: A democracy can survive only when free and fair elections are conducted in it on a regular basis. This requires an independent EC which can curtail the use of money and muscle power and ensure adherence to electoral rules by all the stakeholders.
  • Non-Partisan Behavior: The body can resist political pressures especially from the ruling party only when it enjoys a considerable degree of independence.
  • Maintaining people’s Trust: The trust of the masses over the electoral process is contingent upon the degree of independence enjoyed by the EC. 
    • For instance, people’s trust over EVMs got reduced with increasing instances of partisan behavior by the EC towards the ruling party.
  • Acceptability of Verdict: The losing parties accept the electoral verdict as they believe in the impartial and independent functioning of EC. A failure to ensure the same can create distrust among the parties and in extreme situations can give way to a coup.
    • For instance, the alleged election fraud in Myanmar elections gave the military an opportunity for a coup in February 2021. 
Steps taken to improve credibility and independence of Election Commission:
  • Election Commissioner R.V.S. Peri Sastri (1986-1990) is credited with reforms like the introduction of EVMs and the reduction in the voting age to 18 years.
  • Chief Election Commissioner T.N. Seshan (1990-1996) implemented the model code of conduct, took steps against muscle and monetary power in elections. He also prohibited election propaganda based on religion and caste-based hatred.
  • The EC had launched a scheme for use of State-owned Electronic Media by political parties for providing a level playing field to every political party.
  • C-Vigil Application had been developed for reporting cases of MCC violation by the masses. It allows the masses to check the authenticity of EC in rectifying their requests.
Other Suggestions:
  1. Firstly, the EC must be appointed by a collegium as recommended by the Second Administrative reforms commission. It should comprise the Prime Minister, Speaker of the Lok Sabha, the Leader of Opposition in the Lok Sabha, the Law Minister, and the Deputy Chairman of the Rajya Sabha.
  2. Secondly, the government should expeditiously accept the 50 reform recommendations sent by the EC. These include: 
    • Rules on decriminalizing politics, transparent party funding, paid news 
    • Empowering the EC to countermand an election in cases of bribery.
  3. Thirdly, the EC should make judicious use of its plenary powers under Article 324. In the Mohinder Singh Gill case, the SC said that Article 324 gives wide-ranging powers to ECI to ensure free and fair elections.
  4. Fourthly, there must be a prudent cooling-off period for election commissioners in order to strengthen independence. 
  5. Fifthly, the expenditure of EC should be charged upon the Consolidated Fund of India similar to other constitutional bodies such as the UPSC.
Conclusion:

There is a need to undertake multiple reforms. This is to reinstall the shaken trust of EC’s independence and credibility amongst the masses. To begin with, the commission can withdraw its overcautious petition from the Supreme Court signaling its ability to accept criticism in the right spirit.

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Criteria for Selection of Experts in Tribunals Needs More Clarity

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Synopsis: Centre needs to enact rules for the selection of Experts in NGT Tribunals with clarity and objectivity.

Background
  • The criteria used for the appointments of NGT members are not clearly defined by the central government, giving way to litigations.
  • Recently, the appointment of former IAS officer, Girija Vaidyanathan, as Expert Member in the Southern Bench of the NGT was challenged in the Madras High court.
Why Tribunals are formed?
  • One, the need for specialisation and expertise to decide complex cases of a technical nature. Experts appointed to these tribunals bring in special knowledge and experience.
  • Two, tribunalisation’ of justice will be cost-effective, accessible.

What are the criteria for the appointment of Expert members to the tribunal?

As per the NGT act there are two criteria for the appointment of Expert members to the NGT tribunal. A candidate has to fulfil only one of them.

  1. One based on qualifications and practical experience: a masters’ or a doctorate in science, engineering or technology, with 15 years’ experience in the relevant field, including five in environment and forests in a national level institution, is needed. The fields include pollution control, hazardous substance management and forest conservation.
  2. Two, administrative experience in the field: This condition is not clearly defined. It merely stipulates 15 years’ experience, of which five should have been in “dealing with environmental matters” in either the Centre or the State or any reputed institution.
Why the appointment of Girija Vaidyanathan has been challenged?
  • In Ms. Vaidyanathan’s case, she has served in Environmental related sectors for only 28 months that is less than the prescribed criteria of 5 years.
What did the court say?
  • The court opined that the appointment is valid considering her tenure as Health Secretary.
  • However, the court declined to interfere with the appointment, as the jurisdiction of this matter comes under the domain of Parliament.
What is the way forward?
  1. The government should redefine the criteria for appointments through administrative experience with clarity and objectivity.
  2. It needs to implement Supreme Court directions to constitute a National Tribunals Commission to supervise the appointment and functioning of tribunals. Source: The Hindu
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Center-State Relations

Political and administrative elements in maintaining Healthy Federalism

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Synopsis: The recent Centre-West Bengal controversy over Political and administrative elements has brought attention towards the health of the federal structure in India.

Background:

  • The recent issue is that the former Chief Secretary of Bengal reached late in the meeting called by Prime Minister to review cyclone relief work.
  • Though both political and administrative state functionaries were requested to attend the meeting, the chief secretary along with West Bengal Chief Minister left the meeting abruptly.
  • Consequently, the centre has sent showcase notices and a charge sheet for the chief secretary’s failure in fully and properly participating in the meeting.
  • These events raised concerns regarding the norms of civil service conduct, political and administrative arrogance and revengeful behaviour.

Why the Centre’s action on the Former chief secretary of Bengal is unwarranted?

To understand this issue, a few important political and administrative elements should be kept in mind.

  • Firstly, India is a ‘union of states ‘.
    • The State governments are not subordinate agencies of the central government.
    • As per the Constitution, the Centre’s decisions have primacy over those of the State governments.
    • But the primacy does not extend to the holding of meetings.
  • Secondly, most relief and rehabilitation work during natural calamity or disaster is done at the local level under the State governments.
    • Also, the Disaster Management Act, 2005 operates mainly at the State, district and local levels.
    • However, the States have given space to the Centre for disaster management for getting financial, technical and logistical support.
  • Thirdly, civil servants are required to balance between loyalty toward states and loyalty toward center.
    • IAS officers are ultimately subject to the control of the respective State governments when they are in the employment of their States.
    • Otherwise, IAS officers will face trust deficit, if they show preference or loyalty to the central government just because they are appointed by the Center.
  • Fourthly, the center has violated the norms required for “deputation”.
    • As a measure of punishment, the former chief secretary for his conduct was initially called to the Centre on ‘deputation’ on the day he was to retire.
    • This was done without the concurrence of the state government. But the concurrence of the state is required before an officer of its cadre is deputed to the Centre.
  • Fourthly, absurd interpretation of the provision of Disaster Management act, 2005.
    • Actions against the former Chief secretary is taken under Section 51(b) of the Disaster Management Act for failing to comply with the Centre’s direction.
    • However, this section is meant to deal with cases of defiance of the lawful orders or action of the competent authorities under the Act for handling disaster management.
  • Lastly, the All-India service officer or any officer has to act under the direction of his official superior.
    • For an IAS officer, the State government is the official superior.
    • If this is not followed, there will be chaos and indiscipline in administration.

The conduct of the former chief secretary and the reaction of the Central government must be seen in an overall context. Also, in these kinds of circumstances, one needs to use the wisdom of our tall political leaders to maintain proper Political and administrative elements for a healthy federal polity.

Source: The Hindu

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Issues with recent draft rules notified by the Lakshadweep administration

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Synopsis: The recent changes brought in Lakshadweep Administration in the name of public purpose is against the public interest and ethos of the island.

Background:
  • Recently, the administrator of Lakshadweep brought changes to the following acts to promote infrastructural development to boost tourism.
    • Development Authority Regulation,
    • Prevention of Anti-Social Activities Regulation,
    • Lakshadweep Panchayat Regulation and
    • Lakshadweep Animal Preservation Regulation
  • However, the proposed changes ignore the significance of cultural ecology, cultural geography and strategic location of Lakshadweep.
  • These changes are also against the 2019 Kerala HC judgement which had recognised the special status given to the inhabitants for protecting their ethnic culture and traditions.
  • Now, the draft rules are challenged before the High Court of Kerala.
What is unique about Lakshadweep?
  • It is an egalitarian coconut tree owning society.
  • It has little economic inequality along with high literacy and high unemployment.
  • The Muslim community is designated as Scheduled Tribes.
  • Coconut trees are the main agricultural crop and fisheries is the main economic activity.
  • Fisheries employ the majority of the working population.
  • Since solar electricity requires a large land area, electricity is generated through diesel generators.
What are the two competing visions for the island’s future?
  • NITI Aayog’s vision 2019: It identified water villas and land-based tourism projects as the development issue faced by the islands.
    • It also suggested zoning-based land acquisition and focused on sustainable development.
    • However, it ignores the fragile environment and culture.
  • Integrated Island Management Plan 2016: It was prepared under the guidance of the Supreme Court and the National Centre for Sustainable Coastal Management.
    • It had rejected ‘home stays’ in view of the strict social customs and strong resistance of the vast majority.
    • It also suggested that development programmes should be implemented in consultation with the elected local self-government bodies
    • It also recommended adherence to scientifically determined plans.
Major concerns associated with the new changes in Lakshadweep administration
  • Firstly, these changes are arbitrary, authoritarian and will destroy the way of life.
  • Secondly, vague criteria of ‘public purpose’ for acquiring private land will increase conflict.
    • Dev Sharan vs State of Uttar Pradesh, 2011: SC observed that “Any attempt by the State to acquire land by promoting a public purpose to benefit a particular group of people or to serve any particular interest at the cost of the interest of a large section of people especially of the common people defeats the very concept of public purpose.
  • Thirdly, Since, the existing water balance is under stress, it is difficult to adopt tourism.
    • All the inhabited islands already have a scarcity of drinking water supply. Hence, the conventional method of sewage treatment is not feasible because of the coral sandy strata and high-water table.
  • Fourthly, arbitrary changes will affect the relationship between the state and society, resulting in trust deficit and misgovernance.
    • For instance, the powers of the panchayats have been withdrawn on grounds of corruption, two-child policy for election candidates, banning beef and allowing liquor only for tourists.
    • Also, the new draft legislation has brought preventive detention for ‘anti-social activities’ whereas the island has no case of murder or smuggling by local people.
  • The Lakshadweep Administration has said the changes are in line with Maldives development road. However, it has adopted a very different strategy without the active participation of the public.

How the Maldives development strategy is different from the Lakshadweep administration?

  • Firstly, tourism in the Maldives is centred on water villas in uninhabited islands, ensuring that very few coconut trees are cut.
  • Secondly, only limited homestays are allowed.
  • Thirdly, Maldives has a ‘one island, one resort’ policy which has kept very little pressure on reefs low.
  • Fourthly, since the rich and healthy reefs are essential for economic returns, its business model is about giving coral reefs economic significance.

Source: The Hindu

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Growing Centralisation of Power Erodes Federal Structure

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Synopsis: The tendency to centralise power by the Union government is increasing. It will alter the basic structure of Federalism in India.

Background
  • Recently, a NITI Aayog Member, asserted that it was the lack of centralisation that has led to poor management of the ongoing COVID-19 vaccination drive.
  • The claim reinforces the practice of the growing centralisation of power practiced by the current union government.
  • In this article we will discuss the challenges posed due to Centralisation of Power in the Economic, Political and Social sphere.
How the central government is affecting Political federalism?

There is a growing incursion of the Union government into sectors where State governments have primary responsibility. For instance,

  1. One, there has been increasing centralisation in resource allocations and welfare interventions. For instance, GST.
    • This has negatively impacted the finances of State governments, especially after the implementation of Goods and Services Tax (GST).
  2. Two, the Centre has been encroaching into domains under State government control through centrally sponsored schemes in sectors such as education and health.
    • For example, NEET exam, meddling with the appointments of vice-chancellors in universities funded and run by State governments etc.,
    • It subverts the affirmative action policies developed at the regional level in response to local political demands.
  3. Three, the Centre is increasingly ignoring elected representatives of State governments. It is holding direct meetings with State secretaries and district collectors on issues that are primarily under State control.
    • It subverts the Constitutional arrangement of Power-sharing between Centre and State.
How the central government is encroaching into Economic federalism?
  • Nepotism and crony capitalism. It is evidently visible that big businessmen are getting benefits from the government.
  • Apathy towards small businesses. The centre had strongly supported the Indian big business from global competition by sidelining the Regional Comprehensive Economic Partnership (RCEP). In contrast, the government has eroded the power of small businesses through GST and the call for a single national market.
  • Restricting the political funding for regional parties. Regional parties rely on region-specific rent-thick sectors for political funding, such as mining and real estate. The ruling party has curtailed this by levelling corruption allegations and the use of central agencies against businesses supporting the regional parties. This weakens the ability of regional parties to compete with the ruling party electorally.

How the central government is encroaching into the social fabric of states?

  • Besides the legal-constitutional aspects of federalism, it is diversity in the cultural foundation of regions that sustains Indian federalism.
  • However, the center is trying to homogenize Indian culture. Markers of regional identities and regional socio-cultural practices are now interpreted as a pan-Indian Hindu tradition.
  • For instance, Tamil, which has been a symbol of an anti-Vedic tradition, is now seen as a segment of that Hindu past. While Tamil Muslims and Christians becoming outsiders.

A federal coalition that looks beyond the legal-constitutional aspects of federalism is needed to preserve the idea of a plural India.

 

Source: The Hindu

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New Lakshadweep Regulations: Issues and Rationale – Explained, pointwise

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Introduction

New Lakshadweep regulations proposed by its new administrator are attracting opposition from local leaders. The smallest union territory of India (Lakshadweep) is undergoing severe changes for the last few days. The new administrator has introduced 4 new regulations that would alter the culture, livelihood, ecology, and development level of the island. 

The draft regulations include the Lakshadweep Animal Preservation Regulation, 2021; the Prevention of Anti-Social Activities Regulation (PASA); the Lakshadweep Panchayat Regulation, 2021 and Lakshadweep Development Authority Regulation 2021. They have attracted criticism from civil society as they place economic development over environmental sustainability. Furthermore, they jeopardize the pristine culture of the indigenous inhabitants.

The Home Ministry is currently scrutinising the draft legislation and would become law after their approval by the President.

Lakshadweep Regulations formulated by the Administrator
  1. The Lakshadweep Development Authority Regulation, 2021: It calls for the creation of a Lakshadweep Development Authority (LDA).
    • It will plan the development of any area identified as having a “bad layout or obsolete development”.
    • The act defines development as the carrying out of the building, engineering, mining, quarrying, or other operations in, on, over, or under the land. It also includes making any material change in any building or land or in the use of any building or land.
    • The authority could acquire any land required for a public purpose.
    • It stipulates that islanders must pay a processing fee for zone changes.
    • It establishes penalties such as imprisonment for obstructing the development work or workers.
  2. The Prevention of Anti-Social Activities Regulation (PASA): It provides for the administrator to order the detention of a person for a period of up to one year. 
    • It can be ordered if the offender’s actions adversely affect the maintenance of public order.
    • Such actions include when a person is a bootlegger, drug offender, immoral traffic offender, property grabber, etc. All these actions deemed to adversely affect the maintenance of public order.
  3. The Animal Preservation Regulation, 2021: It bans the slaughter of cows, calves, bulls, or bullocks. The slaughter of animals, other than cows or bulls, for religious purposes, will require a certificate from the authorities. 
  4. The Lakshadweep Panchayat Regulations, 2021: It disqualifies people with more than two children from becoming gram panchayat members. 
    • However, the law will not disqualify anyone having more than two children if they have been elected before the regulation has been notified.
    • The regulation also provides for the reservation of 50 percent seats in gram panchayats for women. 
About the Lakshadweep Island
  • It is a group of 36 coral islands in the Arabian Sea totaling 32 square kilometers.
  • The name Lakshadweep in Malayalam and Sanskrit means ‘a hundred thousand islands’.
  • It is a uni-district Union Territory (UT) and comprises 12 atolls, three reefs, five submerged banks, and ten inhabited islands.
  • The natural landscapes, the sandy beaches, the abundance of flora and fauna, and the absence of a rushed lifestyle enhance the mystique of Lakshadweep.
  • Muslims constitute more than 93% of the population and the majority of them belong to the Shafi School of the Sunni sect.
  • Malayalam is spoken in all the islands except Minicoy where people speak Mahl. The society in all islands is matriarchal.
  • The entire indigenous population has been classified as Scheduled Tribes because of their economic and social backwardness. 
Constitutional Provisions related to Lakshadweep:
  • Article 239: It states that every UT shall be administered by the President acting through an administrator appointed by him.
    • Since December 2020, Mr. Praful Patel is acting as administrator of Lakshadweep.
  • Article 240: Under this, the President has the power to make regulations for the peace, progress, and good government of the Union territories. This includes Lakshadweep, Andaman, and the Nicobar Islands, Puducherry, Dadra and Nagar Haveli, and Daman and Diu.
    • Any regulation made by him/her may repeal or amend any Act made by Parliament which is for the time being applicable to the Union territory.
  • Article 241: Parliament may by law constitute a High Court for a UT or declare any other court to be a high court for such UT.
    • The High court of Kerala functions as the High Court of Lakshadweep as well.
  • Article 243L: It states that the provision of Part 9 (Panchayats) will apply to UTs. However, the application would be subject to exceptions and modifications made by the President through a public notification.
    • Lakshadweep consists of 10 Village panchayats whose members are directly elected.
  • Article 243ZB:  It states that the provision of Part 9A (Municipalities) will apply to UTs. However, an application would be subject to exceptions and modifications made by the President through a public notification
Arguments in favour of new Lakshadweep Regulations
  • Firstly, the government has brought new rules for augmenting the development potential of the island. They will ease the procedural and regulatory requirements for land acquisition thereby enabling faster development of infrastructure.
  • Secondly, the new provisions would boost the tourism potential of the island. The government intends to develop Lakshadweep into “a renowned international tourist destination” like the Maldives.
  • Thirdly, the government believes that new rules will help in realizing the objectives of the Holistic Development of Islands Program.
    • The program focuses on the creation of jobs for the islanders through tourism promotion as well as the export of seafood and coconut-based products made in the Islands.
    • The Island Development Agency(IDA) was constituted in 2017 under the aegis of the Home Ministry to look into the holistic development of islands.
  • Fourthly, regulations like the Prevention of Anti-Social Activities Regulation (PASA) are essential for augmenting the security situation in the UT. 
    • In March, about 300 kg of heroin and five AK 47 rifles, and 1,000 live rounds were confiscated in Lakshadweep. The coast guard had intercepted the consignment and registered a case.
    • Several states, including Kerala, Karnataka, Tamil Nadu, and Uttar Pradesh have similar regulations. 
  • Fifthly, the Panchayat regulations will pave the way for the upliftment and empowerment of women. The reservation would generate more women representatives who would create gender-sensitive policies.
Arguments against the new Lakshadweep Regulations
  • Firstly, they seem to fulfill the interest of commercial developers rather than the indigenous islanders. The developmental plan can be used to vacate land which may later be sold to outsiders.
  • Secondly, the powers bestowed on Land development authorities are very wide. It can prepare comprehensive development plans for any area and relocate people regardless of their will.
    • Further, the new rules put the onus on the owner to develop his holding as per the development plan or bear a heavy penalty in case of non-compliance. This may increase forcible eviction and relocation of masses.
  • Thirdly, the new rules may hamper the cultural milieu of the region. They allow for the intrusion of outsiders in the region which may destroy the way of life practiced by indigenous people for generations.
    • Further, the cow slaughter ban and allowance of alcohol consumption go against the cultural practice of the 96% Muslim population of the region. 
  • Fourthly, the ease in approvals may hamper the pristine ecological environment of the region. The tourism infrastructure will adversely impact the fragile coastal ecosystem of the region.
  • Fifthly, it is difficult to understand the rationale behind PASA as UT possesses one of the lowest crime rates in the country. According to NCRB data, only 121 cases of crime registered on the islands in 2017, 86 in 2018, 186 in 2019, and 89 in 2020. 
    • It may be misused to curtail free speech and the right to protest of the masses.
  • Sixthly, the two children cap for panchayat elections seems unjust in a UT with a very low fertility rate. According to the National Health and Family Survey-5 (2019-20), the total fertility rate is 1.4 (which is far behind the national average of 2.2).
  • Seventhly, the UT has developed quite well over the years and doesn’t require such radical reforms.
    • The island has a robust infrastructure to support rainwater harvesting and solar power generation.
    • All islands have been connected by helicopter service since 1986, and high-speed passenger boats were purchased in the 1990s to improve connectivity.
    • The literacy rate of UT is over 90% and the poverty line in terms of GDP is only slightly higher than the World Bank’s poverty threshold.
    • It also has a desalination wind-powered plant gifted by the Danish government.
Suggestions
  • The new laws should be discussed with the concerned stakeholders including the local fisherman and civil society. Their grievances should be heard and rectified for ensuring greater acceptability.
  • The focus should be placed on addressing the real problems of the Island. This includes:
    • Focusing on addressing the rising income disparities in the region
    • Restricting Indiscriminate trawling as it endangers the coral landscape. The Maldives had already banned trawling activities after witnessing excessive exploitation. 
    • Restraining from relaxing the quarantine norms as the UT is witnessing a Covid -19 surge
  • The President must refrain from giving assent to the new laws and should send them back for due reconsideration.
  • The issue also provides the Parliament an opportunity to draft a reasonable law that can prevent a single individual (the nominated administrator) from undermining people’s will.
  • A blind copy of the Maldives model should be avoided. For instance, the expensive Water bungalows are hazardous to the corals. Also, they would collapse in Lakshadweep’s turbulent monsoon. 
Conclusion

There is a need to redesign new laws to reflect a people-centric approach. The current situation warrants due consultation with the concerned stakeholders so as to fix the lacunas and strive towards attaining sustainable development.

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Local Bodies

Creation of New Districts in India: Pros and Cons – Explained, Pointwise

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Introduction

Historically the district, in some form or the other, has been the most important unit of administration in the Indian sub-continent. According to “Know India”, a website run by the Government of India, there are 718 Districts in India at present. This is more than double the number of districts in India in the 1971 Census. Further, new districts are getting added to the Indian political map every year by citing governance and administration-related issues.

According to the 2011 Census, between 2001-2011 alone as many as 46 districts were added within that time. Since the 2011 Census, approximately 100 districts were added in India. Recently Punjab Chief Minister has declared Malerkotla as the 23rd district of the Punjab State. In this article, we will explain the procedure, pros, and cons of creating new districts in India.

Present status of creation of new districts
  1. Since the 1971 Census, the average district size is getting smaller and smaller. In 1981 Census India has only 412 districts, with the average size of the district was 7,788 sq. km. But in the 2011 Census, India had 640 districts with the average size of the district just 4,948 sq. km.
  2. The trend shows that the states want smaller districts. This trend is in continuation since the 2011 Census also. The 2021 Census is yet to happen. However, as per reports, since the 2011 Census, approximately 100 new districts were added.
  3. The surge in a number of districts is mostly due to the bifurcation of Andhra Pradesh into A.P. and Telangana in 2014. Telangana at present has 33 districts and A.P. has 13 districts.
The trends in creation of new district in India
  1. The idea behind creating new districts is generally to provide effective governance. However, it is sometimes driven by local demands.
  2. The number and size of districts vary from state to state.
  3. The larger states predictably have a higher number of districts. For example, Uttar Pradesh has the highest number of districts (75). This is followed by Madhya Pradesh (52).
  4. The smallest state, Goa has the least number of districts(2).
  5. However, the number of districts in a state is not always a function of the area of the state, or of its population. For example, Andhra Pradesh is the 7th largest state by area but has only 13 districts. On the other hand, Arunachal Pradesh has 25 districts.
  6. Most of the Northeastern states have smaller districts.
Procedure for creation of new districts in India
  1. The power to create new districts or alter or abolish existing districts rests with the State governments. This can either be done through an executive order or by passing a law in the State Assembly.
  2. The many States prefer the executive route by simply issuing a notification in the official gazette.
  3. Role of Center in the creation of Districts:
    1. The Centre has no role to play in the alteration of districts or creation of new ones. States are free to decide on this matter.
    2. If the state government wants to change the name of a district or a railway station, then the Home Ministry comes into the picture.
    3. The State government will propose a new name to a district and forward the proposal to the Home ministry. The Home Ministry will forward the proposal to other departments.
    4. After that, the departments such as the Ministry of Earth Sciences, Intelligence Bureau, Department of Posts, Geographical Survey of India Sciences, and the Railway Ministry, provide their clearance to the proposal of the state government.
    5. After examination of their replies, the state government receives a no-objection certificate. Then the name of the district stand changed.
Advantages of creation of new districts in India
  1. Better administration and governance: This is one of the foremost advantages stated by state governments during the creation of new districts. To some extent, it is also true.
  2. The smaller district ensures better governance: New districts will host a range of administrative machinery in the district. This will result in better implementation of government schemes, proper fund utilisation, enhanced people coverage of scheme, etc. All this will improve governance in the new district.
  3. Service to the increased population: Since 1981, the average district area has become 44% smaller in 2019. But, the average number of people in a district has risen from 16.6 lakh to 18.6 lakh in 2019. So the new districts can ensure better service delivery for the increased population.
  4. Bring administration closer to the people: Bigger districts hinder the administration process in some areas of that district itself. For example, before the bifurcation of the Amravati district, the farthest taluka was around 150 km from the district headquarters. So, people, administrative officers in taluka has to travel nearly 3 hours to district headquarters. A new district can bring administration closer to the people.
  5. District-specific government initiatives: New districts might attract more district-specific schemes. For example, the government can set up an agricultural research and assistance centre or a residential school for gifted children. The state government can provide better funding for backward districts. This will benefit the local population.
  6. Increase employment: Since the new district will require new officials from top-down, this will increase the employment in government directly. It will also spur employment opportunities indirectly. For example, government tender and associated employment for locals, new shops and services near government buildings, etc.
Challenges in the creation of new districts in India

Creating a number of districts without any rationale can be challenging. This is due to various reasons such as,

  1. The very process of creating one district is challenging: The government has to find office space for different departments and fill many new positions. All this will require a huge government exchequer. The government will also face challenges with land acquisition.
  2. Substitute for genuine decentralisation: Zilla parishad and the Panchayat samitis do not enjoy a lot of powers in many states. So, these officials take most of their grievances to the collector. Creating smaller districts without empowering these bodies is against decentralisation in the real sense.
  3. The increased cost of living in new districts: The growth centres created in new district headquarters will also make the land rates and other service costs go up. This will increase the cost of living in the new district headquarters in long run.
  4. Political motive: Many states reorganise the existing districts and form new ones due to political motive. For example, new districts containing a support base of the ruling party can increase will be advantageous for it.
  5. Under utilisation of administration: If the district is too small, then the administration and associated machinery will be underutilized. Further, the creation of more and smaller districts will also make the management of districts harder for states.

The 2nd Administrative Reforms Commission stated that the political gains from forming a new district are a “minor dividend” and not the major one.

Suggestions
  1. Ensure proper decentralisation: Instead of creating new districts every time, the State governments might reform their decentralisation policy. As the Panchayats and Zillas face many challenges in their functioning. If the state government provide more powers this will improve better functioning of Panchayats and Zilla Parishad. For example,
    • Creation of SFCs(State Finance Commission) properly and allocating funds properly.
    • Widening their tax base and provide access to the Capital market to raise funds.
    • State Governments should provide local bodies with the power to recruit personnel to fulfil their functions properly.
  2. Guidelines for the formation of new districts: With new districts are added every year, the Center may prescribe certain criteria for the formation of a new district. For example, the Center may release a guideline that contains the minimum area of the district, its population, etc.
  3. Work on other alternatives: Instead of creating new infrastructure the States may conduct special camps, frequent field visits from officials. This will not only save the government exchequer but also serve the majority of the administrative and governance targets.
Conclusion

Districts are the third tier of India’s governance structure, after the Centre and the state. Smaller districts are definitely better in terms of service delivery. But there is always a limit in the formation of new districts for solving administrative and governance issues.

After the enactment of the 73rd and 74th Constitutional Amendments, Panchayats and Zillas became the de-facto third tier. So, the state governments have to focus on providing adequate powers to them for solving the administrative and governance challenges. This will not require any additional funding for creating infrastructure and can provide administration to the doorstep.

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Need to Strengthen Panchayati Raj System

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Synopsis: There is a need to strengthen the Panchayati raj system to make the participation of the people in governance a reality.

Evolution of Panchayati Raj System
  • First, during the Ancient period, the Cholas pioneered the formation of local bodies to oversee the implementation of State plans.
  • Second, during the British period, in 1884, the Madras Local Boards Act was passed. After that, unions in both small towns and big cities were formed to ensure better administration.
  • Third, gram panchayat laws were enacted in 1920. It allowed people over 25 years of age the right to vote and choose their panchayat members.
  • Fourth, Gandhiji was one of the pioneers to emphasise the importance of local bodies. He stressed the importance of autonomously ruled villages.
    • He quoted that, “The voice of the people is the voice of god; The voice of the Panchayat is the voice of the people,”
  • Finally, only in 1992, after the 73rd and 74th Amendments, local bodies were given constitutional recognition. This provided many positive changes such as,
      • Powers to grama Sabha,
      • Reservation for the downtrodden and women,
      • Consistency in economic development,
      • Mandatory local body elections once in five years,
      • Formation of the State Election Commission, Finance Commission,
  • However, the Panchayati raj is not being given due importance by the state administration which is affecting the participation of the people in governance.
Case Study: Apathy towards Panchayati raj in Tamilnadu
  • It is mandatory that Gram Sabhas should meet at least four times in a year, according to the rules framed by the Tamil Nadu government.
  • Also, as per the constitution 73rd amendment, local body elections must be conducted once in a five years.
  • Further, Gram sabhas are empowered to take opinions and the consensus of the people on significant issues.
  • However, in Tamilnadu these mandatory norms are being violated. For instance,
      1. One, holding of elections to local bodies is being postponed by the government by giving irrelevant excuses. For the first time, in the last 25 years, local body elections were not held.
      2. Two, consensus of the people on significant issues such as an eight-lane highway project and hydrocarbon project are not being taken.
      3. Third, lack of women’s representation in major administrative roles in the local bodies.
        Read Also -Local Self Government -ForumIAS Blog 

        Way forward: Need to strengthen our Gram Sabhas by
  • Proper allocation of funds,
  • Ensuring the efficiency of administration by making eligible appointments,
  • Ensuring decent remuneration to Panchayat chiefs and councilors
  • Giving powers to Gram Sabha to revoke appointed members and representatives.

The demand for federal rule in the Centre and autonomous rule in the States should resonate along with the need to have autonomous local bodies too. A peoples’ movement can ensure the strengthening of Panchayati Raj.

Source: The Hindu

Posted in 9 PM Daily Articles, PUBLICTagged

Critical Analysis of 15th Finance Commission Recommendations for Local Bodies

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Synopsis: Critical analysis of the recommendation of the 15th Finance Commission Recommendations on grants to the local bodies.

Background

  • The primary task of the Union Finance Commission (FC) is to rectify the vertical and horizontal imbalances between the Union, the States, and the Local bodies.
  • Part IX and Part IX-A of the Constitution mandate the FC to supplement the resources of panchayats and municipalities. It should be on the basis of the recommendations of the State Finance Commission.
  • Local governance in India consists of nearly 2.5 lakh local governments and over 3.4 million elected representatives.
  • The significance of Local governments was highlighted during the Pandemic. The Gram Sabha and other participatory institutions were instrumental in containing the crisis and delivering social protection in India.

What were the lacunas in the recommendation of the 15th FC for the local government?

While there are some critical lacunae, it has several positive features too,

Positives:

  • First, the Grants to local bodies are high compared to the previous Finance Commission. For example, Finance Commission has granted Rs 4,36,361 crore from the central divisive tax pool to local governments.
  • Second, it will strengthen cooperative federalism. Out of the total grants earmarked for Panchayati raj institutions, 60 percent is earmarked for national priorities. (drinking water, rainwater harvesting, sanitation, etc.,).

Concerns:

  1. First, the 15th FC has failed to provide Performance-based grants for the Panchayati raj. While only 8000 crores (for incubation of new cities) has been allocated to Urban local bodies.
      • The performance-linked grants were thoughtfully introduced by the 13th Finance Commission.
      • It earmarked 35% of local grants specifying six conditions for panchayats and nine for urban local governments. For example, the establishment of an independent ombudsman, notifying standards for service sectors such as drinking water and solid waste management, etc.,
      • Performance-linked conditionality is vital for improving the quality of decentralised governance, especially in underperforming local bodies.
      • By neglecting the Performance-based grants, 15th FC has failed to acknowledge the transformative potential in it.
  2. Second, there are no entry-level criteria specified for Gram Panchayats to avail grants.
      • Whereas, the 14th FC, has recommended measures to standardize the accounting system and update the auditing of accounts.
      • Without reliable data on Financial performance, it will be difficult to ensure Good governance.
  3. Third, the 15th FC has missed the opportunity to ‘restructure the public finance’ for greater fiscal decentralization in providing basic services. It will ensure comparable minimum public services to every citizen irrespective of her choice of residential location.
    • The 11th and 12th schedules demand better public services and delivery of ‘economic development and social justice at the local level.
    • To fulfill this mandate we need fiscal decentralization. Public finance is an integrated whole and there needs to be an integrated, local government-centric approach as envisioned in the Alma-Ata declaration of the World Health Organization
  4. Fourth, the 15th FC has used the criteria of the population (2011 Census) with 90% weightage and area 10% weightage for determining grant to local governments. However, it ignores equity and efficiency criteria.

We need to fiscally empower local governments to deliver territorial equity and to empower local people.

Source: The Hindu

Posted in Daily Factly articles, PUBLICTagged

Recommendation of 15th Finance Commission and challenges faced by Local Bodies

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Recently, 15th Finance Commission report has provided many recommendations for improving the functioning of Local Bodies. The challenges faced by local bodies in India are manyfolds and there is no one-stop solution to them.

Approach of previous Finance Commissions with respect to Local Bodies:

So far four Finance Commissions (11th FC to 14th FC) have given their recommendations for local bodies. Overall they provided for,

First, the increase in quantum of Funds: In recent years, the grants recommended by successive Finance Commissions in absolute terms have increased. For example, the combined grants for rural and urban local bodies recommended by the 14th FC were three times the amount recommended by the 13th FC.

Second, different Commissions followed distinct criteria while recommending resources for local governments. The only common criteria considered by all of them were population and geographical area.

Recommendations of Fifteenth Finance Commission:

First, the 15th FC suggested strict adherence to its recommendation for the constitution of State Finance Commissions(SFCs).

  • It recommends “All States must constitute SFCs and also act upon their recommendations”.
  • States also need to place the action taken report before the State legislature on or before March 2024.
  • No grants should be released to the States that have not constituted SFC.
  • MoPR(Ministry of Panchayati Raj) will certify the compliance of the State in this respect before the release of their share of grants.

Second, with respect to the Grants to Local Governments, the commission earmarked 60 per cent of funds for national priorities. These priorities include drinking water supply, rainwater harvesting and sanitation etc. The other recommendations include,

  • The report favours a fixed amount rather than a proportion of the divisible pool of taxes. This is to ensure greater predictability of the quantum and timing of fund flow
  • The report provides entry-level condition to local bodies to avail grants. These conditions will include online availability of both provisional accounts of the previous year and audited accounts of the year before that.

Third, the report calls for the Integration of the Financial Management Systems for transparency in the audit and functioning of local bodies.

Fourth, the report recognises Urbanisation as the Engine of Growth. It mentions few important recommendations like,

  • Establishment of Million-Plus Cities Challenge Fund for cities having million-plus population. The devolution of the fund will be linked to the performance of these cities in improving their air quality and meeting the service level benchmarks for urban drinking water supply, sanitation, and solid waste management, etc.
  • It also mentions that informal burning, as well as spontaneous combustion at landfills in Urban areas, should be monitored carefully.
  • The report calls for basic grants for urban local bodies in the non-Million-Plus cities category.
  • The report also asks for allocating grants on the basis of population for the Cantonment Boards falling within the State’s territory.

Fifth, the 15th FC’s other recommendations include:

  • Involving Panchayati Raj Institutions as supervising agencies in primary health care institutions. The Commission believes, it would strengthen the overall primary health care system.
  • The commission provided for a performance-based challenge fund of Rs. 8,000 crore to States for incubation of new cities.
  • The commission recommends an amendment to the Constitution to revise the professions tax.

Various challenges faced by the local bodies:

Challenges with respect to functions:

First,  there is an Excessive control of State government in the functions of PRIs. For example, state government approval is needed in project finalization, Local bodies Budget, Loan requirement, etc. States, instead of guiding PRIs, are restricting the functions of local bodies.

Second, local bodies lack adequate data on essential services and cannot involve in Urban and Rural planning. Though data on Census is available, it consists of data of previous years and not the current data. For example, they do not have data on local traffic, urban sewage, migration of people, etc.

Challenges with respect to funding:
First, Article 243-I of the Constitution requires SFCs(State Finance Commission) to be appointed at the ‘expiration of every fifth year’. Several States have still not moved beyond the second or third SFC. Even if formed they face challenges like inadequate resources, poor administrative support and the delayed placement of action taken reports(ATR), etc.

Second, the tax base of Urban and Rural local bodies is very narrow. For example, Urban Local bodies cannot levy a profession tax of more than 2500. They also have a problem in levying entertainment taxes and property taxes.

Third, the Majority of the local bodies do not have access to the Capital market to raise required funds except few Urban local Bodies such as Pune, Chennai, etc

Challenges with respect to the Functionaries:
Role of women elected members. There are many instances where, in the name of elected women representative their husband operates and takes the decision on her behalf. This undermines the agenda to empower women by providing 33% reservation to them.

Suggestions with respect to functions:
First, the Second ARC has recommended a special problem-solving body to resolve the issue of disqualification of elected members. It also suggested an unbiased approval of Local body budgets, projects, etc. State governments need to implement this.

Second, State Governments should provide local bodies with the power to recruit personnel to fulfil their functions properly. Apart from that the State governments also have to allow the local bodies to collect the local data for future use and preliminary planning.

Suggestions with respect to funding:

First, States should implement 15th FC  recommendation to appoint SFCs or else grants released to the respective State can be halted.

Second, the power to levy taxes on the Union and State Government properties can be provided to local governments. Apart from that, they should be empowered to levy taxes on wealthy people in their locality, impose water cess, irrigation cess etc. For example, a case study in Karnataka has proved that the levy of water cess is a feasible alternative for local bodies.

Third, separate grants may be allocated to local bodies for creating public health infrastructure and primary health care clinics.

Suggestions with respect to the functionaries:

To improve the performance of functionaries, the timely election is the need of the hour. Apart from that, the State can encourage Public-Private Partnerships. It will improve the skills of elected local representatives with market expertise and modern methods.

The state government can form strict guidelines for the active involvement of elected women representatives in all spheres of the functioning of local bodies.

Apart from implementing the recommendations of the 15th FC, the voluntary contribution of States is also the need of the hour. The States have to understand that empowerment of local bodies is needed to find solutions to the number of issues faced by them like enhancing tax base, providing adequate primary health and education services, etc.

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Election related issues

Settling claims of rival factions in a party symbol dispute

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Synopsis: How Election Commission decides on party symbol disputes?

Background
  • Recently, there has been a split within the Lok Janshakti Party (LJP) and both the factions are claiming for the same party symbol.
  • In the case of deciding the recognized party among rival factions, the Election Commission of India (ECI) has the final say.
  • ECI has been empowered with quasi-judicial powers under section 15 of the Election Symbols (Reservation and Allotment) Order, 1968.
How Election Commission decides on party symbol disputes?
  • Approach EC: 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 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.
Also read: Power of Election Commission of India
Judicial position on the issue
  • Many of the cases of split in political parties have landed in the Supreme Court. The most significant case was that of the Indian National Congress (INC) in 1969 where the Supreme Court upheld the order of the ECI applying the test of majority (Sadiq Ali vs ECI, 1972).
  • It was a milestone judgment for the Election Commission as the apex court upheld the constitutional validity of the Election Symbols (Reservation and Allotment) Order, 1968, giving an executive order the status of subordinate legislation.
  • SC stated that ‘The Commission, in resolving this dispute, does not decide as to which group represents the party, but which group is that party

The Supreme Court has, time and again, upheld the test of majority in the Symbols Order to be a “valuable and relevant test” to decide a dispute between rival groups within a “democratic organization” like a recognized political party.

Source: Indian Express

Posted in 9 PM Daily Articles, PUBLICTagged

What is an election petition? – All you need to know.

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What is the news?

An election petition has been filed by West Bengal Chief Minister in the Calcutta High Court. She has challenged the Assembly election result of Nandigram constituency where she had contested and lost.

What is an election petition?
  • An election petition is a procedure for inquiring into the validity of the election results of Parliamentary or local government elections. In other words, it is a means under law to challenge the election of a candidate in a Parliamentary, Assembly or local election.

Where one can file an election petition?

  • Election petition filed in the High Court of the particular state in which the election was conducted. Therefore, only the High Courts have the original jurisdiction on deciding on an election petition.
What is the limitation period of an election petition?
  • An election petition calling in question an election shall be filed within the time period of 45 days from the date of declaration of results.
  • Moreover, the Representative of the People Act of 1951 suggests that the High Court should try to conclude the trial within 6 months. But it usually drags on for much longer even for years.
Read more: [Yojana Summary] One Nation One Election

Grounds on which an election petition can be filed

Under Section 100 of the Representation of the People(RP) Act, an election petition can be filed on the following grounds:

  • That on the day of the election, the winning candidate was not qualified to contest
  • That the winning candidate, his poll agent or any other person with the consent of the winning candidate has indulged in a corrupt practice.
    • Section 123 of the RP Act has a list of what amounts to corrupt practice, including bribery, use of force or coercion, appeal to vote or refrain from voting on grounds of religion, race, community and language.
  • Improper acceptance of the nomination of the winning candidate or improper rejection of a nomination.
  • Malpractice in the counting process which includes improper reception, refusal or rejection of any vote, or the reception of any vote which is void.
  • Non-compliance with the provisions of the Constitution or the RP Act or any rules or orders made under the RP Act.
Also read: Annual review of state laws 2020

What happens if the court finds that a contention of malpractice is correct?

  • Under Section 84 of the RP Act, the petitioner may ask that the results of all or the winning candidates may be declared void.
  • In addition to that, the petitioner may also ask the court to declare her (in case the petition is filed by a candidate) or any other candidate as the winner or duly elected.

So the verdict on an election petition, if found in favor of the petitioner may result in a fresh election or the court announcing a new winner.

Previous cases where election results were declared void:

  • Indira Gandhi Election: In 1975, the Allahabad High Court verdict had set aside Indira Gandhi’s election from Rae Bareli constituency, four years earlier on grounds of corrupt practice.

Source: Indian Express

Posted in CURRENT AFFAIRS, Daily Factly articles, Factly: Polity and Nation, PUBLICTagged ,

Electoral Funding Lacks Transparency

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Synopsis: Electoral funding of political parties lacks transparency. Over the years, many steps are taken by the government to make it a more secret affair.

Introduction:

In 2014, the Delhi High Court held that both main national parties (Congress and BJP) were guilty of accepting donations illegally. They both accepted donations from companies registered in India but whose controlling shareholders was a foreign company. The court held that this is a violation of the Foreign Contribution (Regulation) Act (FCRA), 1976.

  • In 2016 and 2018, the government amended the FCRA through the annual Finance Bills. These bills exempt political parties from the scrutiny of funds they have received from abroad since 1976. This enabled new and regressive pathways that afford full anonymity to corporate and foreign political donors.
  • In 2017, the amount of anonymous cash donations to political parties was reduced from ₹20,000 to ₹2,000 to ensure greater transparency in political funding. However, the introduction of electoral bonds introduced a new form of anonymity. It led to the funding of thousands of crores of anonymous donations.
Read more: Electoral Bond and its challenges – Explained, Pointwise
Challenges in electoral funding:
  • The electoral funding drastically reduced public and legislative oversight. Only the ruling party (via the State Bank of India (SBI)) has a full account of all donations received by electoral bonds. The ruling party can monitor donations to itself and to Opposition parties.
    • Even the Parliament, the Election Commission, and the Opposition parties do not have this information, nor do the public.
  • Earlier, only profit-making domestic companies were allowed to contribute to political parties; now loss-making companies can also contribute.
  • Earlier, foreign companies or companies where the controlling stake was held by a foreign company, couldn’t contribute. Now they can contribute by a foreign company operating in India or by a foreign entity through a shell company.

Public Interest Litigation (PIL) on Electoral funding:

  • For the above-mentioned reasons, the Association of Democratic Reforms filed a case in SC to declare electoral bonds unconstitutional.
  • However, SC refused to stay the sale of electoral bonds prior to the Assembly elections in West Bengal and Tamil Nadu.
  • Instead, the court listed several documents to establish a paper trail on donations. But this is not practically feasible.
Challenges with cross-checking Electoral funding:
  1. The full scale of registered companies is unknown. Even if registered companies filed annual financial statements, many do not disclose political donations.
  2. Amount of political donors in the country: According to back-of-the-envelope calculations, there are close to 25 lakh potential donors, comprising just companies and firms. Annual reports of all these companies are not readily accessible on the website of the Ministry of Corporate Affairs.
    • Even if these documents are indeed available in the public domain, they will not specify donations to parties. It is notable that the Finance Bill of 2017 amended Section 182 of the companies act. It removed the requirement for declaring political donations. 
    • Furthermore, even if a firm mentions the total political contributions through electoral bonds, it is not required to specifically name a political party.
  3. Political parties also not need to disclose their electoral bond donors. So the cross-checking of donations is not feasible. The only requirement is the submission of annual audit reports with only aggregate amounts by political parties. However, this report too does not provide details of the total amount.

Thus, the SC’s “match the following” suggestion is not practical.

Suggestions for transparent electoral funding:
  1. Companies and political parties should exercise moral leadership and voluntarily disclose the identity of recipients and donors. For example, recently, Jharkhand Mukti Morcha disclosed their donors voluntarily.
Conclusion:

The electoral funding gives political power to companies, wealthy individual donors, and foreign entities. They can influence government policies through hidden donations. This dilutes the universal franchise of one voter-one vote. So, electoral funding needs abrupt corrections to ensure universal franchise.

Source: The Hindu

Posted in 9 PM Daily Articles, CURRENT AFFAIRS, PUBLICTagged ,

India needs to replace frequent elections with One nation One election

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Synopsis –  India should hold simultaneous elections (One nation one electionto tackle various challenges associated with frequent elections.

About One nation one election:

  • It is the idea of synchronising the elections to the Lok Sabha and the State Assemblies. In can be achieved by restructuring the current Indian election cycle.
Challenges in frequent Elections
  1. Huge incalculable expenditure to conduct elections. For example- the Bihar assembly election alone in 2015 cost about Rs 3000 crore.
  2. Frequent elections impact the delivery of essential services. Such as,
    • Teachers lost teaching weeks on election duty.
    • Officers and vehicles from practically every other department are “requisitioned” for election duty.
    • Frequent elections also disrupt essential public work such as road construction, welfare scheme supervision, etc.
  3. Imposition of the Model Code of Conduct: This will impact the governance and implementation of key policy initiatives.
  4. The efficiency of a politician doing public good is also reduced during the campaign. This is because most of them are putting in 16-18 hours of work each day doing only rallies and campaigning. As a result, important meetings and decisions get postponed.
  5. Further, there is also a huge cost involved in deploying security forces repeatedly during elections.
Challenges in holding One nation one election in India
  • India had concurrent elections for the first two decades. The first general elections held simultaneously to Lok Sabha and the Legislative Assemblies of the States in October 1951.
  • But in 1968 1969 and 1970, the cycle got disrupted due to the premature dissolution of some Legislative Assemblies.

This is the reason that some experts believe that if a government loses its majority in the House, it eventually leads to fresh elections and disrupt One nation one election in India.

Suggestions to conduct One nation one election

It is virtually impossible for a ruling party/coalition to lose numbers with the current anti-defection law. Even if they do, there are certain global legal provisions available to maintain the electoral cycle.

  • Coupling the ‘no-confidence motion’ along with the ‘vote of confidence’ in an alternative government. This vote of confidence will also mention a leader to head it. After passing both of them(no-confidence motion and vote of confidence), the alternate government will head the government for the remaining term. This helps to maintain the fixed term.
Benefits of having Simultaneous Elections
  • Reduced Financial cost of conduction Election
  • Reduced Cost of repeated administrative restrictions
  • Reduced visible and invisible costs of repeatedly deploying security forces
  • Reduced campaign and finance costs of political parties.
Way forward

There is a need to calibrate and club the elections in a mature and sensible way. So that it could come to a situation where all elections are held simultaneously.

Source- The Indian Express


 

Frequent transfer of public servants affect public administration

Posted in 9 PM Daily Articles, CURRENT AFFAIRS, PUBLICTagged


Executive

Breach of Constitutional Propriety by Governor

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Synopsis: Governor Dhankhar’s official visit to violence-hit areas is a breach of constitutional propriety.

Introduction 

The West Bengal Governor Jagdeep Dhankhar’s recently visited areas hit by post-poll violence in Cooch Behar.  This starts grave disobedience of the limits of constitutional decorum.

  • The governor ignored the norm that constitutional heads should not show their differences with the elected rules in public. In December 2020, Ms. Banerjee had appealed to the President to recall the Governor for his political statements. 

Share some other instances of governors leaving their limits of office and voicing their opinion publically.

It may be debated that the current situation in West Bengal is different from those in which other Governors had dropped the limits of their office as post-election violence is something that should not be witnessed at all in electoral democracy.

  • Firstly, Mr Dhankhar’s criticised the government of West Bengal openly. His visit to Cooch Behar is a louder action that indicates derogation of the elected regime.
    • The Governor’s visit to a scene of violence cannot be justified as a sign to show unity with victims.
  • Secondly, Tamil Nadu Governor, M. Channa Reddy, visited the RSS headquarters in 1993 in Chennai after a bomb explosion there.
  • Thirdly, the then West Bengal Governor, Gopalkrishna Gandhi got some criticism for ignoring the limits of the constitutional office. He stated the cold horror at the police firing that left 14 protesters dead at Nandigram in 2007.

The way forward  

  • The governor’s larger belief should not offer public comment on situations handled by the ruling regime.
  • Even if someone views that the situation was because of the regime’s inaction, principles should be followed. Any advice or warning the Governor wants to give to the elected government must to in private and in confidence.
  • To conclude, West Bengal has certainly failed by allowing post-poll celebrations to attacks the losing side. The responsibility is on the incumbent chief minister to restore order and end the violence. She believed that the degree of the violence was being blown up by the Opposition.

Source: click here

Posted in 9 PM Daily ArticlesTagged

 Are courts encroaching on the powers of the executive?  

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Synopsis: The instances of courts intervening in the executive matters without providing comprehensive legal reasoning are increasing. SC’s recent decision to put stay on farm laws has been analysed in this context. 

Introduction  

The Supreme Court is trying to make a political settlement between farmers and the government. It has put a stay on farm law and made a committee for mediation. But the court has not provided any legal or constitutional reasons for that. 

What are the contradictions in this decision of SC? 

The following reasons suggests that the decision of SC to stay farm laws was a clear encroachment into the domain of executive. 

Firstly, the petition was filed on the argument that only states are eligible to enact farm laws under Seventh Schedule to the Constitution. SC should have analysed the validity of such basis.  

Secondly, the court is giving the example of the protests during Maratha reservation case in which it had issued a stay on the law in question. But in that case the stay was given on constitutional grounds 

Third, the reason given by the court for its decision was not a legal reason. It provided hat this step will ease the hurt feelings of farmers and it will become easier to bring them on the negotiation table.  

Fourth, In the recent years, SC has been hesitant to take up constitutional challenges to similarly politically controversial moves. This decision by SC also falls into the same category. For Example; the cases of Article 370, the Citizenship (Amendment) Act, reservation quotas for economically weaker sections, electoral bonds, and the ‘love jihad’ laws. 

Fifth, Earlier SC Held protests as completely legal and part of the exercise of citizens’ rights under Article 19 of the Constitution.  But in a related case told that the question of whether the tractor protests should be allowed or not is a ‘law and order’ question and the decision will be taken by Police.  

SC is under question of the critics these days, but the positive roles played by it cannot be ignored due to that. In the Navtej Johar case (Navtej Singh Johar v. Union of India) court acted in a counter-majoritarian manner and decriminalised Homosexuality.  

Posted in 9 PM Daily ArticlesTagged ,

Pardoning Powers of Governor 

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Why in News? 

Tamil Nadu Governor will make a decision on a plea for the release of a prisoner. The prisoner is undergoing life imprisonment for the assassination of former Prime Minister Rajiv Gandhi in 1991. 

 Facts: 

 Pardoning Powers of Governor: 

    • Article 161: It provides that the Governor shall have the power to grant pardons, reprieves, respites, or remissions of punishment or to suspend, remit or commute the sentence of any person. But the person should be convicted of any offense against any law which is under the executive power of the State. 
    • Exceptions:  
      • Governor cannot pardon the death sentence (President has the power to do so) 
      • The Governor cannot grant pardon, reprieve, respite, suspension, remission, or commutation in respect to punishment or sentence by a court-martial. However, the President can do so. 

 Different Pardoning Powers of Governor: 

    • Pardon: It removes both the sentence and the conviction and completely absolves the convict from all sentences, punishments, and disqualifications. 
    • Commutation: It denotes the substitution of one form of punishment for a lighter form. For example, a death sentence may be commuted to rigorous imprisonment which in turn may be commuted into simple imprisonment. 
    • Remission: It implies reducing the period of a sentence without changing its character. For example, a sentence of rigorous imprisonment for two years may be remitted to rigorous imprisonment for one year. 
    • Respite: It denotes awarding a lesser sentence in place of one originally awarded due to some special facts such as the physical disability of a convict or the pregnancy of a woman offender. 
    • Reprieve: It implies a stay of the execution of a sentence (especially that of death) for a temporary period. Its purpose is to enable the convict to have time to seek pardon or commutation from the President. 

 Difference Between Pardoning Powers of President and Governor  

Pardoning Powers of President and Governor Source: LAXMIKANTH

Article Source

Posted in Daily Factly articles, Factly: Polity and NationTagged

Aspect of Mercy petition in India and Judicial intervention

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Former Punjab CM Beant Singh’s assassin Balwant Singh Rajoana’s mercy petition was accepted by the Home ministry in 2019. But the decision could not be implemented as the Council of Ministers didn’t send the file to the President. Recently the Supreme Court criticised the government for their delay and scheduled a hearing for that.

This created a larger debate on the relevance of mercy petition itself and the pardoning power of Executive in India.

What is a mercy petition?

A mercy petition is filed by a convict to change his/her punishment (especially capital) into a lesser form of punishment. It is also called clemency petition/plea or executive clemency.

Mercy Petition can be exercised after all the legal remedies were exhausted. (Legal remedies include all the remedies available under prevailing law and Constitution).

A petition can be filed with the President (under Article 72 of the Indian Constitution) or the governor (under Article 161 of the Constitution).

This provision of pardoning power or mercy towards convicts was first originated in the United Kingdom. Later the concept made its presence in the United States of America, India, Canada, etc.

What is the procedure to file a mercy petition?

A convict under a death sentence is eligible to make the mercy petition. But it should be filed within seven days, after the dismissal of her/his appeal by the Supreme Court and intimation of the same to the convict by the Superintendent of the Police (SP).

First, A written petition is filed before the President/Governor either by the convict or his/her relative on his/her behalf. The petition can be filed on the following grounds:

    • The convicted person is the sole bread earner of their family.
    • The physical/mental fitness of the convict or his/her age.
    • Law for the crime committed was quite harsh.
    • The court committed an error or mistake unknowingly.

The grounds might play an important role in the decision-making process.

Second, the Petition will be forwarded to the Ministry of Home Affairs for comments and recommendations.

Third, the Home Ministry analyses the merits of the Mercy petition. During this phase, the Ministry also discusses the matter with the concerned State government.

    • After this, the Home Minister makes the recommendation on Mercy petition to the President.

Fourth, As per the advice of the Council of Ministers (CoM), the President can either accept or reject the mercy plea. There is no time limit prescribed for the President to exercise this power.

The Governor is also empowered with pardoning powers, but the Governor cannot pardon the Death sentence. However, he can commute, remit, reprieve the death sentence for the offences against the law, which is under executive power of the State.

What is the reason to have mercy petition?

First, The option for mercy can result in good conduct by the Convict in the prison. This helps in solving the issue of prison discipline.

Second, Mercy petition adds a human touch to the country’s judicial process. The mercy petition process judges the convict based on humanity and not on legality (concluding judgement based on evidence and witnesses).

Third, Mercy Petition can save an innocent person from being punished due to doubtful conviction or miscarriage of justice. Thus, this process is very significant as it provides an opportunity to correct the errors made during the judicial process.

Fourth, pardoning is provided with the belief that it will serve for better public welfare and for the greater public good.

Challenges with the mercy petitions in India:

First, there is no time limit given in the Constitution for a decision on Mercy Plea. There are many instances when the mercy petitions are kept pending for a long period. This is seen as a violation of Human Rights by legal experts. The convicts face mental, emotional and physiological trauma during the delayed period.

Second, the experts also say, “Mercy petition is dealt largely without mercy by the successive governments”. They point out reasons such as

    • President not bound to accept the Mercy Petitions. It is the discretion of President
    • The critics also point out the information released by the RTI Act, “There are 77 mercy pleas decided by successive Presidents between 1991 and 2010. Of these 69 were rejected and only 8 were accepted”.

Third, the President is not bound to state the reasons for the rejection of Mercy Petition. It results in a lack of transparency in the process.

Judicial interventions on Mercy petition:

First, In Ranga Billa Case: the court mentions that “nature and ambit of the pardoning power is entirely a discretionary remedy. Providing grant or rejection of petition need not state the reason for the actions.

Second, In the Kehar Singh vs Union of India (1989) case: The court mentions “pardon by the President is an act of grace. Therefore, pardoning cannot be claimed as a matter of right. The power exercisable by the President is exclusively administrative in nature, and it is not justifiable.

Third, In the Dhananjoy Chatterjee (alias Dhana) vs the State of West Bengal (1994) case: The Supreme Court said that “The pardoning power under Articles 72 and 161 can be exercised by the Central and State Governments. The powers shall not be exercised by the President or Governor on their own”.

Fourth, In Mohd. Afzal Guru vs. State of Delhi (2014) case: The court said that “there has to be 14 days gap between the rejection of mercy petition and actual execution of the death penalty”.

Way forward:

Pardoning power of the executive is very significant as it corrects the errors in the judicial process. Timely disposal of mercy petition is a boon. To ensure that the government have to fix the time frame and create certain binding conditions to exercise the Mercy petition. This will facilitate smooth functioning of Indian democracy.

Posted in 7 PM, PUBLICTagged ,


Judgments

The Pros and Cons of e-Courts project

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Synopsis: Pandemic has shown that the e-Courts project has the ability to revolutionize the Indian Judiciary, but its application needs to be in line with the Fundamental Right to Privacy.

Why Indian courts should use digital technologies?
  • Faster justice delivery.
  • Clearing pendency which is around 3.27 crore cases before Indian courts. Of which 85,000 have been pending for over 30 years as of June 2020 as per the e-Committee.
  • Reduce long delays and difficulties for ordinary litigants.
  • Building people’s trust in the judiciary.

To fulfil the above-given objectives, the Indian judiciary has launched project e-courts, which are monitored by the e-Committee.

Salient features of the e-Courts project:
  • Phases I and II had dealt with the digitisation of the judiciary:
    • e-filing, tracking cases online
    • uploading judgments online.
  • Draft vision document for Phase III of the e-Courts project aims for:

Read more: CJI launches SUPACE Portal— AI-driven Research Portal

What are the key benefits of the e-Courts project?
  • Phase II of the project helped in the development of the National Service and Tracking of Electronic Processes which enabled the delivery of e-summons.
  • During the COVID-19 pandemic, the Supreme Court and High Courts have been able to function online.
What are the concerns associated with the e-court project?
  • Firstly, as per Criminal Justice and Police Accountability Project, the ICJS will exacerbate existing class and caste inequalities.
    • For instance, the exercise of data creation at local police stations have historically contributed to the criminalisation of entire communities through colonial-era laws such as the Criminal Tribes Act of 1871.
    • It helped in labelling such communities as “habitual offenders”.
    • ICJIS also has the potential to label citizen with such tags.
  • Secondly, large-scale gathering and sharing of data with no data protection regime present in India may cause data theft, cybersecurity issues and online harassment.
  • Thirdly, Localised data will be centralised by the Ministry of home affairs will lead to :
    • Creation of a 360-degree profile of each person by integrating all of their interactions with government agencies into a unified database.
    • This approach is used by social media platforms and technology companies for targeted advertisement, but data collection by the government may end up as “targeted surveillance”.
  • Fourthly, it is not clear that why Home Ministry needs access to court data which has absolutely no relation to criminal law.
Way forward:
  • Firstly, the e-Courts project must move towards localization of data. Also, e-Committee must prevent the seamless exchange of data between the branches of the state that should remain separate.
  • Secondly, collected data need to be stored in an anonymous and aggregated manner.
  • Thirdly, the Supreme Court need to ensure that the e-courts project does not violate the privacy standards that it set in Puttaswamy v. Union of India (2017).
  • Fourthly, active participation of citizen should be there as when data of the courts and police stations are integrated, the link is individual citizen.

Digital Technology can play a huge role in the faster delivery of justice. However, the privacy and fundamental rights of citizens need to be protected as the technology is only a means, not an end in itself.

Source: The Hindu

Posted in 9 PM Daily Articles, daily news, Daily News Updates, PUBLICTagged

SC releases draft model rules for live-streaming and Recording of court proceedings

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What is the news?

The Supreme Court e-Committee headed by Justice D.Y. Chandrachud has released the “Draft Model Rules for Live-Streaming and Recording of Court Proceedings”.

Note: Right to access live court proceedings is a part of the right of access to justice guaranteed under Article 21 of the Constitution.

Read Also :-What is Monetary Policy Committee

Draft Rules for Live-Streaming and Recording of Court Proceedings:
  • Prepared by: The Model Rules were framed by a sub-committee consisting of judges of the Bombay, Delhi, Madras and Karnataka High Courts.
  • Part of: The rules are part of the National Policy and Action Plan for implementation of Information and Communication Technology (ICT) in the judiciary.
  • Coverage: The rules would cover live-streaming and recording of proceedings in High Courts, lower courts and tribunals.
  • Significance: The draft rules are a step towards implementing Swapnil Tripathi and Indira Jaising 2018 judgement of the Supreme Court.
    • In this judgement, SC held that telecast of important cases to an audience outside the courtroom would usher in greater transparency and aid accountability.
Key Features of the Draft Rules:
  • Prior information of live-stream: The Court has to duly inform the parties before the commencement of proceedings that the proceedings are being live-streamed. If any objections are there, they should be mentioned before the concerned bench. However, the final decision lies with the bench.
  • Delay of 10 minutes: There shall be a delay of 10 minutes in live-streaming, which may be changed as per directions of the Court.
  • No reveal of personal information: Personal information such as date of birth, home address, identity card number, bank account information and the personal information of related parties will be deleted or muted.
  • The judge can pause or stop the live stream: A remote-control device shall be provided to the presiding judge on the bench to pause or stop the live streaming at any time.
  • Unauthorized usage of Livestream will be punishable: The unauthorized usage of the live stream will be punishable as an offence under the Indian Copyright Act, Information Technology Act and other provisions of law, including the law of contempt.

Exemption of Cases: The following cases will be excluded from live-streaming:

  • Matrimonial matters and cases concerning sexual offences and gender-based violence against women.
  • Matters registered under the Protection of Children from Sexual Offences Act, 2012 (POCSO) and Juvenile Justice Act,2015.
  • Cases that may provoke enmity amongst communities, likely to result in a breach of law and order.
  • Recording of evidence, including cross-examination.
  • Any other matter in which a specific direction is issued by the Bench or the Chief Justice.

Source: The Hindu

Posted in Daily Factly articles, Factly: Polity and Nation, PUBLICTagged

Judicial Governance during Pandemic – Explained, Pointwise

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Introduction

The judiciary is referred to as the custodian of the constitution and protector of fundamental rights. It is the supreme authority responsible to punish the violators of fundamental rights and civil liberties. In this regard, it also has the power to review the decisions of the executive as mandated by Article 13. Further, under Article 142, it can pass any order for doing complete justice.

Both of these have been the source of power for Judicial Activism. It is a philosophy that motivates judges to go beyond the traditional precedents in favor of progressive and new social policies.

This activism has been widely used during the 2nd wave of the pandemic. It was mainly to direct the government towards a more citizen-centric path. However, some experts are calling it an act of judicial governance. In this article, we will describe the pros and cons of judicial governance. Further, some suggestions would be provided to direct the future course of action.

Understanding Judicial Activism and Judicial Governance:
  • Judicial Activism is a “judicial philosophy which motivates judges to depart from the traditional precedents in favor of progressive and new social policies”.
  • It empowers judges to use their powers to correct injustices. It happens especially when the other branches of government do not act to do so.
  • Judicial Governance is when the judiciary assumes the role and functions of the executive and manages governance. Unrestrained activism on the part of the judiciary often leads to judicial governance. 
Judicial Conduct during the pandemic times
  • The Supreme Court’s verdict in the Election Commission of India case is an example of judicial statesmanship. The SC  beautifully dissolved the conflict between EC and the HC, avoiding a positive pronouncement either way. 
  • It has recorded an appreciation of the performance of the EC and nullified the effect of oral observations. As per SC, the observations during the course of the hearing do not constitute a judgment or binding decision.
    • The Madras High court had accused EC of spreading the second wave of pandemic. It further opinionated that its officers should be booked for murder charges.
    • The EC then approached the Supreme Court against such allegations claiming it as an act to undermine its credibility.
  • However, as per some experts, many orders have been passed by courts that extend beyond the boundary of activism and can be called Judicial governance.
    • The Allahabad High Court ordered to fix a “minimum” ex gratia of Rs1 crore for every official who succumbed to the pandemic because of panchayat election duty. Although, the state government had fixed an amount of 30 lakhs.
    • The Kerala High Court ordered a ceiling on charges in private hospitals for Covid-19 treatment. 
    • The Delhi High Court has been almost micromanaging pandemic management, fixing oxygen quota and distribution. It even issued a contempt notice to the Centre on the oxygen issue, which the Supreme Court dismissed. 
    • The Uttarakhand High Court pulled up the state government for allowing the Kumbh Mela to go ahead against scientific advice, and then, for not following standard operating procedures.
Provisions/ Tools allowing the judiciary to do Activism
  • Article 13 of the Indian Constitution read with Article 32 and 226 allows the higher judiciary to review and declare void any law which is inconsistent with the fundamental rights.
  • Article 142 provides that the Supreme Court in the exercise of its jurisdiction may pass such a decree or order as is necessary for doing complete justice.
  • The introduction of PIL (Public interest litigation) has broadened the scope of the judiciary for doing activism.
  • Similarly, there are international statutes like the Universal Declaration of Human Rights that are used by courts for doing judicial activism.
Factors demanding judicial governance
  • Using judge’s wisdom when the law fails: Many sensitive issues need a different perspective and care which laws don’t allow. Judicial activism allows a judge to use his personal judgment in situations where the law fails. This was seen in the triple talaq case.
  • Filling the legal vacuum: It gives judges a personal voice to fight unjust issues which though important but evade the eye of the legislature. For example, SC formulated Vishakha Guidelines for countering harassment against women at the workplace.
  • Check on Legislative and executive: It provides a system of checks and balances to the other government branches. For example, SC laid conditions for the imposition of Governor Rule in states in S.R. Bommai Case. This was aimed to bring objectivity in the application of the rule.
  • Social Engineering: Judicial governance allows judges to adjudicate in favor of progressive and new social policies helping in social engineering. 
    • For instance, in Indian Council for Enviro-Legal Action Case 1999, the SC adopted the polluter pays principle for environment conservation. 
    • It meant that financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause the pollution.

However, activism must be done cautiously or else it may get converted into judicial governance.

Why Judicial Governance is not good?
  • Against Separation of Power (SOP): Judicial governance destroys the spirit of ‘separation of powers’ between Legislative, Executive, and Judiciary as enshrined in the constitution.
    • SOP is a model that divides the government into separate branches, each of which has separate and independent powers.
  • Expertise in a particular field: The courts don’t have expertise in the field of administration, unlike the administrative authorities. Hence, unnecessary intervention should be avoided.
    • For instance, in one of the orders, a high court insisted on controlled re-opening of the city. And this was without even telling what constitutes ‘controlled re-opening.
  • Impracticable Solutions: The courts lack the machinery to deal with highly sensitive and technical issues. Due to this, they end up giving impracticable solutions. 
    • For instance, the Allahabad High Court’s order to the UP government to consider a state lockdown was returned with the answer that yes, it was considered, but it was not needed.  
  • Disincentivization: Severely critical observations over administrative actions act as disincentive to honest and dutiful officials. They have been working day and night to fight the unpredictable pandemic whose characteristics are not yet fully known to science.
  • Undemocratic Nature: Judicial governance appears as an act of ‘tyranny of unelected’ in a democracy. The executive remains “accountable” to the people through a 5-year election process, but judges exercise self-regulation and are accountable only to themselves.
  • Wastage of court’s time: It is a wastage of the court’s time, which can otherwise be used for adjudicating other important matters relating to public importance pending before the court.
    • For instance in National Anthem Case 2016, the SC mandated all cinema halls to play the National Anthem before a film starts in movie halls. However, this decision was reversed later on, and it consumed a significant portion of judicial time.  
Suggestions
  • First, the adjudication must be done within the system of historically validated restraints and conscious minimization of the judge’s preferences.
  • Second, the decision of the administrators should not be interfered with unless it is clearly violative of some statute or is shockingly arbitrary. In times of Pandemic, the response and strategy of the nation should be driven by expert medical and scientific opinion; not by judicial interference. 
  • Third, the judiciary must resort to self-imposed discipline and self-restraint in order to prevent judicial governance.
  • Fourth, the courts have to be cautious that they do not knowingly or unknowingly become a source of obstruction in the performance of states’ obligations.  
Conclusion

Judiciary should prevent interference in the domain and work of the executive as mandated by the concept of separation of powers. Judicial activism would be counterproductive and would fail in achieving its laudable purpose if it assumes the role of judicial governance. It is one thing to direct the executive to perform. However, it is another thing to say “if you do not do it, we will do it ourselves”.

Posted in 7 PM, PUBLICTagged ,

A Case of Declining Judicial Federalism in India

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Synopsis: SC transferred all oxygen supply-related cases in various High Courts. It did so, in the name of prioritising uniformity across nations in the distribution of essential services. This step of SC is against Judicial Federalism in India.

Background
  • In Parmanand Katara v. Union of India (1989), the Supreme Court said that ‘the right to emergency medical treatment is part of the citizen’s fundamental rights.
  • The lack of oxygen supply during the Covid-19 crisis prompted many hospitals to file pleas in their respective High court lately. They wanted to defend their right to emergency medical treatment.
  • Accordingly, the High Courts of Delhi, Gujarat, Madras, and Bombay issued a series of directions to the executive. For instance,
      • Bombay High Court, directed immediate restoration of oxygen supply that had been reduced from the Bhilai steel plant in Chhattisgarh.
      • The Delhi High Court directed the Central government to ensure adequate measures for the supply of oxygen.
  • Later, the Supreme court (SC) took suo motu cognisance of the issue and hinted the possibility of shifting the cases related to oxygen supply to supreme court from high courts.
  • The SC said that the distribution of essential services needs uniformity across the nation. Further, it asked the Central government to prepare a national plan for the same.
  • However, several senior lawyers have criticized the intervention by the Supreme Court while High Courts were already hearing the issues.
  • This move by the SC is against judicial federalism in India.
Why the decision of SC is seen as an attack against Judicial federalism in India?
  1. First, Article 139A of the Constitution empowers the SC to transfer cases from the High Courts to itself if cases involve the same questions of law.
    • However, the SC’s contemporary conduct of being indifferent towards executive actions in significant cases has cast doubt over Judiciary. For instance,
    • The SC did not use article 139A to hear cases related to the Internet ban in Kashmir or activists and journalists who were arrested and detained.
  2. Second, many lawyers viewed this as an act of “arrogance of power” and contempt for and disregard of the High Courts in the country.
  3. Third, declining of trust over SC to provide deliberative justice. SC sits in two or more benches to deliberate and dissent upon significant issues. However, In recent years, there is a lack of dissent in issues that have serious political implications.
  4. Fourth, public health and hospitals come under the State List. And the respective High Courts have been dealing with specific challenges at the regional level. It did not warrant any interference from the SC.
  5. Fifth, In L. Chandra Kumar v. Union of India (1997), the SC itself has said that the High Courts have significant advantage in winning the confidence of the people. Further, the power of the High Court under Article 226 to issue writs is wider than the Supreme Court’s under Article 32.
Way forward
  • Need to learn from the good practices of the American Judicial System. The U.S. Supreme Court reviews only a few cases from state courts. It ensures autonomy in the application of federal law for the State courts.
  • Further, the need for a uniform judicial order across India is needed only in cases of conflict of laws or judgments on legal interpretation. Otherwise, autonomy, not uniformity, and decentralisation not centrism should be the rule.

 

Source: The Hindu

 

Posted in 9 PM Daily Articles, daily news, PUBLICTagged ,


Governance

Govt released Cable Television Networks (Amendment) Rules,2021

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What is the News?

The Ministry of Information and Broadcasting(I&B) has issued the Cable Television Networks (Amendment) Rules, 2021.

About Cable Television Networks (Amendment) Rules,2021:
  • The rules amend the Cable Television Network Rules,1994 with the aim to establish a statutory mechanism for citizens to raise grievances with respect to broadcasted content.
Key Features of the Cable Television Networks (Amendment) Rules,2021:

The rules lay down a three-tier grievance redressal mechanism to ensure broadcasters’ adherence to the Programme Code and the Advertising Code: The three-tier mechanism includes:

  1. Self Regulation by Broadcasters:
    • The Rules require broadcasters to establish a complaint redressal mechanism and appoint an officer to deal with complaints.
    • A written complaint can be filed to the officer if a citizen is aggrieved by the content of a programme. The officer is bound to respond within 15 days.
  2. Self-Regulation by the body of broadcasters:
    • The Rules establish independent bodies constituted by at least 40 broadcasters to act as an appellate body. This body will ensure adherence to the Programme and Advertising Code.
    • These independent bodies can be approached if the complainant was not satisfied with the response of the Broadcaster. They should deal with the case in 60 days.
  3. Inter-Departmental Committee:
    • The Rules require the Central government to establish an Inter-Departmental Committee.
    • Headed by: The Committee would be headed by the Additional Secretary in the Ministry of Information and Broadcasting.It will have members from the other ministries.
    • Purpose: The committee has been set up for:
      • Hearing appeals from complainants: If the complainant is not satisfied with the decision of the self-regulating body. S/he can prefer to approach the committee within 15 days of such a decision.
      • Complaint from Central Government: The committee could take up complaints that are referred to it by the Central government.

Source: The Hindu

 Read Also :-Government forms committee to review TRP guidelines 

Posted in Daily Factly articles, Miscellaneous, PUBLICTagged

Declassification of War Histories – Challenges of Credibility

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Synopsis: Challenges of credibility in the declassification of war history should be addressed. So that it can help us to analyse lessons learnt by the history and prevent future mistakes.

Background

  • Recently, Defence Minister Rajnath Singh announced the declassification of India’s war history.
  • It enables the archiving, declassifying, and compiling of India’s war histories, which has been overdue for a long time.
  • The Kargil Review Committee headed by K Subrahmanyam as well as the NN Vohra Committee suggested the requirement of a clear-cut policy on declassification of war records.
  • Further, the responsibility for declassification of records is specified in the Public Record Act 1993 and Public Record Rules 1997. The policy mandates that records should ordinarily be declassified in 25 years
  • Declassification of Military history will help to analyse lessons learnt and prevent future mistakes.

Read Also :-Evaluation of Budget 2021

What needs to be done to produce a credible war history document?

  • One, in the war histories document, the directives given by political heads during war and conflicts should be compiled along with operational accounts of the Indian military.
    • However, political directives are not included. It is the reason for the Indian Army’s reluctance to declassify the Henderson Brooks Report.
    • The report considers only operational failures during the 1962 war with China. Thus, It does not clarify the role of political leaders involved at that time.
    • On the other hand, several histories of the Vietnam War are now considered to be credible. Because researchers have had access not only to operational accounts but also to archived discussions between the political architects of the conflict.
  • Two, compilation and analysis of events at multiple levels i.e., headquarters, commands, and field formations need to be made accessible. Otherwise, it will not be able to provide a clear analysis of the real picture.
    • For instance, the military general and the ambassador involved in Operation Pawan (India’s intervention in Sri Lanka from 1987-1990) were subject to, much criticism by researchers while others are left unaccountable.
    • This is because, researchers don’t get access to records of discussions involving other generals, admirals and air marshals, and even Prime Minister, Defence minister, etc.,
    • In this regard, writing the official history of Exercise Brasstacks must be prioritized .it will highlight the fusion of decisions taken at multiple headquarters right down to the regiment and squadron level.
  • Three, need to assign a team of dedicated researchers and historians with a mix of academics and practitioners with access to records and files.
    • Non-inclusion of dedicated researchers and historians while declassifying files will restrict the in-depth analysis on strategic decision-making, operational analyses, leadership, and lessons for the future.
  • Four, there is a need for Digitisation and the creation of oral histories. Because the absence of digital conversion will make it difficult to trace files and physical storing of files will lead to the destruction of priceless documents.
    • A software company must be administered for digitization of files. Further, outreach must be made to individual historians, think tanks, and global repositories to share their oral history collections on contemporary Indian military history.
  • Lastly, declassification of files should involve the writing of both the successful and failed operations with due sensitivity. In this context, the following war histories should be given priority.
    • The Nathu La skirmish of 1967
    • The Lightning Campaign’ in the Eastern Theatre during the 1971 War
    • Operation Meghdoot (Siachen)
    • Exercise Brasstacks
    • Operation Falcon (Sumdorong Chu).
    • Operation Pawan

Source: The Hindu

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Posted in 9 PM Daily Articles, PUBLICTagged

Defence Minister Approves New Policy for Declassification of War History

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What is the News?

The Defence Minister has approved a policy on archiving, declassification, compilation, and publication of war and operations histories.

Why do war histories matter?
  • War Histories give an accurate account of events, authentic material for academic research, and help counter rumours. Earlier, reports on wars and operations were never made public.

Committees on war history: The Committees that recommended on archiving and declassification of war history includes:

  • Kargil Review Committee: It was headed by K Subrahmanyam. It recommended the requirement of having war histories written with a clear-cut policy on declassification of war records.
  • N N Vohra Committee: It had said war histories should be declassified in order to analyze lessons learned and prevent future mistakes.
Policy on declassification of war histories:

Period of Declassification of War History:

  • According to the policy, records should ordinarily be declassified in 25 years.
  • Records older than 25 years should be transferred to the National Archives of India once the war/operations histories have been compiled. However, first, it should be evaluated by archival experts.
  • However, declassification of older wars like the Henderson Brooks report on the 1962 war with China and the Operation Bluestar of 1984 is not automatic. It is taken up on a case-by-case basis by a committee to be constituted under the policy.

 Nodal Body:

  • The History Division will coordinate with various departments for compiling, seeking approval, and publishing war/operations histories.
  • Each organisation under the MoD will transfer the records including war diaries to the History Division for proper upkeep, archival, and writing the histories.
Committee to be constituted under the Policy
  • The policy mandates the formation of the committee within two years of completion of war/operations.
  • The committee will be headed by the Joint Secretary, Ministry of Defence (MoD). It will also have representatives of the Services, Ministry of External Affairs, Home Ministry along with prominent military historians for the compilation of war/operation histories.
  • Thereafter, the collection of records and compilation will be completed by the committee in three years and disseminated to all concerned.
  • The war histories will be for internal use first. Later the committee may decide to publicly release whole or parts of it, considering the sensitivity of the subject.

Source: The Hindu

 

 

Posted in Daily Factly articles, daily news, Daily News Updates, Factly: Polity and Nation, PUBLICTagged

PRAGATI (Proactive Governance And Timely Implementation) Portal

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What is the News?

The Prime Minister is monitoring several railway projects through the (Proactive Governance And Timely Implementation) PRAGATI portal. He has observed a lack of progress in key railway projects across the country.

About PRAGATI Portal:
  • PRAGATI is a multi-purpose and multi-modal governance platform launched in 2015.
  • Nodal Body: The portal has been designed by the Prime Minister’s Office(PMO) team with the help of the National Informatics Center (NIC).
  • Aim: The portal is aimed at:
    • Addressing the common man’s grievances
    • To simultaneously monitor and review important programmes and projects of the Government of India as well as projects flagged by various State governments.

Read Also :-Right to Life for economic recovery

Key Features of the PRAGATI Portal:
  • Firstly, the platform uniquely bundles the three latest technologies: Digital data management, video-conferencing and geo-spatial technology.
  • Secondly, it is a three-tier system consisting of the PMO, Union Government Secretaries and Chief Secretaries of the States.
  • Thirdly, the platform enables the Prime Minister to hold a monthly programme. In that, he will interact with the Government of India Secretaries and Chief Secretaries through Video-conferencing enabled by data and geo-informatics visuals;
  • Lastly, the issues flagged before the PM are picked up from the available database regarding Public Grievances, ongoing Programmes and pending Projects.
Significance of PRAGATI portal:
  • The platform offers a unique combination in the direction of cooperative federalism. Since it brings on one stage the Secretaries of Government of India and the Chief Secretaries of the States.
  • It is also a robust system for bringing e-transparency and e-accountability with real-time presence and exchange among the key stakeholders.
  • The platform is also an innovative project towards e-governance and good governance.

 Read Also :-India’s new policy of proactive diplomacy

Source: The Hindu

Posted in Daily Factly articles, Factly: Polity and Nation, PUBLICTagged


Voluntary Org.

Significance of Community Efforts in Tackling the Pandemic

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SynopsisThe government should support community efforts in tackling the pandemic. It should recognize the best efforts and help them scale to a bigger level to make a larger impact.

Background:
  • Firstly, Community efforts have been immensely helpful in tackling social problems as the government or market can’t always meet the needs of citizens.
  • Secondly, In the initial years of independence, community groups collected money and supplemented government efforts for development. However, with the passage of time, they took more institutional forms like NGOs who used to directly help the citizens.
  • Thirdly, India’s ethos, value systems, and cultural strengths have automatically generated new community groups. They are playing an active role in tackling the second wave of pandemic.
Positive Role played by Community Efforts:
  • Breathe India and HelpNow apps are facilitating access to oxygen concentrators, hospitals, and ambulances. Both the apps have been developed by IITians.
    • BreatheIndia managed to get nearly 200 concentrators and raise an amount of Rs 2.41 crore. 
    • Similarly, HelpNow has a mission to save lives by providing timely and quality medical help with neat and sanitised ambulances.
Challenges associated with Community Efforts:
  • Firstly, they are facing information asymmetry over various medical equipment and hospital delivery strategies. Which is hampering their efforts. Further, they lack clarity over the ever-changing rules and regulations by governments.
  • Secondly, many NGOs are not able to obtain foreign assistance due to stringent FCRA (Foreign Contribution Regulation Act) restrictions.
  • Thirdly, the dearth of resources and support prevent the scaling up of community initiatives at a macro level.
Way Forward:
  • NITI Aayog should take multiple steps for supporting community efforts.
    • It should engage with government institutions that encourage public participation.
    • It should look into the weaknesses and failures of the existing framework in attracting community participation. 
      • The use of advanced technologies (ABCD — artificial intelligence, blockchain, cloud computing, and data analytics) can bridge demand-supply gaps.
    • It should partner with state governments to explore the launch of platforms that promote cross-learning and experience-sharing. This would help in scaling the community initiatives and prevent the asymmetric flow of information.
      • The Aayog currently has a DARPAN portal that creates and promotes a healthy partnership between VOs/NGOs and the Government of India.
  • The focus should also be placed on good local-level government initiatives. 
    • For instance, the Nandurbar district of Maharashtra robustly tackled the second wave due to the efficient work of their district collector (Rajendra Bharud). The efforts made the region an oxygen and hospital bed surplus district.
  • The newspapers should report community efforts on a larger scale for motivating people in depressing times.
    • Heart-breaking pictures and reports have contributed to Takotsubo cardiomyopathy. A temporary heart condition that is brought on by stress.

Source: Indian Express

Posted in 9 PM Daily Articles, daily news, Daily News Updates, PUBLICTagged

Significance of Citizen-led Fact-Finding Missions

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Synopsis:

Citizen-led fact-finding missions play a significant role in a democracy. They provide an alternative opinion on things, empower citizens on critical issues and enrich the judicial process.

Background:
  • Recently, citizen-led fact-finding missions came in the news in a Delhi High Court case pertaining to the North East Delhi riots of 2020. 
    • The solicitor-general of India challenged five fact-finding reports conducted on the riots. 
    • He called such inquiries as examples of self-constituted parallel judicial systems that have no authority in the court of law.
  • However, these missions have been an integral part of Indian and world polity since colonial times.
Citizen-led fact-finding missions/inquiries in Colonial India:
  • The Champaran Satyagraha of 1917 started as an extensive fact-finding exercise.
    • Gandhi carried out a detailed investigation with a team of volunteers to inquire into the plight of indigo planters. 
    • It was found that they were compelled to grow Indigo and charged with high taxes.
    • This exercise forced the Lieutenant Governor of Bihar to set up a formal inquiry committee with Gandhi as one of its members.
  • The Congress set up a Punjab sub-committee to inquire into the Jallianwala Bagh Massacre of 1919. 
    • The leaders were disappointed with the work and political motivations of the Hunter Commission that was initially set up by the government to investigate the massacre.
  • A fact-finding exercise was undertaken to find out the authenticity of the Kanpur Cotton mills incident of 1924 in which 6 workers were killed and 58 injured. The inquiry exposed the collusion between the mill management and the police.
Significance of Citizen-led Fact-Finding Missions:
  • Rights Advocacy: It is a tool that helps to do rights advocacy. The process highlights the denial of rights to the target group and demands justice for them.  
  • Enrich the Judicial Process: It complements the judicial process by presenting to it an authentic view of facts. It often lays the groundwork for prosecution if a court of law finds their evidence admissible.
    • For instance, a group of lawyers from the Alternative Law Forum undertook a fact finding study on deaths of several workers in manholes in 2008. 
    • The group submitted a PIL and its report in Karnataka High Court. The court later instructed the Bangalore Water Supply and Sewerage Board to procure manhole cleaning machines. It also issued orders for compensation to the victims’ families.
  • Breed Accountability: They help to highlight the lacunas of government institutions and personnel in fulfilling their duty.
    • For instance, the Andhra Pradesh Civil Rights Committee (APCRC) conducted an enquiry of Naxalite encounters in 1977. The report of the committee induced the government to institute a judicial enquiry under Justice Vashist Bhargava. 
  • Alternative Opinion: They provide citizens a medium to state their side of the story. It would be dangerous if official information was the only information available in the public domain.
    • For instance, people’s tribunals were set up in the wake of the 1992-93 Mumbai riots after the Babri Masjid demolition. They revealed shocking ground realities that were not recorded by the official enquiry committee.  

Thus, Citizen led fact-finding missions are cost-effective, rapidly mobilised, and encourage civic participation. Due to this, there has been a surge in their numbers in the last few decades. Fact-finding reports should be verified and criticized rather than dismissing them outrightly because these are self-constituted by the citizens.

Source: indianexpress

Posted in 9 PM Daily Articles, daily news, Daily News Updates, PUBLICTagged

Gauhati High Court Questions FCRA Amendment Act

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Synopsis: The Gauhati High Court questions the new FCRA Amendment Act.

Introduction:

An Assam-based NGO has filed a petition in the Gauhati High Court against an amended provision of the Foreign Contribution (Regulation) Act(FCRA). As the amendment makes Aadhaar mandatory for opening and operating the account in Delhi.

FCRA Amendment Act, 2020:

  • The FCRA amendment has made it compulsory for the NGOs to open an exclusive Bank account with the State Bank of India in New Delhi to receive foreign donations.
  • The amendments also make it mandatory to provide the Aadhaar details of the chief functionaries, trustees and office-bearers. This is for opening and operating a bank account in Delhi.
  • The Ministry of Home Affairs has given the deadline of March 31st, 2021 to open this bank account.
  • However, if the NGOs failed to open the bank account before the deadline. Then they will not be able to receive fresh foreign funds from April 1,2021 in the existing accounts. But they could utilise the money that already exists in the old account.
What are the issues with these FCRA Amendments?
  • Several NGOs have filed a petition in the Gauhati High Court. It is against making Aadhaar mandatory for opening and operating the account in Delhi.
  • They have said that they are not able to open bank accounts as they do not fulfil the eligibility criteria (since they don’t have an Aadhaar card).
  • Further, several NGOs have also asked for an exemption from the Union Home Ministry deadline. It is to open an FCRA account with the SBI branch in New Delhi.
  • It said that only 16% of registered NGOs have active bank accounts with the State Bank of India’s main branch in Delhi.
What has the Gauhati High Court said on FCRA Amendments?
  • The Gauhati High Court has sent a notice to the State Bank of India(SBI) asking it to explain why Aadhaar was necessary to open a bank account.
  • The Court also referred to the 2018 Supreme Court judgement in the K.S. Puttaswamy (Aadhaar) case. During this case, the apex court had ruled that mandatorily linking Aadhaar to a bank account “does not satisfy the Doctrine of proportionality”.

Note: The Doctrine of proportionality: It is a principle where courts would examine priorities and processes of the administration for reaching or recalling a decision. Proportionality means that the administrative action should not be more drastic than it ought to be for obtaining the desired result. This implies that a missile should not be used to shoot a sparrow. Thus, this doctrine tries to balance means with ends.

 Source: The Hindu

Posted in 9 PM Daily Articles, daily news, Daily News Updates, PUBLICTagged

Impact of New FCRA Rules on Relief Work of NGOs – Explained, Pointwise

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Introduction

The second wave of Pandemic has struck the country very hard. There has been an enormous rise in Covid-19 cases reaching around 4 lakh/day. This necessitates active participation from all the stakeholders including NGOs. However, NGOs are not able to contribute much due to the stringent conditions imposed on them by the Foreign Contribution Regulation (Amendment) Act 2020 and Foreign Contribution Regulation (Amendment) Rules 2020.

There are a lot of donors who are willing to send money/Covid-19 related equipment like ventilators, oxygen cylinders, etc. via NGOs and hospitals. However, the new rules are acting as a big hurdle to them. Christian Educational Society (NGO) has even filed a petition in the High court. It has demanded relaxation against the mandatory opening of an FCRA account at SBI, New Delhi branch. In this article, we will focus on the concerning rules and provide some suggestions for improving the present situation.

Foreign Contribution (Regulation) Act:
  • It is an act of Parliament enacted in 1976 and amended in 2010. It was to regulate foreign donations and to ensure that such contributions do not adversely affect internal security.
  • Coverage: It is applicable to all associations, groups, and NGOs which intend to receive foreign donations.
  • Registration: It is mandatory for all such NGOs to register themselves under the FCRA. The registration is initially valid for five years. Further, it can be renewed subsequently if they comply with all norms.
  • Registered NGOs can receive foreign contributions for five purposes — social, educational, religious, economic, and cultural. There are 22,591 FCRA registered NGOs.
Foreign Contribution Regulation (Amendment), Act 2020:
  • Transfer of foreign contribution: Under the Act, foreign contribution cannot be transferred to any other person unless such person is also registered for that purpose.
    • The amendment also forbids sub-granting by NGOs to smaller NGOs who work at the grassroots.
  • FCRA account: The act states that foreign contributions must be received only in an FCRA account opened in the State Bank of India, New Delhi Branch. No funds other than the foreign contribution should be received or deposited in this account.
  • Regulation: The Act states that a person may accept foreign contributions if 
    • They have obtained a certificate of registration from the central government or 
    • They have taken prior permission from the government to accept foreign contributions. 
  • Aadhar usage: The act makes it compulsory for all trustees to register their Aadhaar card with the FCRA account.
    • The Act also makes Aadhaar a mandatory identification document. It is for all the office bearers, directors, and other key functionaries of an NGO.
  • Restriction in utilisation of foreign contribution: The act gives government powers to stop utilization of foreign funds by an organization through a “summary enquiry”.
  • Reduction in use of foreign contribution for administrative purposes: The act decreases administrative expenses through foreign funds by an organization to 20% from 50% earlier.
    • Administrative expenses include salary, office rental, furnishing, stationery, communication, and transport.
  • Surrender of certificate: The act allows the central government to permit a person to surrender their registration certificate.
 Foreign Contribution Regulation (Amendment) Rules 2020:
  • New rules require any organization that wants to register itself under the FCRA to have existed for at least three years. Further, it should have spent a minimum of Rs. 15 lakh on its core activities during the last three financial years for the benefit of society.
  • Office bearers of the NGOs seeking registration under the Foreign Contribution (Regulation) Act must submit a specific commitment letter from the donor. It should indicate the amount of foreign contribution and the purpose for which it is proposed to be given.
  • Any NGO or person making an application for obtaining prior permission to receive foreign funds shall have an FCRA Account.
Current Scenario:
  • Christian Educational Society (NGO) has filed a plea in Delhi High Court. 
  • It demands an extension of 6 months for the opening of an FCRA account with State Bank of India, New Delhi Branch. 
  • Further, it desires to set aside the restriction on receiving foreign contributions in existing FCRA accounts for 6 months from 1 April 2021.
  • Both the requests are made aimed to smoothen its economic, educational, and social activities.
  • Similarly, on May 3, the government permitted imports without GST levies for pandemic relief material donated from abroad for free distribution in the country. However, no FCRA exemption was granted for this purpose. 
Issues in implementing the amended rules during the pandemic:
  1. First, there are considerable administrative delays in the functioning of banks and ministries. 
    • For instance, the Christian Educational Society (NGO) had applied to open the account at the SBI Delhi branch before the March 31 deadline. However, the administrative delays prevented the opening. It, later on, filed a petition for a 6-month relaxation.
    • Similarly, in some cases, the Ministry failed to authorize a form sent by the SBI. It, thereby, prevented the eligible NGOs from receiving foreign funds.
  2. Second, NGOs are also facing severe inconvenience in submitting the necessary papers and personal documents of trustees and other members. This inconvenience is created as members live at different locations and various regions are under a lockdown.
    • Due to this, NGOs are not able to receive foreign contribution in their existing non-SBI FCRA account nor are they able to open a primary FCRA account with SBI to receive foreign contribution.
  3. Third, the government has adopted a suspicious stance towards NGOs. They perceive them to be rule breakers by default and take strict action against them. This has resulted in the cancellation of FCRA registration of around 16500 NGOs since 2014.
  4. Fourth, the new rules pay disregard to the successful NGO partnership model across the world. Under this, the focus is placed on establishing a synergy between urban and hinterland regions. 
    • Urban professionals are better trained to raise funds, lobby with the government for policy changes, grants, etc. On the other hand, field workers are better acquainted with ground conditions, people, and their culture and issues at the local level. 
Impact of stricter rules:
  1. Firstly, the NGOs are spending more time doing paperwork than on the ground. This has reduced the ambit of development works carried on by them.
    • Covid 19 relief work, Community work involving awareness building, legal and constitutional literacy, participatory research, etc. have been hit by the new rules.
  2. Secondly, Indian entities (including hospitals and charitable trusts) can’t receive COVID-19 relief material from foreign donors. Unless they are registered under the Foreign Contribution Regulation Act (FCRA) with a stated objective involving the provision of medical care.
    • This has jeopardized some large donors’ plans to buy equipment like oxygen plants and concentrators for Indian hospitals and smaller charities.
  3. Thirdly, the new rules have enhanced compliance formalities which have made it very difficult to run an NGO. This has resulted in the closure of many NGOs and the livelihood loss of people working in them.
    • For instance, the capping of administrative expenditure at 20% has made them unviable. This is especially true for NGOs hiring professionals like lawyers and doctors who charge hefty fees for their services.
  4. Fourthly, the new rules have made ‘sub granting illegal. Due to this, big NGOs based in Delhi or Mumbai are not able to subgrant their foreign funds to implement programs via partner organizations in districts and villages.
Suggestions:
  • The government should issue a clarification on exempting the receiver/importer of Covid related material from complying with the FCRA provisions.
  • The Delhi high court should give a quick decision over the request for a 6-month extension on the 31st March 2021 deadline for opening an FCRA account at SBI, New Delhi.
  • The government should adopt a liberal stance towards the NGOs. They must be allowed grace periods to file papers or other documents rather than outrightly canceling their registration for non-compliance.
  • Further, the state governments should set up an NGO coordination center at the local level as recommended by National Disaster Management Authority (NDMA).
Conclusion

Civil society supplements government works and works at the grass-roots level. They should be given due freedom and autonomy to support the needs of communities and provide relief during the COVID-19 pandemic.

Posted in 7 PM, acts, bills and regulations, PUBLICTagged


Civil Service reforms

Bihar Assembly Passed the “Bihar Special Armed Police Bill 2021”

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What is the News?

Bihar State Assembly has passed the Bihar Special Armed Police Bill, 2021.

About Bihar Special Armed Police Bill, 2021
  • The mandate of the bill is to maintain public order, combat extremism. Further, the bill ensures better protection and security of specific establishments.
  • For this, the Bill proposes setting up a Special Armed Police force. The Special Armed Police will have one or more battalions depending on the requirement for any specified period.
  • Nodal Authority: The command, supervision, and administration of the Special Armed Police shall vest in the Director-General of Police, Bihar.
  • However, the general superintendence of the Special Police shall be exercised by the Government.
Powers of the Special Armed Police force:
  • Firstly, Power to arrest without a warrant: They will have the power to arrest people even without a warrant. This power will be available to any of the Special Armed Police’s officers.
  • Secondly, Arrests on suspicion: They have the power to arrest people on the basis of mere suspicion. This includes suspicion like disrupting state government functions or attempting to conceal their presence with the aim to commit a crime or cognizable offence.
  • Thirdly, Search without Warrant: They have the power to conduct a search of a suspect’s premises without obtaining a warrant from a magistrate. The only safeguard is that the search can be conducted by an officer of a notified rank or above.
  • And Lastly, Immunity from Courts: The bill also grants immunity to the officers of the Special Armed Police. It bars courts from taking cognizance of any complaint against the Special Armed Police. The court can take action only when the state government has sanctioned action against the concerned officers.

Source: Indian Express

Posted in acts, bills and regulations, Daily Factly articles, Factly: Bills and Acts, Factly: Polity and Nation, PUBLICTagged ,

“3 Language Policy” is not applicable to the Central govt. offices

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What is the News?
The Union Ministry of Home Affairs has said that the 3 language policy is not applicable to offices of the Union government.

About the News

  • What was the issue? A question was filed under the Right to Information (RTI) Act. The questions were raised on the CRPF event in Karnataka for the foundation stone-laying ceremony. The plaques in this ceremony were only in English and Hindi. The questionnaire asked whether the Ministry had noticed that the three language policy was not followed at the programme.
  • What did the Ministry reply? The Home Ministry has said that the provision of the bilingual policy is applicable in the offices of the Central government. It is as per the provision of the Official Language Act,1963 and Official Language Rules,1976.

What is the three language formula?

  • The three-language formula first formulated by the Ministry of Education in National Policy on Education, 1968. This formula was implemented in the country except for Tamil Nadu.
  • It is commonly understood that the three languages referred to are Hindi, English, and the regional language of the respective States.
  • NEP 2020 continued with this policy, but it provided flexibility to the states in its implementation. It means it is not mandatory to adopt Hindi as one of the languages under the formula.

Source: The Hindu

Posted in Daily Factly articles, PUBLICTagged

Why central deputation to 3 Bengal police officers not right?

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Synopsis- Central orders, three IPS officer from Bengal to serve central deputation to as part of an exercise to fix responsibility for the alleged lapses.

Central Deputation  

Officers on deputation serve as substitute for regular duty posts in the event of service officers holding duty posts being temporarily away from their cadreOfficers perform regular functions of the posts against which they are posted as substitutes. 

Background-

  • The Centre has asked for the three IPS officers to be sent on deputation with the Government of India following an attack on BJP president J P Nadda’s motorcade outside Kolkata, these officers were in charge of security. 
  • But Bengal government refused to send three IPS officers on central deputationThe state government in its refusal has cited a shortage of IPS officers.  

Why Centre’s decision is not legitimate? 

The Centre’s decision not only reeks of vengeance but goes against the norms governing deputation of officers to the Centre. 

  • First, putting blame on the three IPS officers for the attack without even a perfunctory inquiry goes against the norms of justice.
    • A formal enquiry should have taken place, then the penal actions.
  • Second, forcibly deputed to central organization- The concerned IPS officers have been assigned new responsibilities at Centre: Bholanath Pandey has been deputed as SP, Bureau of Police Research and Development (BPRD), Praveen Tripathi as DIG, Sashastra Seema Bal (SSB) and Rajeev Mishra as IG, Indo-Tibetan Border Police (ITBP).
    • The forceful deputation can demoralize the serving office which eventually affects their service performance as they go with the perception that they have been deputed on grounds of inefficiency or as a punishment.

What is the process of deputation in India? 

The movement of officers from the state to the Centre and back is of mutual benefit to the states and the government of India on the one hand and to the officers concerned, on the other. 

    • First, in normal case, officers willing to be deputed to the Centre are asked to apply through the States.  
    • A panel of selected officers is prepared after which they are deputed to various Central Armed Police Forces [CRPF, ITBP, SSB etc.]  and Centre police organization on the basis of merit.
  • Second, in case of disagreement between Centre and StateRule 6(1) of the Indian Police Service (Cadre) Rules, 1954 says about deputationIn case of disagreement between Centre and state over deputation of an IPS officer, the Centre’s will shall prevail.

Why government reducing the CDR of IPS officers? 

Central government proposes 50 percent cut in the IPS central deputation quota because 

  • First, the state governments do not spare their IPS officers for central deputation and more than 60 per cent posts remain vacant. 
    • It is observed that at present only 428 IPS officers are working on Central Deputation against the authorized strength of 1075 officers.
  • Second, most officers avoid Central deputation as they enjoy better perks and powers in the States. 
  • Third, Central deputation could mean a posting in the Northeast or in a Left-Wing Extremism-affected State. 

Thus, Centre decision to call West Bengal IPS officer to serve in central deputation seems absurd and such arbitrary decision must be avoided.

Posted in 9 PM Daily Articles, daily news, Daily News Updates, PUBLICTagged

Union Cabinet approves Mission Karmayogi

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News: The Union Cabinet approved the Mission Karmayogi – National Programme for Civil Services Capacity Building (NPCSCB).

Facts:

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

Read Also :-Daily Current Affairs news for upsc

Posted in SCHEMESTagged


How to Read Indian Polity for UPSC IAS?

Indian Polity is one of the most important subjects in the UPSC IAS Exam. It is part of both UPSC Prelims Syllabus and UPSC Mains Syllabus (General Studies -Paper-II). Hence, it becomes very important for all the students to clear their fundamentals and have the core idea of this subject. From the experience of the UPSC Past Year question Papers, it has been analyzed that Indian Polity is one of the easiest and scoring subject as questions are directly being asked.

The number of questions asked: Every year on average 15-20 % of questions have been asked in the UPSC Prelims exam. In the following table we will see the total number of questions asked in last 5 years in the UPSC Prelims exam.

YearNumber of questions asked from Indian Polity
202016
201915
201813
201722
20167

Types of question asked: Most of the times, question asked from Indian Polity are straight forward. Students can answer them if their basic understanding about the subject is clear. UPSC keeps changing its pattern of questions. It is evident from the facts that in last few years some conceptual based questions have also being asked. The range of questions vary from easy, moderate to difficult level. Students can score well in this subject with right approach and clear understanding. Due to its high weightage, it plays very important role in clearing the UPSC IAS Prelims exam.

In this article, we will discuss about How to study Indian Polity. We will also discuss about basic books which we should refer for our understanding and to score well in exam.

Basic books to start with Indian Polity: 
  • Class IX NCERT textbook – Democratic Politics-I
  • Class X NCERT textbook – Democratic Politics-II
  • Class XI NCERT textbook – Indian Constitution at work
  • Indian Polity – M. Laxmikanth
  • For Indian Parliament- Subhash Kashyap
  • Introduction to the Constitution of India – D.D. Basu
  • India Year Book
Strategy to study Indian Polity: 
  • Start with NCERT textbooks: Students should start the Indian Polity subject with NCERT textbooks of Class IX, X and XI. Among these books, Class XI NCERT textbook is very important. These books will build their base and understanding about basic Polity and Indian Constitution. As there are only 3 NCERT books, it is advisable to the students that they highlight the important points and revise it again and again.
  • Move towards advance book: To score high marks in Indian Polity, one solo book of Indian Polity by M. Laxmikant is more than sufficient. This book is very comprehensive and helpful for both UPSC Prelims and Mains Exam. The language of the book is very simple and easy to understand. But for reading this book, one should have following strategy:
  • First reading should be basic reading. In this reading, one should focus on simply reading and getting the things. This time, one should highlight anything in the book.
  • After first reading, one should see the UPSC Prelims Previous Year Papers. Here, one should go very slowly in analyzing and getting what type of questions are being asked and from which topics.
  • In the second year, students should take the help of their analysis of past year papers. Now when they reading second time, they should start highlighting the sentences which are important from exam perspective. For example, in the Chapter of Attorney General of India, students must highlight that “He can take part in both the proceedings of the House even without being a member of the House”.
  • In the third reading, they should co-relate the chapters. For example, reading Parliament and State Legislature back-to-back. It will boost their command in the chapters.
  • Students should sort the important chapters as per past year papers.
  • They should make short notes (mostly of facts), maps, flow charts and revise them again and again.
  • They should also co-relate the chapters with other relevant subjects and current affairs.
  • Book for Mains:After completing M. Laxmikant, students can start with Introduction to the Constitution of India by D.D. Basu. This book is very helpful UPSC Mains. This book will provide the students in-depth knowledge of the subject. Though the language of the book is somewhat difficult, but with multiple reading, students will find it very useful.
  • Command over Articles of Indian Constitution:In UPSC Prelims, no question is directly being asked from Articles. But in Mains, it becomes very important to quote Articles to fetch good marks. Here also, not all the Articles are important. The important ones like President, Governor, Fundamental Rights etc. will automatically fit into your mind with multiple reading of this subject. You do not need to mug up that.
  • Linking the subject with current affairs:While reading newspaper, it is important to pay attention on the important articles which is part of our syllabus of Indian Polity and Indian Constitution. News related to national and international political system, new bills, acts, policies, government schemes and any related provisions should be noted down in your Polity notes.
  • Solving MCQs and multiple revision: Indian Polity questions are not difficult. They require logic and clear concepts. It is only possible when one will revise the subject again and again. Students also need to solve many MCQs for Prelims exam to score well in final exam. Solving Previous year UPSC Prelims Paper is of utmost important. For Mains, one need to practice answer writing a lot. It will enhance their skill and also the ability to corelate the subject with current affairs and other subjects too.